The Union filed a grievance on behalf of the grievant, contesting the suspension. The grievance was unresolved, and the parties submitted the matter to arbitration. The Arbitrator framed the issue as:  “Was the ten[-]day suspension of the [g]rievant for just cause as required [by] the collective[-]bargaining agreement?  [A]nd if not, what shall be the remedy?”^[1] After a hearing, and the submission of post-hearing briefs, the Arbitrator found that the Agency had not violated the parties’ agreement.

                Under §§ 2425.4(c) and 2429.5 of the Authority’s Regulations, the Authority will not consider any evidence or arguments that could have been, but were not, presented to the arbitrator.^[3] 

The Union contends that the award is contrary to law because it “does not follow [the Authority’s] ‘past practice’ precedent.”^[4] The Union argues that the Arbitrator erroneously found that the grievant’s failure to comply with the training requirement “result[ed] in ‘a [safety] risk to [Agency] personnel and to the public.’”^[5] Specifically, the Union argues that the Arbitrator did not consider the long-standing past practice “that the Agency communicate its policies regarding firearms training and qualification.”^[6] 

 

In resolving a contrary-to-law exception, the Authority reviews any question of law raised by the exception and the award de novo.^[7] In applying a de novo standard of review, the Authority assesses whether the arbitrator’s legal conclusions are consistent with the applicable standard of law.^[8] In making that assessment, the Authority defers to the arbitrator’s underlying factual findings.^[9] In reviewing an arbitrator’s award concerning whether a past practice has altered a contract term negotiated by the parties, the Authority considers the issue as a challenge to an arbitrator’s interpretation and application of the parties’ agreement.^[10] An allegation that an arbitrator erred in this regard does not provide a basis for finding the award contrary to law.^[11] Instead, the Authority applies the deferential essence standard in reviewing the arbitrator’s findings.^[12]

 

                Here, although the Union challenges the Arbitrator’s finding that a past practice did not exist, it does not argue that the finding fails to draw its essence from the parties’ agreement.^[13]   Insofar as the Union’s arguments challenge the Arbitrator’s factual findings, the Union does not argue that the award is based on nonfacts.^[14] As stated previously, in applying de novo review, the Authority defers to an arbitrator’s factual findings, absent a demonstration that those findings are nonfacts.^[15]

 

 

 

 

 

 

The Union contends that the award fails to draw its essence from the parties’ agreement because “[t]he Arbitrator improperly found that the Union’s arguments fail to satisfy the ‘just[-]cause’ standard.”^[16] Specifically, the Union claims that the Arbitrator fails to recognize or give proper weight to facts as they occurred in the case, such as the manner in which firearms trainings were previously conducted by the Agency.^[17] The Union also argues that “[t]he award dismisses the Union’s arguments that the Agency failed to take this disciplinary action for just and sufficient cause and did not apply progressive discipline.”^[18] 

 

In reviewing an arbitrator’s interpretation of a collective-bargaining agreement, the Authority applies the deferential standard of review that federal courts use in reviewing arbitration awards in the private sector.^[19] Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective‑bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement.^[20]  The Authority and the courts defer to arbitrators in this context “because it is the arbitrator’s construction of the agreement for which the parties have bargained.”^[21] Applying these standards to the instant case, the Union does not establish that the award fails to draw its essence from the parties’ agreement.

 

 

To the extent that the Union disagrees with the Arbitrator’s factual findings, that disagreement does not demonstrate that the award fails to draw its essence from the parties’ agreement.^[23] Accordingly, because the Union fails to establish that the Arbitrator’s award is irrational, unfounded, implausible, or in manifest disregard of the parties’ agreement, we deny the Union’s essence exception.

 

 

                To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result.^[25] However, the Authority will not find an award deficient on the basis of an arbitrator’s determination of any factual matter that the parties disputed at arbitration.^[26] In addition, the Authority has long held that disagreement with an arbitrator’s evaluation of evidence and testimony, including the determination of the weight to be accorded such evidence, provides no basis for finding the award deficient.^[27]

 

                The issue of whether the failure to use barricades and timers results in officers being adequately trained was disputed before the Arbitrator. Consequently, the Union’s contention does not provide a basis for establishing that the award is based on a nonfact.^[28] 

 

 

 

---