44:0921(75)AR - - Air Force, HQ, OK City Air Logistics Center, Tinker AFB and AFGE Local 916 - - 1992 FLRAdec AR - - v44 p921
[ v44 p921 ]
The decision of the Authority follows:
44 FLRA No. 75
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
HEADQUARTERS, OKLAHOMA CITY AIR LOGISTICS CENTER
TINKER AIR FORCE BASE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
April 23, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Russell C. Neas filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency did not file an opposition to the Union's exceptions.
The Arbitrator denied a grievance contesting an employee's 5-day suspension. For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
The grievant received a 5-day suspension for failing to carry out a work assignment and for acting defiantly towards his supervisor. A grievance was filed over the suspension, and when it was not resolved, it was submitted to arbitration.
In the absence of a stipulation by the parties, the Arbitrator framed the issues, as relevant here, as follows:
Was the Agency's 'Notice of Decision to Suspend for Five Days' timely? If not, what shall be the remedy?
Did the Agency have just cause for [the grievant's] suspension? If not, what shall be the remedy?
Award at 10.
First, the Arbitrator determined that the notice of decision to suspend was timely under Article 5, Section 5.07(e) of the parties agreement.(1) In this connection, the Arbitrator found that the notice of decision to suspend was delivered to the grievant on August 3, 1990, 41 calendar days after June 22, 1990, the date on which the grievant orally responded to a notice of proposed suspension. In addition, the Arbitrator found that, contrary to the Union's claim that the notice of decision to suspend was undated, the notice of decision to suspend "contain[ed] a handwritten date" of August 3, 1990. Award at 12.
On the merits, the Arbitrator concluded that the Agency had "sustained its burden of proof by a preponderance of the evidence that [the grievant] was guilty as charged." Id. at 19. According to the Arbitrator, as it was "undisputed" that the grievant had two previous disciplinary suspensions and as each of the two offenses involved in this case had "a range of penalties from Reprimand to Removal[,]" the 5-day suspension was appropriate. Id. at 22. Accordingly, he denied the grievance.
III. Union's First Exception
A. The Union's Position
The Union claims that the award fails to draw its essence from the parties' collective bargaining agreement for two reasons. First, the Union notes that the Arbitrator incorrectly stated that the notice of proposed suspension was issued to the grievant on March 5, 1990. Although the Union acknowledges that the notice of proposed suspension actually was issued on May 16, 1990, the Union asserts that, when measured from the incorrect date stated by the Arbitrator, the time period in which the Agency was required to issue a notice of the decision to suspend expired on May 10, 1990. Therefore, the Union claims that, as the notice of decision to suspend was issued on August 3, 1990, the Arbitrator's determination that such notice of decision to suspend was timely violates "the meaning and intent of the parties['] collective bargaining agreement." Exceptions at 5. The Union claims, in this regard, that the Agency failed to have the grievant date his acknowledgement of receipt of either the notice of proposed suspension or the notice of decision to suspend. According to the Union, this failure violated Air Force Regulation 40-750.
B. Analysis and Conclusions
To demonstrate that an award is deficient because it fails to draw its essence from the parties' collective bargaining agreement, a party must show that the award: (1) cannot in any rational way be derived from the agreement; or (2) is so unfounded in reason and fact, and so unconnected with the wording and purpose of the agreement, as to manifest an infidelity to the obligation of the arbitrator; or (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. For example, U.S. Department of the Air Force, Headquarters Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 40 FLRA 214, 218 (1991) (Tinker Air Force Base).
The Union has not shown that the award is deficient under any of these tests. The Arbitrator determined that, as the notice of decision to suspend was delivered to the grievant on August 3, 1990, 41 calendar days after June 22, 1990, the date the grievant orally responded to a notice of proposed suspension, the Agency did not violate Article 5, Section 5.07(e) of the parties' agreement by failing to issue the notice of decision to suspend within 45 days of the employee's response. In addition, the Arbitrator found that the notice of decision to suspend was dated August 3, 1990. Nothing in the Arbitrator's interpretation of the agreement is irrational, implausible, or in manifest disregard of the agreement. Moreover, nothing in the record demonstrates that the Union's argument regarding the grievant's acknowledgement of the notice of proposed suspension was presented to the Arbitrator or is relevant to resolving this exception. In our view, this exception constitutes mere disagreement with the Arbitrator's findings of fact and conclusion based thereon and does not provide a basis for finding the award deficient. For example, U.S. Department of Commerce, National Technical Information Service and National Federation of Federal Employees, Local 1627, 43 FLRA 1067 (1992) (National