46:1191(110)AR - - AFGE Local 1840 and Air Force, Randolph AFB, San Antonio, TX - - 1993 FLRAdec AR - - v46 p1191
[ v46 p1191 ]
The decision of the Authority follows:
46 FLRA No. 110
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE AIR FORCE
RANDOLPH AIR FORCE BASE
SAN ANTONIO, TEXAS
January 15, 1993
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 J.D. Dunn 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.(1) The Agency filed an opposition to the Union's exceptions.
The Arbitrator denied a grievance alleging that a supervisor used abusive and profane language to a Union official and, thereby, violated law and the parties' collective bargaining agreement. For the following reasons, we conclude that the Union's exceptions fail to establish that the award is deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
The grievant, a Union official, filed a grievance claiming that an Agency supervisor used abusive and profane language when he refused to accept certain documents from the grievant. When the grievance was not resolved, it was submitted to Arbitration. As the parties were unable to agree on a joint statement of issues, the Arbitrator determined that the issue before him was the "disposition of the grievance." Award at 3.
The Arbitrator rejected the Union's claims that the supervisor's conduct violated law, including section 7116 of the Statute, Articles 1, 2, 3, 5, 12, 25 and 33 of the parties' agreement, and constituted a prohibited personnel practice.
The Arbitrator stated that "by no stretch of the imagination could one say the Union's evidence was sufficient to show that the Agency violated" Articles 1, 2, 5, 12, or 25 of the parties' agreement.(2) Award at 6. The Arbitrator also concluded that the incident which "gave rise to the grievance could be considered, if proven," to be a violation of Article 3 of the agreement.(3) The Arbitrator found, in this connection, that of the three persons who were "direct witnesses" to the alleged abusive language, two disputed the grievant's testimony. Id. at 9. The Arbitrator also found that, even if the supervisor made the alleged abusive and profane statement, the Union "did not present evidence sufficient to establish" that such statement was uttered to discourage membership in the Union, within the meaning of Article 3 of the parties' agreement. Id. at 10. Thus, the Arbitrator concluded that the Union failed to demonstrate that the Agency violated the agreement.
The Arbitrator also concluded that the Union failed to establish that the Agency violated the Statute or committed a prohibited personnel practice.(4) According to the Arbitrator, the Union did "not [meet] its burden of proof." Id. The Arbitrator concluded as follows:
The Union did not present evidence to show by a preponderance of the evidence that [the Agency] violated either the Negotiated Agreement or statutory law. For this reason, the grievance is denied.
III. Positions of the Parties
The Union argues that the award conflicts with law and Agency regulations and does not draw its essence from the parties' agreement. In support of these contentions, the Union claims that the supervisor used profane and abusive language to the grievant. According to the Union, as such conduct violates Articles 3 and 33,(5) among others, of the parties' agreement and section 7116 of the Statute, the Arbitrator failed to apply these provisions of the agreement and the law correctly.
The Union asserts that, despite the Arbitrator's findings to the contrary, the Union established the alleged violations. The Union argues, in this regard, that one of the agency witnesses was discredited by the Union during the arbitration hearing and, as such, the testimony of that witness should have had no bearing on the outcome of the grievance. According to the Union, the grievant had no reason to fabricate the incident which gave rise to the grievance and the Arbitrator failed to "understand . . . [the] charge against [the Agency supervisor]." Exceptions at 2.
The Agency disputes the Union's claims that the award is contrary to the parties' agreement, law, rule, and regulation. The Agency asserts that the Union is simply arguing that the Arbitrator did not properly evaluate the evidence presented at the hearing.
IV. Analysis and Conclusions
A. The Award Does Not Fail to Draw Its Essence From the Parties' Agreement
To demonstrate that an award 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; (2) is so unfounded in reason and fact, and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, Randolph AFB, 45 FLRA at 499.
The Union has not demonstrated that the award fails to draw its essence from the parties' agreement under any of these tests.(6) The Arbitrator determined that, even if the alleged abusive and profane language was used, the Union failed to demonstrate that such use violated the parties' agreement. We have no basis on which to conclude, in this connection, that the Arbitrator's interpretation of Articles 3 and 33 of the agreement is irration