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50:0191(36)AR - - AFGE, Local 1760 and HHS, SSA, Northeastern Processing Center, Jamaica, NY - - 1995 FLRAdec AR - - v50 p191

[ v50 p191 ]
The decision of the Authority follows:

50 FLRA No. 36





LOCAL 1760











February 28, 1995


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Ruth Russell Gray 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 filed an opposition to the Union's exception.(1)

The Arbitrator denied a grievance challenging the Agency's 3-day suspension of the grievant.

For the reasons that follow, we conclude that the Union's exception fails to establish that the Arbitrator's award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exception.

II. Background and Arbitrator's Award

The Agency suspended the grievant for 3 days based on his behavior during an altercation with his supervisor. The Union grieved the suspension and the grievance was submitted to arbitration.

The Arbitrator found that the issue presented by the grievance was whether the grievant was suspended for just cause and, if not, what was the appropriate remedy. Based on her credibility determinations, the Arbitrator found that the grievant had been suspended for just cause.

III. Exception

A. Union's Contentions

The Union contends that the award is deficient because it does not draw its essence from Article 1, section 1 and Article 23, section 1 of the parties' agreement.(2) The Union claims that the Arbitrator erred by failing to apply the standard of progressive discipline and the tests of "efficiency of the service" and "just cause" set forth in those provisions. Moreover, citing Douglas v. Veterans Administration, 5 MSPR 280 (1981) (Douglas), the Union claims that the Agency provided no evidence that would justify the penalty imposed and the Arbitrator erred by not considering the appropriateness of the 3-day suspension.

B. Agency's Opposition

The Agency contends that the Union's exception constitutes mere disagreement with the Arbitrator's interpretation of the parties' agreement and with her determination that the grievant's suspension was for just cause.

IV. 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 an 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 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 United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-77 (1990). The Union has not established that the award is deficient under any of these tests. Consequently, we deny the exception. See id.

The Union's contention that the award is deficient because, under Douglas, the Arbitrator erred in finding that the grievant was disciplined for just cause, does not provide a basis for finding the award deficient. The Union has not demonstrated that the Arbitrator was required to apply the Douglas factors in the circumstances of this case. See American Federation of Government Employees, Council of Prison Locals, Local 1612 and U.S. Department of Justice, Federal Bureau of Prisons, Medical Center for Federal Prisoners, Springfield, Missouri, 40 FLRA 498, 503 (1991). Consequently, we reject the Union's contention. Id.

V. Decision

The Union's exception is denied.

(If blank, the decision does not have footnotes.)

1. The Agency contends that the Union's exception should be dismissed because it does not comply with certain of the Authority's procedural requirements. Although the exception, as originally filed, did not so comply, the Authority ordered the Union to correct its deficiencies and the Union complied with the Authority's order. Accordingly, the Union's exception is properly before the Authority.

2. Article 1, section 1 of the parties' collective bargaining agreement provides, in pertinent part:

In the administration of all matters covered by this agreement, officials and employees shall be governed by existing or future laws . . . .

Exception at 4. Article 23, section 1 of the parties' agreement provides:

The parties agree that the objective of discipline is to correct and improve employee behavior so as to promote the efficiency of the service. The parties agree to the concept of progressive discipline designed primarily to correct and improve employee behavior. Bargaining unit employees will be the subject of disciplinary or adverse action only for just cause.

Id. at 5.