50:0396(60)AR - - AFGE, Local 1802 and SSA, Golden Teleservice Center, Golden, CO - - 1995 FLRAdec AR - - v50 p396

[ v50 p396 ]
The decision of the Authority follows:

50 FLRA No. 60





LOCAL 1802










May 19, 1995


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

I. Statement of the Case

This case is before the Authority on exceptions to an award of Arbitrator J. Kenneth Davies filed by the Union under section 7122 of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency did not file an opposition to the exceptions.

The Arbitrator denied a grievance filed over the Agency's 7-day suspension of the grievant.

For the following reasons, we conclude that the Union has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II. Background and Arbitrator's Award

The grievant is a Telephone Service Representative (TSR) whose position requires him to receive calls from the public regarding Social Security benefits. Because the Agency determined that the grievant acted discourteously to callers on three calls, the Agency sent the grievant a letter informing him of a proposal to suspend him for 7 days. The letter stated that the action was a proposed decision, and that the grievant could challenge it within 10 calendar days. After the Agency failed to receive any response from the grievant, the Agency implemented the proposed 7-day suspension.

The grievant, after returning from suspension, initiated a formal grievance. The Agency and the Union subsequently met concerning the grievance, but the grievant did not attend that meeting. The matter was not resolved and was submitted to arbitration on the issue of whether the Agency suspended the grievant for just cause and in accordance with the parties' collective bargaining agreement.

The Arbitrator held that the 7-day suspension was for just cause and, therefore, no remedy was appropriate. The Arbitrator found that the grievant "seriously weaken[ed]" his case by his failure to respond orally or in writing to the proposed disciplinary action, and his failure to participate in a grievance meeting attended by representatives of the Agency and the Union. Award at 9. The Arbitrator stated that "[h]ad the Grievant responded in a timely way as provided for in the contract, the decision might be otherwise." Id. at 10. However, because of the grievant's "neglect of his responsibility," the Arbitrator concluded that the suspension was for just cause. Id.

III. Union's Exceptions

The Union argues that the award is deficient on four grounds. First, the Union contends that the award is based on a nonfact. Specifically, the Union contends that the Arbitrator based his decision on the erroneous assumption that the grievant was required to attend the grievance meeting referenced by the Arbitrator, and that, but for the Arbitrator's reliance on this erroneous assumption, his reasoning would have been otherwise. Second, the Union argues that the award fails to draw its essence from the parties' agreement because the Arbitrator added to the agreement the requirement that the grievant attend the grievance meeting. Third, the Union argues that the award "violates government[-]wide rules and regulations regarding the duty of fair representation pursuant to the [S]tatute[,] 5 USC 7114[,]" and violates "the grievant's rights to due process . . . ." Exceptions at 3. Finally, the Union argues that the Arbitrator improperly refused to admit into evidence a manager's notes regarding a meeting between management and the grievant concerning the charges for which the grievant was suspended, and improperly refused to permit the Union to call as a witness at the arbitration hearing the manager who made the notes.

IV. Analysis and Conclusions

A. Nonfact

It is well settled that, to establish that an award is based on a nonfact, a party must show that the central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993).

The Union does not contest any of the Arbitrator's findings of fact. Instead, the Union asserts that the Arbitrator erroneously concluded that the grievant was required to attend the disputed grievance meeting. However, the Arbitrator did not conclude that the grievant was required to attend the grievance meeting. Rather, the Arbitrator merely found that if the grievant had responded to the proposed suspension letter and/or had attended the grievance meeting, he possibly could have strengthened his case and obtained a different result. The Arbitrator's conclusion that the suspension was for just cause resulted from his evaluation of the evidence presented and his interpretation of the parties' agreement and, as such, does not constitute a fact that can be challenged as a nonfact. E.g., National Labor Relations Board and National Labor Relations Board Professional Association, 50 FLRA 88, 91-92 (1995). Accordingly, we deny this exception.

B. Essence

To demonstrate that an award is deficient because it fails to draw its essence from the parties' agreement, a party must show that the award: (1) 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; or (2) does not represent a plausible interpretation of the agreement; or (3) cannot in any rational way be derived from the agreement or evidences a manifest disregard of the agreement. United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990).

The Union fails to satisfy any of these tests. Contrary to the Union's assertion, the Arbitrator did not interpret the agreement as requiring that the grievant attend the grievance meeting. As noted above, the Arbitrator found that if the