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51:0521(45)AR - - AFGE Local 1668 and Army and Air Force Exchange Service, Southern Alaska Exchange, Elmendorf AFB, AK - - 1995 FLRAdec AR - - v51 p521

[ v51 p521 ]
The decision of the Authority follows:

51 FLRA No. 45





LOCAL 1668











November 20, 1995


Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator John Keltner 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 Regulations. The Agency did not file an opposition to the Union's exceptions.

The Arbitrator denied a grievance contesting the Agency's suspension of the grievant for negligence. For the following reasons, we conclude that the Union's exceptions fail to establish that the award is deficient under section 7122(a) of the Statute. Therefore, we deny the exceptions.

II. Background and Arbitrator's Award

After the grievant, a service station attendant at an Agency Service Station, rotated tires on a customer's vehicle, the lug nuts on one of the tires were found to have been improperly tightened. The station manager investigated and submitted a report to the general manager which revealed that 6 months prior to this incident, the grievant had been counseled regarding a similar incident.

The general manager, referring to two prior instances where the grievant had been disciplined, proposed to suspend the grievant for 10 days based on gross negligence in meeting the Agency's safety and service standards. After meeting with the grievant and Union representatives, the general manager reduced the suspension to 5 days. The Union then filed a grievance on behalf of the grievant, contesting the suspension.

The Arbitrator found that the Agency suspended the grievant for just cause, and that the suspension was consistent with Article 42 of the parties' bargaining agreement, which provides for progressive discipline to correct employee performance.(*) According to the Arbitrator, two events preceded the grievant's suspension: a counseling and a written reprimand, though only the counseling was directly related to the current discipline. The Arbitrator also found that the table of penalties contained in an Agency regulation, AFR 40-7, did not supersede the bargaining agreement, and that the table was "suggestive" rather than binding. Award at 8. Moreover, according to the Arbitrator, the table of penalties suggested a 5-day suspension for "[c]areless workmanship or negligence," the same discipline imposed in the instant case. Id. at 8.

The Arbitrator determined that it was reasonable to expect an employee assigned to change tires to tighten all the lug nuts. Although agreeing with the Union that the supervisor was responsible for checking work prior to releasing a vehicle, the Arbitrator found that it was the responsibility of employees to perform required tasks. The Arbitrator stated that the Union had submitted no evidence that the grievant had been treated differently from others who had performed in a similar manner.

Based on the foregoing, the Arbitrator concluded that there was just cause for the suspension, and he denied the grievance.

III. Exceptions

The Union contends that the award is deficient for the following reasons: the Union did not receive a signed and dated copy of the award; the grievant's suspension constituted disparate treatment, in view of the Agency's failure to discipline the manager; and the award is contrary to the table of penalties set out in AFR 40-7. In addition, the Union argues that the Arbitrator erred in stating that two disciplinary actions preceded the suspension.

IV. Analysis and Conclusions

A. Union's Failure to Receive a Signed and Dated Copy of the Award

The Union has cited no regulation or provision in the parties' collective bargaining agreement that entitles the Union to a signed and dated copy of the award. In addition, the Union provides no explanation of how the fact that it did not receive a signed and dated copy of the award makes the award deficient. In this regard, there is no dispute that the Union timely filed its exceptions. As the Union has failed to establish that the award is deficient on this basis, we deny this exception.

B. Nonfact

We construe the Union's claim that the Arbitrator erroneously stated that two disciplinary actions preceded the suspension as a contention that the award is deficient because it is based on a nonfact. To establish that an award is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. 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 Arbitrator determined that the general manager's investigation revealed that the grievant had been counseled about a prior similar incident, and, prior to that, had received a written reprimand. The Arbitrator found that the Agency decided to suspend the grievant based on the two prior instances of discipline. The Union has not shown that this finding was the central fact underlying the award or that it was clearly erroneous. Therefore, we deny this exception.

C. Fair Hearing

We construe the allegation that the Agency's failure to discipline the manager constituted disparate treatment as a contention that the Arbitrator, in disregarding evidence of the manager's error, failed to conduct a fair hearing. An award will be found deficient on this ground when it is established that an arbitrator's refusal to hear or consider pertinent and material evidence prejudiced a party so as to affect the fairness of the proceeding as a whole. American Federation of Government Employees, Local 1668 and U.S. Department of the Air Force, Elmendorf Air Force Base, Anchorage, Alaska, 50 FLRA 124, 126 (1995).

The Arbitrator's decision makes clear that the Arbitrator addressed the manager's performance. The Arbitrator found that, although the manager was responsible for checking employees' work and admitted that he had not done so, the grievant's basic responsibility to properly perform his job was not altered. Moreover, the Arbitrator specifically addressed the Union's claim regarding the disparity in treatment between the manager and the grievant, concluding that there was no evidence of discrimination.

The Arbitrator clearly addressed the manager's failure to check the grievant's work, and the Agency's failure to investigate or discipline him for it. Therefore, the award is not deficient for failure to consider pertinent evidence, and we deny this exception.

D. Contrary to Regulation

We construe the allegation that the award violates AFR 40-7 as a contention that the award is deficient because it is contrary to an Agency regulation. In U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186 (1990), the Authority stated that a "conflict with agency rules and regulations will provide a basis for finding an award deficient under section 7122(a)(1) when such rules or regulations govern the disposition of the matter resolved by arbitration award." Id. at 195. A rule or regulation governs the matter in dispute when it "applies to the matter in dispute and does not conflict with similarly applicable provisions of the collective bargaining agreement." Id. at 190.

The Arbitrator concluded that AFR 40-7 was "suggestive and not binding[,]" and that it did not supersede the parties' bargaining agreement. Award at 8. The Union has not shown that this conclusion is erroneous. Moreover, the Arbitrator found that the grievant's suspension was consistent with the penalty suggested in AFR 40-7 for a similar infraction. Consequently, even if the regulation applied, the Union has failed to establish that the award is inconsistent with it.

In these circumstances, the Union has failed to show that the award is deficient because it is inconsistent with an applicable regulation within the meaning of section 7122(a)(1). Therefore, we deny this exception.

V. Decision

The Union's exceptions are denied.

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

*/ Article 42 of the parties' agreement provides, in relevant part:

Section 2. Both parties further agree that the primary emphasis will be placed on preventing situations requiring disciplinary actions through effective employee-management relations. Disciplinary actions will be taken only for just cause. Degrees of penalties will be based on the seriousness of the offense and the relevant factors pertaining to the case. Authorized disciplinary actions are:

a. Oral reprimand
b. Written reprimand
c. Suspension not to exceed 60 calendar days
d. Disciplinary downgrade
e. Separation for cause

Award at 5.