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 pre