[ v51 p1161 ]
The decision of the Authority follows:
51 FLRA No. 94
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF DEFENSE
DEFENSE CONTRACT AUDIT AGENCY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
April 19, 1996
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Neil N. Bernstein filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.
The Arbitrator ruled that the grievant's suspension was not for just cause, as required by the parties' collective bargaining agreement, and ordered that the suspension be vacated.
We conclude that the Agency has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Agency's exceptions.
II. Arbitrator's Award
The grievant audits defense contracts. The instant grievance arose when one of the grievant's colleagues, who worked in a cubicle next to the grievant, advised the Agency that she believed the grievant had been making telephonic threats against his supervisor. Specifically, the employee stated that she had overheard the grievant making certain derogatory remarks and although the employee did not know who the remarks were directed against, she believed that the grievant's supervisor and the Agency's Resident Auditor were the subjects of the remarks. Subsequently, the grievant denied making any of the statements attributed to him.
The Resident Auditor proposed that the grievant receive a 10-day suspension for engaging in disorderly conduct.(1) The grievant, in turn, protested this action to the Regional Manager, who reduced the suspension to 5 days. Award at 5. Thereafter, a grievance was filed which was ultimately submitted to arbitration on the following issue, as stated by the Arbitrator:
Did the [Agency] compl[y] with the provisions of Article 24 of its collective bargaining agreement with the Union when it issued a five day suspension to the [g]rievant[.]
Id. at 2.
The Arbitrator found that the suspension was not for just cause, as required by the parties' collective bargaining agreement.(2) The Arbitrator determined, in this regard, that most of the statements attributed to the grievant were innocuous and would not support a suspension. He further determined that the grievant had "a perfect right, in the privacy of his own work area," to curse and complain. Id. at 7. The Arbitrator noted that: the employee who overheard the statements did so through a partition that was designed to provide privacy; the employee only heard the grievant's side of the phone conversations; and, at no time did the employee actually hear the grievant refer to his supervisor in connection with the statements. As the grievant adamantly denied having participated in such conversations, and as there was no evidence to corroborate the employee's assumptions, the Arbitrator concluded that "the chances [were] just too great" that the employee "misunderstood" what she had heard. Id. at 8.
The Arbitrator stated that, even assuming that the grievant made the derogatory remarks attributed to him, and that the remarks referred to his supervisors, the remarks did not constitute threats. The Arbitrator also stated that "the Resident Auditor clearly would have acted within his authority if he had called the [g]rievant into his office and cautioned him that his telephone comments could be overheard . . . ." Id. at 9. In the Arbitrator's view, a warning was the most severe sanction that could be imposed for the grievant's remarks. Accordingly, the Arbitrator sustained the grievance and ordered that the suspension be expunged from the grievant's records and that the grievant be made whole for his lost wages and benefits.
A. Agency's Exceptions
The Agency maintains that the award is deficient on three grounds. First, the Agency contends that the award fails to draw its essence from Article 24, section 1.B of the parties' bargaining agreement because the Arbitrator concluded that the statements attributed to the grievant did not justify the imposition of discipline. The Agency argues, in this regard, that the grievant was disciplined for engaging in disorderly conduct, not for making threats, and that the Arbitrator's award "draws essence" from his erroneous conclusion that it was necessary to find a threat to sustain discipline. Exceptions at 2.
Second, the Agency claims that the Arbitrator exceeded his authority by arbitrating the issue in this case "on the assumed charge of making a threat" and erroneously substituting his judgment concerning the appropriate penalty for that of the Agency. Id. Specifically, the Agency challenges the Arbitrator's statement that a warning was the most severe sanction that could be imposed for the grievant's remarks.
Finally, the Agency maintains that the award fails to conform to law, rule, or regulation because the Statute permits it to discipline employees in accordance with the Agency's tables of penalties.
B. Union's Opposition
The Union claims that the Agency's exceptions merely express disagreement with the Arbitrator's award and, as such, should be denied.
IV. Analysis and Conclusions
A. The Award Draws Its Essence From the Agreement
To demonstrate that an award fails to draw its essence from the collective bargaining agreement, the party making the allegation 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 (4) evidences a manifest disregard of the agreement. E.g., United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-77 (1990).
The Agency has not demonstrated that the award is deficient under any of these tests. Nothing in the Arbitrator's interpretation and application of Article 24, section 1.B of the parties' agreement is irrational, unfounded, implausible, or in manifest disregard of the agreement. See, e.g., U.S. Department of Veterans Affairs, Medical Center, Birmingham, Alabama and American Federation of Government Employees, Local 2207, 51 FLRA 270, 275 (1995) (VA, Birmingham). Accordingly, the Agency has failed to establish that the award fails to draw its essence from the parties' agreement.
B. The Arbitrator Did Not Exceed His Authority
An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. See U.S. Department of the Navy, Naval Base, Norfolk, Virginia and American Federation of Government Employees, Local 22, 51 FLRA 305, 307-8 (1995).
It is well established that in the absence of a stipulated issue, an arbitrator's formulation of the issues is accorded substantial deference. See American Federation of Government Employees, Local 916 and Defense Distribution Depot, Oklahoma City, Oklahoma, 50 FLRA 244, 246-47 (1995). An arbitrator is granted the same broad discretion to fashion appropriate remedies for contract violations. Id. at 247. In this case, it is not argued or apparent that the parties stipulated the issue to be resolved, and the award, including the remedy, is directly responsive to the issue as formulated by the Arbitrator.
In addition, the Arbitrator formulated the issue in this case in terms of the Agency's compliance with Article 24--the just cause provision--of the parties' agreement. As the Arbitrator ultimately concluded that the grievant's suspension was not for just cause, the Agency's exception to the Arbitrator's statement regarding the type of discipline it could have appropriately imposed does not provide a basis for finding the award deficient. See, e.g., American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Finance Administration, Baltimore, Maryland, 51 FLRA 576, 578 (1995) (comments or dicta are statements separate from the award and exceptions thereto provide no basis for finding an award deficient). Accordingly, the Agency has failed to establish that the Arbitrator exceeded his authority.
C. The Award Is Not Contrary to Law, Rule or Regulation
The Agency claims that the award fails to conform to law, rule, or regulation because the Statute permits it to discipline employees in accordance with its established table of penalties. The Agency has not identified any particular section of the Statute which has been violated, and has failed to provide any argument in support of this contention. Consequently, the Agency has failed to demonstrate that the award is deficient on this basis. See generally, American Federation of Government Employees, Local 1802 and Social Security Administration, Golden Teleservice Center, Golden, Colorado, 50 FLRA 396 (1995). Moreover, even assuming that the Agency has raised a claim that the award conflicts with its right to discipline under section 7106(a)(2)(A) of the Statute, the Authority held in VA, Birmingham, 51 FLRA at 273, that an award "enforcing a contractual provision requiring just cause for discipline . . . is not deficient as inconsistent with section 7106(a)(2)(A)." The award in this case enforced Article 24, section 1.B of the parties' agreement, which requires just cause for discipline. Accordingly, for reasons stated fully in VA, Birmingham, the Agency's exception does not provide a basis on which to find the award deficient.
The Agency's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. Under the Agency's disciplinary guidelines, disorderly conduct is defined, as relevant here, as "[t]hreatening or inflicting bodily harm to another; . . . [v]iolent acts or language that adversely affects morale, production, or discipline[.]" Agency Exhibit 2. First offenses for such conduct are punishable by suspensions of up to 10 days.
2. Article 24, section 1.B of the agreement pertinently provides: "No employee will be subject to a disciplinary action except for just and sufficient cause."