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55 FLRA No. 112
U.S. DEPARTMENT OF DEFENSE
HALE KOA HOTEL
SERVICE EMPLOYEES INTERNATIONAL UNION
July 30, 1999
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
Decision by Chair Segal for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Joyce M. Najita 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 award upheld the imposition of discipline against the grievant, but ordered that a 5-day suspension be reduced to a 1-day suspension. For the following reasons, 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. Background and Arbitrator's Award
The grievant engaged in a heated dispute with his supervisor concerning the work to be done on a particular day.As a result, the grievant was suspended for 5 days for an "insubordinate response to instructions and abusive language" towards a supervisor. Award at 2-3. The Arbitrator framed the issue to be resolved as follows: "Whether there was just cause to impose the 5-day suspension. If not, what shall the remedy be?" Id. at 1.
The Arbitrator found that the grievant did not willfully and deliberately defy his supervisor's authority, but that he did react in a "rash, uncontrolled, highly emotional manner, which is found to be an unacceptable response to supervisory authority." Id. at 4-5. The Arbitrator concluded that the grievant was "clearly insubordinate in violation of the [Agency's] Guidelines[.]" Id. at 7.
In assessing whether a 5-day suspension was appropriate, the Arbitrator stated that the Agency had adopted the principle of progressive discipline. Id. at 5. In addition, the Arbitrator stated that, as a matter of "due process," the Agency should have clearly set forth the charges of alleged misconduct so that employees could understand what misconduct was alleged and, thereby, avoid it in the future. Id. at 7. She noted that the grievant's record contained at least 11 other disciplinary actions, including a 3-day suspension. Id. The Arbitrator found that the rationale for the previous 3-day suspension was not explained, but that, based on the penalties listed in the Agency's Guidelines, she could "only surmise" that it was "[f]ighting or creating a disturbance resulting in an adverse effect on morale, production, or maintenance of proper discipline[.]" Id. The Arbitrator stated that in the situation resulting in the suspension before her, the grievant did not engage in "fighting." Id. Accordingly, she found that the Agency erred when it determined that the grievant's misconduct was the second occurrence of fighting. Id.
Based on the foregoing, the Arbitrator mitigated the discipline to a 1-day suspension, a penalty enumerated for a first occurrence of insubordination under the Agency's Guidelines.
III. Positions of the Parties
The Agency asserts that the Arbitrator's award is deficient under section 7122(a)(1) of the Statute because it conflicts with an Agency regulation, specifically the Agency Guidelines. The Arbitrator's award, according to the Agency, treats the selection of a disciplinary penalty under the Agency's Guidelines as an automatic, mechanical process. The Agency maintains that this is in violation of provisions in the Guidelines establishing that the table of penalties is to be applied in a discretionary manner.
The Agency also argues that the award is based on a nonfact because the Arbitrator misapprehended the meaning of "offense" and improperly characterized the instant misconduct as a first offense. Exceptions at 4. The Agency contends that the applicable table of penalties contains explanatory material that "clearly allows for other similar offenses to be considered, not just repeated offenses[.]" Id. at 5 (emphasis in original). [ v55 p652 ] Additionally, the Agency contends that the Arbitrator's finding that the grievant's prior misconduct (action akin to fighting) and instant misconduct (insubordination and abusive language) constituted two different offenses is a nonfact.
The Union contends that the Agency has not met its burden of establishing that the Arbitrator was "clearly erroneous" in concluding that the prior 3-day suspension was based upon fighting and in distinguishing it from the basis of the instant misconduct, which was determined to be insubordination. Opposition at 5.
IV. Analysis and Conclusions
A. The award draws its essence from the collective bargaining agreement.
The Agency contends that the award failed to conform to regulation because it conflicts with the Agency's Guidelines, which constitute an Agency regulation.
It is well-settled that when a collective bargaining agreement incorporates the regulations with which an award allegedly conflicts, the matter becomes one of contract interpretation because the agreement, not the regulation, governs the matter in dispute. See National Association of Government Employees, Local R4-6 and U.S. Department of the Army, Fort Eustis, Virginia, 52 FLRA 1522, 1526 (1997) (NAGE Local R4-6). In this case, the parties' agreement incorporates the Agency's regulation that includes the table of penalties. See 52 FLRA at 1523 n.2 (Authority found that parties' agreement stating that administrative leave would be granted "in accordance with applicable law and  regulations" incorporated the agency's regulation). Consequently, the issue before the Authority is whether the award is deficient as failing to draw its essence from the parties' agreement under section 7122(a)(2) of the Statute, and, accordingly, we will analyze this exception as a claim that the award fails to draw its essence from the parties' agreement.
To demonstrate that an award fails to draw its essence from a collective bargaining 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 (4) 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 Agency contends that the Arbitrator's award "treats the selection of a disciplinary penalty under [the Agency's Guidelines] as an automatic, mechanical process, in violation of extensive provisions in the regulation which mandate precisely the opposite approach." Exceptions at 8. The Agency's characterization of the Arbitrator's selection of a disciplinary penalty is not accurate. The Arbitrator did not mechanically apply the table of penalties, but rather found that the Agency had provided the grievant with insufficient notice regarding the penalty for his misconduct. The Agency has not demonstrated that the Arbitrator's interpretation and application of the agreement incorporating the regulation was unfounded, implausible, or irrational. Accordingly, we conclude that the award is not deficient because it fails to draw its essence from the parties' agreement.
B. The award is not based on a nonfact.
To establish that an award is based on a nonfact, the appealing party must show that the central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See 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) (Lowry AFB). However, the Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at arbitration. Id. at 594 (citing Mailhandlers v. U.S. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)).
In this case, the Arbitrator found that the grievant's misconduct was the "first occurrence of insubordination" and that it was a different offense than the misconduct that led to the prior suspension. Award at 7. The Agency disputes these determinations. However, the record establishes that these matters were disputed before the Arbitrator. In this regard, the Arbitrator noted and discussed the Agency's contention that it "exercised great restraint by treating the [g]rievant's latest official disciplinary action lower than a third offense . . . ." Id. at 6. The Arbitrator compared the misconduct resulting in the prior and the instant suspensions, concluding that the current misconduct was a "first occurrence of insubordination." Id. at 7.
In support of its position, the Agency relies on U.S. Department of the Army, Army Natick Research Development and Engineering Center, Natick Massachusetts and National Association of Government Employees, [ v55 p653 ] Local R1-34, 44_FLRA 1251, 1254 (1992) (Natick), where the Authority found an award deficient as based on a nonfact because the Arbitrator had misapprehended the grievant's level of "offense" by finding the misconduct at issue to constitute a first offense. Id. at 1254. However, Natick was decided before Lowry AFB, and there is no discussion in Natick as to whether the alleged nonfact resolved a matter that was contested below. The level of the grievant's offense was disputed below in this case. Consistent with the standard stated in Lowry AFB, an award is not deficient as based on a nonfact when the alleged nonfact resolves a matter that was disputed below. Accordingly, Natick does not provide a basis for finding the award deficient.
The Agency's exceptions are denied.