[ v55 p784 ]
55 FLRA No. 133
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R4-45
U.S. DEPARTMENT OF DEFENSE
DEFENSE COMMISSARY AGENCY
FORT LEE, VIRGINIA
August 31, 1999
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
Decision by Member Cabaniss for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Seymour Strongin 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 filed an opposition to the Union's exceptions.
The Arbitrator denied in part and sustained in part a grievance alleging that the Agency improperly suspended the grievant for ten days, and constructively suspended her for a separate three-day period. The Union's exceptions focus on the constructive suspension allegation.
II. Background and Arbitrator's Award
The grievant, an intermittent sales store checker in the Fort Lee Commissary, was given a ten-day suspension for failing to report for work, reporting for work late, placing items from the commissary under her register and failing to notify a supervisor of unscheduled leave. Award at 10-15. The Union invoked arbitration on behalf of the grievant after the underlying grievance was not resolved. The Arbitrator ultimately found that a number of the alleged infractions occurred, but exonerated the grievant for a number of others, and reduced the discipline to a seven-day suspension. [ v55 p785 ]
With respect to the alleged constructive suspension, the Arbitrator noted that this allegation was based largely on the commissary officer's response to a step two grievance. Id. at 9; Joint Exhibit 4. That document reads in part, "Regarding the three days that you referenced [the grievant] was not called in to work, I find that [the grievant's] schedule was changed for that week while we were reviewing a $103.29 cash shortage which [the grievant] had on her register on November 14, 1997." Id.
Nevertheless, the Arbitrator, relying on the testimony of the grievant's supervisor, found that the grievant was scheduled to work but failed to appear on those days. As such, he found that no constructive suspension had occurred. Id. at 14. In reaching this determination, he stated:
The record does not support the Union's contention that the grievant was denied the opportunity to work during the period November 20-22, 1997. While the record does show that [the] grievant was, for a time, not permitted to perform her regular cashier's duties while the Agency was investigating a cash drawer shortage, the record also shows that [the] grievant was, in fact, scheduled to work on November 20 and 22, and that she failed to appear.
III. Positions of the Parties
1. Union's Exceptions
The Union alleges that the grievant was "constructively suspended" when the Agency did not allow her to work on November 20-22, 1997. According to the Union, "[t]he Arbitrator concurred that [the grievant] was not permitted to work noting `the basis for the decision was confirmed by [the commissary officer's] letter stating the grievant's schedule was changed while the agency reviewed her cash drawer shortage . . . ` Award at 9, Exceptions at 2.
Based on these facts, the Union alleges that the Arbitrator reached a decision that is contrary to law, citing Rison v. Department of Defense, 73 M.S.P.R. 390 (1997) (Rison). Exceptions at 2. According to the Union, a "suspension" occurs where an agency fails/refuses to allow an employee to work "pending inquiry" into an action of that employee for disciplinary or other reasons. Id. at 1-6; see Thomas v. General Services Administration, 756 F.2d 86 (Fed. Cir. 1985); Mercer v. Department of Health and Human Services, 772 F.2d 856 (Fed. Cir. 1985); Passmore v. Department of Transportation, 31 M.S.P.R. 65, 67 (1986). Here, the Union alleges, the Agency failed to allow the grievant to work while it was investigating a shortage in her cash register. Exceptions at 6. As such, the Union contends that the award is contrary to law in failing to find that a "constructive suspension" occurred.
Furthermore, the Union alleges that under Article 42, Section 4 of the parties' collective bargaining agreement, employees are entitled to certain procedural protections before disciplinary action may be taken against them. [n1] As such, the Union contends that the Agency should have allowed the grievant to avail herself of these protections before denying her the chance to work on November 20-22, 1997. Exceptions at 6-7.
Moreover, the Union also contends that the Arbitrator was "a bit confused in his analysis" of the grievant's alleged preclusion from working on November 20-22, 1997. Exceptions at 7. According to the Union, the Arbitrator rendered a decision contrary to the facts as established by the letter from the commissary officer and the testimony of the grievant. It argues that the commissary officer's letter conclusively established that the grievant was precluded by the Agency from working on November 20-22, 1997. In so asserting, the Union states, "The admission of Commissary Officer Zimmer that Ms. Rison `was not called in to work . . .' because of the discrepancy in her cash register is tantamount to an enforced suspension pending inquiry." Id.
Finally, the Union asserts that the award is "internally inconsistent". Exceptions at 1.
2. Agency's Opposition
The Agency argues that the award is consistent with Rison. In this regard, the Agency claims that the facts of this matter are distinguishable from Rison, and the other cases cited by the Union, in that here the grievant was not denied the opportunity to work. Opposition at 4. Accordingly, the Agency claims the Union's assertion that the award is contrary to law is without merit.
Furthermore, the Agency contends that the Union's argument that the grievant did not receive her due process rights under Article 42 is inapplicable in this matter. The Agency argues that Article 42 applies to "disciplinary actions." Here, according to the Agency, the Union acknowledged that the grievant was not disciplined for her cash drawer shortage and that her performance appraisal was not affected. Id.
Moreover, the Agency states, the Arbitrator found the grievant had failed to appear for work on November [ v55 p786 ] 20-22, only after carefully considering the documentary and testimonial evidence of record. Therefore, according to the Agency, the Union's arguments constitute mere disagreement with the award of the Arbitrator. Id. at 4.
Finally, with respect to the Union's argument that the award is internally inconsistent, the Agency directs our attention to Authority case law which states that an award is not deficient unless it is incomplete, ambiguous, or contradictory so as to make implementation of the award impossible. The Agency cites American Federation of Government Employees, Local 1869 and U.S. Department of the Air Force, Charleston Air Force Base, Charleston, South Carolina, 50 FLRA 172, 174 (1995) (Charleston Air Force Base). According to the Agency, the Union has failed to demonstrate that the award in this case meets any of those conditions.
IV. Analysis and Conclusions
A. The Award is Not Contrary to Law
The Authority reviews questions of law raised by a party's exceptions de ovo. American Federation of Government Employees, Local 2004 and U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region East, New Cumberland, Pennsylvania, 55 FLRA 6, 9 (1999) (New Cumberland); National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir 1994)). De novo review requires the Authority to assess whether the legal conclusions of the arbitrator are consistent with the applicable standard of law, based on the underlying factual findings. New Cumberland, 55 FLRA at 9; National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). Furthermore, it is well settled that underlying factual findings by an arbitrator are given deference by the Authority in making that assessment. New Cumberland, 55 FLRA at 9.
The Union hinges much of its legal argument upon rulings involving the Merit Systems Protection Board (Board) and suspensions of more than 14 days. However, the Authority has repeatedly held that arbitrators are bound by the same substantive standards as the Board only when resolving grievances concerning actions covered by 5 U.S.C. §§ 4303 and 7512. U.S. Department of Defense, Defense Commissary Agency, Norfolk, Virginia and National Association of Government Employees, Local R4-45, 55 FLRA 168 (1999); American Federation of Government Employees, Local 1770 and U.S. Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 51 FLRA 1302, 1306 (1996). Here, since the alleged "constructive suspension" was 14 days or less, the grievance would not be appealable to the Board under 5 U.S.C. § 7512. As such, while the Arbitrator may use and apply the legal principals established by the Board, such use is not mandatory. National Air Traffic Controllers Association, MEBA/NMU and U.S. Department of Transportation, Federal Aviation Administration, Memphis, Tennessee, 52 FLRA 787, 792 (1996).
Moreover, given the factual findings of the Arbitrator, to which we defer, it is clear that the grievant was not denied the opportunity to work on November 20-22, 1997. Award at 14. The Union claims that the Arbitrator, on page 9 of the award, "concurred" that the grievant was not permitted to work. Contrary to this assertion, however, the Arbitrator never concurred with the Union's argument, but merely recited it, stating:
The Union also contends that [the] grievant wrongfully was constructively suspended from November 20-22, 1997. Relying on Rison . . . and on the March 5, 1998, letter authored by [the commissary officer] stating that [the] grievant's schedule was changed while the Agency reviewed her cash drawer shortage, the Union argues that grievant essentially was suspended without due process.
Award at 9 (emphasis added). Thus, the Union's contention is not supported by the record.
The Arbitrator clearly and unambiguously found that on November 20-22, 1997, the grievant was not denied the opportunity to work; instead, on those dates the grievant failed to appear. Award at 14. Therefore, even if Rison applied here, the Union's argument would fail to show that the award was contrary to law. [n2] Moreover, the Union has failed to present any other basis for finding the award deficient as a matter of law.
Accordingly, this exception is denied. [ v55 p787 ]
B. The Award Does Not Fail to Draw its Essence from the Parties' Collective Bargaining Agreement
The Union does not expressly claim that the award fails to draw it essence from the collective bargaining agreement. However, the Union alleges that under Article 42, Section 4 of the agreement, employees are entitled to procedural protections when disciplinary actions are taken against them. Thus, the Union implies that the Arbitrator erred when he did not find Article 42, Section 4 to be applicable to this alleged three-day suspension. Exceptions at 7. We construe this reference to the parties' collective bargaining agreement as raising a claim that the award fails to draw its essence from the agreement.
In order for an award to be found deficient under this exception, a party must show that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. U.S. Department of the Interior, Bureau of Indian Affairs, Wapato Irrigation Project and National Federation of Federal Employees, Local 341, 55 FLRA 152, 155 (1999); Panama Canal Commission and International Organization of Masters, Mates and Pilots, Panama Canal Pilots Branch, 54 FLRA 1316, 1322-23 (1998); United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76 (1990).
Article 42, Section 4 states, "Employees against whom a disciplinary action suspension is proposed are entitled to: . . . . " It then lists a number of procedural protections. However, the facts of this case, as found by the Arbitrator, do not confirm that a three-day constructive suspension occurred. On the contrary, the Arbitrator failed to find either a proposed, actual or constructive suspension for this three-day period. Without the requisite showing of a suspension, the Arbitrator could rationally conclude that Article 42, Section 4 was inapplicable. [n3]
Accordingly, the Union has failed to show that the Arbitrator's award is unfounded, irrational, implausible, or manifests a disregard of the parties' agreement. Therefore, the Union has not shown that the award fails to draw its essence from the collective bargaining agreement.
C. The Award is Not Based on a Nonfact
We construe the Union's statements that the Commissary Officer made an "admission" that the grievant was not called into work, and that the Arbitrator was "confused", as raising a claim that the award is based on a nonfact, i.e., that the Arbitrator erred in finding that the grievant was not denied the opportunity to work. In order to establish that an award is based on 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. Information Agency, Voice of America and American Federation of State, County and Municipal Employees, Local 1418, 55 FLRA 197, 200 (1999) (citing 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)). Moreover, an award will not be found deficient based on an arbitrator's determination on any factual matters that the parties disputed at arbitration. Id. at 594 (citing Mailhandlers v. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)).
The record reveals that the parties disputed before the Arbitrator the factual question of whether the grievant was or was not precluded by the Agency from working on November 20-22, 1997, and that the Arbitrator resolved this matter based on the testimony of the grievant's supervisor. Accordingly, this exception provides no basis for finding the award deficient.
D. The Award is Not Contradictory
The Union only asserts that the award is "internally inconsistent" in the heading on page one of its exception. No further discernible argument with respect to this assertion is made. As such, the Union's claim is nothing more than a bare assertion, and in accordance with Authority precedent it must be denied. See, e.g., U.S. Department of Transportation, Federal Aviation Administration, Washington, D.C. and National Air Traffic Controllers Association, 55 FLRA 322, 326 (1999); American Federation of Government Employees, Local 3615 and Social Security Administration, Office of Hearings and Appeals, Falls Church, Virginia, 54 FLRA 494, 499 (1998).
However, even if the assertion were deemed to be more than bare, the exception would be denied as the Union has failed to show how the award is incomplete, ambiguous, or contradictory so as to make implementation of the award impossible. National Gallery of Art, [ v55 p788 ] Washington, D.C. and American Federation of Government Employees, Local 1831, 55 FLRA 480, 482 (1999); Charleston Air Force Base, 50 FLRA at 174. As is discussed in section IV. A., supra, the Arbitrator did not make contradictory findings concerning whether the grievant was permitted to work on November 20-22, 1997. Rather, on page 9 of the award he quoted the Union's argument that the grievant was not permitted to work, but on page 14 he found that argument to be unfounded. Accordingly, we find that the award is not based on a nonfact.
The Union's exceptions are denied.
Article 42, Section 4.
Employees against whom a disciplinary action suspension is proposed are entitled to:
a. An advance written notice stating the specific reasons for the proposed action;
b. A reasonable time, not less than ten (10) calendar days to answer orally and or in writing and to furnish affidavits or other evidence in support of the answer;
c. A representative of their choice; and
d. A written decision and specific reasons therefore in a timely manner.
Footnote # 1 for 55 FLRA No. 133
Footnote # 2 for 55 FLRA No. 133
Only for the purpose of clarity, we note that the Board has held that a prima facie showing of a "constructive suspension" of more than 14 days occurs where the employee has made a nonfrivolous allegation that he was able to work; that he communicated his desire to work; and that the agency failed to allow him to work. Haentges v. United States Postal Service, 80 M.S.P.R. 507, 511 (1999).
Footnote # 3 for 55 FLRA No. 133
Even the Union seems to concede this point indirectly by stating, "If [the Agency's action] does constitute a suspension, then the procedural protections contained in the negotiated agreement apply." Exceptions at 3.