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56 FLRA No. 98
U.S. DEPARTMENT OF ENERGY
SOUTHWESTERN POWER ADMINISTRATION
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 1002
September 8, 2000
Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.
Decision by Chairman Wasserman for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Thomas A. Cipolla 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.
The Arbitrator found that the 2-day suspension of the grievant was excessive and mitigated it to a 1-day suspension. For the reasons that follow, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
The Agency proposed to suspend the grievant for 2 days for use of offensive language, misrepresentation of information, and insolence. The grievant filed a grievance, which was unresolved and submitted to arbitration. The Arbitrator stated the issues as follows:
Is the grievance arbitrable under the terms of the collective bargaining agreement?
Has the [g]rievant and/or the Union met the burden of proof by establishing that the Employer violated the collective bargaining agreement when it issued a two-day suspension to the [g]rievant for insolence . . ., misrepresentation of facts . . . and/or his use of offensive language? If so, what is the appropriate remedy?
Id. at 4.
The Arbitrator rejected the Agency's assertion that the grievance was not arbitrable because it did not meet the specificity requirements set forth in Section 10.6.B of the parties' agreement. [n1] In this connection, the Arbitrator determined that, because the grievance was submitted the same day the grievant received notice of the proposed suspension, the Agency had sufficient notice of what the grievance involved.
With respect to the merits of the grievance, the Arbitrator stated that "the burden of proof . . . rests with the party invoking arbitration[,]" i.e., "the Union." Id. at 25. The Arbitrator determined that the grievant did not use offensive language, and that there was "no persuasive evidence" that the grievant misrepresented information as alleged. Id. at 26. Accordingly, the Arbitrator concluded that the Union "met its burden of proof in rebutting two of the charges[,]" and he sustained the grievance to that extent. Id. at 28.
The Arbitrator found that the Union did not meet its burden of proof with regard to the charge of insolence, and he denied that aspect of the grievance. The Arbitrator determined that, although the offense of insolence did not merit "severe discipline[,] . . . a mere reprimand will not suffice[,]" and he concluded that "the appropriate discipline" was a 1-day suspension. Id. at 29, 30.
III. Positions of the Parties
A. Agency's Exceptions
The Agency argues that the mitigation of the disputed suspension is inconsistent with section 7106(a)(2)(A) of the Statute and Section 19.1 of the parties' agreement. [n2] In this connection, the Agency contends that the Arbitrator did not find that, or explain why, the discipline imposed by the Agency would not promote the efficiency of the service.
The Agency also argues that the award violates management's right to discipline employees because the [ v56 p625 ] Arbitrator erred by finding that the grievance satisfied the specificity requirements set forth in Section 10.6.B of the parties' agreement. According to the Agency, "lack of clarity is a well established basis of grievance rejection." Exceptions at 4 (citing U.S. Department of the Air Force, Scott Air Force Base, Illinois and National Association of Government Employees, Local R7-23, 38 FLRA 32 (1990) (Scott AFB)).
Finally, the Agency contends that evidence presented at the arbitration hearing established that the grievant was guilty of the offensive language and misrepresentation charges and, as a result, the Arbitrator "effectively" placed the burden of proof on the Agency as to those charges, in violation of Section 11.6 of the parties' agreement and section 7106(a)(2)(A) of the Statute. [n3] Exceptions at 3.
The Union argues that the mitigation of the suspension did not violate section 7106(a)(2)(A) of the Statute or Section 19.1 of the parties' agreement. The Union also argues that the Arbitrator did not err in finding that the Agency had sufficient notice of the basis for the grievance. Finally, the Union claims that the Arbitrator did not place the burden of proof on the Agency.
IV. Analysis and Conclusions
A. The Mitigation of the Grievant's Discipline Is Not Contrary to Law.
Section 7122(a)(1) of the Statute provides that an award will be found deficient if it is contrary to law, rule, or regulation. In reviewing arbitration awards for consistency with law, rule, or regulation, the Authority reviews the questions of law raised by an arbitrator's award and a party's exceptions de novo. See 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)). In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See 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). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
Where an agency asserts that an arbitrator's award violates management's rights set out in section 7106(a) of the Statute, the Authority first determines whether the award affects those rights. See United States Small Business Administration and American Federation of Government Employees, Local 2951, 55 FLRA 179, 184 (1999). If it does, then the Authority applies the two-prong test set forth in U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146, 151-54 (1997) (BEP). If the award does not affect a management right, then the BEP analysis is not required. See U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia and Tidewater Virginia Federal Employees Metal Trades Council, Local 734, 55 FLRA 1103, 1105 (1999) (Norfolk Naval Shipyard).
Under prong I of BEP, the Authority determines whether the arbitrator was enforcing either an applicable law, within the meaning of section 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to section 7106(b) of the Statute. See BEP, 53 FLRA at 153. Under prong II, the Authority determines whether the award constitutes a reconstruction of what management would have done if it had not violated the applicable law or contract provision at issue. See id. at 154.
In the instant award, the Arbitrator mitigated a 2-day suspension to a 1-day suspension, thereby affecting management's right to discipline. As a result, it is necessary to apply the BEP framework.
With respect to prong I of BEP, the Arbitrator found, without specifying a particular article of the agreement, that the 2-day suspension of the grievant violated the collective bargaining agreement. Award at 28, 29-30. The Agency asserts that this finding violates Section 19.1 of the parties' agreement because the award does not "adequately address why the two day suspension . . . did not promote the efficiency of the service," the contractual standard for discipline. Exceptions at 6. The Union asserts that the Arbitrator properly applied the standard set out in Section 19.1. Because both parties agree that the award enforces section 19.1 of the agreement, we find that the Arbitrator's reference to violations of the agreement enforces that section.
The Authority has found that requirements that discipline be for "the efficiency of the service" are functionally identical to requirements that discipline be for "just cause." American Federation of Government Employees, Local 1760 and Social Security Administration, Northeastern Program Service Center, 22 FLRA [ v56 p626 ] 195, 198 (1986). Further, the Authority has held that contract provisions requiring discipline for just cause constitute appropriate arrangements within the meaning of section 7106(b)(3) of the Statute. See Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, Local 1923, 53 FLRA 1751, 1754 (1998) (SSA Baltimore). As the Authority has held both that contract provisions requiring just cause for discipline satisfy the requirements of prong I of BEP, and that provisions permitting discipline "in the efficiency of the service" are the functional equivalent of just cause requirements, we find that, in enforcing Section 19.1, the award in this case satisfies prong I of BEP.
With regard to prong II of BEP, the Authority has held that an arbitrator's enforcement of a just cause provision, by setting aside or reducing the disciplinary action, "operates in effect to reconstruct what management would have done had the provision been followed." SSA Baltimore, 53 FLRA at 1754 (citation omitted). The Arbitrator's mitigation of the suspension based on Section 19.1 of the parties' agreement operates in effect to reconstruct what management would have done if it had complied with that provision, and prong II of BEP has been satisfied.
Accordingly, we conclude that the award is not inconsistent with management's right to discipline employees under section 7106(a)(2)(A) of the Statute, and we deny the Agency's exceptions.
B. The Arbitrator's Determination That the Grievance Was Sufficiently Specific Is Not Deficient.
The Agency argues that the award violates management's right to discipline employees because the Arbitrator erroneously found that the grievance satisfied Section 10.6.B of the agreement, which requires that a grievance specifically describe the complaint at issue. The Agency provides no explanation as to how the filing of a grievance, in and of itself, affects management's right to discipline employees. Accordingly, we reject this bare assertion. See U.S. Department of the Treasury, U.S. Customs Service, El Paso, Texas and National Treasury Employees Union, Chapter 143, 55 FLRA 553, 558 n.3 (1999). Because there is no basis for concluding that the award affects management's right to discipline employees in this regard, it is unnecessary to apply the BEP analysis to this argument. See Norfolk Naval Shipyard, 55 FLRA at 1105.
The Agency's exception also challenges the merits of the Arbitrator's determination that the grievance met the specificity requirement in the agreement. A determination of whether a grievance meets the specificity requirements of a collective bargaining agreement constitutes a procedural arbitrability determination. See, e.g., American Federation of Government Employees, Local 703 and U.S. Department of the Army, Armament and Chemical Acquisition and Logistics Activity, Rock Island, Illinois, 55 FLRA 507, 508 (1999). An arbitrator's determination of procedural arbitrability is subject to challenge only on grounds other than those that directly challenge the procedural arbitrability determination itself. See U.S. Department of the Treasury, United States Mint, Philadelphia, Pennsylvania and Fraternal Order of Police, Lodge F1-PA, 51 FLRA 1683, 1685 (1996).
The Agency's claim that the Arbitrator erred in finding that the grievance met the specificity requirements set forth in Section 10.6.B of the parties' agreement directly challenges the procedural arbitrability determination itself. As such, the argument does not provide a basis for finding the award deficient. In this connection, the Agency's reliance on the Authority decision in Scott AFB, 38 FLRA 32, is misplaced. In Scott AFB, the Authority remanded an award because it was unable to determine whether a grievance was substantively arbitrable under section 7121(c)(5) of the Statute. See id. at 37. Nothing in Scott AFB supports a conclusion that the Arbitrator's finding of procedural arbitrability in this case is deficient.
C. The Arbitrator's Application of the Contractual Burden of Proof Is Not Deficient.
The Agency argues that the Arbitrator violated management's right to discipline under section 7106(a) of the Statute and Section 11.6 of the parties' agreement by "effectively" placing the burden of proof on the Agency with regard to certain charges. Exceptions at 3.
As with the Agency's argument regarding the specificity requirement, see supra, section IV.B, the Agency provides no basis for a conclusion that the Arbitrator's placement of the burden of proof on the Union affects management's right to discipline employees. Accordingly, it is unnecessary to apply the BEP analysis to this argument.
We construe the Agency's argument that the award is contrary to Section 11.6 of the agreement as an allegation that the award fails to draw its essence from the agreement. In order for an award to be found deficient as failing to draw its essence from the collective bargaining agreement, it must be established that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact [ v56 p627 ] and so unconnected with the wording and purposes of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990). It is well-established that, if a burden of proof is set forth in law, rule, regulation, or a collective bargaining agreement, then an arbitrator's failure to apply the prescribed standard will constitute a basis for finding the award deficient as contrary to law, rule, regulation, or as failing to draw its essence from the agreement. See U.S. Department of Veterans Affairs, Medical Center, Ann Arbor, Michigan and American Federation of Government Employees, Local 2092, 56 FLRA 216, 221 (2000) (citations omitted).
The Arbitrator explicitly found that the Union had the burden of proof under the parties' agreement. See Award at 25. The Arbitrator further found that "the Union has met its burden of proof in rebutting two of the charges leveled against the Grievant." Id. at 28. Consistent with those findings, there is no basis for the Agency's claim the Arbitrator "effectively" placed the burden of proof on the Agency with respect to two disputed charges. Exceptions at 3. Therefore, the Agency's argument does not demonstrate that the award fails to draw its essence from Article XI, Section 11.6 of the parties' agreement.
Accordingly, we find that the award draws its essence from the parties' agreement, and we deny the exceptions.
The Agency's exceptions are denied.
Footnote # 1 for 56 FLRA No. 98
Section 10.6.B of the parties' agreement provides, in pertinent part: "Each grievance must contain a clear and detailed explanation of the complaint including the article and section of the agreement alleged to have been violated and the specific personal relief sought by the Grievant." Award at 6.
Footnote # 2 for 56 FLRA No. 98
Footnote # 3 for 56 FLRA No. 98