American Federation of Government Employees, Local 1547 (Union) and United States Department of the Air Force, Luke Air Force Base, Arizona (Agency)

65 FLRA No. 195              
LOCAL 1547
June 20, 2011
Before the Authority: Carol Waller Pope, Chairman, and Thomas M. Beck and Ernest DuBester, Members
I.     Statement of the Case
        This matter is before the Authority on exceptions to an award of Arbitrator Douglas P. Hammond filed by the Union under § 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.
        As relevant here, the Arbitrator found that the due process and just cause standards incorporated in the parties’ collective bargaining agreement (CBA) did not apply to the grievants’ terminations from their positions as temporary employees.
        For the reasons that follow, we deny the Union’s exceptions.
II.    Background and Arbitrator’s Award
        The grievants were employed by the Agency as temporary security guards. Award at 7. As a condition of their employment, the Agency required each grievant to sign a “Conditions of Temporary Limited Appointment Statement(s) of Understanding” (Statement). Id. at 10. The Statement indicated that, as temporary employees, they were “not covered by the adverse action procedures under 5 [U.S.C. §] 4303 and 5 [U.S.C. §] 7511” and could be “terminated at any time upon notice from the Agency.” Id. 
        While on duty, the grievants had a fistfight. Id. at 7. An Agency supervisor gathered statements from other employees regarding the incident, but did not request statements from the grievants. Id. The Agency then notified each grievant that his employment was terminated based on “misconduct of fighting with another employee while on duty.”  Id. at 8.   

        The Union filed a grievance alleging that the Agency violated the CBA when it terminated the grievants’ employment. Id. at 1. The matter was unresolved and was submitted to arbitration. 
        The Arbitrator framed the issues as whether “the grievance [is] properly before the Arbitrator in accordance with [the CBA]” and, if so, “was due process followed and was the termination of [the grievants] for just cause? If not, what is the appropriate remedy?” Id. at 3.
        On the arbitrability issue, the Arbitrator found that the grievants were entitled to grieve their terminations under the CBA. Id. at 16. On the merits, the Arbitrator determined that the due process and just cause standards incorporated in the CBA did not apply to the grievants as temporary employees. Id. at 18-20. Finding that the Statement the grievants signed set forth the “conditions governing [their] temporary appointments,” id. at 17, the Arbitrator further determined that “under [the] specific terms set forth in the signed statements[,]” the grievants’ employment “could end for any legal reason[,]” id. at 18. In the Arbitrator’s view, the grievants were not entitled to “commonly accepted due process requirement[s]” or “all the recognized steps . . . contained in the standard just cause provision.” Id. at 18, 19. Therefore, the Arbitrator concluded, the grievants’ “temporary appointments properly ended.” Id. at 19.
III. Positions of the Parties
        A.    Union’s Exceptions
        The Union contends that the award is deficient because: (1) it fails to draw its essence from the CBA; and (2) it is contrary to law.
        With respect to the essence exception, the Union argues that, contrary to the Arbitrator’s interpretation, the CBA does not exclude the grievants from the due process and just cause standards incorporated in the CBA. Exceptions at 6. In this regard, the Union asserts that the grievants are part of the bargaining unit and no evidence was presented at arbitration that distinguishes temporary employees from the rest of the bargaining unit regarding disciplinary actions. Id. at 4. The Union also argues that the Arbitrator erred by finding that the grievants waived their contractual rights to due process and discipline for just cause by signing the Statement. Id. at 5-6. In addition, the Union contends that the Arbitrator failed to consider evidence presented at the arbitration hearing that other employees were given due process rights and an opportunity to respond to proposed disciplinary actions. Id. at 5, 7.
        The Union also argues that the award is contrary to law “because it violate[s] the parties’ [CBA].” Id. at 3.
        B.    Agency’s Opposition
        The Agency argues that it is irrelevant whether the Arbitrator erred in determining that the grievants waived certain of their rights under the CBA because the grievance was not arbitrable.[1] Opp’n at 2-3. Moreover, the Agency contends, even if the Arbitrator erroneously found that the grievants waived their rights, it was a “harmless error” because they had no rights to waive. Id. at 3-4. Finally, the Agency asserts, the Union’s exceptions “merely disagree[]” with the award and mere disagreement with an award does not demonstrate that the award is deficient. Id. at 4.  
IV. Analysis and Conclusions
        The Union argues that the award fails to draw its essence from the CBA. Exceptions at 5-7. In reviewing an arbitrator’s interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that federal courts use in reviewing arb