American Federation of Government Employees, Local 916 and U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma (Authority decision, August 11, 1992)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority involving an arbitral award under 5 U.S.C. § 7122. Judicial review under 5 U.S.C. § 7123(a) generally does not extend to an order involving an arbitral award unless the order involves an unfair labor practice under 5 U.S.C. § 7116. The Authority denies exceptions to an award upholding a reprimand.

Plain-English summary

An employee at Tinker Air Force Base grieved a reprimand issued after four shotgun shells were found in his work locker. An arbitrator found just cause for the reprimand and denied the grievance. AFGE Local 916 argued that the reprimand was late under the labor agreement and challenged the arbitrator's burden of proof, handling of the grievance issue, and failure to apply federal personnel penalty factors. The Authority rejected those objections. It found that the reprimand was proposed within 45 days of the final investigation report, that no particular burden of proof or penalty test had been shown to apply, and that the arbitrator had addressed the submitted grievance. The union's exceptions were denied.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a).
• Outcome: Exceptions denied; arbitrator's award upholding the reprimand remains in place.
• Key point: Disagreement with an arbitrator's reading of an agreement or reasoning does not alone establish a deficient award.

Full text (FLRA public release)

[ v45 p822 ]

45:0822(76)AR

The decision of the Authority follows:

45 FLRA No. 76

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 916

(Union)

and

U.S. DEPARTMENT OF THE AIR FORCE

OKLAHOMA CITY AIR LOGISTICS CENTER

TINKER AIR FORCE BASE, OKLAHOMA

(Agency)

0-AR-2241

DECISION

August 11, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award
of Arbitrator Julius Rezler 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
Rules and Regulations. The Agency did not file an opposition to
the Union's exceptions.

The grievant filed a grievance contesting his reprimand. The
Arbitrator denied the grievance.

For the following reasons, we conclude that the Union has not
established that the award is deficient under section 7122(a) of
the Statute. Accordingly, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

The grievant is a Material Handler, WG-6907-06. On June 3,
1991, the Agency's Security Police were called to investigate the
discovery of weapons in a building located on the base. Having been led to the grievant's locker by a
tracing dog, an investigator opened the locker by removing the
hinges on one of the locker doors. The investigator found four
12-gauge shotgun shells in the grievant's locker in an open box
about 6 inches from the door. Upon completion of his
investigation, the investigator issued a final investigation
report on July 30, 1991.

The grievant was notified by letter of September 10, 1991,
that the Agency proposed to reprimand him for unauthorized
possession of the ammunition that was found in his locker. The
Agency's proposed decision to reprimand the grievant was based on
Air Force Regulation (AFR) 40-750, Item 20 ("Insubordinate
defiance of authority, refusal to comply with proper orders,
wanton disregard of directives or insolence"). Award at 2. By
letter dated October 29, 1991, the Agency affirmed its proposal to
reprimand the grievant.

The grievant filed a grievance alleging that his discipline
was not for just cause. The grievance was not resolved and was
submitted to arbitration. The Arbitrator stated the issue as
follows:

Was the [g]rievant reprimanded for just cause? If
not, what is the proper remedy?

Id. at 1.

Before the Arbitrator, the Union contended,
among other things, that the grievant had no
knowledge as to who had put the shells in his
locker. The Union asserted that anyone with a
screwdriver could have gained access to the
grievant's locker by removing the hinges or that
someone could have dropped the shells into the
locker through an opening. The Union also
contended that Item 20 of AFR 40-750 did not apply
in this case because the grievant had no knowledge
of the cited regulation and, therefore, did not
wantonly disregard directives or orders.

The Arbitrator determined that the Agency had
established a prima facie case against the grievant
"when four shotgun shells were found in [the
grievant's] locker." Id. at 2. The Arbitrator
found that it was, therefore, "up to the Union to
show that said shells were placed in the locker by
someone else without [the grievant's] knowledge"
and that "someone had the motive to harm" the
grievant. Id. Based on the testimony and
evidence, the Arbitrator found that the Union had
failed to support its contentions in this regard.

Further, as to the Union's contention that the
reprimand was improper because the grievant was
unaware of the provision in the Agency's regulation
which prohibits the unauthorized possession of
ammunition on the base, the Arbitrator stated that
"[t]here are offenses that are self-evident with or
without formal regulations, such as theft,
fighting, use of drugs and also, possession of
ammunition on the work floor." Id. The
Arbitrator, therefore, rejected the Union's
contention.

Accordingly, the Arbitrator found that he had
"no choice but to uphold the disciplinary action
against the [g]rievant." Id. at 3. As his award,
the Arbitrator denied the grievance.

III. First Exception

A. Union's Contentions

The Union contends that the award is deficient
because, during the hearing, the Arbitrator
improperly rejected the Union's claim that the
Agency's decision to reprimand the grievant was
untimely under the parties' collective bargaining
agreement. According to the Union, the reprimand
was untimely because the Agency did not comply with
the provision of the parties' agreement that
requires the Agency to serve notice of a proposed
disciplinary action on an employee within 45 days
of the completion of an investigation by someone
other than the supervisor. In this regard, the
Union argues that: (1) the physical aspects of the
investigation were completed on July 10, 1991; (2)
the report was compiled on July 25, 1991; and (3)
the grievant was notified of the proposed reprimand
on September 10, 1991. The Union asserts that the
Arbitrator's decision rejecting the Union's
contention does not draw its essence from the
parties' agreement.

B. Analysis and Conclusions

To demonstrate that an award fails to draw its
essence from an agreement, 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. See,
for example, U.S. Department of the Air Force,
Tinker Air Force Base, Oklahoma and American
Federation of Government Employees, Local 916, 42
FLRA 1342, 1349 (1991) (Tinker Air Force Base).

The Union has not demonstrated that the award
is deficient under any of these tests. The Union
has not established that the Arbitrator's award
could not, in any rational way, be derived from the
parties' agreement or that the Arbitrator's
interpretation of the agreement is irrational,
unfounded, or implausible. We note that the
grievant was notified of the proposed reprimand on
September 10, 1991, which is within 45 days of July
30, 1991, the date on which the final investigation
report was issued. Consequently, there is no basis
on which to conclude that the award fails to draw
its essence from the parties' agreement. Rather,
we find that the Union's exception constitutes mere
disagreement with the Arbitrator's interpretation
of the parties' agreement. Such disagreement
provides no basis for finding the award deficient.
See, for example, Tinker Air Force Base, 42 FLRA at
1350. Accordingly, we will deny the Union's
exception.

IV. Second Exception

A. Union's Contentions

The Union contends that the Arbitrator did not
use the appropriate burden of proof in this case.
The Union argues that, by requiring the Union to
demonstrate that someone put ammunition in the
grievant's locker without his knowledge and that
someone had a motive to harm the grievant, the
Arbitrator placed an improper burden on the Union
to prove that the grievant was innocent. According
to the Union, "the accusing party must prove that
the accused is guilty . . . ." Exceptions at 8.

B. Analysis and Conclusions

We reject the Union's claim that the award is
deficient on the basis that the Arbitrator applied
an improper burden of proof. Unless a specific
burden of proof is required, an arbitrator may
establish and apply any burden he or she chooses.
See U.S. Department of the Treasury, U.S. Customs
Service, Region IV, Miami District and National
Treasury Employees Union, Chapter 137, 41 FLRA 394,
398 (1991) (NTEU, Chapter 137). The Union does not
demonstrate that the Arbitrator was required to
apply any particular standard of proof. The
Arbitrator found that the Agency had established a
prima facie case against the grievant and he
rejected the Union's contentions in defense of the
grievant. The Union's exception, therefore,
constitutes nothing more than disagreement with the
Arbitrator's reasoning and conclusions in reaching
his determination to deny the grievance.
Accordingly, we will deny the Union's exception.

V. Third Exception

A. Union's Contentions

The Union contends that the award is contrary
to Article 7, section 7.06a of the parties'
agreement. That provision states, in pertinent
part, as follows:

The arbitrator's authority is limited to deciding
only the issues considered in the formal grievance.
If the parties fail to agree on a joint stipulation
of the issue for arbitration, then the parties
shall submit a separate stipulation and the
arbitrator shall determine the issue or issues to
be heard. . . .

Exceptions, Attachment 4 at 9. According to the
Union, the Union and the Agency stipulated to the
following issue:

Was the written [r]eprimand given to the grievant .
. . on September 10, 1991, for just and proper
cause and in accordance with the Master Labor
Agreement, [l]aw, [r]ule or [r]egulation? If
not[,] what shall the remedy be?

Id., Attachment 5. The Union argues that the
Arbitrator violated the agreement by deciding an
issue other than the one stipulated to by the
parties and consequently did not determine whether
the Agency had violated the parties' agreement,
law, rule, or regulation.

B. Analysis and Conclusions

Where the parties do not agree on a specific
issue, an arbitrator may formulate the issue to be
decided. See, for example, American Federation of
Government Employees, Local 1273 and U.S.
Department of Veterans Affairs, Medical Center,
Boise, Idaho, 44 FLRA 707, 710 (1992) (Medical
Center, Boise). In support of its contention that
the parties stipulated to the issue for
arbitration, the Union attached to its exceptions
an undated and unsigned statement that contains
nothing other than the issue to which the parties
allegedly stipulated. See Exceptions, Attachment
5.

Even assuming that the parties stipulated to the
issue as alleged by the Union, we note that the
issue as framed by the Arbitrator in his award is
substantially similar to the issue that the Union
claims was agreed to by the parties.

We reject the Union's contention that the
Arbitrator's formulation of the issue prevented
consideration of whether the award violated the
parties' agreement, law, rule, or regulation. The
Union has not demonstrated that the award is
inconsistent with any specific contract provision,
applicable law, rule, or regulation. We find,
therefore, that the Union's argument constitutes
nothing more than disagreement with the
Arbitrator's reasoning and conclusions in denying
the grievance and, as such, provides no basis for
finding the award deficient. See, for example,
U.S. Department of Justice, Immigration and
Naturalization Service, Honolulu District Office,
Honolulu, Hawaii and American Federation of
Government Employees, Local 2886, National
Immigration and Naturalization Council, 41 FLRA
207, 212 (1991). Accordingly, we will deny the Union's
exception.

VI. Fourth Exception

A. Union's Contentions

The Union contends that the Arbitrator ruled on
charges other than those presented by the Agency or
the Union and thereby violated the provision of the
parties' agreement that limits an arbitrator's
authority to deciding only the issue or issues
considered in the formal grievance.

The Union asserts that although "[t]he grievant had
been charged with 'unauthorized ammunition being
found in [his] locker'" and the Agency's Deciding
Official had "testified that the grievant was
actually charged with '[w]anton disregard of
directives[,]'" the award states that the grievant
was reprimanded "for possession of unauthorized
ammunition found in his locker . . . ." Exceptions
at 9. According to the Union, "[t]here is a
profound difference in something being found and
having possession of it." Id.

B. Analysis and Conclusions

To the extent that the Union contends that the
Arbitrator exceeded his authority by deciding
issues not considered in the formal grievance, we
reject this contention. An arbitrator exceeds his
or her authority when, for example, the arbitrator
issues an affirmative order that exceeds the scope
of the matter submitted to arbitration or awards
relief to persons who did not file a grievance on
their own behalf and did not have the Union file a
grievance for them. U.S. Department of the
Treasury, Internal Revenue Service, Internal
Revenue Service, Los Angeles District and National
Treasury Employees Union, 42 FLRA 252, 259 (1991).
In our view, the Union has not demonstrated that
the award concerns matters not submitted to
arbitration or includes persons not encompassed by
the grievance. The Arbitrator responded directly
to the issue of the basis for the reprimand and
whether the reprimand was for just cause.
Therefore, we find that the Arbitrator did not
exceed his authority by ruling on issues not
submitted in the formal grievance. See, for
example, U.S. Department of Transportation, Federal
Aviation Administration, Chicago, Illinois and
National Air Traffic Controllers Association, 41
FLRA 1441, 1448-49 (1991) (arbitrator did not
exceed her authority by ruling on issues that were
not submitted where issue decided by arbitrator was
directly responsive to the issue as she framed it).

To the extent that the Union contends that the
award does not draw its essence from the parties'
agreement, we reject this contention as well. As
noted in our analysis of the Union's first
exception, to demonstrate that an award fails to
draw its essence from an agreement 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. The
Union has not demonstrated that the award is
deficient under any of these tests. The Union has
not established that the award could not, in any
rational way, be derived from the parties'
agreement or that the Arbitrator's interpretation
of the agreement is irrational, unfounded, or
implausible. As stated above, the Arbitrator
responded directly to the issue of the basis for
the reprimand and whether the reprimand was for
just cause. Consequently, there is no basis on
which to conclude that the award fails to draw its
essence from the parties' agreement. Rather, the
Union's exception constitutes mere disagreement
with the Arbitrator's interpretation of the
parties' agreement and, as such, provides no basis
for finding the award deficient.

Accordingly, we will deny the Union's
exception.

VII. Fifth Exception

A. Union's Contentions

The Union contends that the Arbitrator failed
to apply the guidelines governing the
appropriateness of penalties (Douglas factors) set
forth by the Merit Systems Protection Board (MSPB)
in Douglas v. Veterans Administration, 5 MSPR 280
(1981). According to the Union, the Agency was
required, in accordance with the Douglas factors,
to prove that the grievant was aware of the
regulation allegedly violated. The Union argues
that the award is deficient because the Arbitrator
upheld discipline against the grievant for
violating a regulation as to which the grievant was
not on notice.

B. Analysis and Conclusions

Contrary to the Union's assertions, the
Arbitrator was not required to consider the Douglas
factors enumerated by the MSPB in deciding the
matter before him. We have repeatedly held that
arbitrators are not bound by the same substantive
standards as the MSPB when resolving grievances
over actions not covered by 5 U.S.C. °° 4303 and
7512. See, for example, American Federation of
Government Employees, Council of Prison Locals,
Local 1612 and U.S. Department of Justice, Federal
Bureau of Prisons, Medical Center for Federal
Prisoners, Springfield, Missouri, 40 FLRA 498, 503
(1991). Further, the Union does not demonstrate,
and it is not otherwise apparent from the record,
that the Arbitrator was required to apply any
particular notice requirements to the resolution of
the issue before him. Therefore, as noted with
respect to the Union's second exception, in the
absence of any required standards, the Arbitrator
could apply any standards he considered appropriate
to the resolution of the issue before him. See,
for example, NTEU Chapter 137, 41 FLRA at 398.
Accordingly, we will deny the Union's exception.

VIII. Decision

The Union's exceptions are denied.

FOOTNOTES:
(If blank, the decision does not
have footnotes.)