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56 FLRA No. 196
U.S. Department of the Army, The Adjutant General, Missouri National Guard, Bridgeton, Missouri and Association of Civilian Technicians, Show-me Air Chapter No. 93 (Creger, Arbitrator), (Decided February 23, 2001)
The Arbitrator sustained the part of the grievance alleging that the Agency was not authorized to use adverse action procedures under Technical Personnel Regulation (TPR) 752 to suspend the grievant for five days. The merits of the adverse action taken by the Agency against the grievant were not at issue in this arbitration proceeding, as noted by the Arbitrator. The Arbitrator then denied that part of the grievance alleging that a performance evaluation of the grievant was made in retaliation for the filing of the grievance.
The Authority denied the Agency's exceptions.The Authority noted that under § 2429.5 of its regulations, it will not consider issues that could have been, but were not, raised before the arbitrator. Thus, the Authority did not consider the issue of whether the grievance was arbitrable because the grievant was covered by the Technicians Act of 1968, 32 U.S.C. § 709; nor the issue concerning management's right to discipline under § 7106(a)(2) of the Statute. The Authority found that these two issues could have been, but were not presented to the Arbitrator.
The Authority also found that the Agency failed to demonstrate that the award was implausible, irrational, or in manifest disregard of the parties' collective bargaining agreement. Accordingly, the allegation that the award failed to draw its essence from the parties' agreement was denied.