The second question is whether the award fails to draw its essence from the parties’ agreement. The Union argues that the Arbitrator erred by failing to find that the suspension was not “fair and equitable” under Article 26 of the parties’ agreement.^[1] Because the Union bases its essence exceptions on claims that are either without merit, or irrelevant to the suspension that the Arbitrator sustained, the answer is no.

 

                The grievant is an Agency accountant. After scheduling an audit, the Agency hired a contractor to conduct a series of training sessions “concerning the procedures to be used in preparation for the audit.”^[2] The grievant’s supervisor directed the grievant to attend the training sessions. The grievant told the supervisor that he declined to participate in the training. The supervisor warned the grievant that his “failure to attend may result in disciplinary action” because the training was mandatory.^[3] 

 

                The grievant was absent from one of the training sessions, and did not provide a doctor’s note by the supervisor’s fifteen‑day deadline. After the fifteen‑day deadline passed, the grievant gave the supervisor a printed “[a]ppointment [r]eminder” for his medical appointment on the day he was absent.^[4] 

 

 

                The Union filed a grievance challenging the suspension, which was unresolved and submitted to arbitration. The parties were unable to agree on the issues, so the Arbitrator framed them, in pertinent part, as: “Whether the [grievant’s] suspension . . . for failure to follow supervisory instructions was supported by the facts. If so, whether the discipline promoted the efficiency of the service.”^[5] 

 

 

However, the Arbitrator rejected the Union’s request to set aside the suspension based on the 107‑day lapse between the notice and the suspension. The Union argued that the 107‑day lapse violated § 7503(b)(4) because the suspension was not issued “at the earliest practicable date.”^[6]  Rejecting the Union’s argument, the Arbitrator found that:  (1) “[the deciding official] was not given a deadline [by which] to make his final decision and that he had other projects to tend to prior to” issuing the suspension; (2) there was “no evidence that the delay in issuing the [suspension] caused any financial harm or undue hardship [to the grievant];” and (3) the Union did not “introduce[]” “any preceden[t] . . . establishing that discipline was set aside for [a] similar delay.”^[7] The Arbitrator concluded, therefore, that the suspension was issued “at the earliest practicable date” under § 7503(b)(4).^[8]  

 

Next, the Arbitrator sustained the charge of failure to provide a doctor’s note. The Arbitrator found that the failure to provide the doctor’s note in a timely fashion “was a discrete act[,] apart from the . . . absence [at the training], which may warrant discipline.”^[9] She also found that, because the grievant requested sick leave immediately after his supervisor warned him that the training was mandatory, the Agency had “reasonable grounds to believe that the [grievant] was abusing the sick[‑]leave benefit.” ^[10]  Thus, the Arbitrator determined that the Agency was justified in requesting a doctor’s note under the parties’ agreement. She also found that requesting the doctor’s note did not violate the grievant’s due‑process rights and that the suspension was supported by the record.

 

In addition, the Arbitrator rejected the Union’s arguments that: (1) the appointment reminder should have been included in the notice so that it could be considered by the deciding official; and (2) the suspension was not fair and equitable under Article 26 of the parties’ agreement. Regarding the appointment reminder, she found that “[the grievant’s] belated submission of the [appointment reminder] . . . did not comply with the supervisor’s instruction,”^[11] and that the inclusion of the appointment reminder in the notice would have supported only dismissing the AWOL charge, which the deciding official had already dismissed. The Arbitrator also found that the suspension was “fair and reasonable”^[12] and promoted the efficiency of the service under the parties’ agreement.

 

 

 

 

The Union argues that the award is contrary to law because:  (1) the suspension was not issued “at the earliest practicable date” under 5 U.S.C. § 7503(b)(4) and 5 C.F.R. § 752.203; and (2) the Arbitrator erred in finding that the Agency did not violate the grievant’s due‑process rights.^[13] As § 752.203 is an implementing regulation that mirrors the requirements of § 7503, our analysis of § 7503(b)(4)’s requirements at issue in this case will encompass the mirroring requirements of § 752.203.^[14] 

 

 

When an exception involves an award’s consistency with law, the Authority reviews any question of law raised by the exception and the award de novo.^[15] In applying the standard of de novo review, the Authority assesses whether an arbitrator’s legal conclusions are consistent with the applicable standard of law.^[16] In making that assessment, the Authority defers to the arbitrator’s underlying factual findings,^[17] unless a party demonstrates that the findings are nonfacts.^[18] 

 

Reciting various events that occurred between the Agency’s issuance of the notice and the Agency’s decision to suspend the grievant, the Union argues that the 107 days that elapsed violated § 7503(b)(4)’s requirement that such decisions be issued at the “earliest practicable date.”^[19] The Union relies, in part, on the testimony of Agency officials who processed the notice to support its argument.^[20] However, the testimony that the Union cites does not contradict any of the Arbitrator’s factual findings, and does not address at all the Arbitrator’s key finding that the deciding official “had other projects to tend toprior to” issuing the suspension.^[21] Moreover, the Union does not explain how the testimony demonstrates that the suspension decision was not issued “at the earliest practicable date” under § 7503(b)(4).^[22] 

 

The Union also relies for support on the awards of other arbitrators, and on Authority case law.^[23] Because the authorities the Union cites do not support its claim, and finding no other legal basis for finding a violation of § 7503(b)(4) under these circumstances, we deny this Union contrary‑to‑law exception.

 

The Union’s reliance on other arbitration awards does not provide a basis for finding that the award in this case is contrary to law. The Union argues that these awards demonstrate that the suspension issued here was not issued “at the earliest practicable date” under § 7503(b)(4).^[24] But it is well established that arbitration awards are not precedential, and a contention that an arbitration award conflicts with other arbitration awards does not provide any basis for finding an award deficient.^[25] 

 

The Union’s reliance on Authority case law is also misplaced. The Union cites the Authority’s decision in INS^[26] to support its argument that the suspension was not issued “at the earliest practicable date” under § 7503(b)(4).^[27]  However, INS is inapposite. Unlike this case, INS concerned an agency’s delay in proposing discipline after the date of a grievant’s offending conduct.^[28] The agency waited 240 days.^[29] Moreover, as relevant here, the only issue before the Authority was whether the agency’s delay constituted a “harmful error” within the meaning of 5 U.S.C. § 7701(c).^[30] No issue was raised or decided by the Authority as to whether discipline was issued “at the earliest practicable date”^[31] under § 7503(b)(4).  Therefore, the Union’s reliance on INS does not demonstrate that the award is contrary to law because the suspension was not issued “at the earliest practicable date”^[32] under § 7503(b)(4). 

 

 

When a contrary-to-law exception asserts that an arbitrator erred in finding no due‑process violation, the Authority asks:  (1) whether the grievant had a constitutionally protected property interest entitling him or her to due process; and (2) if so, whether the grievant received the process that he or she was due.^[33] The Authority has determined that, under § 7503, nonprobationary federal employees in the competitive service have a constitutionally protected property interest in employment such that they may not be suspended for fourteen days or less without due process.^[34] Here, there is no dispute that the grievant is a nonprobationary federal employee in the competitive service. As such, the grievant had the requisite property interest in employment to entitle him to due process.^[35]

 

As the grievant was entitled to due process, the question is whether the Arbitrator erred in finding that the grievant’s due‑process rights were not violated by the 107‑day lapse between the notice and the suspension decision.^[36]  The Authority has held that employees such as the grievant are entitled to:  (1) notice of the charges; (2) an explanation of the agency’s evidence; and (3) an opportunity to respond.^[37] 

 

 

                The Union argues that the award fails to draw its essence from the parties’ agreement.^[38] Specifically, the Union argues that the Arbitrator erred by failing to find that the suspension was not “fair and equitable” under Article 26 of the parties’ agreement because:  (1) the Agency violated § 7503(b)(4) by not issuing the suspension “at the earliest practicable date;”^[39] and (2) the supervisor did not include the appointment reminder in the notice.^[40]

 

                When reviewing an arbitrator’s interpretation of a collective‑bargaining agreement, the Authority applies the deferential standard of review that federal courts use in reviewing arbitration awards in the private sector.^[41] Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the parties’ agreement when the appealing party establishes 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 purposes of the collective-bargaining 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.^[42]  The Authority and the courts defer to arbitrators in this context “because it is the arbitrator’s construction of the agreement for which the parties have bargained.”^[43]  

 

                 Regarding the Union’s first argument, the Arbitrator found no violation of § 7503(b)(4),^[44] and we have denied the Union’s exception to that ruling.  Therefore, the Union fails to support its claim that the time that elapsed from the Agency issuing the notice to the Agency’s decision to suspend the grievant was not “fair and equitable” under Article 26 of the parties’ agreement^[45] because the Agency violated § 7503(b)(4).

 

                The Union’s second argument – that the Arbitrator should have found that the grievant’s suspension not “fair and equitable” under Article 26 because the supervisor did not include the appointment reminder in the notice^[46] – is also unpersuasive. The Union’s claim addresses a matter that the Arbitrator found irrelevant to the suspension that she sustained.

 

                The Arbitrator sustained a three-day suspension of the grievant for failure to follow instructions – that is, failure to provide a doctor’s note in a timely fashion.^[47] In the Arbitrator’s view, the failure to attach the “belated”^[48] appointment reminder to the notice only supported dismissing the AWOL charge, which the deciding official had already dismissed.^[49] As a consequence, the Arbitrator rejected the Union’s argument “that once the AWOL was converted to approved leave, the grievant’s failure to follow the supervisor’s instruction to provide medical documentation within [fifteen] days became a moot point.”^[50] Rather, the Arbitrator ruled, “the act of failing to follow instructions is an act that is distinct and independent from an approved or unapproved leave.”^[51] The Union does not challenge this ruling. Accordingly, because the Union’s exception does not contest an aspect of the award relevant to the suspension that the Arbitrator sustained, the Union’s exception does not provide a basis for finding the award deficient.  

 

 

 

 

 

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