34:0178(39)AR - - AFGE Local 3404 and Army, Army Materials and Mechanics Research Center, Watertown, MA - - 1990 FLRAdec AR - - v34 p178
[ v34 p178 ]
The decision of the Authority follows:
34 FLRA No. 39
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE ARMY
ARMY MATERIALS AND MECHANICS RESEARCH CENTER
January 9, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Mark L. Irvings filed by the American Federation of Government Employees, Local 3404 (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 Army Materials and Mechanics Research Center, Watertown, Massachusetts (the Activity) did not file an opposition to the Union's exceptions.
The grievant was suspended for 14 days for the unauthorized possession of Government property. The Arbitrator found that substantial evidence supported the Activity's discipline of the grievant and denied the Union's grievance. The Union excepts to the Arbitrator's award, contending that the Arbitrator erred in finding that the evidence supported the discipline.
For the reasons that follow, we conclude that the Union has failed to establish that the award is deficient on any of the grounds set forth in section 7122(a) of the Statute. Accordingly, we deny the exceptions.
II. Background and Arbitrator's Award
On November 18, 1987, the grievant was observed placing a number of snow shovels in the trunk of his private car. This incident was reported to the Activity's security office.
When questioned by a security officer, the grievant admitted that the snow shovels were Government property and that he intended to use them for other than Government purposes. Award at 3, 11. After an investigation by the security office, it was determined that the grievant did not have authorization to take the shovels and had not obtained the property pass which would have been required to remove the shovels from the Activity's premises. Id. at 7-8. The grievant was suspended for 14 days for unauthorized possession of Government property.
The matter was submitted to arbitration. The stipulated issue before the Arbitrator was:
Whether substantial evidence supports the disciplinary action taken against [the grievant]?
If, so, whether the action taken was appropriate for the offense?
If not, should the disciplinary action be set aside or reduced?
Award at 1.
The Union contended that the suspension was not warranted because the grievant did not obtain the shovels through deceit or force and acted under the impression that he had received permission from his supervisor to take the shovels. Id. at 11. The Union argued that the grievant should not be held accountable for removing Government property to use for non-Governmental purposes because the Activity's procedures for obtaining a property pass were "so lax and unclear." Id. at 13. The Union asserted that the grievant's failure to follow "proper procedures was a function of the fact that the procedures were not clearly spelled out, nor were they uniformly followed." Id. at 11.
The Arbitrator found that the Activity "had substantial evidence that [the grievant] was guilty of unauthorized possession of [G]overnment property." Id. The Arbitrator relied on the statements and testimony of the grievant, the Activity's security officer, an Activity supply clerk, and the grievant's supervisors in reaching his conclusion. The Arbitrator also relied on the Activity's "Standard of Conduct" which "quite clearly states the rule that [G]overnment property cannot be used for non-[G]overnmental purposes." Id. at 12. The Arbitrator stated:
Given that [the grievant] was in unauthorized possession of [G]overnment property, the two week suspension was not unreasonable or disparate. It was within the disciplinary range prescribed by the Table of Penalties. There was no evidence employees who had committed similar offenses were treated more leniently. The suspension was therefore appropriate and should not be reduced.
Id. at 13.
As his award, the Arbitrator stated: "Substantial evidence supports the disciplinary action taken against [the grievant]. The action taken was appropriate for the offense. The grievance is denied." Id. at 14.
The Union contends that the Arbitrator incorrectly found that the evidence submitted by the Union was not sufficient to support the Union's claim "that employees were routinely allowed to take things from Supply for non-[G]overnmental use, or without proper documentation." Union's Exceptions at 1. The Union argues that it met its burden of proof by establishing that "there is a pattern that employees were routinely allowed to take things out of supply without penalties" and that the grievant should not "be used as a scapegoat" for the failure of the property control system. Id. at 2. The Union contends that the Arbitrator should have reduced the discipline to a letter of warning, advising the grievant as to "the proper procedures of how to obtain a property pass." Id. The Union also requests that the 14-day suspension be set aside, the grievant be compensated for lost wages, and the grievant's flexitime be restored. Id.
The Statute sets forth the grounds on which an arbitration award will be found deficient. Under section 7122(a), an award will be found deficient: (1) because it is contrary to law, rule, or regulation; or (2) on other grounds similar to those applied by the Federal courts in private sector labor relations cases.
The Union does not contend that the award is contrary to any law, rule, or regulation. The Union contends that the Arbitrator erred by failing to find that the Union had demonstrated an established pattern whereby employees were allowed "to take things out of [Activity supplies]" for non-Governmental use without penalties. Union's Exceptions at 2. This contention does not state a ground similar to an