38:1232(99)AR - - Army, Blue Grass Army Depot, Lexington, KY and IAM Local Lodge 859 - - 1990 FLRAdec AR - - v38 p1232



[ v38 p1232 ]
38:1232(99)AR
The decision of the Authority follows:


38 FLRA No. 99

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE ARMY

BLUE GRASS ARMY DEPOT

LEXINGTON, KENTUCKY

(Agency)

and

INTERNATIONAL ASSOCIATION OF MACHINISTS

AND AEROSPACE WORKERS

LOCAL LODGE 859

(Union)

O-AR-1939

DECISION

December 31, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator Carl Cabe filed by the Agency 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 Union filed an opposition to the Agency's exception.

The Arbitrator sustained the grievance and found that the grievant was not pecuniarily liable for an accident that occurred while the grievant was operating a government vehicle.

For the following reasons, we conclude that the case should be remanded to the parties for resubmission to the Arbitrator.

II. Background and Arbitrator's Award

The dispute arose when the grievant was operating a passenger van at the Agency's facility as part of his assigned duties. While backing out from a parking space, he struck a parked tractor trailer behind him. Damage to the van was calculated to be $1,385.84.

An investigation, characterized by the Agency as a "Report of Survey," was made of the accident. The security officer who conducted the survey recommended that the grievant not be held liable for the damage to the van. However, the agency official who had appointed the surveying officer rejected the recommendation. The grievant, who did not submit a statement during the survey, contended that he was not at fault because he had made every effort to avoid the accident, but had been unable to do so. The Agency held the grievant liable for the $1,385.84 in damage to the van.

A grievance was filed and when it was not resolved, it was submitted to arbitration on the following issue:

Did the [Agency] violate the terms and conditions of the basic agreement when it held [the grievant] pecuniarily liable for an accident which occurred on 13 April 1989 by operating a government vehicle during a normal and customary performance of his duties?

Award at 2.

The Arbitrator noted that the following two provisions of the parties' collective bargaining agreement were relevant to the dispute:

ARTICLE 18

SAFETY

Section 6. The Employer agrees that all employees who, as a regular part of their assigned duties, are required to drive a motor vehicle, shall be fully covered to the extent that no employee will be held monetarily responsible to the Employer for any property damage or injury, except for property damage or injury resulting from the employee's negligence or willful misuse, in accordance with applicable laws.

ARTICLE 30

GENERAL PROVISIONS

Section 1. The government will waive any collection for damage to government owned equipment which is damaged in the regular performance of duty unless such damage is incurred as the willful misconduct, disobedience, or negligence on the part of the employee.

Id.

The Arbitrator considered the testimony and arguments of the parties as to the facts and circumstances surrounding the accident and as to the interpretation of the applicable contract provisions set forth above.

At the arbitration hearing the Union argued that Article 30, Section 1 was a new contractual provision which had been negotiated to provide protection for vehicle drivers, such as the grievant, who were involved in accidents which resulted in costly repairs of government equipment. The Union contended that "[p]ainters who spilled paint or machine operators who broke a drill were never charged for the accident; it had been agreed during negotiations that employees involved in accidents such as [the grievant's] would not be subject to pay for the repair." Id. at 5. The Union maintained that before Article 30, Section 1 was included in the current contract, employees had been forced to pay for any and all damage to vehicles. Union officials testified that during negotiations the Union had proposed that drivers be given insurance, but as the Agency was self-insured, Article 30, Section 1 was negotiated to allow for Agency waiver of collection for damages in certain circumstances.

Finally, the Union argued that the grievant had acted in a reasonably prudent manner and that there was nothing careless or intentional about the accident. The Union asserted that the grievant's foot got caught under the brake pedal and he was unable to stop the van before it struck the trailer. According to the Union, the grievant did nothing wrong and the accident was not, therefore, a result of negligence.

The Agency contended at the arbitration hearing that the grievant had been negligent because he had failed to act in a reasonable, prudent manner. In this regard, the Agency noted that the grievant had good visibility of the trailer parked behind him and that the grievant had to cross a two-lane road before hitting the trailer. The Agency official who determined that the grievant had been negligent stated that Article 30, Section 1 "did not apply to him when he made his determination." Id. at 9. An Agency official who was involved in negotiations testified that she believed that Article 18, Section 6 and Article 30, Section 30 meant the same thing, as they both called for monetary damages when negligence resulted in an accident.

The Arbitrator noted that Article 30, Section 1 was a new provision in the current contract which the Union contended was negotiated to stop the assessment of damages against employees involved in accidents of the type presented in the arbitration proceeding. The Arbitrator found that the Agency had given "no indication or reason for [the] presence [of Article 30, Sect. 1] in the Agreement" and he questioned "why it was written, if there was to be no change in contractual obligations." Id. at 10.

As the Agency had not contended that the grievant had engaged in willful misconduct or disobedience, the Arbitrator proceeded to interpret the term "negligence" as it pertained to the matter before him. The Arbitrator noted that the Agency interpreted the term to encompass a failure to "act in a prudent or careful manner, using cautious and sound judgment" and that "under such an interpretation almost any accident would be termed negligent." Id. The Arbitrator determined that negligence must mean something different, more akin to the "habitual failure to do the required thing" and that "because mistakes occur, the totality of an individual's conduct must be considered." Id. at 10-11. Accordingly, in light of the grievant's competence and his 11-year record of having had no other accidents, the Arbitrator concluded that the discipline of holding the grievant liable for the damage to the van was in violation of the contract. As his award, the Arbitrator found that the grievant "is not pecuniarily liable for the accident of April 13, 1989." Id. at 11.

III. The Agency's Exception

A. Positions of the Parties

The Agency asserts that the award is deficient because it is contrary to law. Specifically, the Agency maintains that the Arbitrator's interpretation of the contract constitutes a "modification of the standard established by the [A]gency for determining pecuniary liability and, thus, interfer[es] with management's right to establish its internal security practices" under section 7106(a)(1) of the Statute. Agency Exception at 2.

In this regard, the Agency contends that the Arbitrator rejected the Agency's definition of simple negligence found in Paragraph 13-27b(2) of Army Regulation (AR) 735-5, Policies and Procedures for Property Accountability. According to the Agency, this regulation provides that "[s]imple negligence is the absence of due care, by an act or omission of a person which lacks that degree of care for the property that a reasonably prudent person would have taken under similar circumstances, to avoid loss, damage, or destruction to the property." Moreover, the Agency contends that the Authority in American Federation of Government Employees, AFL-CIO, Council 214 and Department of the Air Force, Headquarters Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 21 FLRA 244 (1986)(Wright-Patterson), aff'd on remand, 27 FLRA 814 (1987), held that Proposal 1, which attempted to establish gross negligence as the standard to be used in determining whether an employee will be liable for damage to government property, violated the agency's right to establish its internal security practices. Thus, the Agency contends that the Arbitrator, by defining negligence as being "habitually careless," created a standard of liability that contravenes the one established by management in its regulation. It argues that, under the Authority's holding in Wright-Patterson, the determination of an employee's liability for damaging government property is integrally related to an agency's right to determine its internal security practices. Id. at 5. Consequently, the Agency contends that the award is deficient because it denies management the right to determine the standards it will use in determining an employee's pecuniary liability for damage to government property in direct violation of its right to determine its internal security under section 7106(a)(1) of the Statute.

The Union contends that the award is not deficient. The Union argues that the Arbitrator never found that the grievant was negligent. It further asserts that there was no evidence before the Arbitrator that the grievant was negligent. Thus, the Union maintains that the Agency has not established that the Arbitrator was in error when he sustained the grievance by finding that the grievant was not liable for any damages. Consequently, the Union contends that the Agency has not provided any basis upon which to find the award deficient.

B. Analysis and Conclusions

We conclude that this case must be remanded to the parties for resubmission to the Arbitrator for further processing in accordance with this decision. Accordingly, we will remand this case to the parties for resubmission to the Arbitrator for a determination of what definition of negligence is applicable to the dispute in this matter.

1. Agency's Right to Determine Its Internal Security Practices

Initially, we reject the Agency's contentions with regard to the award's alleged violation of its right to determine its internal security practices. We conclude that the decision in Wright-Patterson must be read in conjunction with our recent decision in Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990)(Customs Service). In Customs Service we held that awards that enforce an arrangement negotiated by the parties for employees adversely affected by the exercise of a particular management right will be narrowly reviewed with respect to whether the award conflicts with Section 7106(a) of the Statute. We will determine only whether the arrangement, as interpreted and applied by the arbitrator, abrogates the management right asserted. If it does not abrogate a management right, the enforcement of the appropriate arrangement will provide no basis for finding the award contrary to section 7106(a) of the Statute. See also Panama Canal Commission and International Organization of Masters Mates and Pilots, Marine Division, 38 FLRA No. 3 (1990).

Here, it is readily apparent that Articles 18 and 30, taken together, constitute an arrangement to waive, in certain circumstances, the collection of damages that might otherwise be charged to employees whose actions during the performance of their assigned duties result in property damage or injury. Although the Agency disputes the standard of negligence used by the Arbitrator, the Arbitrator found that the accident did not result from the grievant's negligence. As interpreted and applied by the Arbitrator, the contractual provisions still permit the Agency to collect damages if the property damage or injury was caused by the employee's willful, disobedient or negligent actions. Consequently, as the award leaves undisturbed management's right to impose damages for willful, disobedient or certain negligent conduct, it does not abrogate the Agency's right to determine its internal security practices. Therefore, we find that the Agency has not established that the award is contrary to section 7106(a)(1).

2. Award's Alleged Conflict with Agency Regulation

With regard to the Agency's contention regarding the applicability of the definition of negligence set forth in AR 735-5, however, we find that the record is incomplete. We are unable to determine from the present record if the Agency regulation's definition of negligence was superseded, for the purpose of collecting damages under Article 30, by one contained in the parties' collective bargaining agreement. We conclude, therefore, that this case must be remanded to the parties for resubmission to the Arbitrator for additional processing in accordance with the following discussion.

In our decision in U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186 (1990) (Fort Campbell), we held that an award would be found to be deficient under section 7122(a)(1) when the award conflicts with a governing agency rule or regulation. We further, held, however, that only an arbitration award that conflicts with a rule or regulation that governs the matter in dispute will be found to be deficient under section 7122(a)(1) of the Statute. In this regard, we held that collective bargaining agreements, and not agency rules and regulations, govern the disposition of matters to which they both apply when there is a conflict between the agreement and the rule or regulation. We also noted that a provision that has become part of a collective bargaining agreement takes precedence over agency rules and regulations with respect to matters to which they both apply.

Our holding in Fort Campbell requires us to examine the record in this case to determine if, for the purpose of collecting damages under Article 30, there is a provision of the parties' collective bargaining contract containing a definition or standard of negligence that supersedes the definition of negligence contained in AR 735-5. We are, however, unable to make that determination based on the record before us. Moreover, because the Arbitrator did not have the benefit of our analysis in Fort Campbell pertaining to the analysis to be employed when an award appears to be in conflict with an agency regulation, we conclude that this case should be remanded to the parties for resubmission to the Arbitrator so that the Arbitrator can make the necessary findings. Accordingly, we will remand this case to the parties for resubmission to the Arbitrator on the issue of whether the Agency's regulation defining negligence was superseded by a different standard or definition contained in the parties' collective bargaining agreement.

IV. Decision

The case is remanded to the parties for resubmission to the Arbitrator in accordance with this decision on the sole issue of whether the definition of negligence, for the purpose of determining an employee's pecuniary liability for damage to government property, contained in the pertinent Agency regulation was superseded by a different standard or definition in the parties' collective bargaining agreement.




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