40:0953(79)AR - - Air Force, Randolph AFB, TX and AFGE Local 1840 - - 1991 FLRAdec AR - - v40 p953
[ v40 p953 ]
The decision of the Authority follows:
40 FLRA No. 79
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on an exception to an award of Arbitrator Elvis C. Stephens 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 exception.
The Arbitrator denied a grievance over the 14-day suspension of an employee. For the following reasons, we conclude that the Union has not established that the Arbitrator's award is deficient. Accordingly, we will deny the exception.
II. Background and Arbitrator's Award
The grievant is a sheet metal mechanic at the Agency's facility. On April 23, 1990, the grievant received a Notice of Proposed Suspension (notice) from his supervisor. The notice proposed to suspend the grievant for 14 calendar days for unauthorized use of government equipment and supplies.
The specific instance of alleged misconduct cited in the notice was that on the morning of March 23, 1990, the grievant and another employee were observed "in the Hanger 63 parking lot repairing [the grievant's] privately owned boat trailer by using a government welding truck and its attached welding and/or torch equipment." Award at 2 (quoting notice). The grievant was given an opportunity to and did respond to the notice. Thereafter, the grievant's supervisor notified the grievant of the decision to suspend the grievant for 14 days.
The grievant filed a grievance over the suspension. The grievance was not resolved and was submitted to arbitration. The Arbitrator framed the issue as follows: "Was the 14 calendar day suspension of the grievant for just cause? If not, what is the proper remedy?" Id. at 1.
Before the Arbitrator, the Union contended that the Agency witnesses who testified did not actually see the grievant using government equipment. Accordingly, the Union asserted that the Agency did not meet its "burden of proving [the] charge by a preponderance of evidence[.]" Id. at 4. Moreover, the Union maintained that the individual who first reported the grievant's alleged misconduct to management had an "adverse relationship" with the grievant. Id. The Union further argued to the Arbitrator that the grievant's supervisor had committed "a harmful error" because the supervisor had operated on the "mistaken assumption" that two specific witnesses had observed the grievant using government equipment and the supervisor would not have taken action against the grievant had the supervisor known the witnesses had not actually observed the grievant using government supplies and equipment. Id. Finally, the Union argued that the Agency, in determining to suspend the grievant, had failed to properly consider mitigating factors such as the grievant's prior work record and the Agency's failure to discipline other employees who had used government equipment and supplies.
The Arbitrator noted that the action was taken against the grievant under the provisions of AFR 40-750, Civilian Personnel Discipline and Adverse Actions which provides a table of offenses and the range of penalties appropriate for any given offense. The Arbitrator found that under Part 21b of AFR 40-750, the penalties for unauthorized use of government property ranged from a reprimand to a removal for the first offense and that the regulation provided for a greater penalty when "willfulness or intent" was involved. Id.
The Arbitrator considered the Union's allegation of "harmful error" on the part of the grievant's supervisor. The Arbitrator noted that the term "harmful error" is defined in AFR 40-750, Section A.2.k. as an "error by management in the application of its procedures which, if corrected or alleviated, might have resulted in a different conclusion." Id. at 5 (quoting AFR 40-750). The Arbitrator acknowledged that during cross-examination, in response to the question as to whether the supervisor would have suspended the grievant if the supervisor "had no witness statements or no witness told [the supervisor] they [sic] had seen [the grievant] working using government equipment[,]" the supervisor agreed that he would not have suspended the grievant under those circumstances. Id. However, the Arbitrator concluded that even if the supervisor had not been under the impression that witnesses had seen the torch being used, it was doubtful that the supervisor would have come to a different conclusion because the "circumstantial evidence" in photographs and in testimony was "very strong." Id.
The Arbitrator emphasized that the supervisor did not rely solely on the two disputed witness statements. Rather, the supervisor conducted an investigation into the matter and talked to several employees who did not give statements, but had observed the torch being used. In addition, the supervisor testified that the grievant never denied the charges when questioned by the supervisor. Moreover, the Arbitrator found that photographs that had been taken "plainly show that a torch was used under the boat trailer" and "that the axle on the boat had been heated." Id. The Arbitrator noted that the co-worker who assisted the grievant with the boat trailer repair admitted that he lit the torch. However, with respect to the co-worker's claim that he lit the torch in order to "check it out after replacing some 'O' rings in it[,]" the Arbitrator concluded that it "stretches common sense too much to believe that someone would crawl under a boat trailer just to test out a repair on a torch." Id.
With respect to the Union's other assertions the Arbitrator found that "no probative evidence was introduced to prove" that other employees who had used government equipment and supplies had not been disciplined; that the supervisor had appropriately considered all relevant factors when determining the appropriate penalty for the grievant's misconduct; and that the "evidence produced at the arbitration hearing [met the] standard for convincing the [A]rbitrator that the [A]gency had just cause for suspending the grievant." Id. at 6. Accordingly, the Arbitrator denied the grievance.
III. The Union's Exception
The Union contends that the Arbitrator's award is deficient because it is contrary to AFR 40-750. Specifically, the Union argues that the grievant's supervisor committed a "harmful error" as defined in the regulation. The Union asserts that the Arbitrator erred when he concluded that there had been no "harmful error" because the supervisor would have reached the same conclusion had he not believed that witnesses had observed the grievant using government property.
The Union does not dispute that the grievant was working on his boat trailer during his break. However, the Union argues that "the disciplinary action was taken on erroneous information" that the grievant was using government equipment. Exception at 3. The Union asserts that the supervisor conceded that he would not have suspended the grievant had there been no witnesses who observed the grievant using government equipment. The Union argues that as the evidence adduced at the hearing demonstrates that witnesses did not actually observe the grievant using the Agency's torch, the supervisor committed a harmful error under AFR 40-750 because, as he testified, he would have reached a different conclusion if not for his mistaken belief that witnesses had observed the grievant's alleged misconduct. The Union maintains that the Arbitrator "substitut[ed] his opinion" for that of the supervisor when the Arbitrator found that it was doubtful that the supervisor would have come to a different conclusion based upon the other evidence of the grievant's use of government equipment. Id. at 2.
In conclusion, the Union states that "[h]ad the correct information been presented to [the supervisor], he would not have suspended the grievant. Clearly, the [U]nion presented ample evidence to meet the harmful error standard established by Statute that is well beyond the requirements for minor disciplinary action . . . . As the FLRA has established, in cases of minor discipline, the [U]nion need not show that a procedural error was harmful in order to justify the mitigation or recission [sic] of the disciplinary action." Id. at 3.
IV. Analysis and Conclusions
The Union has not demonstrated that the award is contrary to AFR 40-750. Specifically, the Union has not shown that the Arbitrator incorrectly concluded that the grievant's supervisor did not commit a harmful error, as defined in that regulation, when he decided to suspend the grievant. Instead, we conclude that the Union's argument is an attempt to relitigate the merits of the grievance before the Authority and constitutes mere disagreement with the Arbitrator's decision that the Agency had just cause when it suspended the grievant. Disagreement with an arbitrator's evaluation of evidence and the arbitrator's findings and conclusions based on that evaluation provides no basis for finding an award deficient. U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, Local 1336, 37 FLRA 766, 774 (1990).
Moreover, to the extent that the Union appears to contend that the Arbitrator was bound to apply the harmful-error rule as it would have been applied by the Merit Systems Protection Board (MSPB), that contention is also without merit. We have repeatedly held that arbitrators are not bound by the same substantive