41:0472(44)AR - - DOL, Washington, DC and AFGE Local 12 - - 1991 FLRAdec AR - - v41 p472



[ v41 p472 ]
41:0472(44)AR
The decision of the Authority follows:


41 FLRA No. 44

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF LABOR

WASHINGTON, D.C.

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 12

(Union)

O-AR-2035

DECISION

June 28, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to two awards of Arbitrator Charles Feigenbaum 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 filed an opposition to the Union's exceptions.

In his first award, the Arbitrator reduced an employee's 10-day suspension for violating Agency parking rules to 5 days. In his second award, the Arbitrator denied a grievance disputing a second employee's 5-day suspension for violating the same Agency parking rules.

For the following reasons, we conclude that the Union's exceptions provide no basis for finding the awards deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Awards

Two employees were suspended, one for 10 days and the second for 5 days, for violating the Agency's parking rules. Each employee filed a grievance over his suspension and the grievances were submitted to arbitration.

A. First Award

The parties stipulated the issue as follows:

Was the 10 day suspension given the Grievant for such just cause as will promote the efficiency of the service?

First Award at 2.

The Arbitrator first rejected the Union's contentions that the grievant's misconduct occurred off-duty and affected neither the grievant's employment nor the conduct of other employees. The Arbitrator stated that "[i]t was the Union's burden to show that this was the case and that has not been done." First Award at 10. According to the Arbitrator, the grievant's own statements established that the grievant found another employee's parking permit on the Agency's premises and knowingly misused that permit by parking his car, in the Agency's garage, for three working days. The Arbitrator stated further, that "the [g]rievant's behavior was directly and unmistakably connected to his employment. It involved a violation of [Agency] rules with respect to its parking garage, and cheating the [Agency] of monies due it." Id. at 10. The Arbitrator concluded that the grievant "made fraudulent use of a [parking] permit to which he was not entitled." Id.

The Arbitrator also rejected the Union's contention that, consistent with the Agency's parking regulations, the Agency could discipline the grievant only by suspending his parking privileges or issuing a parking ticket. The Arbitrator concluded that there was nothing in the record to indicate that the Agency intended to limit "itself from punishing parking abuse by other than a suspension of parking privileges, or by the issuance of a parking ticket." Id. at 11.

The Arbitrator concluded, however, that there was "no valid basis for a penalty . . . that is twice as heavy as the one sustained for [the second grievant]." Id. at 13. Accordingly, the Arbitrator mitigated the 10-day suspension to 5 days and directed the Agency to make the grievant whole for any salary or benefits lost beyond the 5-day suspension upheld.

B. The Second Award

The parties stipulated the issue as follows:

Was the 5 day suspension given the Grievant for such just cause as will promote the efficiency of the service?

Second Award at 2.

For the same reasons expressed in the first award, the Arbitrator rejected the Union's contentions that the suspension was improper because: (1) the grievant's misconduct occurred off-duty, and (2) the Agency could discipline the grievant only by suspending his parking privileges or issuing a parking ticket. According to the Arbitrator, it was "more likely than not" that the grievant purchased an illegal parking permit for another employee during duty time in the Agency's parking garage. Id. at 10. The Arbitrator refused to mitigate the suspension because, in his view, the grievant's "conduct was serious" and "contributed to a scheme to defraud [the Agency]." Id. at 12-13.

III. The Union's First Exception

A. Positions of the Parties

The Union claims that the Arbitrator erred in failing "to hold the Agency . . . to the appropriate, statutory burden of proof . . . ." Exceptions at 1. According to the Union, the Agency should have been required to prove, under 5 U.S.C. § 7513(a), that the grievants' misconduct "had an adverse or deleterious effect upon the efficiency of the service." Id. The Union asserts that the Agency should have been required to "show how Agency efficiency was harmed by having the wrong [Agency] employees parking in the [Agency] parking garage." Id. at 7 (emphasis in original). The Union argues that "if the Agency cannot show a deleterious link between the misconduct in question and the efficient operation of its enterprise . . . then there can be no harm which is susceptible to correction." Id. at 8.

The Agency argues that the Union's exceptions constitute mere disagreement with the Arbitrator's conclusions and do not demonstrate that the awards are deficient. According to the Agency, "[a]cts of dishonesty on the job, such as the fraudulent use of a parking permit, impair the efficiency of the service." Opposition at 7.

B. Analysis and Conclusions

Initially, we find that the Union's reliance on 5 U.S.C. § 7513(a) is misplaced. 5 U.S.C. § 7513(a), which provides that actions may be taken against an employee "only for such cause as will promote the efficiency of the service," applies only to serious adverse actions such as removals, suspensions for more than 14 days, and reductions in grade.

The 10-day and 5-day suspensions involved in the awards are not covered by 5 U.S.C. § 7513(a). As such, unless a specific burden of proof is required by the parties' collective bargaining agreement, the Arbitrator was free to establish and apply whatever burden he considered appropriate. See, for example, U.S. Department of the Air Force, Headquarters Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 40 FLRA 88, 93 (1991). There is no contention that the parties' agreement required the Arbitrator to apply a specific burden of proof. Accordingly, the Union's exception that the Arbitrator erred in applying an incorrect burden of proof does not demonstrate that the award is deficient. Id. at 93.

In addition to its argument regarding the burden of proof under 5 U.S.C. § 7513(a), the Union also argues that the award conflicts with that section because the grievants' suspensions were not taken for such cause as will promote the efficiency of the service. As noted above, 5 U.S.C. § 7513(a) does not apply in this case. However, 5 U.S.C. § 7503(a), which applies to suspensions for 14 days or less, provides that such suspensions may be taken "for such cause as will promote the efficiency of the service . . . ." Accordingly, we will construe the Union's exception as an assertion that the awards conflict with 5 U.S.C. § 7503(a).

The stipulated issues before the Arbitrator were whether the grievants' suspensions were "for such just cause as will promote the efficiency of the service[.]" First Award at 2; Second Award at 2. Although the Arbitrator mitigated one suspension, he sustained discipline in both cases. The Arbitrator noted specifically that each "[g]rievant's behavior was directly and unmistakably connected to his employment." First Award at 10; Second Award at 10.

The Arbitrator's awards are directly responsive to the issues stipulated by the parties. Those issues required the Arbitrator to determine whether the grievants' suspensions were taken for such cause as will promote the efficiency of the service. The Arbitrator sustained discipline in both cases. Consequently, we find that the Arbitrator's awards constitute determinations that the grievants were disciplined "for such cause as will promote the efficiency of the service." Compare American Federation of Government Employees, Local 1760 and Social Security Administration, Northeastern Program Service Center, 22 FLRA 195, 198 (1986) (Authority stated that an arbitrator's determination that a grievant's suspension was not for just cause "effectively constituted an affirmative finding that the grievant's suspension was not for such cause as will promote the efficiency of the service.").

The Union has not demonstrated that the Arbitrator's findings that the grievants were disciplined for such cause as will promote the efficiency of the service is inconsistent with 5 U.S.C. § 7503(a). Accordingly, we will deny the Union's first exception.

IV. The Union's Second Exception

A. Positions of the Parties

The Union argues that the awards are deficient because the Arbitrator failed to consider the Union's argument that the suspensions violated 5 U.S.C. § 2302(b)(10). The Union notes that 5 U.S.C. § 2302(b)(10) "proscribes the taking of a personnel action for conduct that does not adversely affect the performance of the employee or the performance of duties of others in the [A]gency[.]" Exceptions at 12-13. The Union claims that the Arbitrator's "failure to give full and fair treatment to a legitimate affirmative defense constitutes reversible error." Id. at 13.

The Agency argues that as the Arbitrator upheld the Agency's assertion that the grievants' misconduct affected the efficiency of the service, "[i]t follows, therefore, that the [A]rbitrator found against the [U]nion's assertion with regard to [5 U.S.C.] § 2302(b)(10)." Opposition at 8.

B. Analysis and Conclusions

An arbitrator's failure to set forth specific findings, or to specify and discuss all allegations in a grievance, does not provide a basis for finding an award deficient. See, for example, International Organization of Masters, Mates and Pilots, Marine Division, ILA, Canal Pilots Branch and Panama Canal Commission, 39 FLRA 707, 715 (1991). Moreover, as noted above, the Arbitrator rejected Union claims that there was no relationship between the grievants' misconduct and their employment or the employment of other employees. We conclude, therefore, that the Union's exception that the Arbitrator did not address specifically its argument that the suspensions violated 5 U.S.C. § 2302(b)(10) provides no basis for finding the award deficient.

V. The Union's Third Exception

A. Positions of the Parties

The Union claims that the awards are based on facts which either were not established in the record or are not relevant to the issue of whether the grievants' misconduct adversely affected the efficiency of the service. The Union argues that "by allowing the Agency to [discipline] . . . employees without holding [the Agency] to the applicable standard of . . . proof, the Arbitrator has reached conclusions on an improper basis." Exceptions at 13. According to the Union, the Agency did not establish, by a preponderance of the evidence, that the grievants' misconduct adversely affected the efficiency of the service or that the grievants' suspensions would promote that efficiency.

The Agency argues that the Union's exception constitutes mere disagreement with the Arbitrator's factual findings and does not demonstrate that the awards are deficient.

B. Analysis and Conclusions

This exception reiterates the Union's previous argument that the Arbitrator erred by failing to apply the correct burden of proof. As discussed in connection with the Union's first exception, however, we have no basis for concluding that the Arbitrator applied an incorrect burden of proof. Accordingly, the Union's argument that the award is deficient because the Arbitrator relied on facts which were not established consistent with the Agency's burden of proof under 5 U.S.C. § 7513(a) does not demonstrate that the award is deficient.

Further, construing the Union's arguments as claims that the awards are based on nonfacts, we conclude that the Union has not demonstrated that the awards are deficient. To establish that an award is deficient because it is based on a nonfact, it must be demonstrated that the central fact underlying the award is clearly erroneous, and constitutes a gross mistake of fact but for which a different result would have been reached by the arbitrator. See, for example, U.S. Department of Defense, Dependents Schools, Mediterranean Region and Overseas Federation of Teachers, 36 FLRA 861, 867 (1990) (Dependents Schools). The Union has not demonstrated, in this regard, that the Arbitrator's awards upholding suspensions for the grievants' misconduct are based on central facts that are clearly erroneous. Consequently, we conclude that the Union has not shown that the awards are based on nonfacts.

We conclude that the Union's third exception constitutes mere disagreement with the Arbitrator's overall factual findings and is an attempt to relitigate the merits of the grievances. Such disagreement provides no basis for finding the award deficient. See, for example, Dependents Schools, 36 FLRA at 867-68 (claim that arbitrator's conclusions were not supported by evidence did not concern a central fact and constituted mere disagreement with the arbitrator's conclusions).

VI. The Union's Fourth Exception

A. Positions of the Parties

In its fourth exception, the Union asserts that the awards are "contrary to well-established labor relations principles whereby the valid exercise of disciplinary authority should emphasize both progressivity and the corrective nature of the discipline sought to be imposed." Exceptions at 2. The Union argues that the grievants' suspensions were "neither progressive or [sic] corrective." Id. at 18. The Union also argues that the Arbitrator failed to properly apply 5 U.S.C. § 7513(a) and, instead, based his awards "on general principles of labor agreement interpretation . . . ." Id. at 17.

The Agency argues that the Union's exception does not set forth a ground on which an award may be found deficient under section 7122(a) of the Statute.

B. Analysis and Conclusions

For the reasons set forth previously, we reject the Union's claim that the awards are deficient because the Arbitrator failed to apply 5 U.S.C. § 7513(a). Moreover, we reject the Union claims that the awards are contrary to well-established principles of labor relations law. The Union cites no law requiring the Arbitrator to determine whether the grievants' disciplinary actions were "progressive or corrective[,]" and no such law is apparent to us. Exceptions at 18. In our view, this exception constitutes mere