44:1251(104)AR - - Army Natick Research Development and Engineering Center, Natick, MA and NAGE Local R1-34 - - 1992 FLRAdec AR - - v44 p1251



[ v44 p1251 ]
44:1251(104)AR
The decision of the Authority follows:


44 FLRA No. 104

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE ARMY

ARMY NATICK RESEARCH

DEVELOPMENT AND ENGINEERING CENTER

NATICK, MASSACHUSETTS

(Agency)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R1-34

(Union)

0-AR-2181

DECISION

May 22, 1992

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 Harry Grossman 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 reduced the suspension of the grievant from 14 days to 3 days, finding that the Agency had only sustained one of the two charges against the grievant.

We conclude that the Agency's exception has created an uncertainty as to whether the award is deficient because it is based on a nonfact. Accordingly, we will remand the award to the parties to have them obtain a clarification from the Arbitrator.

II. Background and Arbitrator's Award

On February 12, 1991, the grievant was suspended for 14 days based on two charges of misconduct: (1) attempting to hit her supervisor with a packet of papers; and (2) harassing and intimidating another employee. In assessing the penalty of a 14-day suspension, the Agency relied on the reprimand of the grievant on January 8, 1991, for actions that created disturbances and adversely affected morale. The grievant filed a grievance disputing the suspension. The grievance was not resolved and was submitted to arbitration on the stipulated issue of whether the grievant's suspension was for such cause as will promote the efficiency of the service and, if not, what should be the remedy.

The Arbitrator concluded that the Agency had substantiated the charge of the grievant's attempting to hit her supervisor and sustained the charge. However, he concluded that the Agency had failed to substantiate the charge of the grievant's harassing and intimidating another employee and denied the charge. The Arbitrator also ruled that the January 8 reprimand of the grievant constituted a part of the grievant's record and that he would consider that disciplinary action in examining the severity of the penalty imposed in this case.

Accordingly, as his award, the Arbitrator denied the grievance with respect to the first charge. He sustained the grievance with respect to the second charge and ruled that "any discipline based thereon is accordingly found unwarranted and not for such cause as will promote the efficiency of the service." Award at 13. With respect to the remedy, the Arbitrator awarded, as follows:

The Arbitrator finds that the penalty of a fourteen (14) day suspension imposed for the two charges was excessive where the Arbitrator allowed the grievance with respect to charge 2b, holding that the misconduct alleged therein was not sustained by a preponderance of credible evidence. The Arbitrator recommends that the fourteen (14) day suspension be reduced to three (3) days as a first offense of item 2b in Table 1-1 (Management Ex. No. 3), and that the Grievant be made whole in pay and benefits for the remainder of the fourteen days.

Id.

III. Agency's Exception

A. Positions of the Parties

1. The Agency

The Agency contends that the award is based on a nonfact.

The Agency has submitted its disciplinary table of penalties (Army Regulation (AR) 690-700) referred to by the Arbitrator in his award. For the offense of "threatening or attempting to inflict bodily harm without bodily contact" (referred to by the Arbitrator as item 2b), the table lists the following range of penalties: written reprimand to 14-day suspension for a first offense and 14-day suspension to removal for a second offense. AR 690-700, Appendix A at 12. The Agency also notes that AR 690-700 provides, as follows: "A prior offense of any type may form the basis for proposing an enhanced penalty." Exception at 2, quoting AR 690-700, Chapter 751 (emphasis in original). Thus, the Agency asserts that the grievant's attempt to inflict bodily harm on her supervisor was evaluated as a second offense because of her prior reprimand and that by selecting a 14-day suspension, the proposing official chose the least stringent penalty in the range of penalties for a second offense.

The Agency claims that the Arbitrator reduced the 14-day suspension to 3 days because it was a "first offense." Exception at 3, quoting Award at 13. The Agency argues that, therefore, the central fact underlying the award is that the sustained action is a first offense. The Agency asserts that because the reprimand was the first offense for purposes of the table of penalties and because the least stringent penalty for attempting to inflict bodily harm as a second offense is a 14-day suspension, the Arbitrator's reduction of the penalty to a 3-day suspension is "indisputably erroneous." Id. The Agency maintains that had the Arbitrator known that prior offenses of any type may form the basis for proposing progressive discipline and that the minimum discipline recommended under the cited second offense was a 14-day suspension, the Arbitrator would not have reduced the discipline to a 3-day suspension. The Agency argues that the Authority's decision in Norfolk Naval Shipyard, Portsmouth, Virginia and Tidewater Virginia Federal Employees Metal Trades Council, 9 FLRA 538 (1982) (Norfolk Naval Shipyard), supports finding the award deficient because of the Arbitrator's misapprehension of whether the charged offense was a first or second offense.

2. The Union

The Union contends that the Agency fails to establish that the award is based on a nonfact. The Union disputes that a 14-day suspension is the minimum discipline for the cited second offense. The Union argues that the bottom of the range cannot be viewed as a minimum penalty because the table of penalties is only a guide. The Union asserts that the Arbitrator appropriately mitigated the discipline when he found that one of the charges was not sustained.

B. Analysis and Conclusions

We will find an award deficient because it is based on a nonfact when the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. For example, Department of the Army, 6th Infantry Division (Light), Fort Richardson, Alaska and American Federation of Government Employees, Local 1834, Fort Wainwright, Alaska, 35 FLRA 42, 45 (1990) (6th Infantry Division). In Norfolk Naval Shipyard, the Authority concluded that the arbitrator had misapprehended the meaning of the term "offense" for purposes of the agency's table of penalties and had misapprehended that the incident involved was only the grievant's first offense for disciplinary purposes. However, the Authority could not ascertain from the award whether the arbitrator would have reached a different result. Accordingly, the Authority remanded the award to the parties to have them obtain a clarification and interpretation of the award from the arbitrator. 9 FLRA at 540.

In this case, and similar to Norfolk Naval Shipyard, we find that the Arbitrator has misapprehended the meaning of the term "offense" for purposes of the Agency's table of penalties. However, we cannot ascertain whether the award is deficient because it is not clear whether the Arbitrator would have reached a different result if he had not misapprehended that the sustained charge was the grievant's second offense for purposes of the Agency's table of penalties. As noted by the Union, AR 690-700 specifically provides that the table of penalties "is meant to be a guide to supervisors in disciplining employees." AR 690-700, Appendix A (emphasis in original). The range of penalties is merely a recommendation, and "[t]he use of a particular penalty is not mandatory simply because it is listed in the table." Id. Accordingly, in order to provide a record on which to determine whether the award is deficient, we will remand the award to the parties to have them obtain