45:0030(4)AR - - DOD, Army and Air Force Exchange Service and AFGE - - 1992 FLRAdec AR - - v45 p30
[ v45 p30 ]
The decision of the Authority follows:
45 FLRA No. 4
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF DEFENSE
ARMY AND AIR FORCE EXCHANGE SERVICE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
June 5, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Barry J. Baroni 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.
The Arbitrator denied the grievance of an employee who received a written reprimand for dispatching electronic mail messages in violation of a rule imposed by the Agency. For the following reasons, we will deny the Union's exceptions to the Arbitrator's award.
II. Background and Arbitrator's Award
The grievant is a marketing operations manager in the Food Division of the Agency. In performing his duties the grievant uses the Agency's electronic communication system (EMC2). On February 6, 1991, the Agency issued a written reprimand to the grievant for "'deliberate and intentional disregard of established office policies and procedures as it relates to EMC2 use[.]'" Award at 2 (quoting from written reprimand). The Agency also revoked the grievant's access to EMC2. The grievant filed a grievance, which was not resolved and was submitted to arbitration on the following issue:
Whether or not the written reprimand was issued [g]rievant for just cause? If not, what is the proper remedy?
Id. at 1.
Before the Arbitrator, the Agency argued that the written reprimand was justified because the grievant had violated a reasonable work rule governing use of EMC2. The Agency maintained that the work rule was not inconsistent with the parties' collective agreement and that the rule had been communicated to the grievant.
Before the Arbitrator, the Union asserted that the grievant was entitled to summary judgment because the Agency had improperly interfered with the Union's right to question witnesses and because the Agency had not cooperated in the Union's investigation of the incident. On the merits, the Union maintained that the grievant did not knowingly violate the work rule as charged. The Union further argued that the Agency had failed to notify the Union when it established the rule on the use of EMC2. Finally, the Union argued that the rule was unreasonable.
The Arbitrator denied the Union's request for summary judgment. He noted that the Union had obtained written interrogatories from three witnesses who were not present at the arbitration hearing and ruled that the testimony of those witnesses "would not have been essential" and that "the Union's case was not prejudiced by the absence of such witness[es'] testimony at the hearing." Id. at 3.
As to the merits of the grievance, the Arbitrator stated that he would apply "the two prong test relating to rule violations" by determining whether: (1) the work rule was "reasonably related" to the Agency's business; and (2) the Agency attempted to discover whether the grievant had violated the work rule. Id. The Arbitrator noted that the parties' collective bargaining agreement "gives [the Agency] the right to establish reasonable work rules." Id. He found that the work rule that the grievant was accused of violating was promulgated by the Food Division Chief in a memorandum dated August 2, 1989. The Arbitrator noted that the Food Division Chief, who was "concerned about information being released outside the Division without his knowledge, directed that information copies of EMC2 messages sent outside the division be 'info'd' to [the special assistant to the Chief]." Id. The Arbitrator stated that the Food Division Chief "directed that when 'EMC2's go out which are directive in nature . . . if it is policy . . . 'it should be signed/sent by D/MK [Director, Marketing] or myself.'" Id. (quoting August 2, 1989 memorandum).
The Arbitrator stated that the rule governing use of EMC2 "appeared reasonable as necessary for the orderly, efficient operation of the Division and the entire organization[,] and it is critical that policy guidance be accurate, or as accurate as possible." Id. at 3-4. He noted that in sending a message outside the Division, the grievant not only "violated office procedure, but also made a serious charge against a vendor, which could potentially expose the organization to costly, unnecessary litigation with the vendor." Id. at 4. The Arbitrator further found that the grievant had received notice of the rule because the grievant had initialed the routing slip attached to the policy and the grievant had been an addressee of an EMC2 message reminding employees of the requirement to obtain approval prior to sending EMC2 messages.
Moreover, the Arbitrator found that the grievant had committed a similar offense relating to the use of EMC2 in July 1990, when he sent an EMC2 message outside the Food Division without the knowledge or permission of his supervisor. The Arbitrator noted that the grievant was orally warned at that time not to violate the EMC2 procedures again. The Arbitrator stated that despite that warning, "[the g]rievant dispatched a message which contained not only 'Food' [p]olicy, but a serious allegation of vendor abuse. . . . He did not send a copy of the EMC2 to the assistant to the Division Chief; he didn't obtain his supervisor's approval; and he sent the 'policy' message himself rather than the [Director of Marketing or the Food Division Chief], as instructed." Id.
The Arbitrator concluded that in view of "the multiple nature of the violation and the fact that [the g]rievant was forewarned for his prior July, 1990 similar violation, the [A]rbitrator can only agree with [the Agency] that a written, rather than an oral, reprimand was the appropriate form of discipline to be assessed for [the g]rievant's December violations." Id. at 4-5. Accordingly, the Arbitrator denied the grievance.
III. Positions of the Parties
A. The Union
The Union contends that the Arbitrator's award is contrary to sections 7116(a)(5) and 7117(a)(1), (2) and (3) of the Statute because the Arbitrator did not consider the Union's argument that the Agency failed to negotiate with the Union prior to implementing the EMC2 procedure. The Union maintains that the Agency was required under the Statute and the parties' collective bargaining agreement to negotiate over the impact, if not the substance, of the work rule governing the use of EMC2. The Union argues that "the grievant's work situation was concerned with the work rule implemented by management[,]" and "the [A]rbitrator did not consider the law which requires negotiation in these situations." Exceptions at 5.
The Union also asserts that the award is deficient because it is based on gross error, but for which a different result would have been reached, and that the award fails to draw its essence from the parties' collective bargaining agreement. The Union states that although there was no official transcript or record of the arbitration hearing, the Arbitrator was responsible for "basing his decision on factual conclusions and analysis of collateral evidence[,]" and the Arbitrator did not consider the parties' collective bargaining agreement, which was jointly submitted as evidence, in its entirety. Id. at 6.
The Union maintains that in finding that the work rule was properly promulgated by the Agency under the management rights clause of the parties' agreement, the Arbitrator ignored the provision of the agreement that requires negotiation with the Union over changes in working conditions. The Union states that it "would question the propriety of a decision which completely fails to consider the Union's role in establishing and enforcing law, rule and regulation." Id.
The Union contends that the Arbitrator erred when he concluded "that the decision to discipline was due to a violation which 'could potentially expose the organization to costly and unnecessary litigation . . . considering the possible legal consequences[.]'" Id. at 7 (emphasis deleted). The Union contends that there was no evidence to support such a finding by the Arbitrator and that the finding was based "on his subjective judgment." Id.
B. The Agency
The Agency denies that the award is contrary to sections 7116(a)(5) and 7117(a)(1), (2) and (3) of the Statute and contends that the Union is merely disagreeing with the Arbitrator's determination that the EMC2 work rule was reasonable and that the Agency's implementation of the rule did not violate the parties' agreement. The Agency asserts that the Union is attempting to treat this case as an unfair labor practice based on the allegation that the Agency made a unilateral change in working conditions. The Agency argues that failure to negotiate over the work rule was not an issue at arbitration and that, although the Union raised the issue in its brief to the Arbitrator, "there was no evidence in the record to support a finding that the underlying work rule was illegal." Opposition at 5.
The Agency disputes the Union's contention that the Arbitrator's failure to discuss the provision of the parties' agreement dealing with negotiations over changes in conditions of employment makes the award deficient. The Agency contends that an arbitrator's failure to cite provisions of an agreement that are raised by a party to arbitration does not render an award deficient. Further, the Agency denies that the Arbitrator's statements regarding potential liability to the Agency from the grievant's improper use of EMC2 constitute gross error. The Agency contends that, apart from the question of liability, the Arbitrator properly found that the grievant was guilty of violating a reasonable work rule and that the grievant's written reprimand for the violation was justified. The Agency notes that, although it is unclear whether the Union alleges denial of a fair hearing in its exceptions, there is no basis for such an allegation in any event because the Union was given the opportunity to present evidence and the Arbitrator considered all pertinent and material evidence in making his award.
IV. Analysis and Conclusions
A. The Award Is Not Contrary to Law
In its exception that the award is contrary to sections 7116(a) and 7117(a)(1), (2) and (3) of the Statute, the Union argues that the Arbitrator did not consider its argument that the Agency failed to negotiate over the impact and implementation of the work rule governing use of EMC2. The Union asserts that because of the Agency's failure to negotiate over the rule, the grievant could not be disciplined for violating the rule. However, this exception provides no basis for finding the Arbitrator's award deficient.
The Arbitrator found that the work rule was reasonable and that the Agency had properly implemented the rule in accordance with the parties' collective bargaining agreement. Further, the Arbitrator found that the Agency had informed the grievant and other employees of the rule and that the grievant had been warned previously about using EMC2 to communicate outside the Food Division without the required authorization. Therefore, after finding that the grievant had "knowingly" and "clearly" violated the rule, the Arbitrator concluded that there was just cause for the Agency to give the grievant a written reprimand. Award at 4.
The Union has not shown that the work rule was implemented by the Agency in a manner inconsistent with the Statute or the parties' collective bargaining agreement. We note that: (1) the Agency issued the work rule in August 1989; (2) in July 1990 the grievant received a warning for violating the rule; and (3) in February 1991 the grievant received a written reprimand, which gave rise to the grievance in this case, for again violating the rule. There is nothing in the record to demonstrate that the Union timely sought to bargain with the Agency over the impact and implementation of the rule or that the Union was unaware of the rule. Accordingly, the Union's contention that the work rule was implemented by the Agency in a manner inconsistent with the Statute provides no basis for finding the award deficient. Further, insofar as the Union claims that the work rule was implemented in a manner inconsistent with the parties' collective bargaining agreement, the Union is merely disagreeing with the Arbitrator's interpretation of the collective bargaining agreement and with his reasoning and conclusions as to the Agency's proper implementation of the rule. Such disagreement provides no basis for finding an award deficient. See American Federation of Government Employees, Local 1923, AFL-CIO and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 44 FLRA 911, 920 (1992).
Consequently, we will deny the Union's exception that the award is contrary to sections 7116(a) and 7117(a)(1), (2) and (3) of the Statute.
B. The Award Is Not Based on a Nonfact and Does Not Fail to Draw Its Essence from the Parties'Collective Bargaining Agreement
The Union asserts that the award is "based on gross error, but for which a different result would have been reached." Exceptions at 5. We interpret this exception as an allegation that the award is deficient because it is based on a nonfact. We will find an award deficient because it is based on a nonfact when the contending party establishes that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center and American Federation of Government Employees, Local 3407, 44 FLRA 103, 106 (1992). However, the Union's exception fails to establish that the Arbitrator's award is deficient on that basis. The Union has not shown that a clear error by the Arbitrator underlies his conclusion that there was just cause for the written reprimand issued to the grievant for disobeying the rule governing the use of EMC2. Further, we find no clear error in the Arbitrator's observation that the grievant's actions could have legal consequences for the Agency.
The Arbitrator expressly found that the grievant transmitted the message in question and that the grievant was aware of the rule prohibiting the use of EMC2 to transmit messages outside the division without required approval. The Union has demonstrated no clear error in the Arbitrator's conclusion that the grievant "knowingly violate[d] the rule in question." Award at 4. Further, as noted above, the Union has not demonstrated that the Arbitrator's conclusion regarding the legal consequences of the grievant's violation of the rule was clearly erroneous or that if that conclusion were shown to be erroneous, it would constitute the central fact underlying the award. Therefore, there is no basis for finding the award deficient on the ground that it is based on a nonfact.
We also conclude that the Union fails to establish that the Arbitrator's award fails to draw its essence from the parties' collective bargaining agreement. For an award to be found deficient because it fails to draw its essence from a collective bargaining agreement, the party making the allegation must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact, and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a pl