46:1304(124)AR - - Army, Fort Campbell, KY and AFGE Local 2022 - - 1993 FLRAdec AR - - v46 p1304



[ v46 p1304 ]
46:1304(124)AR
The decision of the Authority follows:


46 FLRA No. 124

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE ARMY

FORT CAMPBELL, KENTUCKY

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2022

(Union)

0-AR-2326

_____

DECISION

February 1, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Harold D. Jones, Jr. 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 did not file an opposition to the Agency's exceptions.

The Union filed a grievance alleging that the Agency violated the parties' collective bargaining agreement when it suspended an employee for 5 days for: (1) using an Agency vehicle for other than an official purpose; (2) being absent without leave; and (3) failing to follow established leave procedures. The Arbitrator sustained the grievance.

We conclude that the award must be remanded to the parties to have them obtain a clarification from the Arbitrator.

II. Background and Arbitrator's Award

On October 23, 1990, a supervisor observed an Agency vehicle parked in front of the local Union office. The driver of the vehicle was the grievant, who had stopped at the Union office to deliver funds collected by employees for an employee who had lost his home as a result of a fire. The grievant was in the Union office only briefly and his detour to the office did not involve a significant deviation from the route he otherwise would have taken.

On March 20, 1991, the Agency gave the grievant a notice of proposed suspension from work for 30 calendar days. As grounds for the proposed suspension, the Agency alleged that the grievant had: (1) used a Government vehicle for other than an official purpose, in violation of 31 U.S.C. § 1344 and/or Agency regulations; (2) been absent without leave; and (3) failed to follow established leave procedures.(*) Subsequently, in the notice of decision, the Agency reduced the discipline from the proposed 30-day suspension to a 5-day suspension. The Agency stated that "a preponderance of the evidence supports the charges of using a Government vehicle for other than official purposes in violation of [A]gency administrative regulations, procedures, rules, orders . . . [,] absence without leave (AWOL)[,] and failure to follow established leave procedures . . . ." Exceptions, Attachment 3 at 1. The Agency also stated that "there was no sustainable violation" of 31 U.S.C. § 1344. Id.

The Union filed a grievance challenging the 5-day suspension. The Agency denied the grievance. The grievance was submitted to arbitration. The Arbitrator stated the issue before him as follows:

Was [the grievant] given a [5-]day suspension by the [Agency] on August 21, 1991 [,] in accordance with the [n]egotiated [a]greement? If not, what remedy is directed?

Award at 4.

Before the Arbitrator, the Agency contended that the grievant received a 5-day suspension in accordance with the parties' agreement and applicable regulations because the grievant had used the vehicle for a purpose other than an official purpose. The Union argued before the Arbitrator that the grievant was using the vehicle for an official purpose when he stopped at the Union office to deliver the funds collected for the employee who had lost his home as a result of a fire.

The Arbitrator determined that 31 U.S.C. § 1344 prohibits the use of a Government vehicle for other than an official purpose and that 31 U.S.C. § 1349(b) provides that the minimum penalty for a violation of 31 U.S.C. § 1344 by an employee is a 30-day suspension. The Arbitrator noted that, although the notice of proposed suspension charged the grievant with using a Government vehicle for other than an official purpose, the Agency's final decision was to suspend the grievant for only 5 days. The Arbitrator found that the evidence demonstrated that the grievant was charged with using a Government vehicle for other than an official purpose. The Arbitrator concluded that, under 31 U.S.C. § 1349 and based on the evidence, the Agency could not give the grievant a suspension of less than 30 days. Accordingly, the Arbitrator found that the 5-day suspension given to the grievant was not in accordance with the parties' negotiated agreement because the suspension was not consistent with law. The Arbitrator sustained the grievance and directed that the grievant be made whole for income and benefits lost as a result of the 5-day suspension.

III. Agency's Exception

A. The Agency's Position

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

The Agency claims that the Arbitrator mistakenly found that the grievant was disciplined for a violation of 31 U.S.C. § 1344 and that but for this erroneous factual finding the Arbitrator would not have applied 31 U.S.C. § 1349 and found that section 1349 required that the grievant be suspended for 30 days. The Agency maintains that in determining whether to discipline the grievant, it found no sustainable violation of 31 U.S.C. § 1344 and disciplined the grievant based only on Agency regulations and policy. The Agency argues that the Arbitrator misunderstood the distinction between the notice of proposed discipline, which proposed a 30-day suspension for violation of 31 U.S.C. § 1344 and/or Agency regulations and policy, and the notice of decision suspending the grievant for only 5 days, which was based solely on violation of Agency regulations and policy and not on a violation of 31 U.S.C. § 1344. According to the Agency, if the Arbitrator had realized that the Agency's discipline of the grievant was not based on a violation of 31 U.S.C. § 1344, he would not have applied the mandatory minimum penalty in 31 U.S.C. § 1349 and instead would have sustained the 5-day suspension.

The Agency further argues that even if the Arbitrator did not err in concluding that the statutory minimum penalty of a 30-day suspension set forth in 31 U.S.C. § 1349 applies in this case, the Arbitrator "relied on a nonfact when he erroneously concluded that the statutory minimum penalty applies to all disciplinary actions based on allegations of misuse of a [G]overnment vehicle in violation of regulation." Exceptions at 3 (emphasis in original). Citing 31 U.S.C. § 1349 and decisions of the Merit Systems Protection Board, the Agency asserts that the statutory minimum penalty applies only "if the unofficial use is willful, the vehicle is a passenger motor vehicle[,] and the use is not 'minor personal use.'" Id. at 4. The Agency contends that in finding that there was no sustainable violation of 31 U.S.C. § 1344 but that there was a violation of Agency regulation, the Agency's deciding official could have determined that the grievant's misuse of the vehicle was not willful or that his unofficial use constituted minor personal use. In either case, according to the Agency, "the violation of regulation and policy was a legitimate basis for discipline and the statutory minimum penalty did not apply." Id. at 5. Accordingly, the Agency asserts that the Arbitrator's finding that the 30-day statutory minimum penalty applies to all instances of misuse of a Government vehicle is clearly erroneous and a nonfact but for which the Arbitrator would have sustained the Agency's decision to suspend the grievant for 5 days.

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, U.S. Department of the Army, Army Natick Research Development and Engineering Center, Natick, Massachusetts and National Association of Government Employees, Local R1-34, 44 FLRA 1251, 1254 (1992) (Natick Center); 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).

In Natick Center, we concluded that the arbitrator had misapprehended the meaning of the term "offense" for purposes of the agency's table of penalties. However, we could not ascertain whether the award was deficient because it was 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 disciplinary purposes. Accordingly, we remanded the award to the parties to have them obtain a clarification and interpretation of the award from the arbitrator. 44 FLRA at 1254-55.

Similarly, in this case we conclude that the Arbitrator mistakenly found either that: (1) the grievant was disciplined for a violation of 31 U.S.C. § 1344; or (2) the grievant's misuse of the vehicle necessarily constituted a violation of 31 U.S.C. § 1344. Therefore, in either event, we find that the Arbitrator erroneously concluded that 31 U.S.C. § 1349 necessarily applied and required that the grievant be suspended for a minimum of 30 days. It is clear from the record that the Agency did not discipline the grievant for a violation of 31 U.S.C. § 1344. Moreover, insofar as the Arbitrator concluded that the grievant's misuse of the vehicle necessarily constituted a violation of 31 U.S.C. § 1344 and thereby made 31 U.S.C. § 1349 applicable, such a finding is erroneous.

The mandatory minimum discipline provided for in 31 U.S.C. § 1349 for misuse of a passenger motor vehicle or aircraft in violation of 31 U.S.C. § 1344 applies only when the misuse is willful and when the misuse constitutes more than a minor personal use of a Government passenger motor vehicle or aircraft. See, for example, Lynch v. Department of Justice, 32 MSPR 33, 35 (1986) (employee did not violate 31 U.S.C. § 1349, despite the fact that twice, while operating a Government vehicle, he stopped en route to see his dentist for appointments). Therefore, not every misuse of a Government vehicle constitutes a violation of 31 U.S.C. § 1344 which makes 31 U.S.C. § 1349 applicable. Id. A misuse of a Government passenger motor vehicle which is not willful or which does not constitute more than a minor personal use is not a violation of sections 1344 and 1349. Accordingly, the Arbitrator erred to the extent that he determined that any misuse of a Government vehicle constitutes a violation of 31 U.S.C. § 1344 which makes 31 U.S.C. § 1349 applicable.

The Agency asserts that the award should be set aside because, absent the erroneous findings noted above, the Arbitrator would have sustained the Agency's disciplinary action. However, we cannot determine what result the Arbitrator would have reached had he not made the erroneous findings noted above. As noted by the Arbitrator, "the use of a [G]overnment vehicle [by the grievant could] be determined to be a use for an official purpose upon review of the decision of the Deciding Official by the Garrison Commander in accordance with [Agency regulation]." Award at 10. Accordingly, we will remand the award to the parties for resubmission to the Arbitrator to resolve the grievance consistent with this decision.

IV. Decision

We remand the award to the parties for resubmission to the Arbitrator. Consistent with this decision, the Arbitrator should determine whether the 5-day suspension given the grievant on August 21, 1991, was in accordance with the parties' negotiated agreement.

Following clarification of the award by the Arbitrator, either party may timely file with the Authority exceptions to that award.

APPENDIX

The pertinent provisions of 31 U.S.C. §§ 1344 and 1349 are as follows:

§ 1344. Passenger carrier use

(a)(1) Funds available to a Federal agency, by appropriation or otherwise, may be expended by the Federal agency for the maintenance, operation, or repair of any passenger carrier only to the extent that such carrier is used to provide transportation for official purposes.

. . . .

(g) As used in this section--
(1) the term "passenger carrier" means a passenger motor vehicle, aircraft, boat, ship, or other similar means of transportation that is owned or leased by the United States Government. . . .

§ 1349. Adverse personnel actions

. . . .

(b) An officer or employee who willfully uses or authorizes the use of a passenger motor vehicle or aircraft owned or leased by the United States Government (except for an official purpose authorized by section 1344 of this title) or otherwise violates section 1344 shall be suspended without pay by the head of the agency. The officer or employee shall be suspended for at least one month, and when circumstances warrant, for a longer period or summarily removed from office.




FOOTNOTES:
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