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

[ v46 p1304 ]
The decision of the Authority follows:

46 FLRA No. 124









LOCAL 2022





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