48:1394(147)AR - - AFGE, Local 2 & Army, Military Traffic Management Command, Falls Church, Virginia - - 1994 FLRAdec AR - - v48 p1394
[ v48 p1394 ]
The decision of the Authority follows:
48 FLRA No. 147
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE ARMY
MILITARY TRAFFIC MANAGEMENT COMMAND
FALLS CHURCH, VIRGINIA
January 14, 1994
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 Alfred Avins 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 sustained the grievance of an employee challenging a 3-day suspension for falsely reporting his work hours and receiving compensation for hours not worked. For the following reasons, we conclude that the Agency's exception fails to establish that the award is deficient. Accordingly, we will deny the exception.
II. Preliminary Matter
A. Positions of the Parties
The Union argues that the Agency's exception is untimely and, therefore, should be dismissed. The Union notes that the Arbitrator's award is dated June 24, 1993, and that the Agency's exception was filed on August 12, 1993, which "is 48 days after the award date . . . ." Opposition at 1. The Union also states that in determining if the Agency's exception is timely, it is not the date on which the Agency received the Arbitrator's award that is relevant but "the date the award is signed, plus 5 days for mailing." Id. The Union argues that the Agency failed to meet the filing requirements for a timely exception and failed to request an extension of time in which to file its exceptions.
In addition, the Union argues that the timing of the Agency's exception violates Article 2, Section 8 of the parties' collective bargaining agreement. That provision states that an award is final and binding if an exception is not filed within 30 days of the date of the award.
The Agency acknowledges that the Arbitrator's award was dated June 24, 1993. However, the Agency maintains that the Arbitrator's initial mailing of the award in an envelope postmarked June 26, 1993, was returned to the Arbitrator by the U.S. Postal Service "as undeliverable . . . ." Exception at 1. The Agency claims that the award was then sent to the Agency in an envelope postmarked on July 10, 1993. Consequently, the Agency argues that July 10, 1993, should be considered as the date of service of the award.
B. Analysis and Conclusions
We conclude that the Agency's exception was timely filed.
The time limit for filing exceptions to an arbitration award is 30 days beginning on the date the award is served on the filing party. 5 C.F.R. § 2425.1(b). The date of service is the date the arbitration award is deposited in the U.S. mail or is delivered in person. 5 C.F.R. § 2429.27(d). Absent evidence to the contrary, the date of the arbitration award is presumed to be the date of service of the award. See U.S. Department of the Air Force, Headquarters, Ogden Air Logistics Center, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 44 FLRA 157, 160 (1992); Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local No. 916, 32 FLRA 165, 167 (1988). If the award is served by mail, 5 days are added to the period for filing exceptions to the award. 5 C.F.R. § 2429.22. The time limit may not be extended or waived by the Authority. 5 C.F.R. § 2429.23(d).
The Arbitrator's award is dated June 24, 1993. We note, however, that the original envelope in which the award was mailed has a label attached to it by the U.S. Postal Service that states "RETURN TO SENDER[,] NOT DELIVERABLE AS ADDRESSED[,] UNABLE TO FORWARD[.]" Enclosure to Exception. Because the award as originally mailed could not be delivered by the Postal Service as addressed, we reject the Union's contention that June 24, 1993, is the date from which the timeliness of the Agency's exception must be measured. In this case, proper service of the award by the Arbitrator began with the date on which the award was delivered to the Postal Service with an address that allowed for delivery to be perfected. That date is July 10, 1993. Therefore, to be considered timely, the exception had to be filed by August 8, 1993. August 8, 1993, was a Sunday, so the exception had to be filed by August 9, 1993. 5 C.F.R. § 2429.21(a). Because the exception was served by mail, 5 days were added. 5 C.F.R. § 2429.22. The filing date then became August 14, 1993. As that date fell on a Saturday, August 16, 1993, is the date on which the Agency's exception had to be received in the Authority's headquarters in order to be considered timely filed. 5 C.F.R. § 2429.21(a). See also U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky and National Association of Government Employees, Local R5-184, 40 FLRA 1236, 1241 (1991). The Agency's exception was received by the Authority's Office of Case Control on August 13, 1993. Therefore, we find that the exception was timely filed.
Finally, the Union's contention that the timing of the filing of the exception violated the parties' agreement is not before us. The timeliness of exceptions is addressed under the Statute and the Authority's Rules and Regulations, and not under the terms of a negotiated agreement.
III. Background and Arbitrator's Award
The dispute in this matter arose when the Agency suspended the grievant for 3 days for falsely reporting his work hours and receiving compensation for hours not worked. When the parties could not resolve this matter through their grievance procedure, it was submitted to arbitration. The award does not reflect the precise issues that were before the Arbitrator for resolution.
The grievant, a civilian GS-12 Traffic Management Specialist, was stationed in Saudi Arabia during the Desert Storm operation. The civilian employees in Saudi Arabia worked a shift of 12 hours as did their military counterparts. The grievant's time cards were kept at his duty station in Falls Church, Virginia. From the middle of May to the middle of December 1991, while in Saudi Arabia, the grievant telephoned the Falls Church office biweekly to inform his supervisor and the office timekeeper of the hours he had worked. The grievant and his supervisor agreed, before the grievant left for Saudi Arabia, that the supervisor would presume that the grievant worked 12 hours per day unless the grievant informed the supervisor otherwise. The grievant did not see the time cards before they were processed and the presumption that the grievant worked 12-hour shifts continued until the middle of August 1991 when the grievant was required to fax a record of his work hours to the Falls Church office. However, the Arbitrator found no evidence that all of the faxes "purporting to come from [the grievant] did so." Award at 1.
An audit of the grievant's time cards in January 1992, demonstrated that there were errors in the time reports of the hours the grievant claimed to have worked. As a result, the Agency charged the grievant with falsely reporting work hours on July 5, July 6, and August 2, 1991, and imposed the 3-day suspension.
In addressing the case before him, the Arbitrator first discussed the standard of proof needed to sustain the disciplinary action imposed on the grievant. The Arbitrator noted the Union's assertion that the Agency had to prove the charges by a preponderance of the evidence. The Arbitrator also noted that the Agency did not set forth any other burden of proof. The Arbitrator then noted the various standards of proof in criminal and civil cases. He found that the proper burden of proof in this case, as in civil fraud cases, was clear and convincing evidence.
Although the Arbitrator found "that the evidence predominates in favor of the agency," he concluded that the evidence against the grievant was not "clear and convincing." Id. at 2. In this regard, he found that the "looseness" of the reporting system for the grievant's working hours would not excuse fraud but detracted from the Agency's case. Id. The Arbitrator also found that there was some evidence to establish that the grievant worked on August 2, 1991, one of the days on which he was charged with falsely reporting work hours. Additionally, the Arbitrator found that the grievant may have overlooked an error in the fax pertaining to the hours he claimed to have worked on July 5 and 6. Thus, the Arbitrator found "that the [A]gency has failed to prove that the grievant was guilty of fraud by the required 'clear and convincing evidence.'" Id. As his award, the Arbitrator directed the Agency to rescind all disciplinary action taken against the grievant and to award the grievant backpay for the period he was suspended.
IV. Agency's Exception
A. Positions of the Parties
The Agency argues that the Arbitrator applied the wrong burden of proof in resolving this matter. The Agency argues that the correct burden of proof, as agreed to by the parties at arbitration, was preponderance of the evidence. The Agency maintains that the Arbitrator was aware that the burden or standard of proof required for the Agency to prove its case was not in dispute as evidenced by the fact that the Agency did not offer a different standard of proof than that which was set forth by the Union and because the Arbitrator was not asked to determine the standard of proof. The Agency contends that, under the Authority's holding in U.S. Department of the Treasury, Internal Revenue Service, Omaha, Nebraska District and National Treasury Employees Union, 36 FLRA 453, 464-65 (1990) (Internal Revenue Service), the Arbitrator was obligated to apply the agreed-upon standard of preponderance of the evidence. In the Agency's view, the Arbitrator's failure to do so constitutes a basis on which to set aside the award.
Apart from its contention that the exception was untimely filed, the Union simply states that the exception is "without merit." Opposition at 1.
B. Analysis and Conclusions
We conclude that the Agency fails to establish that the award is deficient.
We have repeatedly held that unless a specific standard of proof is required, arbitrators have the authority to establish whatever standard they consider appropriate, and we will not find an award deficient because a party claims that an incorrect standard was used. U.S. Department of Veterans Affairs, National Memorial Cemetery of the Pacific and International Association of Machinists and Aerospace Workers, Hawaii Federal Lodge 1998, 45 FLRA 1164, 1171 (1992).
In this case, the Agency argues that the parties had agreed to preponderance of the evidence as the standard to use in assessing the correctness of the Agency's decision to suspend the grievant. However, the Agency has not demonstrated that the parties, in fact, agreed to that standard of proof or that the Arbitrator was required by law or the parties' collective bargaining agreement to apply a preponderance of the evidence standard. In our view, the fact that the Arbitrator set forth the Union's formulation of the appropriate standard and noted that the Agency did not set forth a different standard does not establish that the parties had agreed to the Union's formulation of the standard.
Additionally, we do not find persuasive the Agency's assertion that the standard of proof was not in dispute because the Arbitrator was not asked to determine what that standard should be. There is no evidence that the question as to the proper standard of proof was not presented to the Arbitrator. In this connection, we note that the award does not set forth a statement of the issues presented to the Arbitrator for resolution. However, we find that even if the parties had not specifically articulated to the Arbitrator the need to formulate a standard of proof, the Arbitrator would necessarily have had to do so in order to determine whether the Agency properly s