52:1374(129)AR - - NAGE and VA, Edith Nourse Rogers Memorial Veterans Hospital, Bedford, MA - - 1997 FLRAdec AR - - v52 p1374
[ v52 p1374 ]
The decision of the Authority follows:
52 FLRA No. 129
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF VETERANS AFFAIRS
EDITH NOURSE ROGERS MEMORIAL VETERANS HOSPITAL
April 30, 1997
Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator John Van N. Dorr, III 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 Regulations. The Agency filed an opposition to the Union's exception.
The Arbitrator denied a grievance contesting a 10-day suspension imposed on the grievant for disclosing confidential information. For the following reasons, we deny the exception.
II. Background and Arbitrator's Award
The grievant is a civilian pay technician in the Agency's fiscal service (payroll) department. One of the grievant's duties was the filing of beneficiary designation forms (Form 1152). When an employee filed a new Form 1152, designating a new beneficiary in place of her former one, who was a friend of the grievant, the grievant told his friend of the change without first obtaining permission to do so. For revealing this confidential information without authorization, the Agency suspended the grievant for 10 days.
The Union contested the suspension. The Union and the Agency were unable to come to a resolution and the grievance was submitted to arbitration on the following agreed-upon issues:
1. Was the suspension of the [g]rievant . . . for just cause?
2. If not, what shall be the remedy?
Award at 1.
Referring to an Agency regulation, the Arbitrator identified the offense committed as
Except as specifically authorized, disclosing or using directly or indirectly information obtained as a result of employment in VA, which is of a confidential nature or which represents a matter or trust [sic]; or any other information so obtained of such character that its disclosure or use would be contrary to the best interests of the Government, VA, or the veterans being served by it.
Id. at 8 (quoting MAP-5, Part I, Ch. 752, Appendix D, paragraph 29).
The Arbitrator determined that the grievant's only responsibility concerning a Form 1152 was to file it. He noted that the grievant's position is one of particular trust and confidence and that he and other fiscal service employees are regularly reminded that the materials they handle are to be treated with confidentiality. The Arbitrator also noted that the disclosure had an adverse impact on the Agency in that it caused a breach of trust between departments, requiring special efforts to reestablish a smooth working relationship among the employees. Accordingly, the Arbitrator concluded that discipline was warranted.
The Arbitrator next turned to the penalty, to determine if it was excessive. He noted that, based on the Agency's table of penalties, the minimum penalty for a first offense of this nature is a reprimand, and the maximum is removal. The Arbitrator determined that, because the grievant's conduct violated one of the core responsibilities of his job and had a significant adverse impact on the trust relationship within the organization, a severe penalty was warranted. He concluded that the 10-day suspension was not excessive and, accordingly, denied the grievance.
III. Positions of the Parties
A. Union's Contention
The Union contends that the award is deficient because it is based on a nonfact. Specifically, the Union argues that the Arbitrator relied on an invalid table of penalties and that the grievant is actually subject to an older table of penalties. It contends that the newer table of penalties is inapplicable because it constitutes a change in policy that was made unilaterally by the Agency, with no opportunity for the Union to bargain over the impact and implementation of the change. Accordingly, the Union contends that the penalty is excessive, because the old table of penalties limits discipline for a first offense of "generically unauthorized disclosure of confidential material" to no more than a reprimand. Exception at 2.(1)
B. Agency's Opposition
The Agency contends that it is the Union that is relying on a nonfact. Specifically, the Agency argues that the offense cited by Union from the old table of penalties does not correspond to the offense cited by the Arbitrator from the new table of penalties. Furthermore, the Agency notes that the offense cited by the Arbitrator is also listed on the old table, and that the range of penalties for that offense has not changed.
IV. Analysis and Conclusions
To establish that an award is based on a nonfact, the appealing party must demonstrate that the 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 the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993).
The Arbitrator found that the grievant committed the offense of "disclosing . . . information obtained as a result of employment in VA, which is of a confidential nature or which represents a matter o[f] trust" and not, as the Union claims, "failure to safeguard confidential matter." Award at 8, Exception, Exhibit B. The offense of disclosing confidential information is listed in both the old and new tables of penalties, with only a minor difference in wording between the two.(2) More importantly, the penalty for this infraction has not changed. Thus, even if the Arbitrator should have used the old table, which we need not decide, the range of penalties would have been the same. Therefore, the Union has failed to show that a different result would have been reached by the Arbitrator but for his application of the wrong table of penalties.
The Union's exception is denied.
(If blank, the decision does not have footnotes.)
1. In the table of penalties included in the exception the Union identified the specific offense to be "[f]ailure to safeguard confidential matter." Exception, Exhibit B.
2. In the old table the offense began with "Except as specifically authorized to do so, disclosing . . . ." Agency Opposition, Exhibit 2 at 3. In the new table it begins with "Except as