53:0103(15)AR - - Navy, Naval Training Center, Orlando, FL and International Union of Operating Engineers, Local 673 - - 1997 FLRAdec AR - - v53 p103



[ v53 p103 ]
53:0103(15)AR
The decision of the Authority follows:


53 FLRA No. 15

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE NAVY

NAVAL TRAINING CENTER

ORLANDO, FLORIDA

(Agency)

and

INTERNATIONAL UNION OF OPERATING ENGINEERS

LOCAL 673

(Union)

0-AR-2864

_____

DECISION

June 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 exceptions to an award of Arbitrator George W. Van Pelt 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 Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator sustained a grievance contesting the Agency's 5-day suspension of the grievant. The Arbitrator awarded the grievant backpay, but rejected the Union's request for interest.

For the reasons discussed below, we conclude that the Agency's exceptions fail to establish that the Arbitrator's award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions. However, we conclude that the portion of the award pertaining to the denial of interest is deficient because it is contrary to law and, therefore, we modify the award to provide for the payment of interest on the backpay award.

II. Background and Arbitrator's Award

The grievant was suspended for 5 days for failing to observe proper electrical trade practices and endangering the life and property of others. A grievance over the suspension was submitted to arbitration. The Arbitrator framed the issue as: "Did the Employer have just cause for its five day suspension of the [g]rievant? []If not, what should be the remedy?" Award at 1.

The Arbitrator concluded that the 5-day suspension was not for just cause.(1) According to the Arbitrator, the "clear and unambiguous language" of the Agency's disciplinary regulations provides that disciplinary action should be corrective rather than punitive. Id. at 12. Further, the Arbitrator noted that the regulations require that the minimum disciplinary action necessary to correct improper behavior be chosen. The Arbitrator found that the 5-day suspension was not corrective in nature, but was punitive. The Arbitrator also found that the suspension constituted more than the minimal disciplinary action necessary to correct the "problem" caused by the incident giving rise to the suspension. Id. Therefore, the Arbitrator concluded that the suspension was contrary to the Agency's disciplinary regulations. Id. at 12.

The Arbitrator sustained the grievance and awarded the grievant backpay, seniority and benefits lost during the suspension. However, he denied the Union's request for interest on the backpay award on the ground that it "is not customary, absent arbitrary, capricious or malicious actions" to award interest in arbitration. Id. at 13.

III. Positions of the Parties

A. Agency's Exceptions

The Agency challenges the award on four grounds. First, the Agency contends that the award is based on a nonfact because just cause existed for the Agency to discipline the grievant and the discipline was appropriate.

Second, the Agency contends that the award fails to draw its essence from the parties' collective bargaining agreement. Citing Article 36, Section 1, the Agency claims that by setting aside the 5-day suspension, the Arbitrator "looked beyond the provisions" of the agreement. Exceptions at 3 (citing U.S. Department of Justice, Immigration and Naturalization Service, Del Rio Border Patrol Sector, Texas and American Federation of Government Employees, National Border Patrol Council, Local 2366, 45 FLRA 926 (1992) (Nat'l Border Patrol Council)).

Third, the Agency contends that the Arbitrator exceeded his authority because he disregarded limitations on his authority set forth in Article 38, Section 3.(2) Specifically, the Agency claims that the Arbitrator exceeded his authority by interpreting the Agency's disciplinary regulations and substituting a remedy not set forth in the regulations' range of remedies.

Finally, the Agency contends that the award is contrary to the Agency's disciplinary regulations because the remedy relieved the grievant of any accountability or responsibility for his actions.

B. Union's Opposition

Regarding the Agency's first exception, the Union claims that the Agency has misconstrued the Arbitrator's statement of facts and asserts that the Arbitrator's findings are supported by the record. The Union contends the Agency's second exception is also without merit because the Arbitrator properly interpreted and followed the requirements of the parties' agreement in rescinding the grievant's 5-day suspension.

With respect to the Agency's remaining contentions, the Union contends that the Arbitrator properly applied the Agency's disciplinary regulations. The Union asserts that the Arbitrator did not interpret the regulations, as claimed by the Agency in its third exception, but rather found that the regulations are "'clear and unambiguous.'" Opposition at 3 (quoting Award at 12). Regarding the Agency's fourth exception, the Union asserts that the remedy is consistent with the Agency's disciplinary regulations.

IV. Analysis and Conclusion

A. The Award Is Not Based on a Nonfact

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). However, we will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at arbitration. Id. at 594 (citing Mailhandlers v. U.S. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)).

The Agency asserts that the Arbitrator's conclusion that the 5-day suspension of the grievant was not for just cause is a nonfact. An arbitrator's conclusion that is based on an interpretation of the parties' collective bargaining agreement does not constitute a fact that can be challenged as a nonfact. E.g., National Labor Relations Board and National Labor Relations Board Professional Association, 50 FLRA 88, 92 (1995). The Arbitrator's conclusion that the grievant was not suspended for just cause resulted from the Arbitrator's interpretation of the parties' agreement, and does not constitute a fact that can be challenged as a nonfact. E.g., American Federation of Government Employees, Local 1802 and Social Security Administration, Golden Teleservice Center, Golden, Colorado, 50 FLRA 396, 398 (1995). Consequently, the Agency's assertion provides no basis for finding the award deficient as based on a nonfact. Accordingly, the exception is denied.

B. The Award Draws Its Essence from the Parties' Agreement

The Arbitrator interpreted and applied the parties' agreement in concluding that the grievant was not disciplined for just cause. The Agency has not demonstrated that the Arbitrator's interpretation of the agreement, in particular Article 36, Section 1, is implausible, irrational, unfounded, or unconnected to the wording of the agreement. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76 (1990).

Further, the Agency's reliance on Nat'l Border Patrol Council is misplaced. In Nat'l Border Patrol Council, the arbitrator interpreted the parties' agreement as providing that the agency involved had just cause to discipline the grievant if the grievant was responsible for the incident giving rise to his suspension. However, although the arbitrator found that the grievant was responsible for the incident, he concluded that the agency did not have just cause to discipline the grievant. In light of the arbitrator's findings, the Authority determined that the arbitrator's conclusion that the agency did not have just cause to discipline the grievant did not draw its essence from the parties' agreement. In contrast, the Arbitrator in the instant case found that the grievant was responsible for the incident giving rise to his suspension, but that, in light of mitigating factors, the Agency did not have just cause to suspend him. Accordingly, unlike Nat'l Border Patrol Council, there is no inconsistency between the Arbitrator's findings and his award.

Consequently, the Agency has not demonstrated that the award is deficient because it fails to draw its essence from the parties' agreement and we deny the Agency's exception.

C. The Arbitrator Did Not Exceed His Authority

Arbitrators exceed their authority when they disregard specific limitations on their authority. E.g., U.S. Department of Veterans Affairs, Medical Center, North Chicago, Illinois and American Federation of Government Employees, Local 2107, 52 FLRA 387, 396 (1996).

The Agency has not established that the Arbitrator disregarded Article 38, Section 3 of the parties' agreement, which precludes arbitrators from interpreting regulations of a higher authority. It is well-settled that if an arbitrator finds, based on a contractual interpretation, that all or part of a disciplinary action is not for just and sufficient cause, then the arbitrator may set aside or reduce the imposed penalty. E.g., Nat'l Border Patrol Council, 45 FLRA at 932 and cases cited therein. Based on his interpretation of the parties' agreement, the Arbitrator set aside the grievant's suspension on the ground that there was no just cause for the discipline.

The Agency's assertion is merely an attempt to recast the Arbitrator's interpretation of the agreement's just cause provision as an improper disregard of Article 38, Section 3. Cf. American Federation of Government Employees, Local 1546 and U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region West, 52 FLRA 94, 98 (1996) (exception claiming that the arbitrator exceeded his authority by violating the provision of the agreement addressing arbitrators' authority to interpret the agreement constituted an attempt to recast the arbitrator's interpretation of the agreement as an improper contract modification). Further, the Agency's claim that the Arbitrator unlawfully substituted a remedy for the 5-day suspension it imposed is based on a mischaracterization of the Arbitrator's award. The Arbitrator did not require the Agency to take any specific actions; rather, he merely stated that certain actions--requested by the grievant--"would provide a solution appropriate to ensure future safety." Award at 12.

Based on the foregoing, the Agency's contention that the Arbitrator exceeded his authority provides no basis for finding the award deficient and we deny the Agency's exception.

D. The Agency's Claim that the Award is Contrary to Agency Regulations Provides No Basis for Finding the Award Deficient

An award is deficient if it is inconsistent with a governing agency regulation. U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186, 192 (1990) (Fort Campbell). However, it is well established that collective bargaining agreements, rather than agency regulations, govern the disposition of matters to which they both apply. E.g., United States Department of the Treasury, United States Customs Service, New York, New York and National Treasury Employees Union, Chapter 153, 51 FLRA 743, 746 (1996); Fort Campbell, 37 FLRA at 194.

The issue before the Arbitrator was whether the grievant was disciplined for just cause. Both Article 36, Section 1 and the Agency's disciplinary regulations provide that disciplinary actions must be "for just cause." Article 36, Section 1; see Disciplinary Regulations at Section 3.b. Even assuming, without deciding, that the Arbitrator erred in his application of the disciplinary regulations, such an error would not provide a basis on which to find the award deficient because the parties' agreement, not the regulations, controlled the disposition of the grievance. Consequently, the Agency's contention that the award is contrary to Agency regulations provides no basis for finding the award deficient and we deny the Agency's exception.

E. The Portion of the Award Pertaining to the Arbitrator's Denial of the Union's Request For Interest Is Deficient As Contrary to Law

Under the provisions of the Back Pay Act, 5 U.S.C. § 5596, "interest must be paid" on backpay awards. U.S. Department of Defense, Marine Corps Logistics Base, Barstow, California and American Federation of Government Employees, Local 1492, 37 FLRA 796, 797 (1990). Accordingly, to the extent that the award denied interest on the backpay resulting from rescission of the 5-day suspension, the award is deficient as contrary to law. U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Hyattsville, Maryland and National Association of Agriculture Employees, 38 FLRA 1291, 1299 (1991) (NAAE). Consistent with NAAE, we modify the award to include interest on the backpay awarded the grievant.

V. Decision

The Agency's exceptions are denied. The Arbitrator's award is modified to include the payment of interest on the backpay award.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. In noting the relevant provisions of the parties' collective bargaining agreement, the Arbitrator cited Article 36, Section 1. Article 36, entitled "Disciplinary and Adverse Actions," provides at Section 1:

The basic procedures and rights of employees, as outlined in appropriate laws, rules and regulations, shall be observed in handling