54:0020(4)AR - - AFGE Local 1151 and VA - - 1998 FLRAdec AR - - v54 p20



[ v54 p20 ]
54:0020(4)AR
The decision of the Authority follows:


54 FLRA No. 4

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1151

(Union)

and

U.S. DEPARTMENT OF VETERANS AFFAIRS

(Agency)

0-AR-2984

DECISION

April 17, 1998

Before the Authority: Phyllis N. Segal, Chair; Donald Wasserman and Dale Cabaniss, Members.

Decision by Chair Segal for the Authority.

I.Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Philip Harris 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 did not file an opposition to the Union's exceptions.

The Arbitrator found that the Agency had just cause to discipline the grievant. Nevertheless, the Arbitrator mitigated the grievant's suspension from 14 to 7 days. For the following reasons, we conclude that the award is not deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II.Background and Arbitrator's Award

The grievant attempted to access a computerized record in order to adjudicate a former co-worker's claim for increased monthly compensation. The computerized record was under the jurisdiction of a different regional office of the Agency from the one in which the grievant worked. The grievant was denied access to the record; another co-worker successfully accessed the record and adjudicated the former co-worker's claim for benefits.

The Agency charged the grievant with (1) a conflict of interest, for adjudicating a benefit claim for someone with whom he was acquainted; and (2) adjudicating a benefit claim that was not within his jurisdiction. The Agency suspended the grievant for 14 days. When the grievance was unresolved, it was submitted to arbitration.

The Arbitrator found that the Agency had just cause to discipline the grievant for both charges. However, given that the claim adjudication was actually carried out by another employee, and that the grievant had an unblemished employment record, the Arbitrator mitigated the grievant's suspension from 14 to 7 days.

III.Positions of the Parties

A.Union

The Union claims that it did not agree to a particular "stipulated fact" listed by the Arbitrator in the award, namely, that the grievant "accessed a former co-worker's computerized claim record." Award at 3 (emphasis added). The Union asserts that it did not stipulate that the grievant actually "accessed" his former co-worker's computerized claim record, as the grievant's admitted attempts to access that record were unsuccessful. The Union also argues that the Arbitrator failed to consider another stipulation, allegedly "crucial to the case," that the grievant did not take part in the actual award action. Exceptions at 3. According to the Union, because the parties stipulated that the grievant did not commit the cited offenses, the Arbitrator should have dismissed the suspension entirely.

The Union contends that the Arbitrator "acknowledge[d] that [the grievant] did not participate in the award action but seems to believe that [the grievant] should be punished anyway[.]" Exceptions at 3. The Union argues that the award is deficient because the grievant's actions do not meet the criteria of a "conflict of interest," as set out by the Merit Systems Protection Board (MSPB) in Fontes v. Department of Transportation, 51 MSPR 655 (1991) (Fontes). Additionally, the Union claims that the grievant's right to due process under the law was violated because "neither of [the grievant's] charged actions are really violations of anything[,]" and because the grievant was charged with one thing but suspended for another. Exceptions at 5.

The Union maintains that the award is inconsistent with an Agency regulation, because the individual who both proposed and sustained the grievant's suspension was not a "Division Chief" or higher. Additionally, the Union argues that management's decision to suspend the grievant rather than simply telling him his actions were improper shows "their desire to punish [the grievant] rather than inform him", Exceptions at 6, and that no evidence was offered to indicate that the grievant would have refused to comply had he been told that his actions were unacceptable. Id. at 3. Thus, the Union asserts that the award fails to draw its essence from the parties' agreement, because even a mitigated suspension violates the parties' commitment to "progressive discipline," as described in Article 12, Section 3 of the agreement.(1) Id.

Finally, the Union contends that grievant's co-worker who actually adjudicated the claim was absolved of any wrongdoing in an appeal of his removal to the MSPB, and that to hold the grievant responsible when he merely attempted to do what his co-worker actually did, "would constitute a failure to afford [the grievant] equal protection under the law." Exceptions at 6.

B.Agency

The Agency did not file an opposition.

IV.Analysis and Conclusions

A.The Award Is Not Based On Nonfacts

The Union argues that (1) a particular stipulated fact is misstated in the award and (2) the Arbitrator neglected to consider or list an alleged, "crucial" stipulation that the grievant took no part in the actual adjudication of his co-worker's claim. We construe these arguments as asserting that the award is based on nonfacts.

To establish that an award is based on a nonfact, the excepting party must demonstrate that a 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). A party may not raise nonfact allegations concerning a matter that was disputed below. See U.S. Department of the Interior, Bureau of Mines, Pittsburgh Research Center and American Federation of Government Employees, Local 1916, 53 FLRA 34, 40 (1997) (Bureau of Mines).

With respect to the allegedly-misstated stipulated fact, the Arbitrator, in mitigating the grievant's suspension, explicitly found that another co-worker was responsible for accessing the former employee's file and authorizing the increased payment. However, the award makes clear that, in the Arbitrator's view, it was the grievant's attempt to access the record that constituted the improper behavior. Thus, even if the first stipulated fact is stated inaccurately, in that the grievant did not actually "access" the record, the Arbitrator's reasoning indicates that he would have reached the same result even if it had been stated accurately. As this stipulated fact is not a "central" fact underlying the award, the Union has failed to establish that the Arbitrator's award is based on a nonfact.

With respect to the "stipulated fact" that the Union alleges the Arbitrator neglected in the award, the record indicates that the parties did dispute at arbitration whether the grievant accessed his co-worker's file and adjudicated the claim. See Award at 6-7. Because this matter was disputed at the hearing, the Union may not now raise a nonfact allegation on this basis. Bureau of Mines, 53 FLRA at 40.

Accordingly, the Union has failed to establish that the award is deficient because it is based on nonfacts, and we deny these exceptions.

B. The Arbitrator Did Not Exceed His Authority

We construe the Union's argument that the Arbitrator erred in failing to entirely set aside the grievant's suspension, as an assertion that the Arbitrator exceeded his authority. An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. American Federation of Government Employees, Local 1668 and U.S. Department of the Air Force, Elmendorf Air Force Base, Anchorage, Alaska, 51 FLRA 714, 718 (1995).

The Union does not indicate how the Arbitrator's determination that the grievant's suspension should be mitigated, rather than entirely set aside, indicates that the Arbitrator failed to resolve an issue submitted to arbitration, disregarded specific limitations on his authority, or awarded relief to persons who were not encompassed within the grievance. Accordingly, the Union has not established that the Arbitrator exceeded his authority, and we deny this exception.

C. The Award Draws Its Essence From The Parties'

Agreement

The Union argues that the Arbitrator's decision to mitigate, rather than completely set aside, the grievant's suspension is contrary to Article 12, Section 3 of the parties' agreement. We construe this argument as asserting that the award fails to draw its essence from the parties' agreement.

The Union has not established how the Arbitrator's mitigation of the grievant's suspension is inconsistent with the principle, incorporated in the parties' agreement, of "correct[ing] and improv[ing]," rather than "punish[ing]," the grievant's behavior. The Authority will not find an award deficient merely because a party believes the Arbitrator misinterpreted the agreement. United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 577 (1990). Additionally, although the Arbitrator did not specifically cite Article 12, Section 3 in his award, that does not establish that he ignored that provision. See American Federation of Government Employees, Local 2327 and Department of Health, Education, and Welfare, Social Security Administration, 5 FLRA 189, 192 (1981).

Because the Union has not demonstrated that the award is unfounded, implausible, irrational, or manifests a disregard of the parties' agreement, it has not established that the award is deficient because it fails to draw its essence from the agreement. Accordingly, we deny this exception.

D. The Award Is Not Inconsistent With Law

The Union's remaining exceptions involve the award's consistency with law. As such, we review the questions of law raised by these exceptions and the Arbitrator's award de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)).

1.The Award Is Not Inconsistent With An Agency

Regulation

The Union claims that MP-5 Part I, Section 4, Subsection 4a(2) of the Agency's regulations requires that, in order for a manager to both propose and sustain a suspension, that manager must be a "Division Chief" or higher. Exceptions at 6. Because the individual who proposed and sustained the grievant's suspension was only an "Assistant Chief," the Union asserts that the Agency failed to follow the process set out in MP-5 Part I, Section 4, Subsection 4(a). We construe this argument as asserting that the award is deficient because it is inconsistent with an Agency regulation.

Under section 2425.2(d) of the Authority's Regulations, an exception must be a self-contained document that includes all pertinent documents. As the Union has not provided a copy of the Agency regulation, it is not possible to determine what that regulation requires, or whether the Agency failed to act in accordance with it. Thus, the Union has not supported its claim that the award is deficient as inconsistent with the regulation. See American Federation of Government Employees, Local 1815 and U.S. Department of the Army, Army Aviation Center, Fort Rucker, Alabama, 47 FLRA 254, 256-57 (1993) (holding that the Authority will deny exceptions based on an award's inconsistency with an agency regulation when the union fails to provide the Authority with a copy of the relevant regulation).

In addition, the record in this case does not provide a basis on which to conclude that the argument regarding the Agency regulation was raised before the Arbitrator. Rather, it appears that the Union is attempting to raise this argument for the first time here. Pursuant to Section 2429.5 of the Authority's Regulations, the Authority will not consider this argument for the first time on exception.(2)

Accordingly, the Union's exception here presents no cognizable grounds upon which the Authority will overturn the award, and we deny this exception.

2.The Award Is Not Inconsistent With MSPB Precedent

The Union asserts that the grievant's actions do not constitute a "conflict of interest," under the criteria set out by the MSPB in Fontes, 51 MSPR 655. We construe this argument as asserting that the award is contrary to MSPB precedent.

The Authority has consistently held that arbitrators are bound by the same substantive standards as the MSPB only when resolving grievances concerning actions covered by 5 U.S.C. §§ 4303 and 7512. See, e.g., American Federation of Government Employees, National Council of EEOC Locals No. 216 and U.S. Equal Employment Opportunity Commission, 49 FLRA 906, 917 (1994). As the Union concedes, MSPB precedent does not govern this case, because it involves a "non-adverse action[.]" Exceptions at 5. Therefore, the Union's exception does not provide a basis for setting aside the award.

Moreover, even if MSPB precedent were applicable here, it would not provide a basis for setting aside the award. In Fontes, the MSPB stated that less evidence is required to establish the appearance of a conflict of interest than is required to demonstrate an actual conflict. Fontes, 51 MSPR at 664. In the instant case, the grievant was charged not only with an actual conflict of interest, but also with activities having the appearance of impropriety. Even assuming that the grievant's actions do not demonstrate an actual conflict of interest in accordance with the MSPB's definition, this was not the sole ground for the grievant's suspension in the instant case. Accordingly, we deny this exception.

3.The Award Does Not Violate The Grievant's Right To Due Process

The Union contends that neither of the grievant's charged actions "are violations of anything," and that the grievant was charged with one thing and suspended for another, contrary to the "fundamental due process considerations" that are embodied in the MSPB's decision in Greenough v. Department of the Army, 73 MSPR 648 (1997) (Greenough). Exceptions at 5. We construe these arguments as asserting that the award denies the grievant's right to due process.

As noted above, MSPB precedent does not govern this case. Thus, Greenough's holding with respect to due process is not applicable here.

In 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 (1992) (Hawaii Federal Lodge), the Authority set out guidelines for the process that is due a Federal employee who has been suspended for 14 days or less. The Authority held that Federal employees are not entitled to procedures more extensive than an oral or written notice of the charges, an explanation of the employer's evidence, and an opportunity to present his or her side of the story. Id. at 1177 (citing Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985)).

In the present case, the grievant was given written notice of his proposed suspension, which set forth the grounds for the proposed discipline. He was allowed 14 days to respond to the notice, orally, in writing, or both orally and in writing. See Exhibit A. The grievant was also given the right to representation. Thus, the grievant was given more procedural protections than are required by Hawaii Federal Lodge, and, as a result, his right to procedural due process was satisfied here.

Accordingly, the Union has failed to demonstrate that the award violates the grievant's right to due process, and we deny this exception.

4.The Award Does Not Deny The Grievant Equal Protection Of The Law

The Union notes that the grievant's co-worker, who actually adjudicated the benefits claim, was absolved of any wrongdoing on his appeal to the MSPB. As a result, the Union argues that anything less than a full set-aside of the grievant's suspension in this case would violate his right to equal protection. We construe this argument as asserting that the award denies the grievant's rights under the equal protection component to the Fifth Amendment's Due Process Clause.

As the Authority has not previously addressed such an argument in similar circumstances, it is appropriate to consider, in the first instance, the courts' equal protection jurisprudence. Although the Fourteenth Amendment's Equal Protection Clause does not apply to the Federal Government or its agencies, see District of Columbia v. Carter, 409 U.S. 418, 423-24 (1973), the Supreme Court has held that Federal actions may be tested under the Fifth Amendment's Due Process Clause by the same rules that are employed to test the validity of a state's actions under the Fourteenth Amendment. Buckley v. Valeo, 424 U.S. 1, 93 (1976).

The Fourteenth Amendment's Equal Protection Clause does not assure uniformity of judicial decisions. Beck v. Washington, 369 U.S. 541, 554-55 (1962). Thus, there is no reason for the Authority to find that the Fourteenth Amendment, or, by extension, the Fifth Amendment, requires consistency between the MSPB's decision and the award of the arbitrator in the present case. Additionally, as discussed above, the arbitrator was not bound by MSPB precedent, as this case involved a non-adverse action. The Union cites no authority for this exception, and there is no other basis upon which to conclude that the award here denied the grievant's right to equal protection of the law. Accordingly, we deny this exception.

V.Decision

The Union's exceptions are denied.




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

1. Article 12, Section 3, entitled "Progressive Discipline," provides:

The parties agree to the concept of progressive discipline, designed primarily to correct and improve employee behavior, rather than to punish.

Exceptions at 3.

2. Section 2429.5 of the Authority's Regulations provides, in pertinent part:

Matters not