National Association of Government Employees, Local R4-6 and U.S. Department of the Army, Army Transportation Center, Fort Eustis, Virginia

[ v55 p1298 ]

55 FLRA No. 207

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R4-6
(Union)

and

U.S. DEPARTMENT OF THE ARMY
ARMY TRANSPORTATION CENTER
FORT EUSTIS, VIRGINIA
(Agency)

0-AR-3207

_____

DECISION

January 31, 2000

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. 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 H. Morton Rosen 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 exceptions.

      The Arbitrator upheld one misconduct charge against the grievant and mitigated a proposed 14-day suspension to a 1-day suspension. In addition, the Arbitrator rejected the Union's motion for attorney fees.

      For the following reasons, we grant the Union's exception to the denial of attorney fees and remand the case to the parties for resubmission to the Arbitrator. We deny the remaining exceptions.

II.     Background and Arbitrator's Award

      The grievant, employed as a program assistant at a child care center operated by the Agency, informed the father of a child at the center that she believed his child was being abused. The grievant "was not [the child's] primary or regular caregiver" and her belief was allegedly derived from Agency records. Award at 2. After the father confronted the child's mother and her spouse about the alleged abuse, the father was arrested and a trial ensued.

      The grievant was subpoenaed to testify as a character witness for the child's father. The grievant sought clarification on the matter from Agency counsel, who instructed the grievant that an Agency regulation permitted her to testify about the defendant but prohibited her "from discussing the [center], other than to name it as one's employer, without the Agency's express written approval." Id. at 4.

      The grievant testified in court that she had been ordered not to testify because she did not give the Agency appropriate notice. After the judge ordered her to testify, the grievant stated that the center "had records indicating that [the child] was being abused, and [she] divulged at least some of the contents of those confidential records . . . ." Id. at 4-5.

      Subsequently, the Agency issued a "notice of proposed separation for cause," stating in three charges that the grievant had: (1) misrepresented the Agency by testifying that she had been instructed not to testify and that she had records indicating that the child had been abused; (2) misrepresented the Agency by disclosing to the child's father confidential information; and (3) acted insubordinately by testifying about the center despite instructions not to testify. After the grievant responded to the charges, the Agency mitigated the penalty to a 14-day suspension.

      The Arbitrator determined that the grievant did not misrepresent the Agency, but sustained the Agency's charge that the grievant was insubordinate. The Arbitrator examined an Agency regulation that defined insubordination as a "refusal to obey orders, impertinence, like offense." Id. at 10 (quoting AR 215-3, Table 7-1). The Arbitrator rejected the Union's argument that the Agency improperly asserted that the grievant was "insubordinate in testifying about an issue that [the grievant had] no knowledge of and represented that [the grievant was] testifying for the agency." Id. at 10-11. The Arbitrator determined, in this connection, that a "reasonable person" with the grievant's background should have better explained the instructions she received from the Agency and that the grievant's testimony should have been more limited. Id. at 11. In addition, the Arbitrator found that the grievant "misinformed" the court as to the Agency's instructions. Id. at 11. The Arbitrator concluded that the grievant's conduct merited "the strictest penalty available" under the table of penalties for a first instance of insubordination --a 1-day suspension. Id. at 12. Accordingly, having concluded that the misrepresentation charges brought by the Agency could not be sustained, the Arbitrator reduced the grievant's 14-day suspension to 1 day. [ v55 p1299 ]

      The Arbitrator rejected the Union's motion for attorney fees. The Arbitrator determined that, under the Back Pay Act, the grievant was not a "prevailing party" because the grievant "clearly and flagrantly committed a punishable offense." Id. (citations omitted).

III.     Positions of the Parties

A.     Union's Exceptions

      The Union asserts that two nonfacts were relied upon by the Arbitrator: (1) that the grievant did not have knowledge of the matter testified to in court; and (2) that the grievant misrepresented that she was testifying on behalf of the Agency. According to the Union, these findings are not consistent with evidence presented in arbitration.

      The Union also argues that the award should be set aside because it is contrary to public policy. According to the Union, the grievant testified truthfully before the court, and "[n]o employee should be restricted in giving truthful testimony merely because it is critical of the agency's handling of a matter." Exceptions at 5.

      The Union further contends that the award is contrary to law because the Arbitrator upheld discipline that was not sufficiently set forth in the notice of proposed separation or in the decision letter. Specifically, the Union argues that adequate notice of the eventual grounds for discipline was not stated in the Agency's notice or in the decision letter suspending the grievant.

      Finally, the Union argues that the Arbitrator erred by not granting attorney fees. The Union asserts, in this regard, that "mitigation of a penalty constitutes a finding that the agency acted unreasonably in imposing the penalty thereby warranting an award of fees." Id. at 7 (citation omitted). The Union also contends that the "agency knew or should have known that the penalty was overly harsh," and that the grievant was "substantially innocent" of the charges filed by the Agency. Id. at 6, 8 (citations omitted).

B.     Agency's Opposition

      The Agency asserts that the Union's nonfact exception should be rejected because it challenges factual determinations on disputed matters. The Agency also argues that the Union has not established that the award is contrary to public policy. The Agency states that only "generalized assertion[s]" of public policy violations are made by the Union, which are insufficient. Opposition at 7.

      Further, the Agency contends that the Union has not demonstrated that the award is contrary to law. In this regard, the Agency argues that the Union relies on notice standards that do not apply in this case. First, the Agency argues that Title 5 standards do not apply to nonappropriated fund employees such as the grievant. Second, the Agency argues that the standards apply only to actions covered by 5 U.S.C. § 7512, which does not include actions that result in 14-day suspensions Id. at 5 (citation omitted). The Agency asserts that the grievant's suspension was taken pursuant to AR 215-3 and the applicable collective bargaining agreement, and that the Arbitrator was free to apply "whatever standard [he] consider[ed] appropriate[.]" Id. at 6 (citation omitted).

      Finally, the Agency argues that the Arbitrator's denial of attorney fees was appropriate because the award is based on the Arbitrator's finding that the grievant did not prevail, which is consistent with the Authority's "prevailing party" standard. Id. at 8.

IV.     Analysis and Conclusions

A.     The Award Is Not Based On Nonfacts

      To establish that an award is based on a nonfact, the appealing 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). The Authority 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 National Post Office Mailhandlers v. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)).

      The nonfacts asserted by the Union -- that the grievant did not have knowledge of the matter testified to in court, and that the grievant misrepresented that she was testifying on behalf of the Agency -- concern matters that were disputed at arbitration. Accordingly, the Union's exception does not demonstrate that the award is deficient as based on nonfacts.

B.     The Award Is Not Contrary to Public Policy

      In Social Security Administration and American Federation of Government Employees, Local 1923, 32 FLRA 765, 768 (1988), the Authority stated the following with respect to claims that an award is deficient as contrary to public policy:

Under section 7122(a)(2) of the Statute, we will find an arbitration award deficient on grounds similar to those applied by Federal courts in private sector labor relations cases. In the private sector, [ v55 p1300 ] courts will find an arbitration award deficient when the award is contrary to public policy. However, this ground is "extremely narrow." U.S. Postal Service v. National Association of Letter Carriers, 810 F.2d 1239, 1241 (D.C. Cir. 1987), cert. dismissed, 108 S. Ct. 1589 (1988) (NALC). In order to find the award deficient, the public policy in question must be "explicit," "well defined, and dominant." W.R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 766 (1983) (W.R. Grace)). In addition, the policy is to be ascertained "by reference to the laws and legal precedents and not from general considerations of supposed public interests." Id.; accord United Paperworkers v. Misco, Inc., 108 S. Ct. 364, 373 (1987) (Misco). The violation of such public policy "must be clearly shown" if an award is to be found deficient.

      The Union asserts as a public policy ground that no person should be prohibited from truthfully testifying "merely because it is critical of the agency's handling of a matter." Exceptions at 5. In this regard, we note that the Arbitrator found that the grievant "misinformed" the judge regarding the Agency's instructions. Award at 11. The Union's challenge to this arbitral finding was rejected above. Thus, consistent with the Arbitrator's finding, the grievant's testimony, as found by the Arbitrator, was not truthful and does not fall within the parameter of the public policy alleged by the Union to be violated.

      In addition, the Union cites no explicit or well-defined policy to support its assertion. The only relevant "explicit" policy in the record relating to this issue is the Agency regulation cited by the Arbitrator, which bars a character witness from discussing the activities of the Agency. See Award at 4.

      Accordingly, we find that the Union's exception provides no basis for finding the award deficient.

C.     The Award is Not Contrary to Law or Regulation

      The Authority reviews the questions of law raised by the award and the Union's exceptions 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)). In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. Id.

      The Agency correctly points out that statutory and regulatory requirements applicable to discipline imposed pursuant to 5 U.S.C. § 7512, explicitly relied on by the Union, do not apply to the discipline imposed in this case. However, the basic requirement of notice does apply here. See 5 U.S.C. § 7503(a); 5 C.F.R. 752.203(b). Further, the regulation relied on by the Agency contains a requirement of "notice of separation . . . which fully explains the incident and basis for the decision to separate." USAREUR Regulation 215-3, Sec. 26(c)(5). Thus, the Agency has not established that a requirement of notice of the charge alleged is inapplicable to this grievance.

      In this case, the Arbitrator found that the grievant was issued a notice of proposed separation for cause, and that the grievant responded in writing to the proposed charges. See Award at 5-6. The Arbitrator found as a factual matter that the "Agency's notice to [the grievant] explain[ed] th[e] charge clearly[.]" Id. at 10. In doing so, the Arbitrator explicitly rejected the Union's argument that the notice was so "poorly drafted" as to render the notice insufficient. Id. Applying the arbitrator's factual finding, to which the Authority defers, the grievant was provided clear, written notice of the charges against her, and the opportunity to respond. Thus, the Union has not established that the award is contrary to law. See 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, 1177-78 (1992).

D.     The Arbitrator erred in denying attorney fees

      Under the Back Pay Act, 5 U.S.C. § 5596, an award of attorney fees by an arbitrator must be in accordance with the standards established under 5 U.S.C. § 7701(g). These standards apply to all cases except those involving employment discrimination, and they apply here. The prerequisites for an award of attorney fees under section 7701(g) are that: (1) the employee must be the "prevailing party"; (2) the award of fees must be warranted in the interest of justice; (3) the amount of the fees must be reasonable; and (4) the fees must have been incurred by the employee. See U.S. Department of the Treasury Internal Revenue Service, Philadelphia Service Center, Philadelphia, Pennsylvania and National Treasury Employees Union, Chapter 35, 53 FLRA 1697, 1699 (1998) (NTEU); Allen v. United States Postal Service, 2 MSPR 420, 427 (1980). [ v55 p1301 ]

      The Union's exception challenges the Arbitrator's determination that the Union was not the prevailing party. Under Authority and MSPB case law, an employee is a prevailing party if the employee "received an enforceable judgment or settlement which directly benefitted [the employee] at the time of the judgment or settlement." U.S. Department of Defense, Defense Distribution Region East, New Cumberland, Penn