Social Security Administration, Seattle Region (Agency) and American Federation of Government Employees, Local 3937 (Union)

[ v58 p374 ]

58 FLRA No. 90

SOCIAL SECURITY ADMINISTRATION
SEATTLE REGION
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 3937
(Union)

0-AR-3614

_____

DECISION

March 21, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.      Statement of the Case

      This matter is before the Authority on an exception to an award of Arbitrator Paul P. Tinning filed by the Agency under § 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 exception.

      The Arbitrator ruled that the Agency had just cause to discipline the grievant, but that the 2-day suspension for the infraction was not warranted. Accordingly, he directed the Agency to reduce the 2-day suspension to a 1-day suspension.

      The Agency provides no basis for finding the award deficient. Accordingly, we deny the Agency's exception.

II.      Background and Arbitrator's Award

      The grievant accessed the Agency's computer records on himself. The Agency suspended the grievant for 2 days for violating the Agency's unauthorized system access policy. The grievant filed a grievance disputing the suspension.

      The Union contended before the Arbitrator both that the grievant had not accessed his record and that the penalty was unreasonable because the Agency did not seriously consider the Douglas factors in determining to suspend the grievant for 2 days. [n2]  The Arbitrator found that the grievant had accessed his records in violation of the Agency's unauthorized system access policy. However, he agreed with the Union that the Agency had not given due consideration to whether the 2-day suspension was consistent with the penalty imposed on other employees for the same offense. In this regard, in addition to considering other record evidence as well as several arbitrators' awards relied on by the parties, the Arbitrator found that from October 1999 to May 2002, six cases involving 2-day suspensions for unauthorized access out of 19 cases were resolved by confidential settlements. The Arbitrator stated that this "fact . . . evidences, in my opinion, that such [Douglas] factors presumably were considered to warrant such settlements." Award at 10.

      Accordingly, the Arbitrator found that the Agency had just cause to discipline the grievant for unauthorized access to his records, but that the penalty for such infraction was not warranted. He directed the Agency to reduce the penalty to a 1-day suspension and awarded the grievant backpay for the second day.

III.     Positions of the Parties

      The Agency contends that the award is based on a nonfact. The Agency asserts that the Arbitrator mitigated the grievant's suspension because he presumed that six cases similar to the grievant's case were resolved on a basis that resulted in a mitigation of the 2-day suspension. The Agency claims that this presumption is erroneous and is based on a nonfact. The Agency maintains that only one of these cases resulted in a final penalty of less than a 2-day suspension and that this case is not similar to the grievant's case. Accordingly, the Agency argues that the award is based on a mistake of fact, but for which the Arbitrator would have denied the grievance.

      The Union contends that the Agency fails to establish that the award is deficient as based on a nonfact.

IV.      Analysis and Conclusions

      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 the arbitrator would have reached a different result. See United States Dep't of the Air Force, Lowry Air Force [ v58 p375 ] Base, Denver, Colo., 48 FLRA 589, 593 (1993). However, we will not find an award deficient on the basis of an arbitrator's determination of a factual matter that the parties had disputed at arbitration. See id. at 593-94.

      In this case, the record establishes that the consistency of the grievant's 2-day suspension with the suspensions of other similarly situated employees was disputed before the Arbitrator. In our view, the Ar