35:0784(83)AR - - Army, HQ XVIII Airborne Corps and Fort Bragg, Fort Bragg, NC and AFGE Local 1770 - - 1990 FLRAdec AR - - v35 p784

[ v35 p784 ]
The decision of the Authority follows:

35 FLRA No. 83









LOCAL 1770




April 27, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator E. H. Rayson 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 Rules and Regulations. The Agency filed an opposition to the Union's exceptions.

The Agency suspended an employee for 10 days for being on duty while under the influence of alcohol. The suspension was grieved and the Arbitrator denied the grievance. The Union contends that the award is contrary to the Agency's regulations and is based on a nonfact.

We conclude that the Union has not established that the Arbitrator's award is deficient under section 7122 of the Statute. Accordingly, we deny the Union's exceptions.

II. Background and Arbitrator's Award

The grievant is employed as a warehouse worker (forklift operator). During a swing shift in February 1988, the grievant was observed by the night foreman and other employees to be operating a stock picker "in an erratic and unsafe manner." Award at 6, quoting notice of proposed suspension.(*) The foreman, concerned that it was unsafe for the grievant to perform his work, concluded that the grievant was under the influence of drugs or alcohol and reported his observations to a supervisor. Id. at 4-5. Following the foreman's actions, the grievant was approached by a leadman who requested that the grievant leave the worksite.

After discussions with the grievant (who admitted to drinking before work and during his break), witnesses, and his superior concerning the incident, the commissary warehouse foreman issued a memorandum requesting the grievant's termination and an investigation of the incident. As a result of the investigation, the deputy commissary officer concluded that, "because of the grievant's conduct on the one hand, and because of his record as a hard working and efficient employee, on the other," a 10-day suspension, rather than termination, was warranted. Id. at 6.

The suspension was grieved and subsequently submitted to arbitration. The Arbitrator determined that the issue was "whether [the] ten-work day suspension given the grievant . . . was arbitrary or capricious or unreasonable."

Id. at 2.

The Arbitrator referenced Paragraph 1-4, Change 5, AR 690-700, Chapter 751 of the Agency's regulations, which deals with "Determining Appropriate Penalties" and sets forth a "Table of Penalties for Various Offenses." Paragraph 1-4 states in relevant part:

a. Disciplinary actions under 5 USC 7503 and 7513 must not be arbitrary or capricious; the penalty selected must not be clearly excessive in relation to the offense and to prior practice, and must not otherwise be unreasonable.

* * * * * * *

d. In selecting an appropriate penalty, the deciding official should distinguish between misconduct for which progressive discipline aimed at correcting behavior is warranted and misconduct warranting punitive discipline. In general, for progressive discipline the deciding official should select the least stringent penalty thought necessary to get the employee's attention and motivate him/her to improve behavior. . . .

Award at 3, quoting the parties' Joint Exhibit.

The Arbitrator stated that the Table of Penalties categorizes offenses into different sections, including a section entitled "Behavioral Offenses for which Progressive Discipline is Appropriate." Id. He pointed out that one of the offenses listed under this section is the "[u]nauthorized use of alcohol, drugs or controlled substances." Id. He noted that this offense is set forth in three parts, one of which is "(c) reporting to work or being on duty while under the influence of alcohol, a drug or a controlled substance to a degree which would interfere with proper performance of duty, would be a menace to safety, or would be prejudicial to the maintenance of discipline." Id. The Arbitrator stated that, for a first offense of part (c), the Table provides: "Written reprimand to 30 day suspension. Removal may be warranted if the safety of personnel or property is endangered." Id. at 4.

The Arbitrator found that the Agency met its burden of proving that the grievant committed an offense for which progressive discipline is warranted. He next considered whether the 10-day suspension was consistent with progressive discipline.

The Arbitrator determined that the Table of Penalties "expressly permits the penalty imposed for a first offense [of the type committed by the grievant] to be for ten days." Id. He found that because of "the nature of the grievant's work, [his operating the stock picker while under the influence of alcohol] could have resulted in damage to