[ v35 p784 ]
The decision of the Authority follows:
35 FLRA No. 83
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE ARMY
HEADQUARTERS XVIII AIRBORNE CORPS AND FORT BRAGG
FORT BRAGG, NORTH CAROLINA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
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 property or injury to personnel." Id. The Arbitrator stated that "[g]iven the facts of the case and the text of the penalty rules, [he could not] find that the ten-day penalty imposed was either inconsistent with progressive discipline, or that it was 'arbitrary or capricious' or that it was 'clearly excessive'." Id. at 9-10. He concluded that "the penalty here imposed is clearly reasonable and for that reason [he found] that it should not be modified." Id. at 10. Accordingly, the Arbitrator denied the grievance.
III. Positions of the Parties
A. Union's Exceptions
The Union contends that the award is contrary to Paragraph 1-4 of the Agency's regulations because the Arbitrator did not consider the Agency's prior practice of issuing a letter of reprimand to employees for a first offense of being under the influence of alcohol while on duty. The Union asserts that "although [the evidence concerning past practice by the Agency] was clearly uncontroverted, the Arbitrator completely overlooked this evidence and fashioned his Award around the reasonableness of the Agency's discipline." Exceptions at 2.
To the extent that the Arbitrator failed to consider the Agency's past practice when he determined that the 10-day suspension was reasonable and should not be modified, the Union further contends that the award was based on a nonfact. The Union argues that because "the [a]ward is inconsistent with the uncontroverted physical evidence of prior practice of the parties as documented . . . the Arbitrator relied on a non-fact in deciding that a ten day suspension was appropriate." Id. at 3.
The Union requests that, "because the only reasonable discipline which could have been upheld consistent with the Agency 'Table of [Penalties] for Various Offenses' and the parties' prior practice, was a letter of reprimand[,]" the award be set aside and modified to provide for a letter of reprimand. Id. at 3-4.
B. Agency's Opposition
The Agency contends that the Arbitrator's award is in accordance with the Agency's regulation. The Agency asserts that paragraph 1-4(a) states that "the penalty selected must not be clearly excessive in relation to the offense and prior practice." Opposition at 2, emphasis in original. The Agency argues that this language allows it to "tailor discipline to the facts of a given case without being straightjacketted [sic] to a previous penalty for the same charge, where the facts of the previous case warranted a dissimilar penalty." Id. The Agency contends that "the penalty in this case was selected through a balancing of the relevant factors in the grievant's case" and that the Arbitrator was correct in not mitigating the penalty to a letter of reprimand. Id.
Section 7122(a) of the Statute provides that an arbitration award may be found deficient: (1) because it is contrary to any law, rule, or regulation; or (2) on other grounds similar to those applied by Federal courts in private sector labor relations cases.
The Union contends that the award is deficient because it is (1) contrary to the Agency's regulation, and (2) based on a nonfact.
We find that the Union has not shown how the Arbitrator's award conflicts with Paragraph 1-4, Change 5, AR 690-700, Chapter 751. We further find that the Union has not demonstrated that the Arbitrator failed to consider the Agency's past practice when he determined that the penalty should not be mitigated. The Arbitrator found that the Table of Penalties "expressly permits the penalty imposed for a first offense of this nature to be for ten days." Award at 9. The Arbitrator further found that, although the Agency could have decided on a lesser penalty or a reprimand, "[t]he offense which the weight of the evidence sustains, was a serious offense" and that "the penalty . . . imposed is clearly reasonable . . . and should not be modified." Id. at 9, 10. In our view, the Union's contentions constitute nothing more than disagreement with the Arbitrator's reasoning and conclusions. Accordingly, the Union's exception does not provide a basis for finding the award deficient. See, for example, U.S. Department of Veterans Affairs, Medical Center, Memphis, Tennessee and National Association of Government Employees, Local R5-66, 34 FLRA 893, 896 (1990) (NAGE, Local R5-66).
We also reject the Union's contention that the award is based on a nonfact. We will find an award deficient under the Statute because it is based on a nonfact when it is demonstrated that the central fact underlying the award is concededly erroneous and constitutes a gross mistake of fact for which a different result would have been reached. Health Care Financing Administration, Department of Health and Human Services and American Federation of Government Employees, Local 1923, 35 FLRA 274, 293-94 (1990). In order for an award to be found deficient on this ground, it must be established that the alleged nonfact was the central fact underlying the award, was concededly erroneous, and that but for the arbitrator's erroneous finding, the arbitrator would have reached a different result. Id. at 294.
As noted above, the Union has not demonstrated that the Arbitrator failed to consider the Agency's past practice when he determined that the penalty should not be mitigated.
Rather, the Union's contentions constitute nothing more than disagreement with the Arbitrator's evaluation of the evidence and testimony. Consequently, this exception provides no basis for finding the award deficient. See NAGE, Local R5-66, 34 FLRA at 896.
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
*/ The grievant testified that he was driving a stock picker, not a fork lift. The Arbitrator stated that he did "not consider the issue of whether the grievant was operating a fork lift or a stock picker to be of overriding significance." Award at 9.