41:1206(94)AR - - Army, Blue Grass Army Depot, Lexington, KY and IAM Local Lodge 859 - - 1991 FLRAdec AR - - v41 p1206
[ v41 p1206 ]
The decision of the Authority follows:
41 FLRA No. 94
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to the award on remand of Arbitrator Carl Cabe. In his original award, the Arbitrator sustained the grievance and found that the grievant was not pecuniarily liable for an accident that occurred while the grievant was operating a government vehicle. The Agency filed an exception to the Arbitrator's award and we concluded that we were unable to determine whether the award was deficient, as alleged by the Agency, because the record was incomplete. Accordingly, we remanded the case to the parties for resubmission to the Arbitrator. In his award on remand, the Arbitrator reaffirmed that there was no basis for finding that the grievant was liable.
The Agency has filed an exception 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 Union filed an opposition to the exception.
We conclude that the Agency fails to establish that the award is deficient and we will deny the exception.
II. Background and Initial Award
The dispute in this case arose when the grievant damaged an Agency van he was operating in the course of his assigned duties. After a report of survey, the Agency held the grievant pecuniarily liable for the $1,385.84 in damage to the van. A grievance was filed and submitted to arbitration on the issue of whether the Agency violated the parties' collective bargaining agreement when it held the grievant pecuniarily liable for the damage to the van.
The Arbitrator noted that under Article 30, Section 1 of the parties' collective bargaining agreement, the Agency waives the collection of such damages unless the damage resulted from "willful misconduct, disobedience, or negligence on the part of the employee." 38 FLRA at 1234. Because the Agency had not contended that the grievant had engaged in willful misconduct or disobedience, the Arbitrator interpreted and applied the term "negligence" as it pertained to the matter before him. He ruled that the grievant was not negligent and that, consequently, holding the grievant liable violated the agreement. As his award, the Arbitrator found that the grievant was not pecuniarily liable for the accident.
III. The Decision in 38 FLRA 1232
The Agency filed an exception contending that the award was deficient. The Agency argued that the award interfered with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. The Agency also argued that the Arbitrator applied a standard of negligence that conflicted with the standard established in Army Regulation (AR) 735-5 (Policies and Procedures for Property Accountability).
We rejected the Agency's contention that the award was contrary to section 7106(a)(1) of the Statute. 38 FLRA at 1237-38. With respect to the alleged conflict with AR 735-5, we found that the record was incomplete. We noted that our decision in U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186 (1990) (Ft. Campbell), required us to examine the record in this case to determine if, for the purpose of collecting damages under Article 30 of the agreement, there is a provision of the agreement containing a definition or standard of negligence that supersedes the definition of negligence set forth in AR 735-5. We concluded, however, that we were unable to make that determination on the basis of the record before us. Accordingly, noting that the Arbitrator had not had the benefit of our analysis in Ft. Campbell, we remanded the case to the parties for resubmission to the Arbitrator "on the sole issue of whether the definition of negligence, for the purpose of determining an employee's pecuniary liability for damage to government property, contained in the pertinent Agency regulation was superseded by a different standard or definition in the parties' collective bargaining agreement." Id. at 1239.
IV. Arbitrator's Award on Remand
In the award on remand, the Arbitrator discussed more extensively than he had originally the parties' collective bargaining agreement. The Arbitrator stated that he was without authority to modify Agency regulations, but stated that "obviously" a collective bargaining agreement may place restrictions on management. Award on Remand at 3. He reiterated from his original award that Article 30, Section 1 had been a new addition to the parties' current collective bargaining agreement and was negotiated to provide protection to employees. On remand, although he acknowledged that the Agency claimed that there were no differences between AR 735-5 and the collective bargaining agreement, the Arbitrator found that the Agency provided no reason for the addition of Article 30, Section 1. The Arbitrator further stated that the Agency's personnel officer had testified at the arbitration hearing that the decision to hold the grievant pecuniarily liable was made without considering the provisions of the collective bargaining agreement. In the Arbitrator's view, however, it was "inconceivable that an ultimate decision would be made and applied without reference to the Contract." Id. at 4. Finding that the grievant had not been "imprudent," the Arbitrator reaffirmed that there was no basis for finding him negligent and held that he was not pecuniarily liable for the accident. Id. at 5.
V. Positions of the Parties
The Agency contends that the Arbitrator has once more established a standard of negligence that conflicts with the standard set forth in AR 735-5. The Agency maintains that in Ft. Campbell, the Authority held tha