[ 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 that when an award conflicts with an agency regulation, the award can be sustained only if the arbitrator found that applicable provisions in a collective bargaining agreement superseded the terms of the regulation. The Agency asserts that no such finding was made by the Arbitrator in this case.
The Agency claims that the Arbitrator failed to address the issue remanded by the Authority. The Agency maintains that the Arbitrator has neither stated nor implied that the terms of the parties' collective bargaining agreement modified the definition of negligence contained in AR 735-5. Consequently, the Agency alleges that the award is contrary to AR 735-5 because there is no finding that the parties negotiated a different standard of negligence in their collective bargaining agreement. The Agency claims that under Ft. Campbell the award must be found to be deficient.
The Agency also opposes another remand. The Agency maintains that the Arbitrator indicated that he considered Ft. Campbell. The Agency asserts that in view of the award having been rendered with a full understanding of what is expected for an award to be sustained when it involves alleged conflicts between agency regulations and provisions of a collective bargaining agreement, another remand would be inappropriate.
The Union claims that in compliance with 38 FLRA 1232, the award on remand clearly establishes that the Arbitrator considers that the collective bargaining agreement provides a definition of liability that is different from, and supersedes, the provision in AR 735-5. Accordingly, the Union argues that in accordance with Ft. Campbell, the Agency's exception should be denied.
VI. Analysis and Conclusions
We conclude that the Agency fails to establish that the award is deficient.
In Ft. Campbell, we held that an award will be found deficient as contrary to rule or regulation only when the award conflicts with an agency rule or regulation that governs the matter in dispute. 37 FLRA at 192. However, we further held that collective bargaining agreements, and not agency rules or regulations, govern the disposition of matters to which they both apply when there is a conflict between the agreement and the rule or regulation. Id. As we noted in our original decision in this case, 38 FLRA at 1238, our holding in Ft. Campbell requires us to examine the record in this case to determine if, for the purpose of collecting damages under Article 30 of the parties' collective bargaining agreement, there is a provision of the parties' agreement containing a definition or standard of negligence that supersedes the definition of negligence contained in AR 735-5. Because we were unable to make that determination on the original record, we remanded the case to have the Arbitrator address whether the definition of negligence was superseded by a different standard or definition contained in the parties' collective bargaining agreement. The Agency argues that the Arbitrator failed to find that the agreement contained a standard of negligence that superseded the standard of AR 735-5. We disagree.
In our view, the Arbitrator's statements that a collective bargaining agreement may place restrictions on management and that Article 30, Section 1 of the agreement was "add[ed]" to give some protection to employees, Award at 3-4, and the Arbitrator's finding that it was "inconceivable that an ultimate decision would be made and applied without reference to the [collective bargaining agreement]," id. at 4, supports his determination that there was no basis for finding the grievant to have been negligent. The Arbitrator could have been more responsive to the issue submitted on remand, and we urge arbitrators on remand to address in specific terms the issue or issues submitted on remand. Nevertheless, we conclude that, when read as a whole, his award on remand supports the conclusion that the definition of negligence for the purpose of determining an employee's pecuniary liability for damage to government property contained in AR 735-5 was superseded by a different standard contained in the parties' collective bargaining agreement. In view of the Arbitrator's indication that the collective bargaining agreement should have been applied in determining whether to hold the grievant pecuniarily liable, we conclude that the Arbitrator found that the parties' agreement took precedence over the conflicting provisions of AR 735-5 and that no basis is provided for finding the award to be deficient because it conflicts with AR 735-5.
We find that the Agency's exception constitutes nothing more than disagreement with the Arbitrator's interpretation and application of the parties' collective bargaining agreement and provides no basis for finding the award deficient. For example, U.S. Department of the Navy, Naval Mine Warfare Engineering Activity, Yorktown, Virginia and National Association of Government Employees, Local R4-97, 39 FLRA 1207, 1211 (1991) (citing Paperworkers v. Misco, Inc., 484 U.S. 29, 38 (1987), in which the U.S. Supreme Court noted that as long as an arbitrator is even arguably construing the collective bargaining agreement, a court's conviction that the arbitrator committed serious error does not suffice to find the award deficient). Accordingly, we will deny the Agency's exception.
The Agency's exception is denied.
(If blank, the decision does not have footnotes.)