[ v45 p424 ]
The decision of the Authority follows:
45 FLRA No. 33
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Donald H. Wollett 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 did not file an opposition to the Union's exception.
The Arbitrator denied a grievance relating to an assessment levied against the grievant for causing property damage. We conclude that the Union's exception fails to establish that the award is deficient. Accordingly, we will deny the exception.
II. Background and Arbitrator's Award
This dispute arose when the grievant was directed to take his tractor-trailer to a storage yard to pick up some items. As the grievant approached the yard, he was told that the normal access route was obstructed and that he would have to take a different route to back into the yard.
As the grievant maneuvered the tractor-trailer into the "'alley,'" he did not notice three standing posts. Award at 2. The front of the tractor-trailer hit the middle post causing damage to the fender in the amount of $689.39. Following an investigation, the Agency determined that the grievant had been negligent. The Agency concluded that the damage could have been prevented if the grievant had complied with Air Force Regulation 77-2, which requires "ground guides or spotters" to assist drivers backing up equipment such as the grievant's tractor-trailer.1/ Id. at 4. The Agency determined that the grievant should be assessed 40 percent of the damage amount for a total assessment to the grievant of $275.00.
The issue before the Arbitrator was whether the grievant was "liable for the amount of $275.00 which was assessed against him? If not, what should the remedy be?" Id. at 2.
The Arbitrator found that the Air Force regulation requires the use of spotters, and that to have minimized the risk attendant to backing up the tractor-trailer, the grievant should have requested the assistance of two spotters. The Arbitrator concluded that the grievant should have noticed the poles as he was placing the tractor-trailer into position to back up and should have obtained spotters. The Arbitrator concluded that the grievant's failure to see the posts and to protect the front of the vehicle by seeking the assistance of at least one spotter "was the proximate cause of the damage which led to the assessment of $275.00." Id. at 6. The Arbitrator found unpersuasive the Union's arguments that the Air Force regulation frequently is ignored by drivers, that it is sometimes difficult to find spotters, and that employees do not like the responsibility of being spotters. Instead, the Arbitrator inferred from the evidence that a driver should try to obtain the assistance of spotters but, if unable to do so after a reasonable effort, the driver may proceed. In the latter case, the Arbitrator found that a driver assumes the risk in the event of an accident.
Finally, the Arbitrator addressed a procedural argument raised by the Union. The Arbitrator found that, under the parties' agreement, the Agency was required to respond to the grievance within 10 days but failed to do so in this case. Citing Cornelius v. Nutt, 472 U.S. 648 (1984), the Arbitrator found that arbitrators "should make every reasonable effort to approximate the position that the Merit Systems Protection Board [MSPB] would have taken on a particular issue." Award at 7. The Arbitrator found that the MSPB "would not reverse Agency action on the basis of a procedural aberration unless it was harmful or prejudicial." Id. The Arbitrator determined that he was unable to identify any way in which the Agency's late response was harmful or prejudicial to the grievant.
As his award, the Arbitrator found that the Agency properly held the grievant liable for the amount of $275.00. Consequently, the Arbitrator denied the grievance.
III. Union's Exception
The Union asserts that the award is contrary to law. Specifically, the Union maintains that the Arbitrator mistakenly believed that he was "bound by the 'harmful error' rule," in addressing the Union's argument that the Agency violated Section 6.07 of the parties' collective bargaining agreement when it failed to issue a timely decision on the grievance.2/ Exceptions at 1. The Union states that the harmful error rule is inapplicable to grievances that do not involve adverse actions under 5 U.S.C. Chapter 75. The Union also states that in non-adverse action cases, an arbitrator is free to reverse an action taken against a grievant where there is a violation of a contractual requirement. On this basis, the Union contends that the Arbitrator's award should be remanded to determine the application of the agreement and whether it warrants reversal of the action.
IV. Analysis and Conclusions
We conclude that the Union fails to establish that the award is deficient because it is contrary to law.
As noted, the Union asserts that the Arbitrator erroneously applied the harmful-error rule. We are not persuaded that the Arbitrator used this rule, as it ordinarily is applied to particular adverse actions, or whether he simply looked to the MSPB's practice on "procedural aberration[s]" in order to be consistent with that practice. Award at 7. However, even if the Arbitrator applied the harmful-error rule, nothing would preclude the Arbitrator from doing so. In this regard, we have previously stated that arbitrators are not precluded from applying the harmful-error rule in cases that do not mandate its application. See, for example, National Federation of Federal Employees, Local 1781 and U.S. Department of Agriculture, Forest Service, 42 FLRA 703 (1991); U.S. Department of Justice, Immigration and Naturalization Service, Honolulu District Office, Honolulu, Hawaii and American Federation of Government Employees, Local 2886, National Immigration and Naturalization Council, 41 FLRA 207 (1991). Consequently, and in the absence of any other exception to the award, we conclude that there is no basis on which to find the award deficient. In light of this conclusion, there is no basis on which to grant the Union's request that the case be remanded.
The Union's exception is denied.
SECTION 6.07: PROCEDURES FOR EMPLOYEE GRIEVANCES
The following procedure shall be exclusively used for the submission of employee grievances to the Employer under this Article.
b. Step 2. Formal.
(3) Within 10 calendar days of the date of that meeting, the designated management representative shall render his written decision on the grievance. Rationales for grievance decisions will be provided commensurate with the issues framed in the grievance. Said decision shall be served upon the grievant's representative and the grievant at the address identified in Part II of the Standard Grievance Form.
c. Step 3. Formal. If the Employer denies the grievance at Step 2, the grievant may appeal the decision to the Commander or designee of the subordinate AFLC activity (for HQ AFLC, the 2750th ABW Commander or his designee). The grievance must be received by the servicing activity's Labor and Employee Relations Division within 10 calendar days of receipt of the Step 2 decision.
. . . .
(2) The Commander or designee may schedule a meeting with the grievant and the designated representative. Within 10 calendar days of the date of the meeting, or within 21 calendar days of the date the grievance was filed at Step 3, whichever occurs first, the Commander or designee shall render a decision in writing to the grievant and representative at the address listed on the form. Such decision shall constitute the Commander's final decision on the grievance for the purpose of invoking arbitration.
(If blank, the decision does not have footnotes.)
1/ Air Force Regulation 77-2 states as follows:
When backing any vehicle, ground guides [spotters] will direct a vehicle into position whenever there is any doubt concerning rearward vehicle clearance. Ground guides [spotters] will
also be used when backing a bus of 20-passenger capacity or more; a truck, 2-1/2 ton or larger; a van; or a semi-trailer. Guides [spotters] are positioned to be in view of the driver at all times and still be able to consciously monitor the movement of the vehicle. The guide [spotter] must never position himself so that he is in danger of being injured by the guided vehicle if he should fall or come between the vehicle and another object. Signals are established that are clearly understood between the driver and the guide [spotter] to insure proper operation. [Emphasis supplied.]
Award at 3.
2/ The text of Section 6.07 is set forth in the Appendix to this decision.