45:0926(91)AR - - Justice, INS, Del Rio Border Patrol Sector, Tx and AFGE, National Border Patrol Council, Local 2366 - - 1992 FLRAdec AR - - v45 p926

[ v45 p926 ]
The decision of the Authority follows:

45 FLRA No. 91










LOCAL 2366




August 17, 1992

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 Robert W. Smedley filed by both the Agency and 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 Union also filed an opposition to the Agency's exceptions. No opposition was filed by the Agency to the Union's exceptions.

The grievance concerns a 5-day suspension for inattention to duty. The Arbitrator found that the offense with which the grievant was charged did not encompass the grievant's misconduct and set aside the suspension. He ordered the Agency to reimburse the grievant for loss of pay, plus any benefits and holidays.

For the following reasons, we conclude that the award is deficient and must be set aside.

II. Background and Arbitrator's Award

On April 23, 1990, the grievant, a pilot employed by the Border Patrol, and a Border Patrol agent were sent to investigate a small boat tied up on the United States side of the Rio Grande River for possible smuggling or alien activity. The grievant piloted the agent to the site and left him to inspect the boat on foot. Finding no signs of people, drugs or other contraband, the agent rowed the boat to a clearing. From his helicopter, the grievant determined that the boat needed to be moved to another location in order to be retrieved by vehicle. Unable to communicate with the agent because the latter's walkie-talkie and the helicopter's ground loud speaker system were not operating, the grievant landed the helicopter to provide assistance or instructions to the agent. After providing assistance, the grievant returned to the helicopter while the other agent remained at the site. Shortly after the helicopter lifted off, the agent testified that he heard a noise and saw white smoke coming from the helicopter. The helicopter then crashed into the water. The grievant was not injured, but there was extensive damage to the helicopter. The grievant was charged with inattention to duty under the Agency's "Standard Schedule of Disciplinary Offenses and Penalties of the U.S. Department of Justice" (schedule of offenses) and suspended for 5 days. A grievance was filed contesting the suspension. The grievance was denied and ultimately proceeded to arbitration.

The Arbitrator framed the issue as follows: "Was the disciplinary action taken against the grievant for just and sufficient cause and only for such reasons as will promote the efficiency of the [S]ervice? If not, what shall be the appropriate remedy?" Award at 2.

At the hearing, the parties advanced various theories as to the possible cause of the crash. Initially, the Arbitrator stated that if pilot error was the cause of the helicopter crash, then "the discipline invoked by management appears well within the scope of its discretion considering the seriousness of the property damage involved." Id. at 5. Examining the possible causes of the crash, the Arbitrator found that the theories advanced by the Union "[did] not jibe with the facts." Id. at 15. Although on examination the Arbitrator acknowledged that he could not consider pilot error as the conclusive cause of the accident, he found that there was "sufficient evidence to support the finding of management that pilot error was the cause of the accident." Id. at 19. The Arbitrator added that he would "abuse his discretion if he were to overturn that finding." Id.

The Arbitrator then addressed whether the charge of inattention to duty was an appropriate basis on which to sustain the disciplinary action and concluded that it was not appropriate. In reaching this result, the Arbitrator examined the schedule of offenses and found that the Agency chose the charge of inattention to duty because there was nothing in the schedule of offenses that more closely fit the case. However, the Arbitrator stated that a determination as to what conduct may constitute inattention to duty is open to interpretation. The Arbitrator noted that the offense with which the grievant was charged is defined in the schedule of offenses as "[l]oafing, wasting time, sleeping on the job, or inattention to duty." Id. at 16. Applying the principle of ejusdem generis, the Arbitrator explained that where general words follow an enumeration of words of a specific meaning, the general words must be construed to apply only to things of the same general class as those specifically mentioned. Therefore, the Arbitrator determined that the general words "inattention to duty" may only encompass matters in the nature of loafing, wasting time or sleeping on the job and may not be interpreted to have a broader meaning. The Arbitrator found that the charge of inattention to duty was inappropriate because "[i]t simply does not fit the case[.]" Id. at 20. Accordingly, the Arbitrator sustained the grievance and ordered that the grievant "be restored his five days pay plus benefits and holidays, if any, without interest." Id. at 21.

III. Positions of the Parties

A. The Agency

The Agency contends that the Arbitrator exceeded his authority by resolving an issue that was not submitted to him by the parties. The Agency asserts that the parties were in agreement as to the nature of the issue, namely, whether the evidence was sufficient to support the Agency's conclusion that the crash was caused by pilot error and that there was no dispute over whether the phrase "inattention to duty" encompassed the particular form of misconduct upon which the suspension was based. The Agency claims that by examining whether pilot error fell within the offense of inattention to duty, the Arbitrator not only addressed an issue that was not in dispute, but also "substituted his construction of the agreement for that of the parties." Agency's Exceptions at 9.

The Agency also contends that the award fails to draw its essence from the parties' collective bargaining agreement. The Agency stated that it had explained to the Arbitrator that the types of offenses encompassed within the term inattention to duty are those that could endanger persons and/or cause property damage. The Agency asserts that the Arbitrator's findings and conclusions demonstrate that the grievant had endangered his own safety and caused serious damage to the helicopter. The Agency states that "to the extent that the Arbitrator may be said to have reached his conclusion based upon his disagreement with the [Agency's] decision to define 'inattention to duty' as encompassing employee acts or omissions . . . creat[ing] 'potential danger to safety of persons and/or actual damage to property,'" the award fails to draw its essence from the agreement. Id. at 10-11.

Finally, the Agency contends that the award interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute because the schedule of offenses is not a legislative rule having the force and effect of law, as defined by the Authority in National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 42 FLRA 377 (1991), petition for review filed sub nom. U.S. Department of the Treasury, Internal Revenue Service v. FLRA, No. 91-1573 (D.C. Cir. Nov. 25, 1991). The Agency claims that the Arbitrator had no authority under the Statute to reverse the grievant's suspension based on his own view as to what forms of misconduct the Agency included or should have included under the offense of inattention to duty. According to the Agency, "the [a]ward must be reversed because it turns on the substitution of the Arbitrator's judgment for that of management." Agency's Exceptions at 14.

In support of its final exception, the Agency relies on the arguments it made in its appeal of the Authority's decision in American Federation of Government Employees, AFL-CIO, Department of Education Council of AFGE Locals and U.S. Department of Education, 42 FLRA 527 (1991) (Department of Education) to the effect that arbitrators cannot be given or exercise contractual authority to issue awards that interfere with the exercise of reserved management rights under section 7106(a) of the Statute.*/ The Agency also asserts that the Authority's decision in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG), which permits the negotiation of "contractual provisions which would interfere with the exercise of [management's] reserved rights," and permits arbitrators to "enforce such provisions so as to interfere with those rights," represents an erroneous reading of the scope of appropriate arrangements provided in section 7106(b)(3) of the Statute. Agency's Exceptions at 15. However, the Agency concedes that the Authority need not reconsider KANG or its decision in Department of Education in order to find the award in the instant case deficient. The Agency claims that there is no provision in the parties' agreement that gives the Arbitrator the contractual power to interpret the Agency's schedule of offenses. Therefore, the Agency argues that the award must be set aside because "it totally abrogated" the Agency's right to discipline employees for pilot error. Agency's Exceptions at 18.

B. The Union

In its opposition to the Agency's exceptions, the Union contends that the Arbitrator exercised his authority properly. The Union states that the parties did not stipulate to an issue, but that each party submitted its own version to the Arbitrator. The Union claims that the issue framed by the Arbitrator was whether the Agency had just and sufficient cause to sustain its disciplinary action and not whether there was just cause to believe the grievant had committed pilot error, as claimed by the Agency. The Union also states that, in the absence of a stipulated issue, the Arbitrator should be accorded substantial deference in his formulation and interpretation of the issue.

The Union further contends that the Agency mischaracterized the Union's defense. The Union states that in addition to challenging the Agency's finding of pilot error, the Union also claimed that the Agency could not properly charge the grievant with inattention to duty without conclusive proof. According to the Union, the Arbitrator recognized the Union's argument by stating that "'[The Grievant] maintains [that] the charge of inattention to duty is inappropriate.'" Opposition at 3, quoting Award at 12.

The Union also maintains that the award is consistent with the parties' agreement because the Arbitrator provided a sufficient rationale for his finding that the charge of inattention to duty could not encompass pilot error under the Agency's schedule of offenses. Therefore, the Union claims that the Agency is merely disagreeing with the Arbitrator's interpretation of the schedule of offenses and that the Agency's exception does not provide a basis for finding the award deficient.

Finally, the Union claims that the award does not interfere with management's right to discipline under section 7106(a)(2)(A) of the Statute. The Union argues that the Agency has overlooked the initial clause of section 7106(a)(2) requiring that the management rights set forth therein be exercised in accordance with applicable laws. According to the Union, section 7121 of the Statute, which gives arbitrators the authority to review disciplinary actions, is such an applicable law. The Union further asserts that management's right to discipline under section 7106(a)(2)(A) is tempered by the right of employees to appeal disciplinary actions under negotiated grievance procedures pursuant to section 7121. The Union asserts that employees' appeal rights would be meaningless if arbitrators could not determine whether management had exercised its rights appropriately. Therefore, the Union maintains that the Agency's exception constitutes mere disagreement with the Arbitrator's reasoning and conclusions and provides no basis for finding the award deficient.

In its exceptions to the award, the Union claims that, to the extent that the Arbitrator failed to provide interest on the backpay award, the award is contrary to law, rule, and regulation. In support of its argument, the Union relies on Authority precedent interpreting and applying the Back Pay Act, regulations of the Office of Personnel Management, and a decision of the Merit Systems Protection Board for the proposition that interest must be paid on backpay awards. The Union requests that the award be modified accordingly.

IV. Analysis and Conclusions

For the following reasons, we find that the award is deficient because it fails to draw its essence from the parties' agreement. Accordingly, we will set aside the award.

To demonstrate that an award is deficient because it fails to draw its essence from a collective bargaining agreement, a party must show that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, U.S. Department of the Navy, Naval Aviation Depot, Norfolk, Virginia and International Association of Machinists and Aerospace Workers, Local 39, 42 FLRA 322, 326 (1991). We conclude that the Arbitrator's award cannot be derived rationally from the agreement and evidences a disregard for the agreement.

The matter before the Arbitrator in the instant case involved a contractual dispute over the right of the Agency to discipline an employee. The parties'