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58 FLRA No. 73
DEPARTMENT OF THE ARMY,
BLUE GRASS ARMY DEPOT
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS,
LOCAL LODGE 859
January 24, 2003
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Michael L. Allen filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exception.
The Arbitrator found that the Agency violated the parties' agreement by holding the grievant financially liable for damages he caused to a government-owned truck. As a remedy, the Arbitrator rescinded the grievant's financial liability. For the following reasons, we deny the Agency's exception.
II. Background and Arbitrator's Award
The grievant parked a government-owned truck behind a large crane and then accidently backed into the truck with the crane. The Agency determined that the grievant's negligence caused the accident and that he was financially liable for damages to the truck, pursuant to Army Regulation 735-5. [n2] The grievant filed a grievance disputing the Agency's determination. When the grievance was not resolved, the matter was submitted to arbitration, where the Arbitrator considered whether the Agency's actions, in holding the grievant financially liable for damages, violated the parties' collective bargaining agreement.
The Arbitrator sustained the grievance based on "two (2) critical factors." Award at 29. First, the Arbitrator concluded that the grievant was not negligent within the meaning of Article 30, § 1 of the parties' agreement, as that provision had been interpreted by another arbitrator. [n3] Second, the Arbitrator concluded that the grievant was subjected to disparate treatment because the Agency had not imposed financial liability in similar cases. Based on these findings, the Arbitrator sustained the grievance and rescinded the grievant's financial liability.
III. Positions of the Parties
The Agency asserts that the award is based on a nonfact because the Arbitrator concluded, in error, that he was bound by another arbitrator's interpretation and application of Article 30, § 1 of the parties' agreement. According to the Agency, the Arbitrator would have found the grievant negligent, but for this erroneous conclusion. The Agency requests that the award, therefore, be remanded for reconsideration.
The Union asserts that the award is not deficient because the Arbitrator based the award on two critical findings. In this regard, the Union asserts that the award was based on both the Arbitrator's conclusion that the grievant was not negligent under the parties' agreement and his conclusion that the grievant was subjected to disparate treatment. According to the Union, the Agency only excepts to the first, and not the later, conclusion.
IV. Analysis and Conclusion
The Authority has consistently required that, where an arbitrator has based an award on separate and independent grounds, an appealing party must establish that all of the grounds are deficient in order to have the award found deficient. See, e.g., United States Dep't of the Treasury, Internal Revenue Serv., Oxon Hill, Md., [ v58 p315 ] 56 FLRA 292, 299 (2000). If the excepting party does not demonstrate that the award is deficient on one of the grounds relied on by the Arbitrator, then it is unnecessary to address exceptions to the other grounds. See id. Here, the Arbitrator expressly relied on two separate and independent grounds for his award. However, the Agency's exception disputes only one of those grounds -- the Arbitrator's conclusion that the grievant was not negligent. The Agency has not alleged, or demonstrated, that the Arbitrator also erred in concluding that the grievant was subject to disparate treatment. Consequently, the award is based on a separate and independent ground, to which the Agency does not except, and we deny the Agency's exception. See id.
The Agency's exception is denied.
Concurring Opinion of Chairman Cabaniss:
I write separately to note why I decide this case differently than my dissent in United States Dep't of Labor, Wash., D.C., 55 FLRA 1019 (1999) (DOL), a case cited to at the United States Dep't of the Treasury, Internal Revenue Serv., Oxon Hill, Md. reference in the majority opinion (56 FLRA 292, 299 (2000)). In DOL, the majority chose not to address a Rehabilitation Act exception because it would not have affected the outcome of the case. However, I dissented from the decision to do so because the discrimination issue was "sufficiently important to warrant a full review to ensure that an [a]gency's culpability (or lack thereof) for having engaged in discrimination is adequately resolved in accordance with established precedent." DOL, 55 FLRA at 1024. In the present instance, the exception pertains to an arbitral interpretation of a provision pertaining to the definition of "negligence." I find that the arbitral interpretation issue does not present the same level of public policy considerations as the Rehabilitation Act claim to warrant the same type of handling, i.e., an exception from our precedent's policy on the matter.
Footnote # 1 for 58 FLRA No. 73 - Authority's Decision
Footnote # 2 for 58 FLRA No. 73 - Authority's Decision
Army Regulation 735-5, which governs "Policies and Procedures for Property Accountability," permits the Agency to impose financial liability whenever the Agency determines that negligence proximately caused "the loss, damage or destruction of Government property." Award at 20.
Footnote # 3 for 58 FLRA No. 73 - Authority's Decision
Article 30, § 1 of the parties' agreement states that "[t]he government will waive any collection for damage to government owned equipment which is damaged in the regular performance of duty unless such damage is incurred as the willful misconduct, disobedience, or negligence on the part of the employee." Award at 3-4.