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58 FLRA No. 90
SOCIAL SECURITY ADMINISTRATION
OF GOVERNMENT EMPLOYEES
March 21, 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 Paul P. Tinning 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 ruled that the Agency had just cause to discipline the grievant, but that the 2-day suspension for the infraction was not warranted. Accordingly, he directed the Agency to reduce the 2-day suspension to a 1-day suspension.
The Agency provides no basis for finding the award deficient. Accordingly, we deny the Agency's exception.
II. Background and Arbitrator's Award
The grievant accessed the Agency's computer records on himself. The Agency suspended the grievant for 2 days for violating the Agency's unauthorized system access policy. The grievant filed a grievance disputing the suspension.
The Union contended before the Arbitrator both that the grievant had not accessed his record and that the penalty was unreasonable because the Agency did not seriously consider the Douglas factors in determining to suspend the grievant for 2 days. [n2] The Arbitrator found that the grievant had accessed his records in violation of the Agency's unauthorized system access policy. However, he agreed with the Union that the Agency had not given due consideration to whether the 2-day suspension was consistent with the penalty imposed on other employees for the same offense. In this regard, in addition to considering other record evidence as well as several arbitrators' awards relied on by the parties, the Arbitrator found that from October 1999 to May 2002, six cases involving 2-day suspensions for unauthorized access out of 19 cases were resolved by confidential settlements. The Arbitrator stated that this "fact . . . evidences, in my opinion, that such [Douglas] factors presumably were considered to warrant such settlements." Award at 10.
Accordingly, the Arbitrator found that the Agency had just cause to discipline the grievant for unauthorized access to his records, but that the penalty for such infraction was not warranted. He directed the Agency to reduce the penalty to a 1-day suspension and awarded the grievant backpay for the second day.
III. Positions of the Parties
The Agency contends that the award is based on a nonfact. The Agency asserts that the Arbitrator mitigated the grievant's suspension because he presumed that six cases similar to the grievant's case were resolved on a basis that resulted in a mitigation of the 2-day suspension. The Agency claims that this presumption is erroneous and is based on a nonfact. The Agency maintains that only one of these cases resulted in a final penalty of less than a 2-day suspension and that this case is not similar to the grievant's case. Accordingly, the Agency argues that the award is based on a mistake of fact, but for which the Arbitrator would have denied the grievance.
The Union contends that the Agency fails to establish that the award is deficient as based on a nonfact.
IV. Analysis and Conclusions
To establish that an award is based on a nonfact, the appealing party must demonstrate that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See United States Dep't of the Air Force, Lowry Air Force [ v58 p375 ] Base, Denver, Colo., 48 FLRA 589, 593 (1993). However, we will not find an award deficient on the basis of an arbitrator's determination of a factual matter that the parties had disputed at arbitration. See id. at 593-94.
In this case, the record establishes that the consistency of the grievant's 2-day suspension with the suspensions of other similarly situated employees was disputed before the Arbitrator. In our view, the Arbitrator's presumption that six cases had resulted in mitigation of a 2-day suspension constitutes a factual finding resolving the disputed matter of consistency of penalty. Consequently, there is no basis on which to find that the award is based on a nonfact.
Moreover, even if we were to conclude that the Arbitrator's presumption that six cases had resulted in mitigation of a 2-day suspension was not a matter that was disputed before the Arbitrator and was clearly erroneous, we would nonetheless deny the Agency's exception. The Agency has not shown that a different result would have been reached but for his having made such a finding, given that his comment about the six cases was just one of several considerations referenced by him that resulted in his determination that the 2-day suspension here was not warranted.
Accordingly, we deny the Agency's exception. [n3]
The Agency's exception is denied.
Concurring opinion of Member Pope:
I write separately to explain why I agree with the majority's disposition of the nonfact exception in this case even though I disagreed with the majority's disposition of the essence exceptions in the factually similar case referenced in footnote 3 of the majority opinion. In a nutshell, I believe that the majority properly defers to the Arbitrator's factual finding in this case even though it improperly refused to defer to the arbitrator's contract interpretation in the earlier case.
Here, I agree with the majority, for the reasons stated by the majority, that the Agency has not demonstrated that the award is based on a nonfact. In reaching this conclusion, I underscore that the grounds on which the Authority reviews arbitral awards is narrow and, with particular regard to claims that an award is based on a nonfact or fails to draw its essence from an agreement, is extremely deferential. My disagreement with the majority's disposition of the exceptions in the previous case is that, in my view, the majority failed to apply this deferential standard in concluding that the award in that case failed to draw its essence from the parties' agreement. Thus, while I agree with the majority that the award in this case is not deficient, I continue to believe, for reasons stated in my dissent in the previous case, that the majority erred in finding that award deficient.
Footnote # 1 for 58 FLRA No. 90 - Authority's Decision
Footnote # 2 for 58 FLRA No. 90 - Authority's Decision
The phrase "Douglas factors" refers to factors established by the Merit Systems Protection Board in Douglas v. Veterans Admin., 5 MSPR 280 (1981), that essentially constitute guidelines governing the appropriateness of penalties.
Footnote # 3 for 58 FLRA No. 90 - Authority's Decision
We note that in Soc. Sec. Admin., Lansing, Mich., 58 FLRA 93 (2002) (Member Pope dissenting) (SSA, Lansing), an arbitrator found that discipline for violation of the Agency's unauthorized system access policy was warranted, but mitigated the assessed 2- day suspension to a written warning. The Agency argued, and the Authority found, that the written warning did not constitute discipline under the parties' collective bargaining agreement. Accordingly, the Authority ruled that the award did not draw its essence from the agreement and set the remedial portion of the award aside. In contrast, in this case, the mitigated penalty of a 1- day suspension clearly constitutes discipline under the parties' agreement, and there is no argument to the contrary.