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58 FLRA No. 124
OF GOVERNMENT EMPLOYEES
DEPARTMENT OF VETERANS AFFAIRS
VA CONNECTICUT HEALTHCARE SYSTEM
April 30, 2003
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Shari B. Broder filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.
The grievance alleged that the Agency's discipline of the grievant was not for cause and was inconsistent with the parties' collective bargaining agreement. The Arbitrator found that the discipline was for cause and therefore consistent with the parties' agreement. For the reasons that follow, we deny the Union's exceptions.
II. Background and Arbitrator's Award
The Agency scheduled the grievant, a Boiler Operator, for a midnight to 8:00 a.m. shift. However, at approximately 12:30 a.m. that morning, the local police department stopped the grievant while he was driving on the road to the Agency's facility. During that stop, the grievant failed a Breathalyzer test and was arrested and charged with driving under the influence of alcohol and possession of marijuana.
The grievant did not inform the Agency that he would be missing his shift. That same day, around 4:00 p.m., the grievant called in sick for his next shift, scheduled to start at midnight that evening. The following day, the grievant informed his supervisor that he had not been at work because he had been arrested for driving while intoxicated and had been incarcerated.
The Agency then proposed to suspend the grievant for 10 days for being absent without leave (AWOL), failing to follow proper leave requesting procedures, falsifying the reason for sick leave usage, and inappropriate behavior as an Agency employee. The Agency subsequently reduced the grievant's discipline to a 5-day suspension. The Union then filed a grievance on the grievant's behalf. After the parties could not resolve the matter, they submitted the following issue to arbitration:
Was the Agency's discipline of [the grievant] for cause consistent with the parties' collective bargaining agreement? If not, what shall the remedy be?
Award at 3. [n1]
The Arbitrator first found that the grievant missed work due to his incarceration and not because of any illness or incapacitation caused by illness. [n2] She determined that the contract did not intend for sick leave to be used for periods of incarceration. Accordingly, she found that the grievant's attempt to use sick leave was inappropriate under these circumstances and grounds for disciplinary action.
She also found that the Agency had properly found that the grievant was AWOL as he did not notify the Agency that he was not going to be able to report to work as scheduled. In this connection, she determined that Article 18, Section 4 of the parties' agreement, which relieves employees of the responsibility to call in sick under certain emergency circumstances, was inapplicable as the grievant's absence was not caused by illness. [n3] [ v58 p 502 ]
She further found that the inappropriate behavior charge did not concern an off-duty issue as the grievant's inappropriate behavior was attempting to come to work intoxicated with marijuana in his possession and driving to work intoxicated. Finally, she found that the grievant's suspension was reasonable because the minimum penalty for possession of an illegal drug is a 5-day suspension, the penalty imposed.
III. Positions of the Parties
A. Union's Exceptions
The Union first alleges that the award is based on a nonfact. The Union challenges the Arbitrator's determination that the grievant was arrested on the Agency's property as the traffic stop occurred on a municipal road off the Agency's property. Further, the Union claims that the Arbitrator's determination that the grievant's attempt to come to work intoxicated did not constitute off-duty behavior is based on a nonfact as traveling to and from work does not qualify as hours of work or duty under pertinent laws and regulations. Moreover, the Union contends that the award is based on nonfact as the Arbitrator substituted a charge of possession of an illegal drug that was not offered by the Agency and a penalty based thereon.
Next, the Union contends that the award is contrary to law. In this regard, the Union first claims that the Arbitrator erroneously applied the standard for sick leave entitlement set forth at 5 C.F.R. § 603.401(a)(2). [n4] Additionally, the Union asserts that the award is contrary to law because the Agency failed to demonstrate, and the Arbitrator failed to find, a nexus between the grievant's off-duty conduct and the efficiency of the service. Further, the Union claims that the award is contrary to Merit Systems Protection Board (MSPB) practice because the Arbitrator failed to merge the AWOL and the failure to properly request leave charges.
Finally, the Union asserts that the award is deficient because the Arbitrator was biased against the grievant. The Union claims that the Arbitrator exhibited a clear bias by adopting the Agency's positions without regard to any of the legal precedents offered by the Union and further exhibited a clearly prejudicial attitude toward the grievant. In the Union's view, "the Arbitrator's gullibility and ignorance would lead a reasonable person to conclude that she was partial to any suggestion adverse to the grievant and unreceptive to any mitigating factors or rationale, or any matter that might favor the grievant." Exceptions at 6.
B, Agency's Opposition
The Agency first claims that the award is not based on a nonfact. The Agency contends that the Union has not proven that any alleged errors in the award are factual in nature rather than the Arbitrator's ultimate conclusion in the case. With regard to the Union's assertion that the Arbitrator improperly found that the grievant was on the Agency's premises when stopped, the Agency maintains that the Arbitrator found that reporting to work could be equated with being on the Agency's property. With regard to the appropriateness of the Arbitrator's reference to the Agency's table of penalties, the Agency claims that the Arbitrator, in making that reference, was merely illustrating the appropriateness of the penalty.
The Agency next disputes the Union's allegation that the award is contrary to law. The Agency contends that the award is not contrary to 5 C.F.R. § 603.401(a)(2) as the matter only implicated the relevant contract provisions and not the regulatory language cited by the Union. The Agency also argues that the evidence establishes a nexus between the grievant's conduct and the efficiency of the service. With regard to the Arbitrator's decision not to merge the charges concerning AWOL and the grievant's failure to properly request sick leave, the Agency asserts that the Arbitrator was not required to merge the charges because they involve distinct and separate elements.
Finally, the Agency maintains that the Arbitrator did not exhibit bias against the grievant. In this regard, the Agency maintains that the Union has not identified which of the bias criteria should be applied in this case and that the Union's exceptions in this regard are merely objections to the Arbitrator's conclusions. [ v58 p503 ]
IV. Analysis and Conclusions
A. The award is not based on a nonfact
To establish that an award is based on a nonfact, the appealing party must show 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 Base, Denver, Co., 48 FLRA 589, 593 (1993). However, the Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties had disputed at hearing. Id. at 594 (citing Nat'l Post Office Mailhandlers v. United States Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985)). Additionally, "[t]he mere fact that the appealing party disputes an arbitral finding does not provide a basis for finding that an award is based on a nonfact." AFGE, Local 1923, 51 FLRA 576, 579 (1995). These principles appropriately accord deference to an arbitrator's factual findings because the parties have bargained for the facts to be found by an arbitrator whom they have chosen. See AFGE, Local 1858, 56 FLRA 422, 424 (2000).
The Union maintains that the Arbitrator erred in finding that the grievant's arrest occurred on the Agency's premises. Although the Arbitrator's recitation of facts did state that the grievant was arrested "while driving on the Agency's property," award at 6, the discussion setting forth the reason for her decision stated that he was arrested "while approaching" the Agency's facility. Award at 8-9. More importantly, the Arbitrator's ultimate ruling in this case did not rest upon a determination of the location of the grievant's arrest; therefore, it would not be a fact but for which the Arbitrator would have reached a different result. In fact, the Arbitrator found that the discipline of the grievant was supported by just cause as the grievant was AWOL, failed to follow sick leave procedures and engaged in inappropriate behavior by attempting to report for duty intoxicated and in possession of marijuana and driving to the duty station in an intoxicated condition. The Arbitrator found that but for his arrest for driving while intoxicated, the grievant would have reported for duty in that condition. When his proximity to his duty station is considered in conjunction with the commute required from his home and his wife's report that he was on his way to work, that conclusion was supported by the record. These findings of misconduct were not conditioned upon the situs of his arrest and whether he was on the Agency's premises at the time of arrest was not determinative to the Arbitrator's finding of just cause. Therefore, the location of the grievant's arrest was not a central fact and any errors made in determining the location of the arrest would not provide a basis for finding the award deficient.
The Union also argues that the award is based on a nonfact because the Arbitrator's determination that the grievant's misconduct did not occur off-duty is contrary to rules and regulations defining hours or work. This exception does not challenge any factual findings but instead challenges the Arbitrator's determination as to whether there was just cause to discipline the grievant. As such, it provides no basis for finding that the award is based on a nonfact. See United States Dep't of the Navy, Philadelphia Naval Shipyard, 39 FLRA 590, 605 (1991).
Similarly, we find no basis in support of the Union's exception that the award is based on nonfact because of the Arbitrator's use of the Agency's table of penalties. The exception does not challenge any of the Arbitrator's factual findings but instead challenges the factors used by the Arbitrator to assess the reasonableness of the penalty imposed. Accordingly, we deny this exception.
B. The award is not contrary to law
The Authority reviews the question of law raised by the exceptions and the Arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994). In applying a de novo standard of review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
The Union first claims that the award is contrary to law because the Arbitrator failed to apply the standard for sick leave entitlement set forth at 5 C.F.R. § 603.401(a)(2). In disciplinary cases involving AWOL, the Authority has adopted the approach of the MSPB. See AFGE, Local 2408, 52 FLRA 992, 995 (1997). Applying MSPB precedent, the Authority has held that an employee is entitled to sick leave when the employee submits administratively acceptable evidence of incapacity due to illness or injury. See id. at 995-96. Here, the Arbitrator found that the grievant was unable to report for scheduled duty due to his incarceration and not incapacity resulting from illness or injury. 5 C.F.R. § 603.401(a)(2) does not require that the Agency grant an employee sick leave due to incarceration. Consequently, the applicable regulation does not require the [ v58 p504 ] Agency to grant the grievant sick leave for the dates in question and the award is not contrary to the pertinent regulation.
We also find no support for the Union's assertion that the Arbitrator failed to find a nexus between the grievant's attempting to come to work while intoxicated, and possessing marijuana, and the efficiency of the service. Generally, a nexus must be shown between an employee's off-duty misconduct and the efficiency of the service to support disciplinary action against that employee based on that misconduct. See Immigration and Naturalization Serv., 8 FLRA 248, 249 (1982). In finding that the discipline was supported by just cause, the Arbitrator found that the misconduct committed by the grievant included, but was not limited to, inappropriate conduct evidenced by his attempt to report to work intoxicated and with marijuana in his possession and driving to work while intoxicated. Award at 10-11. Because the Arbitrator found that the misconduct was related to the performance of his scheduled duties, the Union has not demonstrated that the Agency suspended the grievant for purely off-duty misconduct. See United States Dep't of the Air Force, Okla. City Air Logistics Command, Tinker Air Force Base, Okla., 47 FLRA 776, 783 (1993) (Authority found that an employee suspended for returning to duty under the influence of marijuana was not suspended for off-duty misconduct). Accordingly, the Union's exception provides no basis for finding the award deficient. [n5]
The Union further maintains that the Arbitrator improperly failed to merge the AWOL and the failure to properly request leave charges in violation of MSPB precedent. The Authority has consistently held that arbitrators are bound by the same standards as MSPB only when resolving grievances concerning actions covered by 5 U.S.C. §§ 4303 and 7512. AFGE, Local 1151, 54 FLRA 20, 26 (1998). Here, the Arbitrator ruled upon the propriety of the grievant's 5-day suspension, a penalty which is not addressed in either of those provisions. Accordingly, the Arbitrator was not required to apply MSPB precedent in resolving the grievance.
C. The Arbitrator was not biased
To establish that an award is deficient because of bias, a party must establish that the award was procured by improper means, that there was partiality or corruption on the part of the arbitrator, or that the arbitrator engaged in misconduct that prejudiced the rights of the party. See United States Dep't of Veterans Affairs, Med. Ctr., North Chicago, Ill., 52 FLRA 387, 398 (1996).
The Union has not offered any evidence, apart from the Arbitrator's analysis and ultimate conclusion in the case, that she was in any way biased against the Union or the grievant. The Authority has held that an arbitrator will not be found to be biased solely on the basis that he or she made findings in favor of a party. See AFGE, Local 4042, 51 FLRA 1709, 1714 (1996). Therefore, we find that the Union has not demonstrated that the Arbitrator was biased.
We deny the Union's exceptions.
Footnote # 1 for 58 FLRA No. 124 - Authority's Decision
It shall be the policy of the Employer to effect discipline only for just cause and in a fair manner. Discipline shall be consistent with the punishable act, the degree of the severity of the act, the employment record of the employee, and the principle of consistency of discipline.
Award at 8.
Footnote # 2 for 58 FLRA No. 124 - Authority's Decision
Sick leave shall be granted for any of the following reasons when an employee:
B. Is incapacitated for the performance of duties by sickness, injury, or pregnancy and confinement.
Award at 8.
Footnote # 3 for 58 FLRA No. 124 - Authority's Decision
It is the responsibility of an employee who is incapacitated for duty to report, or if too sick to do so, to have some responsible person report, his or her illness to the supervisor, or designee, as soon as possible prior to the start of the employee's shift, but no later than two hours after the start of the tour of duty unless emergency conditions preclude such notification.
Award at 8.
Footnote # 4 for 58 FLRA No. 124 - Authority's Decision
Subject to paragraphs (b) through (f) of this section, an agency must grant sick leave to an employee when the employee--
. . . .
(2) Is incapacitated for the performance of duties by physical or mental illness, injury, pregnancy, or childbirth[.]
Footnote # 5 for 58 FLRA No. 124 - Authority's Decision
We note that even if the only misconduct in this case was found to have been off-duty, the MSPB has held that sufficient nexus exists when the agency can show that a risk exists as a result of an employee's misconduct and that the risk can be related to intoxication achieved off site prior to reporting to work or over a lunch hour. See Spotti v. Dep't of the Air Force, 49 M.S.P.R. 27 (1991).