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61 FLRA No. 174
UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS
JEFFERSON BARRACKS
NATIONAL CEMETERY
ST. LOUIS, MISSOURI
(Agency)
and
NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES
LOCAL R14-116
(Union)
0-AR-4058
_____
DECISION
November 16, 2006
_____
Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member
I. Statement of the Case
This case is before the Authority on exceptions to an award of Arbitrator James M. O'Reilly filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition. [n1]
The grievant was determined to be pecuniarily liable for damage to Agency property. The Arbitrator found that the Agency had not substantiated its determination of liability and ordered that the grievant be made whole.
For the reasons that follow, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
A. Background
The grievant is an engineering operator, who has worked for the Agency for over twenty years. His job includes the operation of heavy equipment and he has no known record of negligence or failure to exercise appropriate care in the operation of the Agency's vehicles or equipment.
In the incident that gave rise to the grievance in this case, the grievant was operating a front-loader near one of the Agency's metal sheds. The work involved using the front-loader to move dirt and rocks away from the shed as well as back-filling and packing dirt against the foundation of the shed. The nature of the work required the grievant to use the equipment close to the shed. While the grievant was performing this work, the rear of the front-loader dented the metal on the side of the shed. The grievant notified his supervisor of the incident soon after it happened. The damage to the shed amounted to $456.
Pursuant to the Agency's Handbook 7125 (Handbook), the Agency initiated the "Report of Survey" process to determine the reasons for the damage. [n2] Handbook, Part 5. In the report of survey, the responsible official concluded that the grievant "was not being attentive" and recommended that the grievant be held financially responsible. Attachment to Exceptions, Agency Exhibit 11. The Survey Officer concurred with this recommendation, finding that "[t]he contributing factor to this accident was human error[;]" more specifically, "the employee was not paying close attention to the task he was performing[.]" Id. The grievant was held pecuniarily liable for the damage.
A grievance was filed challenging the assessment of pecuniary liability. The grievance was not resolved and it was submitted to arbitration.
B. Arbitrator's Award
The Arbitrator stated the issue as follows:
Whether the Employer misinterpreted or misapplied Paragraph 5003 (b) of VA Handbook 7125 when the Employer determined and held the [ v61 p862 ] [g]rievant . . . pecuniarily liable, for [the] accident[.] If so, what is the appropriate remedy?
Arbitrator's Award (Award) at 2.
The Arbitrator stated that, under the Agency's Handbook 7125 (Handbook), Paragraph 5003(b) (Paragraph 5003(b)), an employee can be held pecuniarily liable for damage to Government property when that damage is due to the employee's negligence or misuse of the property. [n3] The Arbitrator further stated that the Handbook distinguishes two levels of negligence: simple and gross negligence. [n4] According to the Arbitrator, Paragraph 5003 does not specify which level of negligence is intended. The Arbitrator found, in this regard, that the term "negligence" in Paragraph 5003 is used at "the same level" as the terms "misuse," "dishonesty," or "willful destruction." Award at 4. Taking into account the fact that Paragraph 5003 did not specify the level of negligence intended, the Arbitrator concluded that "the term `negligence' as used to determine pecuniary liability is at [a] higher level than `simple negligence.'" Award at 4. He further found that, under the Handbook, Paragraph 5101-14.a. (Paragraph 5101-14.a.), which concerns pecuniary liability, no employee is to be held liable for performing, or failing to perform, an action because of reasonable human error. [n5]
The Arbitrator noted that the report of survey did not use the term "negligence" to describe the grievant's conduct, but, rather, stated that he was "'not being attentive'" and that "'the contributing factor to his accident was human error.'" Award at 4. The Arbitrator also found that, regardless of whether the grievant's account of events was credited, there was "no clear evidence that the accident was any thing other than reasonable human error." Id. at 5. Noting that, under Paragraph 5101-14a., no one is to be held liable for an action because of reasonable human error, the Arbitrator concluded that the grievant was not pecuniarily liable.
Based on the foregoing, the Arbitrator concluded that the Agency "misinterpreted and misapplied Paragraph 5003(b) . . . by holding the [g]rievant pecuniarily liable for his accident[.]" Id. Given that conclusion, the Arbitrator ordered that the grievant be made whole for all monies collected from him plus interest.
III. Agency's Exceptions
The Agency contends that the Arbitrator's award is deficient because it fails to draw its essence from the parties' collective bargaining agreement (agreement). In this regard, the Agency asserts, in effect, that the grievance is not arbitrable, noting that the grievance cited no violation of the parties' collective bargaining agreement or agency regulation. [n6] The Agency also states, however, that the "[g]rievant's complaint arguably constitutes a `grievance'" under the parties' [a]greement. Exceptions at 9.
The Agency also contends that the award is deficient because the Arbitrator exceeded his authority. In explaining this contention, the Agency argues specifically that: (1) the award violates management's right to determine its internal security practices under § 7106(a)(1) of the Statute; and (2) the award violates the Agency's Report of Survey regulations, in that the Arbitrator "second-guess[ed]" its interpretation of those regulations. Id. at 1. With regard to the former, the Agency states only that the Arbitrator "did not even arguably construe the [a]greement, but substituted his own judgment for that of the Agency's in a matter of internal security." Id. at 11. As to the latter, the Agency states that, contrary to the Arbitrator's interpretation, "[t]he Agency's decision to hold an Agency employee pecuniarily liable [under Paragraph 5003(b)] may be conditioned upon, among other things, a finding of simple negligence." Id. at 4 (citation omitted). The Agency also asserts that under either the grievant's or the Agency's version of the events in this case, the grievant's actions constitutes at least "simple negligence." Id. [ v61 p863 ]
IV. Analysis and Conclusions
The Agency's essence exception is not clear. On the one hand, by arguing that the Union's claim that the grievant was treated "unjustly" does not constitute a "grievance" within the meaning of the parties' agreement, see Grievance dated April 16, 2004 (Attachments to Exceptions) (Grievance), the Agency appears to be asserting that the claim is not substantively arbitrable under the agreement. On the other hand, the Agency also states that the Union's claim "arguably constitutes a `grievance' under the [a]greement." Exceptions at 9. In any event, to the extent that the Agency's essence exception argues that the grievance is not arbitrable, the Agency fails to support that argument. In particular, the Agency fails to demonstrate that the grievant's complaint that he was "unjustly" held accountable for the damage to the shed is not rationally related to the definition of the term "grievance" in Article 44 of the parties' agreement, does not represent a plausible reading of that definition, or in any way disregards that definition. See Article 44, Section 1 of the parties' agreement set forth in the Appendix to this decision; Grievance. Accordingly, the Agency's essence exception does not provide a basis for finding the award deficient.
The Agency's claim that the award is contrary to its Report of Survey regulations rests on the Arbitrator's statements with respect to the negligence standard set forth in Paragraph 5003(b). However, review of the award reveals that the award is based on the Arbitrator's findings under Paragraph 5101-14.a. [n7]
In particular, the Arbitrator stated that the Agency's Report of Survey "did not use the term `negligence' as such to charge the [g]rievant." Award at 4. The Arbitrator also noted that the Report of Survey specifically stated "'[t]he contributing factor to this accident was human error.'" Id. (quoting Joint Exhibit 15). Consistent with these statements, the Arbitrator found "no clear evidence that the accident was any thing other than reasonable human error." Id. at 5. Having noted that Paragraph 5101-14.a of the Handbook states that "no one is to be held liable for performing, or failure to perform, an action because of a reasonable human error," the Arbitrator concluded that the grievant was not pecuniarily liable. Award at 4 (quoting Paragraph 5101-14.a).
Although the Agency contends that the grievant was negligent, the Agency does not dispute the Arbitrator's finding that the events in dispute resulted from "reasonable human error." Award at 5. The Agency also does not dispute that, under Paragraph 5101-14.a, an employee may not be held pecuniarily liable for actions resulting from "reasonable human error." See note 5, supra. In short, the Agency does not contest the findings that constitute the basis of the Arbitrator's award. [n8] As such, the Agency's exceptions concerning the Arbitrator's interpretation of the negligence standard in Paragraph 5003(b) provide no basis for finding the award deficient. See, e.g., United States Dep't of the Air Force, 72nd Mission Support Group, Tinker AFB, Okla., 60 FLRA 432, 435 (2004).
With respect to the Agency's claim that the award violates its right to determine its internal security practices under § 7106(a)(1) of the Statute, even if the Agency is correct in asserting that its pecuniary liability regulations, as set forth in the Handbook, constitute an exercise of that right, see, e.g., NAGE, Local R7-23, 23 FLRA 753, 758-59 (1986), the Agency does not establish that the award violates that right. The Agency's argument--that the Arbitrator did not base his award on an interpretation or application of the parties' agreement, and thus substituted his judgment for that of management in an internal security matter--merely restates its grievability and arbitrability claim. The Agency does not explain how the Arbitrator's failure to base his award on the agreement results in an effect on management's right. Thus, this argument provides no basis upon which to find that the Arbitrator's enforcement of Paragraph 5101-14.a affects management's right to determine its internal security practices. See United States Dep't of Veterans Affairs, VA Regional Office, St. Petersburg, Fla., 58 FLRA 549, 552 n.3 (2003) (unsupported claim that award affects management right constitutes bare assertion that does not provide basis for finding award deficient). See also United States Dep't of Transportation, FAA, Jacksonville Ctr., Jacksonville, Fla., 60 FLRA 165, 167 (2004) (agency fails to demonstrate award applying agency regulation affects management right). Accordingly, the Agency's exception does not provide a basis for finding the award deficient.
V. Decision
The Agency's exceptions are denied. [ v61 p864 ]
APPENDIX
Article 44, Section 1 of the parties' collective bargaining agreement provides as follows:
ARTICLE 44
GRIEVANCE PROCEDURE
Section 1 - Definition
Grievance means any complaint:
A. By any unit employee concerning any matter related to the employment of that employee;
B. By the Union/Local concerning any matter relating to employment of unit employees;
C. By any unit employee, the Union/Local or the Department/Management concerning:
1. The effect or interpretation, or claim of breach of this Agreement; or
2. Any claimed violation, misinterpretation or misapplication of any law, rule, or regulation affecting conditions of employment.
Footnote # 1 for 61 FLRA No. 174 - Authority's Decision
The Authority ordered the Union to cure a procedural deficiency in its opposition. The Union failed to comply with the Order and the Authority issued an Order directing the Union to show cause why the Authority should not disregard its opposition. As the Union failed to respond to the Order, we will not consider the opposition. See United States Dep't of Veterans Affairs, 60 FLRA 479, 479 n.1 (2004).
Footnote # 2 for 61 FLRA No. 174 - Authority's Decision
Under the Handbook, Part 5, Report of Survey Program, Section 5101a., "The Report of Survey system is the method used by [the Agency] to obtain an explanation as to the circumstances surrounding the loss, damage or destruction, other than through fair wear and tear, of Government property." Attachment to Exceptions, Agency Exhibit 4 at 19.
Footnote # 3 for 61 FLRA No. 174 - Authority's Decision
Paragraph 5003(b) provides that:
An employee may be held pecuniarily liable for the loss, damage, or destruction of Government property when the loss, damage, or destruction is due to the employee's negligence or misuse of such property, or to dishonesty or willful destruction of the property.
Footnote # 4 for 61 FLRA No. 174 - Authority's Decision
Paragraph 5101a.(2)(a) of the Handbook defines simple "negligence" as "[a]n act, failure, or omission on the part of the responsible employee(s) to exercise the appropriate degree of care, precaution, or vigilance resulting in loss, damage, or destruction of Government property." "Gross" negligence is defined in Paragraph 5101a.(2)(b) as "[a]n act, failure, or omission of the part of the responsible employee(s) to a greater degree and deemed by competent authority to be misconduct or willful, wanton or reckless disregard for Government property resulting in the loss, damage, or destruction of Government property.
Footnote # 5 for 61 FLRA No. 174 - Authority's Decision
Paragraph 5101-14.a of the Handbook provides that:
No one is to be held liable for performing, or failure to perform, an action because of a reasonable human error of judgment or a normal physical limitation. . . .
Footnote # 6 for 61 FLRA No. 174 - Authority's Decision
The relevant text of Article 44, Grievance Procedure, is set forth in the Appendix to this decision.
Footnote # 7 for 61 FLRA No. 174 - Authority's Decision
The Agency correctly notes that the parties' agreement does not contain provisions relating to Reports of Survey or determinations of pecuniary liability. However, because the Arbitrator based his award on the Agency's regulations, that fact does not affect the outcome of this case.
Footnote # 8 for 61 FLRA No. 174 - Authority's Decision
As a result, we do not address whether the Arbitrator erred by failing to defer to the Agency's interpretation of Paragraph 5003(b) as including simple negligence.