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63 FLRA No. 73
DEPARTMENT OF VETERANS AFFAIRS
OF GOVERNMENT EMPLOYEES
March 31, 2009
Before the Authority: Carol Waller Pope, Chairman and
Thomas M. Beck, Member
I. Statement of the Case
This matter is before the Authority on an exception to the award of Arbitrator Jesse Etelson 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 grievance challenged the grievant's 3-day suspension for insubordination. The Arbitrator sustained the grievance and directed the Agency to reduce the 3-day suspension to a reprimand. The Arbitrator awarded backpay and restoration of any lost benefits. For the reasons set forth below, we deny the Agency's exception.
II. Background and Arbitrator's Award
The grievant, a Patient Services Assistant, was involved in a car accident. As a result, she was dependant on friends and co-workers for transportation to and from work. On one occasion, she borrowed a car from a friend to drive to work with the understanding that she would return the car at the end of the work day. On that same day, the grievant's supervisor selected her for mandatory overtime. Because she had to return the car, the grievant refused to work the overtime. The grievant received an initial 5-day suspension for insubordination. Award at 3. Thereafter, the grievant's Union representative met with the associate director of the medical center (the director) to discuss the grievant's discipline. See id. After the meeting, the suspension was reduced to three days. See id.
The Union filed a grievance challenging the grievant's 3-day suspension. When the grievance was not resolved, it was submitted to arbitration. The Arbitrator stated the issue to be whether the grievant's discipline was for just cause and whether her 3-day suspension was warranted. See id. at 1.
The Arbitrator credited the testimony of the human resources specialist who served as technical advisor to the director. The human resources specialist testified that under the Agency's table of penalties, the penalty for a first time offense ranged from a reprimand to removal, and that suspensions were an option in cases of insubordination. According to the human resources specialist, the grievant's discipline was based on the investigative file and the evidence and discussion provided to the director for the meeting with the Union. See id. at 3. The human resources specialist testified that in preparation for the meeting with the Union, she drafted a memo for the director which contained a list of disciplinary options and which noted the grievant's length of service and lack of any prior disciplinary action.
The Arbitrator considered the evidence and found that the grievant was insubordinate and that there was just cause for the discipline. See id. at 6. The Arbitrator found that the Agency's Handbook containing the table of penalties incorporated the Douglas factors (factors) [n1] and it stated that "each relevant factor must be addressed." Id. at 6. The Arbitrator found that there was no indication of which of the Douglas factors, other than grievant's length of service and the absence of any prior disciplinary action, were considered when the grievant's discipline was reduced from five to three days. See id. The Arbitrator found that because these two Douglas factors were considered, they were an indication that some of the Douglas factors were considered. See id. However, the Arbitrator found that "several other of the Douglas factors [which] [were] relevant here . . . should have been addressed and considered." Id. at 7. In this connection, the Arbitrator found that the Agency failed to apply all the Douglas factors when deciding the grievant's discipline. The Arbitrator then proceeded to apply the Douglas factors, and concluded [ v63 p182 ] that a 3-day suspension was excessive and reduced it to a reprimand. He also ordered backpay for lost earnings and benefits during the 3-day suspension.
III. Agency's Exception
The Agency claims that the award is based on two nonfacts. The Agency asserts that the Arbitrator erred when he concluded that the Agency was required to address the Douglas factors in assessing the penalty. Exception at 2. In this respect, the Agency asserts that its table of penalties, contained in VA Handbook 5021, Part I, Appendix A (Appendix A) [n2] incorporates the Douglas factors, but that it is a "guide" for administering discipline and that "[i]t is in no way obligatory." Id. at 2.
The Agency also argues that the Arbitrator erred when he concluded that the grievant's conduct was not as serious as the Agency claimed. See id. In this respect, the Agency argues that it was inappropriate for the Arbitrator to "cherry-pick" the factors which tended to mitigate the penalty while ignoring the factors that did not. Id. at 3.
IV. Union's Opposition
The Union argues that the Agency's exception is nothing more than disagreement with the Arbitrator's conclusion. See Opposition at 4. The Union asserts that the nonfacts raised by the Agency concern factual issues disputed at the hearing. See id. at 5.
V. Analysis and Conclusions
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 NFFE, Local 1984, 56 FLRA 38, 41 (2000). Moreover, the Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at arbitration. United States Dep't of Health and Human Serv., Denver, Co., 56 FLRA 133, 135 (2000) (HHS, Denver).
The Agency argues that the Arbitrator erred by not finding that the grievant's conduct was as serious as the Agency claimed, and that he ignored certain Douglas factors when he mitigated the grievant's penalty. However, the seriousness of the grievant's offense and the factors considered by the Agency when deciding the grievant's penalty were facts disputed below. Consequently, these facts cannot be challenged as nonfacts because the Authority will not find an award deficient on facts that were disputed at arbitration. See HHS, Denver, 56 FLRA at 135.
Moreover, the Agency's claim that the Arbitrator erred when he concluded that the Agency was obligated to apply the Douglas factors is inconsistent with its second claim that the Arbitrator erred when he ignored certain Douglas factors. As noted above, the Agency first argues that it is not obligated to apply the Douglas factors, however it later argues that the Arbitrator "must apply . . . all of the factors" Exception at 3 (emphasis in original). As such, the Agency's arguments do not support the claim that the award is based on nonfacts. Accordingly, we deny the Agency's exception. See United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593-94 (1993) (award not deficient as based on a nonfact where excepting party either challenges a factual matter that the parties disputed at arbitration or fails to demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator).
The Agency's exception is denied.
Footnote # 1 for 63 FLRA No. 73 - Authority's Decision
The Douglas factors are rules developed by the Merit Systems Protection Board (MSPB) to assist a deciding official in determining an appropriate penalty. The factors may either be mitigating or aggravating. See Douglas v. Veterans Admin., 5 MSPB 313 (1981).
Footnote # 2 for 63 FLRA No. 73 - Authority's Decision
a. The range of penalties indicated in this table is to be used as a guide in administering discipline to help assure that like disciplinary action is taken for like offense.
. . . .
c. In using this table, consideration will be given to the following:
. . . .
(6) Disciplinary penalties will generally fall between the ranges indicated in the guide, but in unusual circumstances greater or lesser penalties may be imposed. In determining disciplinary action to be taken in a specific case, the following factors that will be considered as cited in Douglas v. VA, 5 M.S.P.R. 280 (1981). Remember that any of the Douglas factors may be either mitigating or aggravating. Each relevant factor must be addressed.
Exception, Attachment 13.