The grievant, a registered nurse (RN), was suspended for seven days for allegedly “surfing”^[1] sports websites and Facebook on work time. The Agency based the suspension on two charges:  negligence of duties and inappropriate use of a government computer. Arbitrator Joseph A. Harris found that the Agency failed to sustain either charge and that it violated several just-cause requirements. He set aside the suspension.  There are two questions before us.

 

 

 

 

 

 

The grievant is a RN at the Agency. At the beginning of one of the grievant’s shifts, the grievant or another employee on the shift reported to the shift supervisor that the unit was understaffed. Some hours later, when, according to the grievant, things had calmed down, a supervisor on her rounds observed the grievant on his computer accessing what appeared to be a website that was not work-related. After an investigation, the Agency suspended the grievant for seven days for “surfing” sports websites and Facebook for periods of time on four separate shifts.^[2] The Agency based the suspension on two charges: negligence of duties and inappropriate use of a government computer. 

 

The Agency based the negligence-of-duty charge on an alleged violation of an Agency rule, Medical Center Policy 05-14, stating that “[e]mployees shall put forth honest effort in the performance of their duties.”^[3] The Agency based the computer‑misuse charge on an alleged violation of two rules: Veterans Affairs (VA) Directive 6001 (the directive), and the VA national rules of behavior (which state, in relevant part, that employees will follow the directive). The directive states that personal use of Agency computers “should take place during the employee’s non-work time.”^[4]

 

 

The Arbitrator framed the issue as: “Did        [the Agency] have just cause when [it] issued the [g]rievant . . . a seven[-]day suspension . . . ? If not, what is the appropriate remedy?”^[5]  The Arbitrator found that the Agency “failed to sustain either of its two charges” and that “it violated several just[-]cause requirements.”^[6]

 

The Agency claimed that the grievant neglected his duties. However, the Arbitrator summarily dismissed the negligence-of-duties charge because the Agency “did not offer any examples of duties [that the grievant] failed to perform.”^[7]   

 

The Arbitrator also set aside the            computer-misuse charge. In its “proposed suspension” letter, the Agency alleged that the grievant used the internet for 419 minutes over a four-day period.^[8]  Lacking any admission by the grievant as to how much time he had spent accessing the internet, the Arbitrator examined the computer-use log and the Agency’s information security officer’s testimony, and made his own calculations. Based on these calculations, the Arbitrator found that the Agency “overstated its case” because, the Arbitrator determined, the grievant had used the internet for far less time than alleged.^[9]  As a representative example, the Arbitrator made his own calculation of the time the grievant spent on the night initially at issue. The Arbitrator took into account periods when the      computer-use log showed that an accessed site was “inactive,” as would occur when “a staff person who is logged onto a computer leaves the computer to care for a patient”^[10] – and break times. Based on these considerations, the Arbitrator found that the grievant had spent twenty minutes of work time online – not 118, as claimed by the Agency – a reduction of more than eighty percent.^[11]  The Arbitrator found this a sufficient basis, without similarly recalculating the grievant’s actual computer use for the other periods at issue, to conclude that the Agency “did not prove [the] claim of excessive amount of time on the internet for each day specified in the charge[].”^[12]

 

 

Moreover, the Arbitrator found that “it would be unfair to discipline the [g]rievant, even if he had known [the directive’s] content,” because the Arbitrator did not find the directive “clear and unambiguous.”^[14] In this connection, the Arbitrator found that the directive “does not forbid personal use of [Agency] computers during work time.”^[15] The Arbitrator based his finding on the directive’s statement in the section applied to the grievant that personal use of Agency computers “should take place during the employee’s non-work time.”^[16]  The Arbitrator contrasted the directive’s use of the word “should” in that section with the directive’s use of the word “must” in a different section, which provides that “[t]his personal use must not result in loss of employee productivity or interference with official duties.”^[17] Based upon the use of “should” in the relevant section, as opposed to “must” in the other section, the Arbitrator concluded that the directive “frowns upon, but does not actually forbid” personal use of Agency computers during work time.^[18] 

Other considerations cited by the Arbitrator included: (1) “the wide range of opinion             (including among management) as to an acceptable amount of personal usage of [Agency] computers during work time[; (2)] management’s history of lack of providing guidance as to [the directive’s] content[;] and [(3)] management’s history of lack of enforcement of any standard.”^[19] For all these reasons, the Arbitrator concluded that “the [Agency] violated [the grievant’s] just[-]cause rights by suddenly, and without notice, imposing severe discipline on him.”^[20]  Accordingly, the Arbitrator sustained the grievance and set aside the suspension.

 

 

                The Agency asserts that the Arbitrator erred when he found that the directive does not prohibit personal use of Agency computers during work time.^[21] It argues that his award is therefore contrary to an Agency regulation – the directive.  

 

                In resolving grievances under the Federal Service Labor‑Management Relations Statute (the Statute), arbitrators are empowered to interpret and apply agency rules and regulations.^[22]  When evaluating exceptions asserting that an award is contrary to a governing agency rule or regulation, the Authority will determine whether the award is inconsistent with the plain wording of, or is otherwise impermissible under, the rule or regulation.^[23]  

 

                The Agency argues that the directive’s statement – that personal use of Agency computers “should take place during the employee’s non-work time” – prohibits such personal use during work time. “Should,” in the Agency’s view, “is the grammatical equivalent of ‘must.’”^[24]  

 

                Contrary to the Agency’s argument, “should” has multiple meanings, including meanings that do not connote a mandate. For example, “should” can mean what is “probable or expected,” or can be used “to express a desire or request in a polite or unemphatic manner.”^[25] In addition, judicial opinions – including an opinion on which the dissent relies – have recognized that “should” is not necessarily mandatory, but may be “precatory,” i.e., expressing a wish or request.^[26] This Agency contention therefore does not demonstrate that the award is inconsistent with the plain wording of, or is otherwise impermissible under, the directive. 

 

                The Agency also relies on language from the directive’s transmittal sheet. The language states that “[t]h[e] directive . . . allows employees to use [g]overnment office equipment, including [computers], for non-[g]overnment purposes when such use . . . is performed on the employee’s non-work time.”^[27] The Agency argues that this language identifies the only time “when” personal use of Agency computers is permissible. 

 

                This Agency contention is also unpersuasive. Even if language from the directive’s transmittal sheet carries the same force as language from the directive itself, the language that the Agency relies on does not expressly prohibit anything. Moreover, this language contrasts with language in a section of the directive that the Arbitrator found specifically prohibits certain personal uses of Agency computers, such as for “gambling purposes, pornography, personal business, [or] terrorism.”^[28] This Agency contention therefore also does not demonstrate that the award is inconsistent with the plain wording of, or is otherwise impermissible under, the directive.

 

 

 

The Agency alleges that the award is based on nonfacts.^[29] 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.^[30] However, the Authority will not find an award deficient on the basis of an arbitrator’s factual determination that the parties disputed at arbitration.^[31]
 

The Agency argues that the Arbitrator erred in finding that:  (1) there was a “wide range of opinion (including among management) as to an acceptable amount of personal [use] of [Agency] computers during work time;”^[32] and (2) management had a history of lack of enforcement of any standard for personal use of Agency computers during work time.^[33]  But both matters were disputed before the Arbitrator.^[34]  Although the dissent, like the Agency, wishes to dispute the Arbitrator’s factual findings, factual matters that were disputed at arbitration cannot be challenged as nonfacts.^[35]  Therefore, the Agency’s arguments do not demonstrate that the award is based on nonfacts.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

                It is even more incredible to me that Arbitrator Harris was swayed by this specious argument. Arbitrator Harris concluded that, because the directive uses the word “should” in that one sentence, it “does not actually forbid the use of VA computers for personal purposes during work time”^[36] but, rather, simply “frowns upon” upon such use.^[37]

 

 

Rather than looking at the directive in its entirety, the Arbitrator, and now the majority, tries to turn this grievance into an amorphous etymological debate over the meaning of the word “should.”^[38] In doing so, they change the entire meaning of the directive into something the VA never intended and runs counter to common sense. 

 

My colleagues note that Webster’s Dictionary ascribes several meanings to the word “should,” including one that “express[es] a desire or request.”^[39] And, even though the majority admits the word “should” may also mean what is “probable or expected,”^[40] they ignore entirely the preferred iterations, which indicate an “obligation,” something one will “have to do,” or something that will occur if something else happens.^[41] 

 

Federal courts have not looked favorably      (one might say, to borrow from Arbitrator Harris’ lexicon, have “frown[ed]”^[42]) upon such debates.^[43] In any event, the courts and the Authority have long held that an award is not a plausible interpretation of an agency policy when the award is not “rationally derived from the plain language of [that policy].”^[44] 

 

Therefore, whether the word “should” connotes something that is “mandatory,” or merely something that is “required to the extent practicable,”^[45] it is simply not plausible to interpret the plain language of the       directive – which devotes over 1500 words to describe the limits on its permissive “limited use” policy − to presume that an employee may use a government computer for his own purposes (consuming nearly twenty percent of his work time) whenever he or she determines that he or she has done enough work. 

 

 

 

 

 

 

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