[ v59 p551 ]
59 FLRA No. 96
UNITED STATES
DEPARTMENT OF THE NAVY
NAVY PUBLIC WORKS CENTER
NORFOLK, VIRGINIA
(Agency)
and
TIDEWATER VIRGINIA
FEDERAL EMPLOYEES
METAL TRADES COUNCIL
(Union)
0-AR-3679
_____
DECISION
December 31, 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 exceptions to an award of Arbitrator Donald H. Doherty 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 did not file an opposition to the Agency's exceptions.
The Arbitrator sustained a grievance alleging that the Agency had improperly imposed on the grievant a three-day suspension on a charge of "leaving the job site without permission." Award at 15. The Arbitrator found that because of the "disparity between the penalties assessed other employees with the same offense and on the same first offense" and as a result of the Agency violating Article 31, § 1 of the collective bargaining agreement, the discipline imposed upon the grievant should be rescinded and the "action be completely expunged from [the grievant's] record, to include all allegations connected to this matter ." [n2] Id. at 21. The Agency excepts to these findings.
For the reasons that follow, we conclude that the exceptions cannot be resolved without additional clarification and we remand the case to the parties for re-submission to the Arbitrator, absent settlement, to determine whether the grievant engaged in the misconduct with which he was charged, leaving the work site without permission.
II. Background
The Agency disciplined the grievant, a Master Heating Ventilating and Air Conditioning Mechanic, with a three-day suspension for leaving the work site without permission. [n3] Award at 5-6. The Union's grievance stated that the Agency violated Articles 7 ("Employer-Council Cooperation"), 31 ("Grievance Procedure") and 33 ("Adverse Actions") of the negotiated contract by imposing the three-day suspension on the grievant for leaving the work site without permission. Id. at 11.
The Agency asserted that a Maintenance Superintendent observed the grievant riding with another employee, a welder, in the welder's government vehicle on the morning of August 16, 2001. Id. at 5-6. After the Maintenance Superintendent unsuccessfully attempted to wave down the vehicle, she ascertained that the two were not assigned to work together. Id. at 6-7.
Later that day, the same welder allegedly discovered a chiller that was not working in a building other than the one at which the grievant was working. Award at 9. As the welder did not know how to repair the chiller, he contacted the grievant. Id. The grievant testified that he took his tool bag and left with the welder who came to pick him up and take him to the building with the broken chiller. Id. According to the grievant, while he and the welder were in the truck together, a third employee called to ask for a ride to a building in the same area of the Base as the building with the broken chiller. Id. at 10.
The grievant explained that he and the other two employees rode in the truck together past the building with the broken chiller to drop off the employee who had called for a ride. Id. According to the Agency, the Maintenance Superintendent observed the three employees riding in the truck together and followed them. Id. [ v59 p552 ] at 7. As the third employee exited the vehicle, the Maintenance Superintendent approached him and detected what she believed to be the odor of marijuana. [n4] Id. The Maintenance Superintendent testified that she directed the three employees to report to Building A-81 where the Agency attempted to administer reasonable suspicion drug tests. Id. However, before the tests were conducted, all three employees stated that they had become ill and were allowed to leave without completing the drug testing protocol. Id. The grievant submitted to a drug test after returning to work two weeks later with negative results. Id. at 5, 13, 17.
The Agency did not charge the grievant with drug-related misconduct, instead he was charged with "[l]eaving the work site without permission" and received a three-day suspension. Award at 10. The parties agreed to frame the issue as "[w]hether or not [the grievant] should have received the three-day suspension." See id. at 1.
The Agency argued that the suspension was warranted because the grievant was not where he was supposed to be and because the grievant showed no remorse and refused to admit to his misconduct. Id. at 8.
The Union argued that the only issue to be decided was whether the grievant was at his assigned job and that the grievant was at, or in transit to, an assigned job at all times. Id. at 11. Therefore, the Union argued that there was no just cause for the discipline because the grievant had permission to move between work sites.
The Arbitrator ordered the suspension rescinded, the grievant reimbursed for wages lost as a result of the suspension, and that all of the materials regarding the matter be expunged from the grievant's record. Id. at 21. The Arbitrator based this award on the disparity between the discipline imposed upon the grievant and other employees with the same first offense as well as the Agency's "direct violation" of Article 31, § 1. Id.
III. Positions of the Parties
A. Agency's Exceptions
1 The award is deficient because it is contrary to law.
The Agency alleges that the award is contrary to § 7106(a) of the Statute. [n5] Exceptions at 1. The Agency argues that the award abrogates the Agency's right to choose a specific penalty and destroys its right to discipline. Id.
The Agency recognizes that limits can be placed on its right to discipline which do not impede the Agency's "sole discretion" to determine when and what discipline is appropriate. See Exceptions at 2. The Agency explains that the Authority has held that a provision may require an agency "to apply disciplinary and adverse actions in an `equitable and consistent manner' . . . provided the imposition of such discipline does not limit the agency's sole discretion to determine which employees will be disciplined, and what discipline will be imposed." See id. at 2-3 (citing NFFE, Local 1214, 51 FLRA 1362, 1367 (1996)). The Agency argues that by rescinding all discipline imposed in this case, the Arbitrator actually created a variance between the discipline imposed on the grievant and others similarly situated, thereby violating the requirement that discipline be imposed in an equitable manner. Id.
2. The award is deficient because it fails to draw its essence from the agreement.
The Agency also asserts that the award fails to draw its essence from the agreement because the Arbitrator ignored the language found in Article 33, § 3, allowing the Agency to determine disciplinary penalties based on the particular offense, when he overturned the suspension and did not simply mitigate the discipline. Exceptions at 5. The Agency argues that the Arbitrator found a violation of Article 31, § 1 but never found that the grievant was treated unfairly and in fact states in the award, "[t]he opinion of the Union that the [g]rievant was not treated fairly and equitably in any part of the process, hardly comports with the facts in this case." See id. at 3-4 (citing Award at 20).
In addition, the Agency argues the Arbitrator found the grievant guilty of the misconduct alleged. Id. at 4. The Agency contends that the Arbitrator stated that the grievant may not have been treated fairly and equitably in the assessment of the appropriate discipline [ v59 p553 ] for the alleged offense, but that the grievant's conduct played a role in his being charged. Id. The Agency reads this language as a condemnation of the grievant as well as a finding that he was not treated unfairly or inequitably. Exceptions at 3-4.
Finally, the Agency argues that the award is based on the premise that all employees who are disciplined for the same offense should receive the exact same discipline. Id. at 4. According to the Agency, this premise is incorrect because the facts of each case are different and each offense has a range of penalties that may be imposed. Id. In this case, the three-day suspension was within the range of penalties for the offense of leaving the work site without permission. Id. The Agency asserts that the Arbitrator cannot substitute his judgment on the appropriate discipline unless there is a showing that the discipline imposed was arbitrary and capricious. Id.
B. Union's Opposition
The Union did not file an opposition to the Agency's exceptions.
IV. Analysis and Conclusions
A. The Agency's contrary to law and essence exceptions cannot be resolved without further clarification from the Arbitrator.
When an exception alleges that an award is contrary to law, the Authority reviews the question of law and the Arbitrator's award de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. Id.
When resolving an exception alleging that an award violates management's rights under § 7106 of the Statute, the Authority first determines whether the award affects a management right. See United States Small Business Admin., 55 FLRA 179, 184 (1999). If it does, then the Authority applies the framework established in United States Dep't of the Treasury, Bureau of Engraving and Printing, Wash., D.C., 53 FLRA 146, 152-53 (1997) (BEP).
In order for an award to be found deficient as failing to draw its essence from the collective bargaining agreement, it must be established that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. Def. Logistics Agency, Def. Distrib. Ctr., New Cumberland, Pa., 55 FLRA 1303, 1306-07 (2000) (Member Cabaniss concurring); United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).
In this case, the Authority is unable to ascertain sufficient information from the award to resolve the exceptions. We remand this matter to the parties for resubmission to the Arbitrator, absent settlement, for resolution of the following questions: did the grievant engage in the misconduct alleged, leaving the work site without permission; and if the grievant committed the offense, what discipline, if any, may the Agency impose.
V. Decision
Based on the foregoing, we remand the award for action consistent with this decision.
APPENDIX -- Relevant Contract Language
Article 31, § 1 of the parties' agreement provides in pertinent part that:
Section 1. The PARTIES intend that all employees in the UNIT be treated fairly and equitably. Most grievances arise from misunderstandings or disputes which can be settled promptly and satisfactorily at the immediate supervisor level. The PARTIES will make every effort to settle grievances at the lowest possible level. Inasmuch as dissatisfactions and disagreements occasionally arise among people in any work situation, the filing of a grievance shall not be construed as reflecting unfavorably on an employee's good standing, his/her loyalty or desirability to the organization or his/her performance. Reasonable time during working hours will be allowed for COUNCIL representatives to investigate and present grievances.
a. The PARTIES agree that grievances under this article should be effectively and efficiently processed in a manner to achieve equitable resolution without undue interruption to the work effort of the EMPLOYER or adverse impact to the grievant. The PARTIES recognize the need to conduct EMPLOYER operations in a cost effective manner to amicably resolve disputes involving matters affecting conditions of employment in a timely manner. [ v59 p554 ]
Dissenting Opinion of Member Pope:
I do not agree with the majority that there is a need to remand the award in this case because, in my view, the Arbitrator found the grievant guilty of misconduct but mitigated the penalty based on similar penalties assessed other employees who engaged in similar misconduct. In this regard, the parties agreed that the issue before the Arbitrator was whether the grievant "should have received [a] three-day suspension" for leaving the work site without proper permission, Award at 1, and, before the Arbitrator, the Union argued both that the grievant did not engage in misconduct and that, if he did, no other employees received similarly harsh punishment for that misconduct. See id. at 18.
The Arbitrator rejected the Union's contention that the grievant "was not treated fairly and equitably in any part of the process[.]" Id. at 20. In particular, the Arbitrator found that the Union's contention "hardly comports with the facts in the case." Id. According to the Arbitrator, "[w]hile the [g]rievant may not have been treated fairly and equitably in the assessment of the penalty for the charged offense, much about the violation of leaving the work site without permission flows directly from the actions of the [g]rievant." Id. (emphasis added). As his award, the Arbitrator stated that imposition of the suspension creates a "disparity between the penalties assessed other employees with the same offense and on the same first offense[.]" Id. at 21.
In my view it is clear that the Arbitrator found the grievant engaged in misconduct and the penalty should be mitigated. As such, I would not put the parties to the effort and expense of obtaining a clarification of the award and would resolve the exceptions based on that construction. Doing so, I would deny the Agency's exception that the award conflicts with its right to discipline because, applying BEP, it is clear that: (1) provisions like the one enforced in this case constitute appropriate arrangements under § 7106(b)(3), see NFFE, Local 1214, 51 FLRA 1362, 1365-67 (1996); and (2) an award mitigating discipline in these circumstances "`operates in effect to reconstruct what management would have done had the provision been followed.'" United States Dep't of Energy, S.W. Power Admin., Tulsa, Okla., 56 FLRA 624, 626 (2000) (quoting Soc. Sec. Admin., Balt., Md., 53 FLRA 1751, 1754 (1998)).
I would also deny the Agency's exception that the award fails to draw its essence from the parties' agreement. In this regard, Article 31, § 1 requires that employees be treated "fairly and equitably" and Article 33, § 3 states that "penalties for disciplinary offenses will suit the particular offense(s)." The Agency has failed to establish that the Arbitrator's interpretation of these articles -- as precluding the Agency from assessing the grievant a penalty harsher than penalties assessed other employees in similar circumstances -- is irrational, implausible or disregards the agreement.
For the foregoing reasons, I would deny the Agency's exceptions to the award. Accordingly, I dissent.
Footnote # 1 for 59 FLRA No. 96 - Authority's Decision
The dissenting opinion of Member Pope is set forth at the end of this decision.
Footnote # 2 for 59 FLRA No. 96 - Authority's Decision
The relevant contract language is set forth in the attached Appendix.
Footnote # 3 for 59 FLRA No. 96 - Authority's Decision
The Agency charged the grievant specifically with leaving the work site without permission despite the fact that the majority of the evidence offered by the Agency dealt with the grievant's other alleged misconduct such as riding with another employee in that employee's truck as well as some suspicion that the employees were smoking marijuana. Award at 7.
Footnote # 4 for 59 FLRA No. 96 - Authority's Decision
The Agency alleged that the Maintenance Superintendent followed the employees to the building where the third employee exited the vehicle. Id. at 7. According to the grievant, the grievant and the welder dropped the other employee off and then went to the building with the broken chiller only to find the chiller in working condition. Id. at 10. Despite the discrepancy in the sequence of events, it is undisputed that the three employees encountered the Maintenance Superintendent while they were together. Id. at 7, 14.
Footnote # 5 for 59 FLRA No. 96 - Authority's Decision
The Agency cites to 7106(a)(2)(B) but the appropriate subsection is 7106(a)(2)(A) which gives management the right to take disciplinary action.