U.S. Department of Labor, Washington, D.C. and American Federation of Government Employees, Local 12 (Authority decision, June 28, 1991)

Final FLRA decision. The Authority denies union exceptions to two arbitration awards concerning employees disciplined for misuse of agency parking permits. One suspension remains reduced from ten to five days, and the other five-day suspension remains in effect. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award is generally excluded from judicial review unless it involves an unfair labor practice under 5 U.S.C. § 7116. This decision does not address an unfair labor practice.

Plain-English summary

Two Department of Labor employees were suspended for violating agency parking rules. An arbitrator reduced one employee's ten-day suspension to five days and upheld the second employee's five-day suspension. The Authority rejected the union's argument that the statutory burden for suspensions over 14 days applied to these shorter actions. It found that the arbitrator had addressed whether the misconduct was connected to service efficiency and had not relied on a clearly erroneous central fact. The Authority denied the union's exceptions, leaving both five-day penalties in place.

Decision snapshot

• Authority: Short suspensions under 5 U.S.C. § 7503(a); arbitration review under § 7122(a).
• Outcome: Union exceptions denied; two five-day suspensions remain.
• Key point: The proof standard for suspensions over 14 days did not govern these shorter suspensions.

Full text (FLRA public release)

[ v41 p472 ]

41:0472(44)AR

The decision of the Authority follows:

41 FLRA No. 44

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF LABOR

WASHINGTON, D.C.

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 12

(Union)

O-AR-2035

DECISION

June 28, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to two
awards of Arbitrator Charles Feigenbaum filed by the Union
under section 7122(a) of the Federal Service Labor-Management
Relations Statute (the Statute) and part 2425 of the
Authority's Rules and Regulations. The Agency filed an
opposition to the Union's exceptions.

In his first award, the Arbitrator reduced an employee's
10-day suspension for violating Agency parking rules to 5 days.
In his second award, the Arbitrator denied a grievance
disputing a second employee's 5-day suspension for violating
the same Agency parking rules.

For the following reasons, we conclude that the Union's
exceptions provide no basis for finding the awards deficient.
Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Awards

Two employees were suspended, one for 10 days and the
second for 5 days, for violating the Agency's parking rules. Each employee filed a grievance over his suspension
and the grievances were submitted to arbitration.

A. First Award

The parties stipulated the issue as follows:

Was the 10 day suspension given the Grievant for
such just cause as will promote the efficiency
of the service?

First Award at 2.

The Arbitrator first rejected the Union's
contentions that the grievant's misconduct
occurred off-duty and affected neither the
grievant's employment nor the conduct of other
employees. The Arbitrator stated that "[i]t was
the Union's burden to show that this was the
case and that has not been done." First Award
at 10. According to the Arbitrator, the
grievant's own statements established that the
grievant found another employee's parking permit
on the Agency's premises and knowingly misused
that permit by parking his car, in the Agency's
garage, for three working days. The Arbitrator
stated further, that "the [g]rievant's behavior
was directly and unmistakably connected to his
employment. It involved a violation of [Agency]
rules with respect to its parking garage, and
cheating the [Agency] of monies due it." Id. at

10. The Arbitrator concluded that the grievant
    "made fraudulent use of a [parking] permit to
    which he was not entitled." Id.

The Arbitrator also rejected the Union's
contention that, consistent with the Agency's
parking regulations, the Agency could
discipline the grievant only by suspending his
parking privileges or issuing a parking ticket.
The Arbitrator concluded that there was nothing
in the record to indicate that the Agency
intended to limit "itself from punishing parking
abuse by other than a suspension of parking
privileges, or by the issuance of a parking
ticket." Id. at 11.

The Arbitrator concluded, however, that there
was "no valid basis for a penalty . . . that is
twice as heavy as the one sustained for [the
second grievant]." Id. at 13. Accordingly, the
Arbitrator mitigated the 10-day suspension to 5
days and directed the Agency to make the
grievant whole for any salary or benefits lost
beyond the 5-day suspension upheld.

B. The Second Award

The parties stipulated the issue as follows:

Was the 5 day suspension given the Grievant for
such just cause as will promote the efficiency
of the service?

Second Award at 2.

For the same reasons expressed in the first
award, the Arbitrator rejected the Union's
contentions that the suspension was improper
because: (1) the grievant's misconduct occurred
off-duty, and (2) the Agency could discipline
the grievant only by suspending his parking
privileges or issuing a parking ticket.
According to the Arbitrator, it was "more likely
than not" that the grievant purchased an illegal
parking permit for another employee during duty
time in the Agency's parking garage. Id. at 10.
The Arbitrator refused to mitigate the
suspension because, in his view, the grievant's
"conduct was serious" and "contributed to a
scheme to defraud [the Agency]." Id. at 12-13.

III. The Union's First Exception

A. Positions of the Parties

The Union claims that the Arbitrator erred in
failing "to hold the Agency . . . to the
appropriate, statutory burden of proof . . . ."
Exceptions at 1. According to the Union, the
Agency should have been required to prove, under
5 U.S.C. § 7513(a), that the grievants'
misconduct "had an adverse or deleterious effect
upon the efficiency of the service." Id. The
Union asserts that the Agency should have been
required to "show how Agency efficiency was
harmed by having the wrong [Agency] employees
parking in the [Agency] parking garage." Id. at
7 (emphasis in original). The Union argues that
"if the Agency cannot show a deleterious link
between the misconduct in question and the
efficient operation of its enterprise . . . then
there can be no harm which is susceptible to
correction." Id. at 8.

The Agency argues that the Union's exceptions
constitute mere disagreement with the
Arbitrator's conclusions and do not demonstrate
that the awards are deficient. According to the
Agency, "[a]cts of dishonesty on the job, such
as the fraudulent use of a parking permit,
impair the efficiency of the service."
Opposition at 7.

B. Analysis and Conclusions

Initially, we find that the Union's reliance
on 5 U.S.C. § 7513(a) is misplaced. 5 U.S.C. § 7513(a), which provides that actions may be
taken against an employee "only for such cause
as will promote the efficiency of the service,"
applies only to serious adverse actions such as
removals, suspensions for more than 14 days, and
reductions in grade.

The 10-day and 5-day suspensions involved in
the awards are not covered by 5 U.S.C. § 7513(a). As such, unless a specific burden of
proof is required by the parties' collective
bargaining agreement, the Arbitrator was free to
establish and apply whatever burden he
considered appropriate. See, for example, U.S.
Department of the Air Force, Headquarters
Oklahoma City Air Logistics Center, Tinker Air
Force Base, Oklahoma and American Federation of
Government Employees, Local 916, 40 FLRA 88, 93
(1991). There is no contention that the
parties' agreement required the Arbitrator to
apply a specific burden of proof. Accordingly,
the Union's exception that the Arbitrator erred
in applying an incorrect burden of proof does
not demonstrate that the award is deficient.
Id. at 93.

In addition to its argument regarding the
burden of proof under 5 U.S.C. § 7513(a), the
Union also argues that the award conflicts with
that section because the grievants' suspensions
were not taken for such cause as will promote
the efficiency of the service. As noted above,
5 U.S.C. § 7513(a) does not apply in this case.
However, 5 U.S.C. § 7503(a), which applies to
suspensions for 14 days or less, provides that
such suspensions may be taken "for such cause as
will promote the efficiency of the service . . .
." Accordingly, we will construe the Union's
exception as an assertion that the awards
conflict with 5 U.S.C. § 7503(a).

The stipulated issues before the Arbitrator
were whether the grievants' suspensions were
"for such just cause as will promote the
efficiency of the service[.]" First Award at 2;
Second Award at 2. Although the Arbitrator
mitigated one suspension, he sustained
discipline in both cases. The Arbitrator noted
specifically that each "[g]rievant's behavior
was directly and unmistakably connected to his
employment." First Award at 10; Second Award at
10.

The Arbitrator's awards are directly
responsive to the issues stipulated by the
parties. Those issues required the Arbitrator
to determine whether the grievants' suspensions
were taken for such cause as will promote the
efficiency of the service. The Arbitrator
sustained discipline in both cases.
Consequently, we find that the Arbitrator's
awards constitute determinations that the
grievants were disciplined "for such cause as
will promote the efficiency of the service."
Compare American Federation of Government
Employees, Local 1760 and Social Security
Administration, Northeastern Program Service
Center, 22 FLRA 195, 198 (1986) (Authority
stated that an arbitrator's determination that a
grievant's suspension was not for just cause
"effectively constituted an affirmative finding
that the grievant's suspension was not for such
cause as will promote the efficiency of the
service.").

The Union has not demonstrated that the
Arbitrator's findings that the grievants were
disciplined for such cause as will promote the
efficiency of the service is inconsistent with 5 U.S.C. § 7503(a). Accordingly, we will deny the
Union's first exception.

IV. The Union's Second Exception

A. Positions of the Parties

The Union argues that the awards are
deficient because the Arbitrator failed to
consider the Union's argument that the
suspensions violated 5 U.S.C. § 2302(b)(10).
The Union notes that 5 U.S.C. § 2302(b)(10)
"proscribes the taking of a personnel action for
conduct that does not adversely affect the
performance of the employee or the performance
of duties of others in the [A]gency[.]"
Exceptions at 12-13. The Union claims that the
Arbitrator's "failure to give full and fair
treatment to a legitimate affirmative defense
constitutes reversible error." Id. at 13.

The Agency argues that as the Arbitrator
upheld the Agency's assertion that the
grievants' misconduct affected the efficiency of
the service, "[i]t follows, therefore, that the
[A]rbitrator found against the [U]nion's
assertion with regard to [5 U.S.C.] § 2302(b)(10)." Opposition at 8.

B. Analysis and Conclusions

An arbitrator's failure to set forth specific
findings, or to specify and discuss all
allegations in a grievance, does not provide a
basis for finding an award deficient. See, for
example, International Organization of Masters,
Mates and Pilots, Marine Division, ILA, Canal
Pilots Branch and Panama Canal Commission, 39
FLRA 707, 715 (1991). Moreover, as noted above,
the Arbitrator rejected Union claims that there
was no relationship between the grievants'
misconduct and their employment or the
employment of other employees. We conclude,
therefore, that the Union's exception that the
Arbitrator did not address specifically its
argument that the suspensions violated 5 U.S.C. § 2302(b)(10) provides no basis for finding the
award deficient.

V. The Union's Third Exception

A. Positions of the Parties

The Union claims that the awards are based on
facts which either were not established in the
record or are not relevant to the issue of
whether the grievants' misconduct adversely
affected the efficiency of the service. The
Union argues that "by allowing the Agency to
[discipline] . . . employees without holding
[the Agency] to the applicable standard of . . .
proof, the Arbitrator has reached conclusions on
an improper basis." Exceptions at 13.
According to the Union, the Agency did not
establish, by a preponderance of the evidence,
that the grievants' misconduct adversely
affected the efficiency of the service or that
the grievants' suspensions would promote that
efficiency.

The Agency argues that the Union's exception
constitutes mere disagreement with the
Arbitrator's factual findings and does not
demonstrate that the awards are deficient.

B. Analysis and Conclusions

This exception reiterates the Union's
previous argument that the Arbitrator erred by
failing to apply the correct burden of proof.
As discussed in connection with the Union's
first exception, however, we have no basis for
concluding that the Arbitrator applied an
incorrect burden of proof. Accordingly, the
Union's argument that the award is deficient
because the Arbitrator relied on facts which
were not established consistent with the
Agency's burden of proof under 5 U.S.C. § 7513(a) does not demonstrate that the award is
deficient.

Further, construing the Union's arguments as
claims that the awards are based on nonfacts, we
conclude that the Union has not demonstrated
that the awards are deficient. To establish that
an award is deficient because it is based on a
nonfact, it must be demonstrated that the
central fact underlying the award is clearly
erroneous, and constitutes a gross mistake of
fact but for which a different result would have
been reached by the arbitrator. See, for
example, U.S. Department of Defense, Dependents
Schools, Mediterranean Region and Overseas
Federation of Teachers, 36 FLRA 861, 867 (1990)
(Dependents Schools). The Union has not
demonstrated, in this regard, that the
Arbitrator's awards upholding suspensions for
the grievants' misconduct are based on central
facts that are clearly erroneous. Consequently,
we conclude that the Union has not shown that
the awards are based on nonfacts.

We conclude that the Union's third exception
constitutes mere disagreement with the
Arbitrator's overall factual findings and is an
attempt to relitigate the merits of the
grievances. Such disagreement provides no basis
for finding the award deficient. See, for
example, Dependents Schools, 36 FLRA at 867-68
(claim that arbitrator's conclusions were not
supported by evidence did not concern a central
fact and constituted mere disagreement with the
arbitrator's conclusions).

VI. The Union's Fourth Exception

A. Positions of the Parties

In its fourth exception, the Union asserts
that the awards are "contrary to
well-established labor relations principles
whereby the valid exercise of disciplinary
authority should emphasize both progressivity
and the corrective nature of the discipline
sought to be imposed." Exceptions at 2. The
Union argues that the grievants' suspensions
were "neither progressive or [sic] corrective."
Id. at 18. The Union also argues that the
Arbitrator failed to properly apply 5 U.S.C. § 7513(a) and, instead, based his awards "on
general principles of labor agreement
interpretation . . . ." Id. at 17.

The Agency argues that the Union's exception
does not set forth a ground on which an award
may be found deficient under section 7122(a) of
the Statute.

B. Analysis and Conclusions

For the reasons set forth previously, we
reject the Union's claim that the awards are
deficient because the Arbitrator failed to apply
5 U.S.C. § 7513(a). Moreover, we reject the
Union claims that the awards are contrary to
well-established principles of labor relations
law. The Union cites no law requiring the
Arbitrator to determine whether the grievants'
disciplinary actions were "progressive or
corrective[,]" and no such law is apparent to
us. Exceptions at 18. In our view, this
exception constitutes mere disagreement with the
Arbitrator's reasoning and conclusions and
provide no basis for finding the awards
deficient. See, for example, U.S. Department of
Veterans Affairs Medical Center, Memphis,
Tennessee and National Association of Government
Employees, Local R5-66, 34 FLRA 893, 896 (1990).

VII. Decision

The Union's exceptions are denied.

FOOTNOTES:
(If blank, the decision does not
have footnotes.)