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National Air Traffic Controllers Association (Union) and United States Department of Transportation, Federal Aviation Administration (Agency)

[ v62 p490 ]

62 FLRA No. 89

NATIONAL AIR TRAFFIC
CONTROLLERS ASSOCIATION
(Union)

and

UNITED STATES
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
(Agency)

0-AR-4061

_____

DECISION

June 17, 2008

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Jill Klein filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and 5 C.F.R. part 2425. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator denied the grievance concerning the 3-day suspension of the grievant. For the reasons that follow, we deny the Union's exceptions.

II.      Background and Arbitrator's Award

      The grievant is employed as a warehouse worker. He was suspended for 3 days for "sleeping while on duty[.]" Exceptions, Attach. 1 at 1 (Notice of Proposed Suspension). The Union filed a grievance that was submitted to arbitration on the following stipulated issues: "Was the three-day suspension of [the grievant] . . . for such cause as to promote the efficiency of the service; if not, what should the remedy be?" Award at 2.

      The Arbitrator found that the grievant had been asleep while on duty and that the grievant had previously been warned about sleeping on the job. She agreed with the Union that because the grievant was a warehouse worker, the offense was not as serious as it would have been if it had been committed by an air traffic controller. However, she determined that the grievant occupies a position in which he has the potential to endanger personnel and property because he is required to operate a handlift, a forklift, and potentially dangerous hand tools. In this connection, although the grievant disputed that he uses a forklift, the Arbitrator noted that the grievant's position description states that warehouse workers are responsible for use of lifts and power saws. The Arbitrator concluded that, in applying the factors set forth in Douglas v. Veterans Admin., 5 MSPR 280 (1981), [n1]  and determining the appropriate penalty, the Agency properly considered that the grievant occupies a position in which he has the potential to endanger personnel and property. She further concluded that, by taking this fact into account, the Agency did not impose an additional charge on the grievant or deny the grievant due process.

      Accordingly, the Arbitrator concluded that the 3-day suspension "was for such cause as to promote the efficiency of the service[,]" and she denied the grievance. Award at 2.

III.      Positions of the Parties

A.      Union's Exceptions

      The Union contends that the Arbitrator exceeded her authority by resolving an issue that had not been stipulated to by the parties. Specifically, the Union maintains that the stipulated issues addressed the 3-day suspension in terms of the offense specified in the proposed suspension--sleeping while on duty--and that the proposed suspension had not included an additional charge involving safety or endangerment to personnel or property. Thus, the Union contends that the Arbitrator failed to confine herself to the stipulated issues "by considering safety or endangerment of personnel or property." Exceptions at 4.

      The Union contends that the Arbitrator based her award on a nonfact by finding that the grievant was working in a position where personnel or property could be endangered. In this connection, the Union claims that there is no evidence to support that finding and that because there was no testimony regarding the grievant's use of tools or a forklift, the Arbitrator's assumption that he could fall asleep operating tools or a forklift is a nonfact. Moreover, the Union maintains that the grievant was charged with sleeping in the break room and that there was no danger involved.

      [ v62 p491 ] In addition, the Union asserts that under 5 U.S.C. § 7503 and 5 C.F.R. part 752, subpart A, [n2]  the grievant was entitled to a written notice stating the specific reasons for the proposed action. The Union also asserts that under the Agency's personnel manual, [n3]  the grievant was similarly entitled to a notice stating the reasons for the suspension in sufficient detail to respond. The Union maintains that "[t]he grievant was denied due process" when the charge of sleeping while on duty was changed to the more serious charge of "endangerment to personnel or property." Id. at 5-6.

B.     Agency's Opposition

      The Agency contends that the award is not based on a nonfact. The Agency asserts that there was evidence to support a finding that the grievant worked in a position where personnel or property could be endangered. In this regard, the Agency notes that the grievant's position description was entered into evidence and states that the incumbent is responsible for efficient and competent use of a forklift truck and power saw and for assisting the unloading of trailer trucks. Also in this regard, the Agency argues that there was substantial testimony concerning safety issues and the use of forklifts and power tools. The Agency also contends that the grievant was not denied due process, as the notice of proposed suspension sufficiently specified the charge against the grievant.

IV.      Analysis and Conclusions

A.      The Arbitrator did not exceed her authority.

      Arbitrators exceed their authority when, as relevant here, they resolve an issue not submitted to arbitration. E.g., AFGE Local 3495, 60 FLRA 509, 511 (2004). When a stipulated issue involves whether a suspension is for just cause, arbitrators do not exceed their authority when they find that discipline was warranted and that the penalty assessed was reasonable. E.g., 60 FLRA at 511-12. In addition, arbitrators do not fail to confine themselves to stipulated issues when they consider matters directly relevant to the resolution of those issues. E.g., Fed. Deposit Ins. Corp., Chicago Region, 45 FLRA 437, 447 (1992) (FDIC).

      The stipulated issues submitted to the Arbitrator questioned whether the 3-day suspension of the grievant was for such cause as to promote the efficiency of the service and what the remedy should be if it was not. As her award, the Arbitrator held that the 3-day suspension was for such cause as to promote the efficiency of the service. In so holding, the Arbitrator resolved precisely the issues stipulated by the parties. Consequently, no basis is provided for finding that the Arbitrator exceeded her authority. See AFGE Local 3495, 60 FLRA at 511-12. Further, the issue of safety or endangerment was directly relevant to the Arbitrator's assessment of the appropriateness of the penalty, and the Union has not demonstrated that by considering the issue, the Arbitrator failed to confine herself to the stipulated issues. See id.; see also FDIC, 45 FLRA at 447.

      Accordingly, we deny this exception.

B.      The award is not based on a nonfact.

      To establish that an award is based on a nonfact, the appealing party must establish that the central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. E.g., United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993). The Authority will not find the award deficient on the basis of the arbitrator's determination on any factual matter the parties disputed at arbitration. Id. at 594.

      The Union asserts that the Arbitrator erred by finding that the grievant used tools and forklifts and worked in a position where personnel or property could be endangered. However, the parties clearly disputed these matters before the Arbitrator. Consequently, the Union's disagreement with the Arbitrator's determinations provide no basis for finding that the award is deficient as based on a nonfact. E.g., United States Dep't of the Treasury, Internal Revenue Serv., Kansas City Field Compliance Serv., 60 FLRA 401, 402 (2004).

      Accordingly, we deny this exception.

C.      The grievant was not denied the process due under 5 U.S.C. § 7503, 5 C.F.R. part 752, subpart A, or the Agency's personnel manual.

      The Union contends that the grievant was denied the process due under 5 U.S.C. § 7503, 5 C.F.R. § 752.203, and the Agency's personnel manual. This contention challenges the award as contrary to law. When an exception involves the award's consistency [ v62 p492 ] with law, the Authority reviews any question of law raised by the exception and the award de novo. E.g., NTEU Chapter 24, 50 FLRA 330, 332 (1995). In applying the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. E.g., NFFE Local 1437, 53 FLRA 1703, 1710 (1998).

      As noted, § 7503(b) and § 752.203(a) require advance written notice stating the specific reasons for the proposed suspension. The Authority has uniformly held that § 7503 provides for a process of pre-decisional proceedings no more formal or extensive than oral or written notice of the charges, an explanation of the employing agency's evidence, and an opportunity for employees to tell their side of the story. E.g., United States Dep't of Homeland Sec., United States Customs and Border Protection, United States Border Patrol, El Paso, Tex., 61 FLRA 4, 6 (2005) (Border Patrol). In addition, the Authority has specifically held that the process due under § 752.203 is the same process due under § 7503. Border Patrol, 61 FLRA at 6; NTEU Chapter 45, 52 FLRA 1458, 1465 (1997).

      The Agency provided the grievant with written notice of the proposed suspension, which informed the grievant that he was charged with sleeping while on duty and described the events forming the basis of the charge. In addition, the Agency provided the grievant with a copy of notes relied on in proposing the suspension. The Agency afforded the grievant an opportunity to respond to the charge against him, and he did respond. As such, we conclude that the grievant's due process rights under § 7503 and § 752.303 were satisfied. See Border Patrol, 61 FLRA at 6; AFGE Local 3495, 60 FLRA at 510-11.

      Further, as quoted by the Union, the grievant was similarly entitled under the Agency's personnel manual to a notice "stat[ing] the specific reasons for the suspension in sufficient detail to allow the employee to respond." Exceptions at 5 (quoting Federal Aviation Personnel Manual 2635). The Union does not argue, and there is no basis presented on which to find, that the process due under the manual is any more extensive than the process due under § 7503 and § 752.203. Consequently, we conclude that the grievant's due process rights under the manual were also satisfied.

      In reaching these conclusions, we note that although the Agency and the Arbitrator considered endangerment of personnel or property in assessing the appropriateness of the penalty, the Agency did not charge the grievant with endangerment to personnel or property, and the Arbitrator did not sustain a charge of endangerment to personnel or property. Instead, the charged misconduct never changed from what was contained in the proposed suspension, specifically, sleeping while on duty. Consequently, the Union's argument to the contrary is unfounded.

      For the foregoing reasons, we conclude that the Union has failed to establish that the grievant was denied due process, and we deny this exception.

V.      Decision

      The Union's exceptions are denied.

Footnote # 1 for 62 FLRA No. 89 - Authority's Decision

   In Douglas v. Veterans Admin., the Merit Systems Protection Board set forth factors to be considered in determining the appropriate penalty. E.g., United States Dep't of the Army, III Corps and Fort Hood, Fort Hood, Tex., 46 FLRA 609, 613 (1992).

Footnote # 2 for 62 FLRA No. 89 - Authority's Decision

   5 U.S.C. § 7503(b) pertinently provides: "An employee against whom a suspension for 14 days or less is proposed is entitled to . . . an advance written notice stating the specific reasons for the proposed action[.]" 5 C.F.R. § 752.203(a) provides: "An employee under this subpart whose suspension is proposed under this subpart is entitled to the procedures provided in 5 U.S.C. [§] 7503(b)."

Footnote # 3 for 62 FLRA No. 89 - Authority's Decision

   Federal Aviation Personnel Manual 2635 provides that employees are entitled to advance written notice and that "the notice must state the specific reasons for the suspension in sufficient detail to allow the employee to respond." Exceptions, Attach. 4 (ch. 405(a)(1)).