22:0195(19)AR - AFGE Local 1760 and SSA, Northeastern Program Service Center -- 1986 FLRAdec AR



[ v22 p195 ]
22:0195(19)AR
The decision of the Authority follows:


 22 FLRA No. 19
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 1760
 Union
 
 and
 
 SOCIAL SECURITY ADMINISTRATION, 
 NORTHEASTERN PROGRAM SERVICE CENTER
 Activity
 
                                            Case No. 0-AR-933
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Howard M. Golob filed by the Agency under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    The parties submitted to arbitration the issue of whether the
 suspension of the grievant for 10 workdays was for just cause.  The
 arbitrator determined that the activity failed to comply with a specific
 requirement of the parties' collective bargaining agreement by failing
 to place all records relied on for the suspension in the grievant's
 personnel file.  For that reason he determined that the suspension was
 not for just cause.  The arbitrator directed the suspension be rescinded
 and the grievant be reimbursed for all losses caused by the suspension.
 
                           III.  FIRST EXCEPTION
 
    A.  Contentions
 
    In its first exception the Agency contends that the award is contrary
 to 5 U.S.C. section 7503(a).  /1/ Specifically, the Agency argues that
 the award is deficient because the arbitrator failed to make the
 finding, alleged by the Agency to be required by section 7503, that the
 violation of the agreement constituted "harmful error" and because the
 arbitrator applied a standard of "just cause" rather than the statutory
 standard of section 7503(a) of "such cause as will promote the
 efficiency of the service."
 
    B.  Analysis and Conclusions
 
    The Authority concludes that this exception provides no basis for
 finding the award deficient under the Statute.  Contrary to the argument
 of the Agency, the harmful-error rule as it pertains to disciplinary
 actions applies only to the more serious adverse actions enumerated in
 section 7512 /2/ that are taken under section 7513;  the rule does not
 apply to the actions enumerated in section 7502 that are taken under
 section 7503.  See 5 U.S.C. sections 7701(a), (c)(2)(A), 7121(e)(2);
 National Treasury Employees Union and Internal Revenue Service, 17 FLRA
 1058 (1985).  Thus, the arbitrator was not required by section 7503(a)
 to find that the violation of the parties' agreement by the Activity
 constituted harmful error, and his failure to do so accordingly provides
 no basis for finding the award contrary to law as alleged by the Agency.
 
    We turn next to the Agency's contention that the award is contrary to
 section 7503(a) because the arbitrator applied a standard of "just
 cause" rather than the statutory standard of "such cause as will promote
 the efficienicy of the service" in reaching his decision on this
 grievance.  At the outset it should be noted that section 7503(a) and
 section 7513 prescribe that a disciplinary or adverse action may be
 taken "only for such cause as will promote the efficiency of the
 service." Further, an implementing regulation provides that an agency
 may only suspend an employee for such cause as will promote the
 efficiency of the service.  5 C.F.R. section 752.202(a) (1985).  The
 parties in this case had negotiated a provision in their collective
 bargaining agreement that provided:
 
          Article 23
 
          Disciplinary and Adverse Actions Section 1 - Statement of
       Purpose and Policy
 
          The parties agree that the objective of discipline is to
       correct and improve employee behavior so as to promote the
       efficiency of the service.  The parties agree to the concept of
       progressive discipline designed primarily to correct and improve
       employees.  Bargaining unit employees will be subject of
       disciplinary or adverse action only for just cause.
 
    Moreover, the arbitrator stated that the "parties agree that the
 following questions, as proposed by the (arbitrator) are to be answered:
 
          Was the suspension of John Murphy on June 4 through June 15,
       1984 for just cause?  If not, what shall the remedy be?
 
    The question for our determination is whether the arbitrator's
 application of the negotiated standard of "just cause" in the
 circumstances of this case was contrary to the statutory and regulatory
 requirement that an agency may only suspend an employee for such cause
 as will promote the efficiency of the service.
 
    The Agency argues that because the arbitrator applied the "just
 cause" standard to which the Agency had previously agreed, both in its
 collective bargaining agreement and in the issue submitted to
 arbitration, the award is fatally flawed and must be set aside.  The
 Agency contends that the award is so flawed because the arbitrator may
 not set aside the suspension absent a specific finding that it "did not
 promote the efficiency of the service."
 
    We reject this argument.  When the parties agreed to Article 23,
 Section 1, they incorporated the language of the statutory standard into
 their agreement.  The phrase "just cause" which also appears in that
 same provision, and as interpreted and applied by the arbitrator herein,
 constituted the parties' capsulation of that statutory standard.  Thus,
 the Authority concludes that when the arbitrator expressly found a
 violation of a mandatory procedural requirement of the parties'
 collective bargaining agreement the Activity in arriving at its decision
 to suspend the grievant, and as a result, rescinded the suspension as
 not for just cause, this effectively constituted an affirmative finding
 by the arbitrator that the grievant's suspension was not for such cause
 as will promote the efficiency of the service.
 
                           IV.  SECOND EXCEPTION
 
    A.  Contentions
 
    In its second exception the Agency contends that the award of backpay
 to the grievant is contrary to the Back Pay Act, 5 U.S.C. section 5596.
 Specifically, the Agency argues that there is no clear and unambiguous
 finding by the arbitrator that the unjustified or unwarranted personnel
 action by the Activity of violating the provision of the collective
 bargaining agreement relating to records in the grievant's personnel
 file directly resulted in the grievant's loss of pay, allowances, or
 differentials.  Thus, the Agency argues that the backpay is not
 authorized because it is not established, as required by the Back Pay
 Act, that but for the violation of the agreement, the grievant would not
 have been suspended.
 
    B.  Analysis and Conclusions
 
    The Authority concludes that this exception fails to establish that
 the award is deficient, as alleged.  With respect to the Back Pay Act,
 the Authority has uniformly stated that in order for an award of backpay
 to be authorized by the Act, the arbitrator must find that an agency
 personnel action with respect to the grievant was unjustified or
 unwarranted, that such unjustified or unwarranted personnel action
 directly resulted in the withdrawal or reduction of the grievant's pay,
 allowances, or differentials, and that but for such action, the grievant
 otherwise would not have suffered such withdrawal or reduction of pay,
 allowances, or differentials.  E.g., U.S. Army Aberdeen Proving Ground
 and Local 2424, International Association of Machinists and Aerospace
 Workers, AFL-CIO, 19 FLRA No. 35 (1985).  However, because the Agency
 has misapprehended the personnel action in dispute, no basis is provided
 for finding the award contrary to the Back Pay Act.  The issue submitted
 to arbitration was whether the suspension of the grievant was for just
 cause as required by the parties' collective bargaining agreement.  As
 his award, the arbitrator expressly determined that the suspension was
 not for just cause, expressly ordered the suspension rescinded, and
 expressly directed that the grievant be reimbursed for all losses caused
 by the suspension.  Thus, the personnel action in dispute as pertaining
 to the arbitrator's award of backpay was the Activity's suspension of
 the grievant for 10 workdays.  With the arbitrator expressly determining
 that the suspension was not for just cause as required by the agreement,
 the personnel action of the grievant's suspension was rendered an
 unjustified or unwarranted personnel action within the meaning of the
 Back Pay Act.  See Robinson v. Department of the Army, MSPB Docket No.
 SF07528310135 (June 12, 1984).  With the arbitrator directing that the
 grievant be reimbursed for all losses caused by the unwarranted
 suspension, this effectively constitutes the finding, required by the
 Back Pay Act and the decisions of the Authority, that but for the
 unwarranted suspension, the grievant would not have suffered a
 withdrawal or reduction of his pay allowances, or differentials.
 National Labor Relations Board Union, Local 19 and Office of the General
 Counsel, National Labor Relations Board, 7 FLRA 21, 26 (1981).
 
                               V.  DECISION
 
    Accordingly, for these reasons, the Agency's exceptions are denied.
 
    Issued, Washington, D.C., June 18, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member