32:0765(111)AR - - SSA and AFGE Local 1923 - - 1988 FLRAdec AR - - v32 p765



[ v32 p765 ]
32:0765(111)AR
The decision of the Authority follows:


32 FLRA No. 111

UNITED STATES OF AMERICA
BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.

 

SOCIAL SECURITY ADMINISTRATION
Agency

and 

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 1923
Union

Case No. O-AR-1487

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Donald W. Jarrell. The Arbitrator sustained, in part, the grievance over the 14-day suspension of the grievant and directed that the suspension be reduced to 7 days.

The Agency and the grievant filed exceptions 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 Union filed an opposition to the Agency's exception.

We conclude that the grievant is not entitled to file exceptions to the Arbitrator's award. Accordingly, we dismiss the grievant's exceptions.

We conclude that the Agency has failed to establish that the award is contrary to law or public policy or that the Arbitrator erred by finding disparate treatment and mitigating the penalty on that basis. Accordingly, we deny the Agency's exceptions.

II. Background and Arbitrator's Award

The Agency suspended the grievant for 14 days for fighting with another employee. The same penalty was proposed for the other employee. The grievant filed a grievance claiming that the suspension violated provisions of the parties' collective bargaining agreement, including the provision that suspensions must be for such cause as will promote the efficiency of the service. By mutual agreement of the Union and the Agency, the other employee's suspension was reduced to 7 days. The grievant's grievance was not settled and was submitted to arbitration on the issue of whether the grievant was "appropriately placed on suspension" for 14 days. Arbitrator's Award at 1.

The Arbitrator concluded that the grievant's conduct warranted disciplinary action. However, he determined that "fair and equitable discipline requires that employees similarly situated receive similar treatment." Award at 3. He found no basis for the Agency to suspend the grievant for 14 days while suspending the other employee for only 7 days. Accordingly, the Arbitrator sustained the grievance in part and directed that the grievant's suspension be reduced to 7 days.

III. Grievant's Exceptions

A. Contentions

The grievant contends that the award violates law, the intent of Congress, and public policy.

B. Analysis and Conclusions

We conclude that the grievant is not entitled to file exceptions to the Arbitrator's award.

Under section 7122 of the Statute and section 2425.1 of our Rules, either party to an arbitration may file exceptions with the Authority to the arbitrator's award. Section 2421.11 of our Rules defines the term "party" to include "any person who participated as a party . . . in a matter where the award of an arbitrator was issued[.]"

In this case, the Social Security Administration and the American Federation of Government Employees, Local 1923 participated as parties in the matter before the Arbitrator. The Arbitrator noted that the grievant appeared for the Union as a "technical advisor." Award at 1. There is no indication in the record that the grievant participated as a "party" in the matter before the Arbitrator. Consequently, the grievant is not entitled to file exceptions to the Arbitrator's award and the grievant's exceptions will be dismissed. For example, American Federation of Government Employees, Local 1960 and Department of the Navy Development Center, 29 FLRA 680 (1987).

IV. Agency's First Exception

A. Positions of the Parties

The Agency contends that the award is contrary to law and public policy. The Agency states that section 7101 sets forth the finding of Congress that collective bargaining "facilitates and encourages the amicable settlements of disputes between employees and their employers involving conditions of employment{.}" The Agency asserts that courts have consistently held that law and public policy favor settlements. The Agency maintains that as part of this policy, "evidence of offers to settle and the terms of a settlement are inadmissible to demonstrate liability on the part of the party making an offer." Agency's Exceptions at 4. The Agency claims that this exclusion further applies to settlement discussions involving third parties. The Agency argues that to allow evidence of settlements to be introduced in arbitration proceedings will have a "chilling effect on future settlements." Agency's Exceptions at 5. The Agency argues that the award is deficient because the Arbitrator should not have admitted the settlement into evidence and should not have reduced the grievant's suspension to 7 days based on that evidence.

The Union contends that the Arbitrator's consideration of the settlement does not conflict with section 7101 of the Statute or with case law.

B. Analysis and Conclusions

We conclude that the Agency fails to establish that the award is contrary to law or public policy.

Under section 7122(a)(2) of the Statute, we will find an arbitration award deficient on grounds similar to those applied by Federal courts in private sector labor relations cases. In the private sector, courts will find an arbitration award deficient when the award is contrary to public policy. However, this ground is "extremely narrow." U.S. Postal Service v. National Association of Letter Carriers, 810 F.2d 1239, 1241 (D.C. Cir. 1987), cert. dismissed, 108 S. Ct. 1589 (1988) (NALC). In order to find the award deficient, the public policy in question must be "explicit," "well defined, and dominant." W.R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 766 (1983) (W.R. Grace). In addition, the policy is to be ascertained "by reference to the laws and legal precedents and not from general considerations of supposed public interests." Id.; accord United Paperworkers v. Misco, Inc., 108 S. Ct. 364, 373 (1987) (Misco). The violation of such a public policy "must be clearly shown" if an award is to be found deficient. Misco, 108 S. Ct. at 373-74.

We conclude that the award in this case is not inconsistent with public policy. The Agency has not demonstrated that the admission in grievance arbitrations of evidence concerning settlements violates an "explicit" public policy based on "well defined" and "dominant" laws and legal precedents. Nothing in section 7101 or case law proscribes an arbitrator from admitting a settlement agreement concerning a similarly situated employee into evidence or mitigating discipline on the basis of that settlement. Both the Authority and the Federal courts have rejected claims that the admission of evidence by an arbitrator resulted in a denial of a fair hearing and have recognized that (1) the rules of evidence do not apply in arbitration and (2) the liberal admission of testimony and evidence is the policy and practice in arbitration. National Border Patrol Council and National Immigration and Naturalization Service Council and United States Department of Justice, Immigration and Naturalization Service, 3 FLRA 401, 404 (1980) (citing Harvey Aluminum v. Steelworkers, 236 F. Supp. 488 (C.D. Calif. 1967)). Instead, the Agency's exception is based on "general considerations of supposed public interests." W.R. Grace, 461 U.S. at 766. Such an exception provides no basis for finding an award deficient under the Statute. See Misco; W.R. Grace; NALC.

V. Agency's Second Exception

A. Positions of the Parties

The Agency contends that the Arbitrator erred by finding disparate treatment of the grievant. Alternatively, the Agency contends that the Arbitrator erred by mitigating the penalty solely on the basis of disparate treatment.

The Agency maintains that the U.S. Court of Appeals for the Federal Circuit has recognized that an agency has broad discretion to settle some--but not all--cases involving similarly situated employees. Bergh v. Department of Transportation, 794 F.2d 1575 (Fed. Cir. 1986). The Agency also maintains that in order to establish disparate treatment under case law of the Federal Circuit and the Merit Systems Protection Board, the employee must show that the disparate treatment occurred in the employee's own work module. The Agency states that at the time of the proposed suspensions, the employees did not work in the same module and did not work for the same supervisors. Therefore, the Agency contends that the award is deficient because the Arbitrator erred by considering the other employee to be similarly situated. Finally, the Agency argues that an agency is required to consider a variety of factors in determining the appropriate penalty in a disciplinary case. The Agency maintains that consequently the MSPB has held that it is "inappropriate . . . to rely too much on . . . disparate treatment" when reviewing the appropriateness of the penalty assessed by the agency in a disciplinary action. Agency's Exceptions at 9.

The Union contends that the case law cited by the Agency does not apply because in cases of suspensions for 14 days or less, an arbitrator is not bound by the standards of law applied by the MSPB and the Federal Circuit. Therefore, the Union asserts that the Arbitrator was not prohibited from mitigating the grievant's suspension to 7 days solely on the basis of the penalty imposed on the other employee. The Union also notes that at the time of the altercation in this case, both the grievant and the other employee were employed in the same unit. They were assigned to different units after the altercation.

B. Analysis and Conclusions

We conclude that the Agency has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute. Specifically, the Agency has failed to establish that the award is contrary to any law, rule, or regulation or that the award is deficient on any other ground similar to those applied by Federal courts in private sector labor relations cases.

In National Treasury Employees Union and U.S.Customs Service, Northeast Region, 28 FLRA 280 (1987), the Activity contended that by not sustaining a 5-day suspension imposed on the grievant, the arbitration award was contrary to MSPB and court decisions which limit the circumstances in which the agency's penalty can be vacated or reduced. We concluded that the exception provided no basis for finding the arbitration award to be deficient. We stated that under the Statute, an arbitrator may properly determine that all or part of a disciplinary penalty was not for such cause as required by the parties' collective bargaining agreement and the arbitrator may set aside or reduce the penalty.

In this case, the Agency also contends that by reducing the discipline imposed on the grievant, the Arbitrator's award is contrary to MSPB and court decisions which limit the circumstances in which the agency's penalty can be reduced. We again confirm that in a case involving a suspension for 14 days or less, an arbitrator may properly determine that all or part of the disciplinary penalty was not for such cause as required by the parties' collective bargaining agreement and the arbitrator may set aside or reduce the penalty. Therefore, the Agency's reliance on Bergh v. Department of Transportation is misplaced. In that case, the court held that the agency did not act improperly in settling some--but not all--removal cases involving air traffic controllers. Nothing in that decision suggests that the Arbitrator in this case could not mitigate the 14-day suspension imposed on the grievant. Therefore, the Agency's exception provides no basis for finding the award deficient.

VI. <