32:1223(162)AR - - AFGE Local 1915 and Wm. Jennings Bryan Dorn Veterans Hospital, Columbia, SC - - 1988 FLRAdec AR - - v32 p1223
[ v32 p1223 ]
The decision of the Authority follows:
32 FLRA No. 162
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1915
WM. JENNINGS BRYAN DORN VETERANS
HOSPITAL, COLUMBIA, S.C.
Case No. 0-AR-1550
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Eva C. Galambos. The Arbitrator found that the grievance over the 14-day suspension of the grievant was arbitrable. The Arbitrator also found insufficient evidence to support the suspension of the grievant. Accordingly, the Arbitrator ordered that the suspension be removed from the grievant's record and that the grievant be remunerated for the pay she missed during the term of her suspension.
The Veterans Administration (the Agency) filed exceptions on behalf of the Activity 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 did not file an opposition.
We conclude that the Agency has failed to establish that the award is deficient because (1) the Arbitrator's finding that the grievance was arbitrable is contrary to the terms of the collective bargaining agreement, and (2) the Arbitrator failed to make the requisite findings to sustain the award of backpay. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
The grievant, a nursing assistant, was charged with abusing a patient and was suspended for 14 days. Over 2 years later, the Union filed a grievance over the suspension on behalf of the grievant. The Union claimed at the time of filing the grievance that notice of the suspension had only recently come to its attention. The grievance was submitted to arbitration on the following issues:
(1) Was the grievance arbitrable under the terms of the parties' collective bargaining agreement governing the processing of grievances and arbitration?
(2) If the grievance is arbitrable, was the suspension for just cause and, if not, what is the proper remedy?
On the issue of arbitrability, the Arbitrator found that the history of the case was full of confusion, contradictions, and misunderstandings regarding the steps of the grievance process. She ruled as follows on the issue of whether the grievance was timely filed:
It has long been held by arbitrators that although the grievance process should be followed in a timely manner, it is not to be construed so technically as to deny the parties an opportunity to be heard on the merits of the issue to be arbitrated. In view of considerable evidence in this case about confusion and misunderstandings in the grievance process, a reasonable person must conclude that the merits of the case should not be closed by ruling against arbitrability.
Arbitrator's Award at 9.
On the issue of whether there was just cause for the suspension, the Arbitrator found insufficient evidence to support the suspension of the grievant. Accordingly, she ordered that the suspension of the grievant be removed from the grievant's record and that the grievant "be remunerated for the pay she missed during the term of her suspension." Arbitrator's Award at 14.
III. First Exception
The Agency contends that the award is deficient because the Arbitrator's finding that the grievance was arbitrable is contrary to the terms of the collective bargaining agreement. The Agency argues that the Arbitrator applied standards for determining timeliness which do not draw their essence from the collective bargaining agreement. The Agency maintains that nothing in the parties' agreement supports the Arbitrator's ruling that the grievance was arbitrable.
B. Analysis and Conclusions
We conclude that the Agency fails to establish that the award is deficient. The Agency's exception constitutes nothing more than disagreement with the Arbitrator's ruling on the procedural arbitrability issue of whether the grievance was timely filed. Therefore, the exception provides no basis for finding the award deficient. See, for example, Veterans Administration Medical Center, Birmingham, Alabama and American Federation of Government Employees, Local 2207, 32 FLRA 1078, 1080 (1988) (an exception which simply disagrees with the arbitrator's determination on the procedural arbitrability of the grievance provides no basis for finding the award deficient).
Our denial of exceptions which merely disagree with an arbitrator's determination on the procedural arbitrability of the grievance is consistent with the decisions of Federal courts in private sector labor relations cases. For example, John Wiley & Sons v. Livingston, 376 U.S. 543, 557 (1964) ("Once it is determined . . . that the parties are obligated to submit the subject matter of a dispute to arbitration, 'procedural' questions which grew out of the dispute and bear on its final disposition should be left to the arbitrator."); Teamsters Local 744 v. Metropolitan Distributors, 763 F.2d 300, 303 (7th Cir. 1985) (The effect of a party's failure to submit a grievance within the time limitations specified in the collective bargaining agreement is an issue for determination by the arbitrator.).
IV. Second Exception
The Agency contends that the award of backpay is contrary to the Back Pay Act, 5 U.S.C. º 5596 (the Act). The Agency argues that the Arbitrator failed to make the explicit findings necessary for an award of backpay.
B. Analysis and Conclusions
We conclude that the Agency fails to establish that the award of backpay is contrary to the Back Pay Act.
In order for an award of backpay to be authorized under the Act, an arbitrator must find that an agency personnel action 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 would not have suffered such withdrawal or reduction in pay, allowances, or differentials. The Arbitrator made the findings necessary for awarding the grievant backpay for the period of her suspension.
The issue before the Arbitrator was whether the grievant's suspension was for just cause. In resolving this issue, the Arbitrator determined that there was insufficient evidence to support the suspension. The Arbitrator ordered that the suspension be removed from the grievant's record and that the grievant "be remunerated for the pay she missed during the term of her suspension." Award at 14. The personnel action in dispute was the Activity's suspension of the grievant for 14 days. The Arbitrator's determination that the suspension was unsupported constitutes a finding that the grievant's suspension was an unjustified or unwarranted personnel action within the meaning of the Back Pay Act. See American Federation of Government Employees, Local 1760 and Social Security Administration, Northeastern Program Service Center, 22 FLRA 195, 199 (1986). The Arbitrator's order that the grievant be remunerated for the pay she lost during the term of her suspension constitutes the finding, required by the Back Pay Act and Authority decisions, that but for the unjustified suspension, the grievant would not have suffered a withdrawal or reduction of her pay. Id. Therefore, the Arbitrator made all the findings necessary for the award of backpay.
The Agency's exceptions are denied.
Issued, Washington, D.C.,
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
(If blank, the decision does not have footnotes.)