34:0670(115)AR - - SSA and AFGE Local 1336 - - 1990 FLRAdec AR - - v34 p670



[ v34 p670 ]
34:0670(115)AR
The decision of the Authority follows:


34 FLRA No. 115

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

SOCIAL SECURITY ADMINISTRATION

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1336

0-AR-1675

DECISION

January 31, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the revised award of Arbitrator Alvin N. Zachrich.  

In his original award, the Arbitrator sustained the grievance. Based on his determinations that the parties' agreement required the Social Security Administration (the Agency) to apply each step of a progressive discipline sequence and that the Agency did not follow that sequence, the Arbitrator found that the grievant's suspension was not for just cause.

The Agency filed exceptions to the award with the Authority. In Social Security Administration and American Federation of Government Employees, Local 1336, 32 FLRA 712 (1988) (Social Security Administration), the Authority concluded that the award interfered with management's right to discipline employees and remanded the award to the parties. The Authority directed the parties to resubmit the award to the Arbitrator and request that he clarify and interpret his award to determine whether the Agency had just cause, apart from the failure to apply progressive discipline, to suspend the grievant.

On resubmission, the Arbitrator found that, apart from the failure to apply progressive discipline, the 5-day suspension of the grievant was not for just cause. The Arbitrator reduced the suspension to a reprimand. The Arbitrator directed that the reprimand warn the grievant "that his continued poor attendance will not be tolerated by the Agency and any further violation as to attendance will result in a 5 day suspension." Revised Award at 3 (emphasis added).

The Agency filed exceptions to the underscored portion of the Arbitrator's revised award 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 American Federation of Government Employees, Local 1336 (the Union) filed a response to the Agency's exceptions.

For the reasons discussed below, we conclude that the portion of the Arbitrator's revised award to which the Agency excepts conflicts with management's right, under section 7106(a)(2)(A) of the Statute, to discipline employees. Accordingly, the Arbitrator's revised award will be modified to delete that portion which requires the Agency to impose a 5-day suspension on the grievant for any further attendance violations and replace it with a provision stating that further attendance violations may result in a 5-day suspension.

II. Background and Arbitrator's Revised Award

In December 1987, Arbitrator Zachrich issued his original award in this case. The Arbitrator determined that the 5-day suspension of the grievant was not for just cause and sustained the grievance. The Arbitrator based his award on his finding that the parties' agreement required the Agency to apply each step of a progressive discipline sequence and that the Agency failed to comply with that sequence.

The Authority determined that the award was deficient because the Arbitrator's construction of the progressive discipline provisions of the parties' agreement violated the Agency's right to discipline under section 7106(a)(2)(A) of the Statute. Social Security Administration at 715-16. The Authority was unable to determine from the record whether the Arbitrator, apart from his construction of the progressive discipline article, would have found that the Agency had just cause to suspend the grievant for 5 days. Therefore, the Authority remanded the award to the parties and directed the parties to resubmit the award to the Arbitrator with the request that he clarify and interpret his award to determine whether the Agency had just cause to suspend the grievant. Id. at 716.

The parties resubmitted the award to the Arbitrator. In his Clarification and Interpretation Letter (the revised award) dated December 16, 1988, the Arbitrator stated the issue as follows:

In view of the Decision of the Federal Labor Relations Authority (7/22/88) that the Arbitrator's Award in the [grievant's] case (12/2/87) is deficient, did the Agency have just cause to suspend the grievant?

Revised Award at 1.

The Arbitrator concluded that the Agency did not have just cause to suspend the grievant because the Agency had not adequately warned the grievant that a suspension would result if his attendance did not improve. Id. at 2. The Arbitrator found that "[u]nder the facts in this dispute, the 5 day suspension is too severe and therefore without cause." Id. Accordingly, the Arbitrator made the following award:

The Agency did not have just cause, as required by the National Agreement to suspend [the grievant] for 5 days. The grievance is sustained. All references to the suspension shall be removed from the Agency records. [The grievant] shall be reimbursed all pay withheld as a result of the suspension and he shall be made whole.

In its stead, a written Reprimand will be issued as soon as practicable. The Reprimand will warn [the grievant] that his continued poor attendance will not be tolerated by the Agency and any further violation as to the attendance will result in a 5 day suspension.

Id. at 3.

III. Positions of the Parties

A. Agency's Exceptions

The Agency asserts that the portion of the award which provides that "any further violation as to attendance will result in a 5 day suspension" prescribes the "next phase of discipline to be imposed on the grievant." Agency's Exceptions at 2 (emphasis in original). The Agency contends that the award is deficient because it conflicts with management's right, under section 7106(a)(2)(A) of the Statute, to discipline employees. Id.

The Agency argues that by prescribing the discipline to be imposed on the grievant, the award: (1) places a substantive restriction on the Agency's discretion to impose the disciplinary actions it believes to be for just cause; and (2) "essentially establishe[s] a Table of Penalties" which restricts management's choice of the appropriate penalty to be imposed on an employee for misconduct. Id. at 3-4.

The Agency requests that the portion of the award which would require the Agency to impose a 5-day suspension on the grievant be vacated.

B. Union's Response to the Agency's Exceptions

The Union does not contest the Agency's argument that the award conflicts with section 7106(a)(2)(A) of the Statute. The Union requests that the Authority change the wording of the disputed portion of the award from:

'. . . any further violation as to attendance will result in a 5 day suspension.'

to:

'. . . any further violation as to attendance may result in a 5 day suspension.'

Union's Response at 2 (emphasis in original). The Union claims that "[t]his change would not only preserve the right of an arbitrator to set aside penalties for just cause, but correct the deficient portion of the Arbitrator's award that has caused the exception." Id.

IV. Discussion

Under section 7122(a) of the Statute, an award will be found deficient: (1) because it is contrary to any law, rule, or regulation; or (2) on other grounds similar to those applied by Federal courts in private sector labor relations cases. We find that the portion of the revised award at issue in this case is deficient because it is contrary to law. We will modify the award accordingly.

Restrictions on an agency's ability to choose the specific penalty to impose in disciplinary actions directly interfere with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. Such restrictions eliminate management's discretion to establish the penalty which it will choose for an offense. See, for example, National Association of Government Employees, Local R4-6 and Department of the Army, Fort Eustis, Virginia, 29 FLRA 966 (1987) (proposal requiring the agency to revoke driving permits for a period of not less than 3 years found nonnegotiable because it prevented the agency from choosing the minimum period which it would establish when revocation of a driving permit was warranted).

The disputed portion of the award in this case requires the Agency to impose a 5-day suspension on the grievant if further attendance problems occur. That portion of the award would deprive the Agency of its discretion to determine what penalty, if any, would be imposed if further attendance violations by the grievant warran