35:0160(19)AR - - SSA and AFGE Local 1923 - - 1990 FLRAdec AR - - v35 p160



[ v35 p160 ]
35:0160(19)AR
The decision of the Authority follows:


35 FLRA No. 19

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

SOCIAL SECURITY ADMINISTRATION

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1923

(Union)

0-AR-1669

DECISION

March 20, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator Richard I. Bloch. The issue before the Arbitrator was whether the grievant's 14-day suspension was for just cause. The Arbitrator concluded that there was just cause for discipline; however, he reduced the suspension to 3 days.

The Union filed an exception to the 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 Agency filed an opposition to the exception.

We conclude that the Union has not established that the Arbitrator's award is deficient under section 7122 of the Statute. Accordingly, we deny the Union's exception.

II. Background and Arbitrator's Award

On June 18, 1987, the grievant's supervisor directed the grievant to meet with her in a conference room to discuss the grievant's more than 3-hour absence on the previous day. The grievant responded that she wanted a Union representative present at the meeting. The supervisor repeated her order to report to the conference room and then left. The grievant failed to meet the supervisor in the conference room.

On June 23, 1987, the grievant was absent from her workstation for over 1 hour. When she returned, the grievant's supervisor instructed the grievant to meet in the conference room. The grievant responded that she wanted a Union representative present at the meeting. The supervisor repeated her order to meet in the conference room. The grievant did not report to the conference room.

The grievant received a 14-day suspension in July 1987 for failing to follow supervisory orders on June 18 and June 23 to report to the conference room. The Union filed a grievance over the suspension. The grievance was submitted to arbitration on the following issue:

Was the 14-day suspension of [the grievant] for just cause so as to contribute to the efficiency of this service?

Award at 2.

The Arbitrator stated that "[i]nsubordination--the refusal to follow a work-related order--is serious misconduct." Award at 4. According to the Arbitrator, the grievant reasonably believed that the supervisor's orders to report to the conference room could result in discipline. The Arbitrator noted that "[a]rguably, she was AWOL on the 17th and the 23rd." Id. at 5. The Arbitrator also found that the grievant had been disciplined in the past "for similar activity and could reasonably have expected more discipline for a repeated incident." Id. The Arbitrator concluded that "it was appropriate, under these circumstances, for [the grievant] to request Union representation." Id.

The Arbitrator first analyzed the circumstances of the June 23 incident and determined that it could not form the basis for discipline. The Arbitrator found that the incident was the result of a lack of communication between the grievant and her supervisor and did not constitute insubordination.

As to the June 18 incident, the Arbitrator found that the supervisor clearly ordered the grievant to report to the conference room and that the grievant "responded that she wished Union representation and then, significantly, the grievant left to speak to the Union." Id. at 6. The Arbitrator noted that, at the arbitration hearing, the grievant did "acknowledge that she spent over an hour with the Union representative and never reported back to the conference room." Id. The Arbitrator found that the grievant had an opportunity to secure Union representation and that the grievant's failure to return to the conference room on June 18 "constituted a willful refusal to obey the order." Id. The Arbitrator concluded that the grievant's insubordination on June 18 was sufficient cause for discipline. Id.

The Arbitrator noted that the grievant's 14-day suspension "was premised, in part, on the existence of a prior reprimand, issued in October of 1986 which, by agreement, had been removed from the grievant's personnel file well before the incident in question." Id. The Arbitrator found that disciplinary actions which are removed from an employee's personnel file may not be considered because consideration of those actions would be "contrary to any concept of due process and basic fairness." Id. at 7 (footnote omitted).

The Arbitrator concluded that "the 14-day suspension was overly severe, premised as it was on one incident, June 23rd, that is not properly characterized as insubordination, and another incident that no longer existed in the personnel file." Id. Therefore, the Arbitrator reduced the suspension to 3 days. Id. In addition, the Arbitrator found that there was "no evidence whatsoever of discriminatory activities inherent in the instant case." Id. The Arbitrator stated that the actions occurred in the context of "long and admittedly unexplained absences by the grievant, coupled with her refusal to obey a supervisory order." Id.

III.Union's Exception

The Union argues that the award is contrary to 5 U.S.C. § 2302; sections 7114(a)(2)(B) and 7116(a)(1), (2), and (8) of the Statute; 5 C.F.R. §§ 752.202(b) and 752.203(e); and Title VII of the Civil Rights Act of 1964.

The Union argues first that the Arbitrator's award is "contrary to law and regulations because the suspension was based on an unfair labor practice." Exception at 6. The Union asserts that 5 C.F.R. § 752.202(b) provides that an agency may not suspend an employee on the basis of any reason prohibited by 5 U.S.C. § 2302. The Union asserts further that it is a prohibited personnel practice under 5 U.S.C. § 2302 to take a personnel action on the basis of an activity by an employee which is protected by law. According to the Union, the Arbitrator made findings of fact which establish that the Agency violated the grievant's right to representation under section 7114(a)(2)(B) of the Statute.

The Union also claims that the disciplinary action was based, in part, on the incident which occurred on June 23. The Union asserts that the Agency had the burden "to show by a preponderance of the evidence that it would have taken disciplinary action solely on the basis of the incident of June 18." Id. at 11. The Union argues that "[t]he Arbitrator's decision to sustain disciplinary action absent such a showing by the Agency was contrary to law." Id.

Citing 5 C.F.R. § 752.203(e), the Union also asserts that "[t]he Arbitrator's decision that the grievant's failure to return from the Union office with a representative on June 18 constituted grounds for discipline is not consistent with the law." Id. at 9. The Union argues that under 5 C.F.R. § 752.203(e), an agency must base its decision to suspend an employee only on the reasons specified in the proposal to suspend. The Union argues that "[t]he grievant was suspended because she did not report to the conference room before she left for the Union office." Id. at 10 (emphasis in original). According to the Union, the grievant's failure to obtain a representative was not mentioned in any of the official documents relating to the suspension action.

The Union contends further that the Arbitrator's finding that the suspension did not constitute retaliation for the grievant's initiation of a discrimination complaint was not consistent with law. The Union argues that the Arbitrator failed to adhere to the Federal courts' interpretation of Title VII of the Civil Rights Act of 1964.

According to the Union, the grievant's supervisor, the Module Manager, and the Branch Manager were aware that the grievant had filed a formal discrimination complaint naming them as discriminating officials. The Union asserts that on June 17, 1987, the grievant met with an Equal Employment Opportunity counselor to initiate another complaint. The Union claims that "[t]he supervisor received a note from the grievant . . . on that date advising her of the meeting. On the following day, the supervisor denied the grievant's request for representation and issued the first of two memorandums which led to the grievant's suspension." Id. at 13. According to the Union, the "timing of the managers' actions establishes a prima facie case of retaliation." Id.

The Union argues that "[s]ince the Union presented evidence sufficient to establish a prima facie case, the Arbitrator should have determined if the Agency had articulated a nondiscriminatory reason for the managers' actions." Id. The Union contends that if the Arbitrator properly had weighed the evidence of pretext, he "should have concluded that the denial of representation and the suspension which followed were acts of retaliation." Id.

IV.Agency's Opposition

The Agency asserts that the Union's exception presents the same arguments that were raised before the Arbitrator. The Agency argues that the Arbitrator's award is not contrary to law or regulation and that the grievant's suspension was not based on an unfair labor practice. According to the Agency, the issue of whether the grievant was able to obtain representation had nothing to do with the grievant's suspension. The Agency claims that the grievant never testified that her supervisor denied her the opportunity to obtain representation or that the meeting was held without representation.

The Agency also asserts that the Arbitrator's conclusion that the suspension was not the result of retaliation for filing discrimination complaints is consistent with law. The Agency notes the Arbitrator's finding that "'there is no evidence whatsoever of discriminat[ory] [treatment] inherent in the instant case,'" and asserts that unless the Union establishes a prima facie case of discrimination, "the Agency has no burden of going forward." Opposition at 12. Finally, the Agency argues that even if the grievant established a prima facie case of discrimination, the Agency "clearly articulated and proved a legitimate non-discriminatory reason for disciplining the grievant." Id. at 13.

V.Analysis

For the reasons discussed below, we conclude that the Union has not established that the Arbitrator's award is deficient under section 7122 of the Statute.

First, we reject the Union's assertion that the Arbitrator relied on the June 23 incident in finding that the Agency had just cause to discipline the grievant. The Arbitrator found that the grievant's actions on that date did not constitute insubordination and could not support the suspension. Award at 5, 7. The record establishes that the Arbitrator relied solely on the events of June 18 in concluding that a 3-day suspension was appropriate.

In addition, we note the Union's assertion that the Arbitrator "chose not to consider the issue of the unfair labor practice raised by the Union in its post-hearing brief[.]" Exception at 7. In our view, the Arbitrator was not required to determine whether the Agency had committed an unfair labor practice. It is clear from the award that the Arbitrator considered the Union's arguments that the grievant was entitled to Union representation during the meetings on June 18 and 23, and that her refusal to attend the meetings without representation did not constitute insubordination. The issue before the Arbitrator, however, was whether there was just cause for the suspension of the grievant. Nothing in the record before us shows that the Union sought to grieve the Agency's allegedly unlawful denial of the grievant's request for Union representation. Accordingly, there is no basis on which to conclude that the Arbitrator improperly failed to address this issue.

Moreover, as to the events on June 18, the Arbitrator concluded that the grievant had an opportunity to obtain Union representation. The Arbitrator found as follows:

At the arbitration hearing, the grievant could recall nothing about her conversations with the Union on that day, but she does acknowledge that she spent over an hour with the Union representative and never reported back to the conference room. In this case, even assuming some mis-communication originally, [the grievant] had the opportunity to secure representation. The failure to return constituted a willful refusal to obey the order. Under those circumstances, it was the grievant's obligation to do so reasonably quickly and then to comply with the order to report. Her actions constituted grounds for discipline.

Id. at 6 (emphasis in original).

In view of the Arbitrator's finding that the grievant had an opportunity to obtain Union representation, we conclude that the Union's assertions to the contrary, as well as its argument that the Agency committed an unfair labor practice by denying the grievant Union representation, constitute mere disagreement with the Arbitrator's evaluation of the evidence and an attempt to relitigate the merits of this case before the Authority. This disagreement provides no basis on which to find the Arbitrator's award deficient under the Statute. See, for example, Food and Drug Administration, Region II and American Federation of Government Employees, Council 242, 33 FLRA 622 (1988). The Union's claims that the award is deficient because it violates 5 U.S.C. § 2302 and 5 C.F.R. §§ 752.202(b) are based on its claim that the Agency committed an unfair labor practice by denying the grievant Union representation. As we have rejected the Union's previous claim, we reject these claims also.

We reject also the Union's argument that the award is deficient under 5 C.F.R. § 752.203(e) because it upheld discipline on a basis which was not specified in the Agency's notice of proposed suspension. This argument is premised on the Union's assertion that the Arbitrator found "that the grievant's failure to return from the Union office with a representative on June 18 constituted grounds for discipline[.]" Exception at 9. As quoted above, the Arbitrator found that the grievant's "failure to return" to the conference room constituted grounds for discipline. Nothing in the award suggests that the Arbitrator found that the grievant's failure to return with a Union representative supported the suspension.

Finally, we find that the Union has not established that the award is contrary to Title VII of the Civil Rights Act of 1964. The Arbitrator concluded that "there is no evidence whatsoever of discriminatory activities inherent in the instant case." Award at 7. The Union asserts that it "presented evidence sufficient to establish a prima facie case" of retaliation. Exception at 13. In our view, the Union's assertion constitutes nothing more than disa