35:0668(74)AR - - NTEU Chapter 199 and Treasury, Bureau of the Public Debt - - 1990 FLRAdec AR - - v35 p668
[ v35 p668 ]
The decision of the Authority follows:
35 FLRA No. 74
NATIONAL TREASURY EMPLOYEES UNION
U.S. DEPARTMENT OF THE TREASURY
BUREAU OF THE PUBLIC DEBT
April 25, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award and a clarification award of Arbitrator Arthur T. Van Wart. When the grievant refused to sign a "last chance" agreement, the Agency suspended the grievant for 14 days. The Arbitrator determined that the proposed last chance agreement was a reasonable accommodation of the grievant's alleged handicapping condition, but that the Agency prematurely applied the terms of that agreement while the grievant was complying with its terms. Accordingly, he directed that the grievant be paid for the period of her suspension. Subsequently, the Arbitrator issued a clarification award explaining that the award merely placed the grievant and the Agency in their respective positions before the Agency had prematurely imposed the suspension.
The Union filed exceptions to the original award and the clarification award under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute). In its first exception, the Union contends that the award is deficient by finding that the last chance agreement constituted a reasonable accommodation. In its second exception, the Union contends that the award is deficient by imposing a suspension with pay. The Agency filed an opposition to the exceptions.
We conclude that the Union's first exception was untimely filed and that the Union's second exception fails to establish that the Arbitrator's award is deficient. Accordingly, we will dismiss the first exception and deny the second exception.
On March 15, 1988, the Agency proposed to suspend the grievant for 14 days for absence without leave (AWOL) and for failure to comply with the procedures for requesting and obtaining leave as outlined in a leave restriction letter. In reply to the proposed suspension, the Union contended on behalf of the grievant that: (1) she had an alcohol problem; (2) she was in professional counseling; and (3) the Agency must reasonably accommodate her handicapping condition. On April 9, 1988, the Agency sent to the grievant a summary of the oral reply meeting and included a proposed last chance agreement for consideration by the grievant and the Union.
The proposed agreement provided that the Agency would hold the 14-day suspension in abeyance for a period of 1 year in exchange for the grievant's compliance with the terms of the agreement. The terms of the proposed agreement obligated the grievant to maintain satisfactory attendance and punctuality, good general work habits and conduct on the job, and satisfactory participation in her after-care treatment program during the 1-year period. The proposed agreement also provided that a failure to comply with its terms would subject the grievant to reinstatement of the suspension and that, in such event, she waived her rights "to appeals, grievances and/or complaints to Grievance Arbitration and Equal Employment Opportunity procedures."
The Agency stated that the agreement would reasonably accommodate the grievant's alcohol problem. The grievant and the Union refused to execute the proposed agreement unless certain changes proposed by the Union were incorporated. The Agency refused to incorporate all the proposed changes and implemented the proposed 14-day suspension. The Union invoked arbitration over the suspension on behalf of the grievant.
III. The Arbitrator's Awards
The Arbitrator determined that the last chance agreement offered to the grievant was a reasonable accommodation of her handicapping condition. The Arbitrator also determined that the Agency should have adhered to the proposed agreement and held the suspension in abeyance because: (1) the Agency had an affirmative statutory obligation to reasonably accommodate the grievant; and (2) the grievant was complying with the terms of the proposed agreement. Accordingly, on March 3, 1989, the Arbitrator directed that the grievant be paid for the 14 calendar days of her suspension.
In the process of implementing the March 3 award, the Agency contacted the Arbitrator to ascertain the grievant's disciplinary status. The Arbitrator advised that he believed the award to be clear: that he had "held only that the Grievant had to be paid for the time she lost by serving the 14-day discipline, which should have been held in abeyance." Clarification Award at 4-5. He stated that the grievant received her lost wages, but that the discipline remained in abeyance. The Union disputed the Arbitrator's statement, claiming that it constituted a suspension with pay that is not provided for by law. The Union, in addition, requested that the clarification be in writing.
On June 9, 1989, the Arbitrator issued the clarification in writing. He stated that in the March 3 award, the Union's position that the proposed last chance agreement did not constitute a reasonable accommodation was rejected. He explained that he had held in the March 3 award that the Agency had improperly applied terms of the proposed agreement as if the grievant had failed to comply when, at the time, she was satisfactorily and properly complying with its proposed terms. He advised that the premature imposition of the discipline did not "wipe out the discipline. It still remained along with the period of probation. The Award merely placed the Grievant and [the Agency] in their respective positions before the premature implementation." Id. at 7. He explained that this was the basis for his "expression to the effect that the Grievant gets paid for the discipline served." Id.
IV. First Exception
A. Positions of the Parties
The Union contends that the Arbitrator erred by finding that the last chance agreement constituted a reasonable accommodation under the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701 et seq. The Agency contends that the Union's exception was untimely filed. The Agency argues that the Arbitrator's March 3 award clearly stated that the proposed last chance agreement constituted a reasonable accommodation and that the Union's exception filed on July 6, 1989, was untimely. The Agency asserts that the clarification award cannot be used by the Union to make its exception timely. If the exception is not dismissed, the Agency contends that the exception provides no basis for finding the award deficient.
B. Analysis and Conclusion
We conclude that the Union's exception pertaining to the Arbitrator's determination on reasonable accommodation was untimely filed.