35:0668(74)AR - - NTEU Chapter 199 and Treasury, Bureau of the Public Debt - - 1990 FLRAdec AR - - v35 p668



[ v35 p668 ]
35:0668(74)AR
The decision of the Authority follows:


35 FLRA No. 74

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 199

(Union)

and

U.S. DEPARTMENT OF THE TREASURY

BUREAU OF THE PUBLIC DEBT

(Agency)

O-AR-1756

DECISION

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.

II. Background

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.

The Arbitrator's award is dated March 3, 1989, and apparently was served on the parties by mail on the same day. In order to have been timely, the Union's exception to the March 3 award had to be filed no later than April 10, 1989. Accordingly, the Union's exception filed on July 6, 1989, was untimely filed.

We agree with the Agency that the clarification award dated June 9, 1989, did not operate to commence a new period for filing exceptions under section 7122(a) of the Statute. The Authority has repeatedly held that a clarification award does not operate to extend the time period for filing exceptions. For example, Panama Canal Commission and International Organization of Masters, Mates and Pilots, Marine Division, ILA, AFL-CIO, 22 FLRA 605, 606 (1986). Only when an arbitrator's response to a clarification request gives rise to the deficiency alleged in the exception does the filing period for exceptions begin with the arbitrator's response. Id.

In this case, the alleged deficiency pertaining to whether the proposed last chance agreement constituted a reasonable accommodation arose as a result of the March 3 award. In the clarification award, the Arbitrator merely reiterated his conclusion from his March 3 award. Accordingly, we will dismiss this exception as untimely filed.

V. Second Exception

A. Positions of the Parties

The Union contends that by providing a suspension with pay, the award is contrary to law. The Union maintains that in the clarification award, the Arbitrator stated that the grievant was being paid for serving the disciplinary time that should have been held in abeyance. The Union claims that this constitutes, in effect, a suspension with pay. The Union argues that 5 U.S.C. § 7501(2) defines a suspension as a placement of an employee for disciplinary reasons in a temporary status without duties or pay. Therefore, the Union asserts that the award conflicts with law.

The Agency contends that the exception was untimely filed. If the exception is not dismissed as untimely, the Agency contends that it should be denied because the award does not conflict with law.

B. Analysis and Conclusions

1. The exception was timely filed

We conclude that this exception pertaining to the alleged provision of a suspension with pay was timely filed. We find that, as contended by the Union, the basis for this exception is the Arbitrator's statement in the clarification award that "in effect, [the grievant] was being paid for serving the disciplinary time." Clarification Award at 5. In contrast to the Union's first exception, we find that this alleged deficiency did not arise until the Arbitrator's statement, quoted above, in the June 9 clarification award. Consequently, the time period for filing such exception did not commence until the service of the clarification award, and the Union's exception filed on July 6, 1989, was timely. See United States Department of the Interior, Bureau of Land Management, Eugene District Office and National Federation of Federal Employees, Local 1911, 6 FLRA 401, 403 n.2 (1981).

2. The award is not deficient

Although we recognize the basis for the Union's contention that the Arbitrator ordered a suspension with pay, we conclude that the Union has misconstrued the award. The Arbitrator has not ordered a suspension with pay. The Arbitrator has ordered a status quo ante remedy: he has "placed the Grievant and [the Agency] in their respective positions" before the Agency prematurely imposed the discipline. Clarification Award at 7. The proposed 14-day suspension remains in abeyance under the terms of the Agency's proposed last chance agreement, with which the Agency is obligated to comply as a reasonable accommodation of the grievant's handicapping condition. The suspension is to be held in abeyance subject to reinstatement and imposition if the grievant fails to meet the terms of the proposed last chance agreement. Thus, the Arbitrator has restored the grievant to the place she would have been had the Agency not improperly imposed the discipline while she was complying with the terms of the proposed agreement. The Union fails to establish that this award constitutes a suspension with pay that conflicts with law. Consequently, the Union's exception provides no basis for finding the award deficient, and we will deny the exception.

VI.