36:0304(39)AR - - Navy, Norfolk Naval Shipyard, Portsmouth, Virginia and NAGE Local R4-19 - - 1990 FLRAdec AR - - v36 p304
[ v36 p304 ]
The decision of the Authority follows:
36 FLRA No. 39
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE NAVY
NORFOLK NAVAL SHIPYARD
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
July 13, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Bruce R. Boals filed by the Agency pursuant to 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 filed an opposition to the Agency's exceptions.
The Agency suspended the grievant, a shipyard police officer, for 14 days for accidentally discharging his service revolver. The Union filed a grievance over the suspension. The Arbitrator found that "a physically trim and conditioned officer would be less prone to have made such an offense." Award at 11. The Arbitrator affirmed the grievance "if the [g]rievant loses ten (10) percent of his weight and participates in a conditioning program . . . during the next six months. If successful, the [g]rievant's file will be purged of the discipline for the incident at that time, and he will be compensated for the 14-day period. Otherwise, the grievance is denied." Id. at 12.
For the reasons stated below, we find that the Arbitrator's award is contrary to law and regulation. Accordingly, we will set aside the award.
II. Background and Arbitrator's Award
The grievant is employed by the Agency as a shipyard police officer. On April 23, 1989, while attempting to apprehend robbery suspects, the grievant accidentally discharged his service revolver. No one was injured as a result of the incident. At the time of the incident, the grievant weighed about 270 pounds.
The Agency suspended the grievant for 14 days for "endangering the safety of others through carelessness" and required that the grievant be retrained before being reauthorized to carry a firearm. Award at 2, 5. The Agency also recommended that the grievant "pursue a weight reduction/physical fitness program." Id. at 5.
The Union grieved the suspension. Subsequently, the grievance was submitted to arbitration. The parties stipulated the issues to be:
1. Was the disciplinary action taken for just cause as required by the negotiated agreement, Article 21, Section 1?
2. Was the penalty imposed the minimum which may reasonabl[y] be expected to correct the employee and maintain the general discipline and morale?
Article 21, section 1 of the parties' collective bargaining agreement, entitled "Disciplinary and Adverse Actions," provides:
Disciplinary and adverse actions will be taken only for just cause and the penalty imposed shall be the minimum which may reasonabl[y] be expected to correct the employee and maintain general discipline and morale. Disciplinary actions include letter[s] of reprimand and suspensions of 14 days or less. Adverse actions include suspensions of more than 14 days, removal, furlough of 30 days or less and reduction in grade or pay.
Id. at 6.
The Arbitrator stated that "[a]fter careful and considerate study of the record" he "remained indecisive on the matter." Id. at 10. Among other things, he found that, "[c]ertainly, [Agency] management did nothing which one can fault"; "[a]n impartial investigation was made"; "[t]he case was handled in an even-handed manner"; and "[t]he severity of the sanction was a judgment call." Id. The Arbitrator concluded that "[t]he question is, given that there was some degree of negligence by the grievant, was it of sufficient negligence to warrant a sanction, and, if so, how heavy a penalty." Id. at 10-11.
The Arbitrator determined that "[t]he real desire of [the Agency was] to reduce the risk of a recurrence under like circumstances rather than to invoke punishment upon the [g]rievant." Id. at 11. In this regard, he found that "a physically trim and conditioned officer would be less prone to have made such an offense." Id. The Arbitrator acknowledged, however, that the Agency "did not have the authority to require [the grievant to lose weight]." Id. The Arbitrator concluded that "[t]his is an unusual case, and a unique solution is called for, even at the slight risk of a modest usurpation of power by the [A]rbitrator." Id. The Arbitrator then made the following award:
The grievance is affirmed if the [g]rievant loses ten (10) percent of his weight and participates in a conditioning program in conjunction with the Employee Services Division during the next six months. If successful, the [g]rievant's file will be purged of the discipline for the incident at that time, and he will be compensated for the 14-day period. Otherwise, the grievance is denied.
Id. at 12.
III. Positions of the Parties
A. Agency's Exceptions
The Agency contends that the Arbitrator's award is inconsistent with law and regulations.
The Agency asserts that the award conflicts with the Back Pay Act, 5 U.S.C. § 5596(b), because, in awarding backpay, the Arbitrator failed to make the required finding that the Agency effected an unwarranted or unjustified personnel action, but for which the employee would not have received a reduction or withdrawal of compensation.
According to the Agency, "[n]owhere in the award is there a finding that the [A]gency violated any law, regulation or the collective bargaining agreement." Exceptions at 7.
The Agency also contends that the conditional nature of the award is inconsistent with the requirements of 5 U.S.C. § 2302(b)(10), the Rehabilitation Act of 1973, and Federal Personnel Manual (FPM) chapter 339. The Agency asserts that, by conditioning compensation and other benefits on the ability of the grievant to attain a specific weight, the award violates the FPM. According to the Agency, the FPM reserves to the Office of Personnel Management (OPM) the authority to establish medical requirements for occupations. Further, the Agency contends that the award "would force [it] to discriminate against the grievant on the basis of non-merit characteristics" in violation of 5 U.S.C. § 2302(b)(10) and the Rehabilitation Act. Id. at 12.
Finally, the Agency asserts that the award "interprets [Article 21, section 1 of the parties' agreement] in derogation of the right reserved to the [A]gency by 5 U.S.C. § 7106(a)(2)(A) to discipline employees." Id. at 3.
B. Union's Opposition
As a preliminary matter, the Union argues that the Agency's exceptions are untimely filed. The Union also contends that the Agency's counsel "has never been officially designated as the Agency's representative" and as such was not a party to the arbitration as defined by the Authority's regulations. Opposition at 2. Accordingly, the Union urges that the exceptions be denied as not properly filed.
Further, the Union contends that the Arbitrator found "that the disciplinary action was not warranted and not appropriate." Id. at 3. The Union asserts that the Arbitrator has broad latitude in fashioning an appropriate remedy, and that his remedy addressed the Agency's "concerns about the grievant being overweight." Id. The Union argues that if the conditional portion of the remedy is deleted, "we are still left with a decision concluding that the grievance should be affirmed." Id. The Union also argues that the Agency "failed to prove that the penalty [imposed] was the minimum penalty necessary to correct the employee's actions or that the grievant was 'careless'." Id. at 4.
IV. Analysis and Conclusions
A. The Agency's Exceptions Are Timely
The time limit for filing exceptions to an arbitration award is 30 days beginning on the date the award is served on the parties. 5 C.F.R. § 2425.1(b). The date of service is the date the arbitration award is deposited in the U.S. mail or is delivered in person. 5 C.F.R. § 2429.27(d). If the award is served by mail, 5 days are added to the period for filing exceptions to the award. 5 C.F.R. § 2429.22.
The Arbitrator's award was served on the Agency by mail on March 31, 1990. An exception to the award had to be either postmarked by the U.S. Postal Service or received at the Authority no later than May 7, 1990. 5 C.F.R. §§ 2425.1(b), 2429.21(b), and 2429.22.(1) The Agency's exceptions were received by the Authority on May 3, 1990. Accordingly, the exceptions are timely.
B. The Agency's Exceptions Are Otherwise Properly Filed
The Union claims that the Agency's exceptions are improperly filed because the Agency changed its designated representative without proper notice to the Union. The Union cites precedent from the Merit Systems Protection Board (MSPB) for the proposition that appeals or petitions for review will not be accepted where a party changes representatives without formally redesignating the representative.
We conclude that the Agency's exceptions are properly before us. The exceptions were filed by the Head of the Labor Relations branch, Office of Civilian Personnel Management, Department of the Navy. There is nothing in the record before us that indicates the exceptions were not authorized by the Agency. Further, nothing in our Regulations requires exceptions to be filed by a party's representative at an arbitration hearing.(2) A party is free to designate different representatives for different purposes. See U.S. Army Transportation Center, Fort Eustis, Virginia and National Association of Government Employees, Local R4-6, 34 FLRA 860, 862 (1990). See also Puget Sound Naval Shipyard and Bremerton Metal Trades Council, 33 FLRA 56, 58 (1988) (national headquarters of agencies may file exceptions on behalf of one of their organizational elements).
C. The Arbitrator's Award is Inconsistent with the Back Pay Act
The award grants the grievant backpay for the 14-day suspension, conditioned on the grievant's loss of 10 percent of his weight and participation in a conditioning program during a 6-month period. In order for an award of backpay to be authorized under the Back Pay Act, 5 U.S.C. § 5596, an arbitrator must determine that the aggrieved employee was affected by an unwarranted or unjustified personnel action and that such unwarranted action directly resulted in the withdrawal or reduction in the pay, allowances, or differentials that the employee would have otherwise received. For example, Health Care Financing Administration, Department of Health and Human Services and American Federation of Government Employees, Local 1923, 35 FLRA 274, 283-87 (1990) (HCFA). In agreement with the Agency, we find that the Arbitrator's award is deficient because the Arbitrator did not find that there was an unjustified or unwarranted personnel action that resulted in the grievant's loss of compensation.
The Arbitrator found that, "[c]ertainly, [the Agency] did nothing which one can fault" and that the "severity of the sanction was a judgment call." Award at 10. Although the Arbitrator affirmed the grievance on condition that the grievant lost weight and participated in a conditioning program, the Arbitrator did not find that the Agency's determination to suspend the grievant without that condition was in violation of law, regulation, or the parties' collective bargaining agreement. Rather, the Arbitrator developed his conditional award of backpay after stating that "[t]his is an unusual case, and a unique solution is called for, even at the slight risk of a modest usurpation of power by the [A]rbitrator." Id. at 11.
The Arbitrator did not find that the suspension was unwarranted or unjustified. Such a finding is required under the Back Pay Act in order for backpay to be granted. Accordingly, we conclude that the Arbitrator has not found that the Agency effected an unwarranted or unjustified personnel action but for which the grievant would not have suffered a loss of compensation. We will, therefore, order that the award be set aside. See HCFA, 35 FLRA at 287.
D. The Award Is Inconsistent with Government-wide Regulations
The effect of the Arbitrator's award is that the grievant will be suspended only if he fails to lose 10 percent of his weight. Under OPM's regulations, height and weight requirements are "medical standards". See FPM chapter 339, Appendix A-2(c). Accordingly, under the award the adverse personnel action is conditioned solely on whether the grievant satisfies a specific medical standard. However, section 339 of the Office of Personnel Management's (OPM's) regulations (5 C.F.R. § 339.202 (1990)) reserves to OPM the authority to establish medical standards for a Government-wide occupation. An agency may establish medical standards only for positions that predominate in that agency, but even then it must do so by written directive, and consistently with OPM's instructions. Id. It is uncontested that no height or weight standards have been established for the grievant's position.(3)
The Arbitrator acknowledged that the Agency did not have the authority to mandate the grievant's weight loss. The Arbitrator's award conditions the discipline on a requirement that the Agency itself could not impose. By conditioning the suspension on the grievant's weight, the Arbitrator is, in effect, requiring the Agency to establish medical standards for the grievant's position in violation of a Government-wide regulation. Compare Collins v. Department of the Navy, 41 MSPR 256 (1989) (under 5 C.F.R. § 339.301(a), the agency could not require a medical examination to determine fitness for a position where there were no medical standards established for the position). Accordingly, the Arbitrator's award improperly bases the grievant's suspension on whether the grievant loses a specific amount of weight. Consequently, the award must be set aside.(4)
The Arbitrator's award is set aside.
(If blank, the decision does not have footnotes.)
1. The 30-day limit expired on Sunday, April 29, 1990. Accordingly, the exceptions would be due on the following work day, Monday, April 30. 5 C.F.R. § 2429.21(a). Because service was by mail, 5 days are added to the prescribed period, thus establishing a due date of Saturday, May 5. 5 C.F.R. § 2429.22. Therefore, the exceptions were due the following Monday, May 7, 1990. 5 C.F.R. § 2429.21(a). See American Federation of Government Employees, Local 1960 and Department of the Navy, Development Center, 29 FLRA 680, 683 (1987).
2. In contrast, the MSPB decisions relied upon by the Union, Hammond v. Department of the Navy, 37 MSPR 531, 536-37 (1988) and Musone v. Department of Agriculture, 31 MSPR 85, 88 n.3 (1986), rest on an express requirement in MSPB's regulations that it be notified of changes in designated representatives.
3. "Medical standards" are occupational standards based upon a determination that a certain level of fitness or health status is required for successful performance. 5 C.F.R. § 339.104(g) (1990). These are contrasted with "physical re