38:0186(21)AR - - Army, Army Transportation Center, Fort Eustis, Virginia and NAGE Local R4-6 - - 1990 FLRAdec AR - - v38 p186
[ v38 p186 ]
The decision of the Authority follows:
38 FLRA No. 21
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE ARMY
ARMY TRANSPORTATION CENTER
FORT EUSTIS, VIRGINIA
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
November 15, 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 Sue Olinger Shaw. The Arbitrator found that management violated the parties' collective bargaining agreement by failing to impose discipline on the grievant within the time limit prescribed. The Arbitrator directed management to revoke the discipline, make the grievant whole, expunge the reference to the discipline from the grievant's personnel records, and pay the grievant's legal fees and costs.
The Department of the Army (the Agency) filed exceptions under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations on behalf of the Activity. The Union filed an opposition to the Agency's exceptions.(*)
We conclude that the Agency fails to establish that the award is contrary to management's right to discipline under section 7106(a)(2)(A) and we will deny the exception. We conclude that the award of attorney fees is contrary to the Back Pay Act, and we will modify the award accordingly.
II. Background and Arbitrator's Award
The grievant was suspended for 5 days for "creating a disturbance and damaging the efficiency of the work unit." Award at 3. The incident giving rise to the discipline occurred on January 27, 1989, when the grievant disputed her supervisor's allegation that she was not performing her work in a satisfactory manner. The grievant was notified of her supervisor's proposal to suspend her in a letter dated February 21, 1989. The grievant filed a grievance over whether the suspension was timely and appropriate. The grievance was not resolved, and the matter was submitted to arbitration.
Article XXXIII, Section 3 of the parties' collective bargaining agreement pertinently provides:
All disciplinary actions will be processed in accordance with applicable regulations and employees shall be afforded all rights and privileges provided therein. Disciplinary actions will be initiated within 15 working days after the incident except where precluded by extenuating circumstances.
Id. at 5 (quoting agreement).
The Activity contended before the Arbitrator that it had initiated disciplinary action against the grievant on February 2, 1989, when the grievant's supervisor met with a personnel management specialist to consider what disciplinary action should be taken against the grievant. Consequently, the Activity maintained that disciplinary action was taken against the grievant "well within the 15-day time constraint imposed by the Agreement." Id. at 6.
The Arbitrator rejected the Activity's contention as to what constitutes the initiation of disciplinary action. The Arbitrator found that the language of Article XXXIII, Section 3 is clear and requires "that disciplinary actions be 'initiated within 15 working days of the incident,' with no reference to time allowed for an investigation[.]" Id. at 8. She concluded that disciplinary action "cannot be considered to have been initiated until the intended recipient of the action has been notified[.]" Id. Accordingly, she found that the letter of proposed discipline, dated February 21, 1989, constituted the proper notice under the agreement and that, consequently, disciplinary action was not initiated within the 15-day time limit set forth in the agreement.
Therefore, the Arbitrator ruled that management had violated Article XXXIII, Section 3 of the parties' collective bargaining agreement when it imposed discipline on the grievant after the expiration of the 15-day time limit for the imposition of discipline contained in the agreement. The Arbitrator sustained the grievance and directed management to revoke the 5-day suspension and to expunge all references to the discipline from the grievant's personnel file. The Arbitrator also directed management to provide the grievant with backpay for the days she was improperly suspended and to "pay the legal fees and costs incurred by the Grievant in the prosecution of this grievance[.]" Id. at 11.
III. First Exception
A. Positions of the Parties
The Agency contends that the award is based on an invalid collective bargaining agreement provision that contravenes management's right to discipline its employees. Specifically, the Agency argues that the provision on which the award is based provides that the Activity must initiate discipline within 15 days and that this provision unduly restricts management's right to discipline under section 7106(a)(2)(A) of the Statute. The Agency claims that, although nonquantitative standards, such as "timely," have been upheld by the Authority, standards which provide for specific time limits violate management's right to discipline and are not appropriate arrangements under section 7106(b)(3) of the Statute. Because the award is based on a provision of the parties' collective bargaining agreement that is inconsistent with management's right to discipline its employees under section 7106(a)(2)(A), the Agency maintains that the provision could not be enforced by the Arbitrator.
The Union contends that Article XXXIII, Section 3 of the collective bargaining agreement is valid. The Union argues that the agreement provision only establishes a reasonable presumption for when disciplinary action is initiated in a timely manner and does not absolutely bar management's right to discipline. The Union maintains that management is not prohibited from acting after the time limit passes because management can act if there is a good reason for the delay.
B. Analysis and Conclusions
We conclude that the Agency fails to establish that the award is contrary to law.
In Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990) (U.S. Customs Service), we recently reexamined our approach to cases in which an agency contends that an arbitrator's award, enforcing a provision of the parties' collective bargaining agreement, is contrary to management's rights under section 7106(a). We held that when an agency makes such a contention we will examine, as appropriate, the provision enforced by the arbitrator to determine: (1) if it constitutes an arrangement for employees adversely affected by the exercise of management's rights; and (2) if, as interpreted by the arbitrator, it abrogates the exercise of a management right. We explained that if it is evident that the provision constitutes an arrangement and, as interpreted by the arbitrator, does not abrogate management's rights, the provision is within the range of matters that can be bargained under the Statute. Accordingly, we held that we will not find that such an award is contrary to law and we will deny the exception. We also held that if the arbitrator's interpretation does result in an abrogation of management's rights under section 7106(a), the award will be found deficient as contrary to law, but the contractual provision, susceptible to a different and sustainable interpretation by a different arbitrator, will not be affected.
Applying that approach in this case, we conclude that the Agency fails to establish that the award is contrary to section 7106(a) of the Statute. It is evident that Article XXXIII, Section 3 constitutes an arrangement and, as interpreted and applied by the Arbitrator, does not abrogate management's right to discipline.
Article XXXIII, Section 3 provides that management must initiate disciplinary actions against its employees within 15 working days after the incident giving rise to discipline occurred except where precluded by extenuating circumstances. It is clear that Article XXXIII, Section 3 constitutes an arrangement for employees adversely affected by management's exercise of its right to discipline. In this regard, the Arbitrator indicated that this provision gave "effective timeliness protection to intended recipients of discipline." Award at 8-9.
Furthermore, we find that as interpreted and applied by the Arbitrator, Article XXXIII, Section 3, does not abrogate management's rights. In U.S. Customs Service, we held that an award "abrogates" a management right when the award "precludes an agency from exercising" that right. 37 FLRA at 314. Article XXXIII, Section 3, as interpreted and applied by the Arbitrator, requires only that management initiate discipline within the 15-day time limit or establish the existence of extenuating circumstances that prevented it from initiating discipline within that period. Although Article XXXIII, Section 3 limits management's right to discipline in situations where management does not initiate disciplinary action within 15 working days and there are no extenuating circumstances, it clearly does not abrogate the exercise of that right. Management's right to take disciplinary action within 15 working days of the incident and to take disciplinary action in situations where there are extenuating circumstances remains unaffected. Accordingly, we deny the Agency's exceptio