39:1288(114)AR - - Justice, Federal Bureau of Prisons, U.S. Penitentiary, Lewisburg, PA and AFGE, Council of Prison Locals, Local 148 C-33 - - 1991 FLRAdec AR - - v39 p1288



[ v39 p1288 ]
39:1288(114)AR
The decision of the Authority follows:


39 FLRA No. 114

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF JUSTICE

U.S. FEDERAL BUREAU OF PRISONS

U.S. PENITENTIARY

LEWISBURG, PENNSYLVANIA

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL OF PRISON LOCALS

LOCAL 148 C-33

(Union)

0-AR-1867

DECISION

March 21, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on exceptions to the award of Arbitrator Joseph G. Ferko, Jr. filed by the Agency 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 Union did not file an opposition to the Agency's exceptions.

The Arbitrator concluded that the Agency violated the parties' collective bargaining agreement by requiring the grievant to remain on his post past his work shift after he requested to leave in order to take care of a medical condition. The Arbitrator also concluded that a second-line supervisor harassed, intimidated, restrained, coerced, threatened, and committed acts of reprisal against the grievant when the grievant continued to make his health concern known. As a remedy, the Arbitrator ordered that the Agency: (1) give a letter of reprimand to the second-line supervisor citing him with the "failure to look after the medical concerns of [the grievant]"; (2) place the letter of reprimand in the second-line supervisor's personnel file for 1 year; (3) "personally" give a copy of the letter of reprimand to the grievant for his personal file; (4) give the grievant a written apology for the "lack of concern exhibited" during the events that gave rise to the grievance; (5) ensure that within 1 year from the date of the award the second-line supervisor is given or will take a class in "'Sensitivity Training' concerning Human Relations"; and (6) "not in any way use this incident or the facts of this Case in its future evaluations, and Performance Appraisals of [the grievant]."(1) Award at 20-21.

For the following reasons, we conclude that the award is deficient in part and, therefore, must be modified. Accordingly, we will modify the award to set aside that portion of the award requiring the Agency to give the grievant a copy of the letter of reprimand issued to the second-line supervisor.

II. Background and Arbitrator's Award

The grievant is a correctional officer. On January 6, 1989, the grievant was working the day shift (first shift) from 7:30 a.m. to 4:00 p.m. At 4:10 p.m., the grievant contacted a second-line supervisor assigned to the later shift and requested to be relieved from his post. The grievant explained to the second-line supervisor that he needed to take medication and eat a special meal. The second-line supervisor denied the request. Id. at 6.

At approximately 4:15 p.m., the grievant went to the second-line supervisor's office and again requested to be relieved from his post so that he could return home to take medication and eat a special meal. The second-line supervisor informed the grievant that he would have to wait until his relief arrived on the Airlift Bus, which was late and due to arrive at 8:00 p.m. After the second-line supervisor made some disparaging remarks about occupations which did not require employees to remain at their posts until they were relieved from duty and stated that the grievant "should be working at such places[,]" the grievant told the second-line supervisor that "[h]e was leaving[.]" Id. The second-line supervisor responded that "if [the grievant] left [h]e would surely write [the grievant] up." Id. The grievant then returned to his post.

At 5:00 p.m., another supervisor, Lieutenant Walter Clark, visited the grievant's area. The grievant informed Clark that he was not feeling well and that he had failed to take his medication at 4:30 p.m. Clark and the second-line supervisor visited the grievant's post several more times. During one visit by the second-line supervisor, the grievant was not standing in the corridor as required and the second-line supervisor questioned the grievant about this. The grievant "informed the [second-line supervisor] that [h]e did not feel like standing out there." Id. at 7.

At 6:30 p.m., the grievant returned to the supervisors' office and stated that "[h]e had to go home" and again indicated that he needed to take his medication. Id. The second-line supervisor reiterated that the grievant could go home when the Airlift Bus arrived. Thereafter, the grievant returned to his post. At 7:00 p.m., the second-line supervisor returned to the grievant's area and informed the grievant that he had written him up and had recommended, as a disciplinary action, that the grievant be suspended.

At 8:00 p.m., the grievant collapsed in the corridor and "became totally incapacitated." Id. The grievant received medical treatment and, when he was revived, informed an Agency physician's assistant that "[h]e was a [d]iabetic and had not eaten [l]unch[,]" before again becoming unconscious. Id. at 8. After failing to respond to further treatment, the grievant was transferred to a community hospital where he remained until the next morning. The grievant requested and received sick leave for his subsequent absences on January 7 and 8.

The Union filed a grievance over the events that took place on January 6, 1989. The grievance was unresolved and was subsequently submitted to arbitration. The Arbitrator determined that the issues before him were:

1. Was [the grievant d]iabetic, and thus ha[d] a medical concern?

2. Was [the grievant] harassed, intimidated, restrained, coerced, threat[e]ned, and/or were acts of reprisal demonstrated against him by [the second-line supervisor]?

3. Did the [Agency] violate Article 18, [s]pecifically Section B-Assignment and Hours Of Work?

4. Was [the grievant] correctly given "Sick Leave" for his absences on January 7 and January 8, 1989?

5. Was the testimony and evidence as presented by the witnesses creditable?

Id. at 9.

To remedy the Agency's alleged contract violations, the Union requested: (1) "[a] written apology from [the second-line supervisor]" and (2) that the 2 days of sick leave used by the grievant "be reinstated to [h]im." Id.

Based on the testimony and evidence presented to him, the Arbitrator concluded that: (1) the grievant "was a [d]iabetic on the evening of January 6, 1989 and did have a medical concern"; (2) the grievant "was harassed, intimidated, restrained, coerced, threat[e]ned, and acts of reprisal were demonstrated against him by [the second-line supervisor]" and, therefore, the Agency "violated Article 6, Rights of the Employee-Section b, of the Master Agreement"; (3) the Agency "violated Article 18, Assignment and Hours of Work, specifically Section B (Old Master Agreement)"; (4) the grievant "was correctly given 'Sick Leave' for his absences on January 7, and 8, 1989 and [] is not entitled to additional sick leave credits as a result of this incident"; and (5) the second-line supervisor's testimony was not creditable. Id. at 14, 19, 20 (emphasis in original).

As a remedy, the Arbitrator directed the Agency to: (1) "prepare a 'Letter Of Reprimand' to [the second-line supervisor] citing [h]im with failure to look after the medical concerns of [the grievant] on the evening of January 6, 1989"; (2) give a copy of the letter of reprimand to the second-line supervisor and place a copy "in [h]is Personnel File for a period of one (1) year after which time it shall be destroyed"; (3) give a "[c]opy of the Letter Of Reprimand . . . to [the grievant] for his personal file"; (4) express, in writing, "[the Agency's] apologies to [the grievant] for the lack of concern exhibited to [the grievant] and his medical concern on the evening of January 6, 1989"; and (5) "during the course of one year from the date of this Award insure that [the second-line supervisor] be given or take a class in 'Sensitivity Training' concerning Human Relations." Id. at 20, 21.

III. Exceptions

The Agency excepts "to the remedies which the [A]rbitrator order[ed]" and, therefore, contends that the award must be set aside. Exceptions at 4.

As to the portions of the remedy requiring the Agency to take action against the second-line supervisor, the Agency argues that "[t]he Statute does not give arbitrators remedial authority which extends to dictating that specific personnel action be taken either for or against specific employees outside the unit so as to specify a particular change in their conditions of employment." Id. at 5. The Agency asserts that, at a minimum, "the Statute must . . . be read as precluding parties from giving an arbitrator remedial authority to order personnel actions to be taken which directly affect individual supervisors or managers." Id.

The Agency further contends that the second-line supervisor is not an "employee" within the meaning of section 7103(a)(2) or 7103(a)(9) of the Statute and "[t]herefore, the [A]rbitrator clearly ha[d] no authority under section 7121 of the Statute or the Back Pay Act to issue a remedy which singles out a particular supervisor and[/]or manager alleged to be responsible for the [A]gency action (or omission) and issue a remedy which penalizes that supervisor or manager as distinguished from the [A]gency itself." Id. at 7. To support its argument that "Congress could not have intended to empower agency management to voluntarily agree to binding contractual provisions whereby the Agency promises to discipline any supervisor found to have violated another substantive agre[e]ment provision[,]" the Agency cites cases finding that proposals requiring agencies to discipline supervisors were nonnegotiable because the proposals were "unrelated to the conditions of employment of bargaining unit employees[.]" Exceptions at 10, citing National Federation of Federal Employees, Local 1430 and Department of the Navy, Northern Division, U.S. Naval Base, Philadelphia, Pennsylvania, 15 FLRA 45 (1984) and National Association of Government Employees, Local R7-23 and Headquarters, 375th Air Base Group, Scott Air Force Base, Illinois, 7 FLRA 710 (1982).

With respect to the letter of reprimand, the Agency argues that even though the word "employee" is present in section 7106(a)(2)(A), relating to management's right to discipline, "it is unlikely that this stylistic difference was intended to be significant with regard to permit[t]ing agency managers to limit their discretion with regard to making the decisions . . . as they would apply to supervisors." Id. at 10. According to the Agency, any other interpretation of the Statute would "be inconsistent with section 7112(b)(1)" and, "where the discipline concerned exceeded a written reprimand, it would also be inconsistent with management's general disciplinary authority under 5 U.S.C. sections 7503 and 7512-13." Id. Further, the Agency asserts that the portion of the Arbitrator's remedy that requires the Agency to issue the second-line supervisor a reprimand violates 5 C.F.R. º 735.107.

The Agency also claims that by requiring that a copy of the second-line supervisor's reprimand "be personally given to" the grievant, the remedy is illegal because it violates provisions of the Freedom of Information and Privacy Acts. Id. at 15. The Agency cites FLRA v. U.S. Department of the Treasury, Financial Management Service, 884 F.2d 1446 (D.C. Cir. 1989) and asserts that "[t]he reasoning which the [c]ourt employed in that case[, regarding the disclosure of names and home addresses of bargaining unit employees to Federal unions,] is equally applicable with regard to the release of copies of adverse actions, particularly where, as here, deleting personal information would not be sufficient to protect the privacy interest of [the second-line supervisor]." Id.

The Agency argues that the portion of the Arbitrator's remedy requiring that the second-line supervisor be given or take a class in "'Sensitivity Training' concerning Human Relations" violates management's rights. The Agency asserts that "an award which require[s] management to assign training to supervisors violate[s] management's right to assign work reserved by section 7106(a)(2)(B) of the Statute." Id. at 9.

As to both the letter of reprimand and the sensitivity training, the Agency claims that the Arbitrator exceeded his authority because "neither the issues which he defined as before him for adjudication, or the remedies asserted as appropriate by the Union empowered him under the parties' agreement to remedy violations of the substantive contract provisions in question by means of ordering management to discipline the individual supervisor responsible for those violations." Id. at 16. In support of its argument, the Agency cites U.S. Department of Housing and Urban Development and American Federation of Government Employees, Local No. 3412, 24 FLRA 442, 445 (1986) (AFGE); and Environmental Protection Agency, Region 9 and Engineers and Scientists of California, MEBA, AFL-CIO, 17 FLRA 365, 366 (1985) (EPA). Further, the Agency claims that the Arbitrator either: (1) "exceeded his authority in an even broader manner in that the entire remedy is clearly punitive, yet there is no provision in the parties' agreement which authorizes punitive . . . awards[,]" or (2) "rendered an award which does not, with the respect to the remedy, derive its essence from the agreement" because the remedy is punitive in nature and is not authorized by the parties' agreement. Id. at 16, 17, citing International Association of Heat and Frost Insulators and Asbestos Workers, Local Union 34, AFL-CIO v. General Pipe Covering, Inc., 792 F.2d 96 (8th Cir. 1986) (General Pipe Covering).

The Agency also argues that even assuming that the Arbitrator had the power "in theory" to issue remedies requiring management to take personnel actions against specific supervisors or managers, "the specific remedies ordered here are illegal because they violate . . . the Statute . . . and, thus, could never have been contractually authorized by the parties[.]" Id. at 14.

As to the letter of reprimand and the written apology, the Agency argues that "the Authority is precluded from issuing punitive remedies" and that, therefore, "Congress could not have intended arbitrators exercising jurisdiction under section 7121(a) to have any greater remedial powers than the Authority[.]" Id. at 8, citing NLRB v. Haberman Construction Co., 641 F.2d 351, 361-62 (5th Cir. 1981). Accordingly, the Agency concludes that the grievant "was not, and, indeed, clearly could not have been, entitled under the parties' agreement to the revenge of having the supervisor responsible for the alleged violation disciplined or to a written 'apology' from the Institution." Id. at 8-9.

Further, with respect to the written apology, the Agency notes that the Union asked for the apology "to come from [the second-line supervisor], not the Institution" and that in a previous arbitration case where the "[u]nion had specifically sought an apology from responsible management officials as a remedy, the [a]rbitrator found he lacked authority . . . 'to impose discipline.'" Id. at 12-13, 14, quoting Veterans Administration Medical Center, 81 LA 213, 214 (1983). The Agency also notes that its argument that the Arbitrator either exceeded his authority or rendered an award which does not derive its essence from the agreement encompasses the portion of the award requiring a written apology from the Agency. Id. at 17.

IV. Analysis and Conclusions

For the following reasons, we find that the award is deficient to the extent that it requires the Agency to provide the grievant with a copy of the letter of reprimand issued to the second-line supervisor. Accordingly, we will modify that portion of the award.

1. Written Apology

The Agency argues that the portion of the award requiring it to apologize to the grievant in writing is deficient because the Arbitrator: (1) issued a remedy that is inconsistent with another arbitrator's decision; (2) exceeded his authority by issuing a "punitive" remedy; and (3) rendered an award that does not derive its essence from the parties' agreement. Exceptions at 14, 16-17.

We reject the Agency's reliance on the award of another arbitrator. Arbitration awards are not precedential and, therefore, a contention that an award conflicts with other arbitration awards provides no basis for finding an award deficient under the Statute. See, for example, Adjutant General, State of Oklahoma, Air National Guard, Tulsa, Oklahoma and National Association of Government Employees, Local R8-17, 34 FLRA 691, 695 (1990); and Veterans Administration Medical Center and American Federation of Government Employees, Local 2386, AFL-CIO, 34 FLRA 666, 669 (1990).

We also reject the Agency's argument that the Arbitrator exceeded his authority by issuing a "punitive" remedy. The Agency does not define what it means by a "punitive" remedy. It is well-settled that an arbitrator exceeds his or her authority by resolving an issue not submitted to arbitration or awarding relief to persons not encompassed within the grievance. See, for example, U.S. Department of the Navy, Naval Aviation Depot, Norfolk, Virginia and International Association of Machinists and Aerospace Workers, Local 39, 36 FLRA 217, 221-22 (1990) (U.S. Department of the Navy). Moreover, an arbitrator is precluded from awarding punitive damages against the Federal Government. Veterans Administration Medical Center, Cleveland, Ohio and American Federation of Government Employees, Local No. 31, 19 FLRA 242, 243 (1985). As arbitrators have great latitude in fashioning remedies, U.S. Department of Housing and Urban Development, Los Angeles Area Office, Region IX, Los Angeles, California and American Federation of Government Employees, Local 2403, AFL-CIO, 35 FLRA 1224, 1229 (1990) (HUD), we find that characterizing a remedy as "punitive" does not establish an independent basis for finding an award deficient.

We also find that the portion of the remedy requiring the Agency to issue a written apology to the grievant was responsive to the issues framed by the Arbitrator and was within the Arbitrator's authority to award to the grievant. Two of the issues before the Arbitrator were: (1) whether the grievant was "harassed, intimidated, restrained, coerced, threat[e]ned, and/or [whether there] were acts of reprisal demonstrated against him by [the second-line supervisor]?"; and (2) whether "the [Agency] violate[d] Article 18, [s]pecifically Section B-Assignment and Hours Of Work?" Award at 9. As the conduct of the Agency and its officials was directly at issue in this case, we find that the Arbitrator did not exceed his authority when he ordered the Agency to issue a written apology to the grievant based on his finding of improper conduct. See U.S. Department of the Navy.

Finally, we reject the Agency's assertion that this portion of the remedy fails to draw its essence from the parties' agreement. For an award to be found deficient because it fails to draw its essence from a collective bargaining agreement, the party making the allegation must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; or (2) is so unfounded in reason and fact, and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; or (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, U.S. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 35 FLRA 1267, 1270-71 (1990) (Ogden Air Logistics Center).

The Agency has failed to demonstrate that the portion of the remedy requiring a written apology from the Agency is deficient under any of the tests set forth above. As we noted above, arbitrators have great latitude in fashioning remedies, HUD, and the Authority has previously permitted an arbitrator to order a party to apologize as part of the remedy, Department of Health and Human Services, Social Security Administration, Jersey City, New Jersey and American Federation of Government Employees, AFL-CIO, Local 2369, 27 FLRA 104 (1987). General Pipe Covering, cited by the Agency, is inapposite because this case does not require the Agency to pay punitive damages.

Accordingly, we find that the Agency is merely disagreeing with the Arbitrator's interpretation of the parties' agreement and with how the Arbitrator fashioned the remedy. Such disagreement does not establish that the award fails to draw its essence from the collective bargaining agreement and provides no basis for finding the award deficient. See U.S. Department of Defense, Defense Mapping Agency Aerospace Center, St. Louis, Missouri and National Federation of Federal Employees, Local 1827, 35 FLRA 1307, 1309-10 (1990); and Air Force Space Division, Los Angeles Air Force Station, California and American Federation of Government Employees, AFL-CIO, Local 2429, 24 FLRA 516, 519-20 (1986).

2. Letter of Reprimand

As part of the remedy, the Arbitrator ordered the Agency to "prepare a 'Letter Of Reprimand' to [the second-line supervisor] citing [h]im with failure to look after the medical concerns of [the grievant], on the evening of January 6, 1989" and give a copy of the letter of reprimand to the grievant "for his personal file." Award at 20.

a. Issuance of Letter of Reprimand

The Agency argues that ordering the Agency to issue a letter of reprimand to a supervisor is improper because it: (1) violates 5 C.F.R. º 735.107; (2) is inconsistent with management's general disciplinary authority under 5 U.S.C. ºº 7503 and 7512-13, where the discipline concerned exceeds a written reprimand; (3) is inconsistent with management's right to discipline under section 7106(a)(2)(A) of the Statute; and (4) is contrary to other provisions of the Statute. The Agency also argues that the Arbitrator: (1) exceeded his authority by issuing a "punitive" award; (2) exceeded his authority because the issues he framed and the remedies requested by the Union did not empower him to order management to discipline the second-line supervisor; and (3) rendered an award that does not derive its essence from the parties' agreement.

We reject the Agency's claim that ordering it to issue a letter of reprimand to a supervisor violates 5 C.F.R. º 735.107. Under 5 C.F.R. º 735.107, an agency has the right to discipline its employees, including supervisors, for violations of agency regulations. There has been no showing that the second-line supervisor violated Agency regulations. Therefore, 5 C.F.R. º 735.107 does not apply, and we reject the Agency's claim that this remedy is contrary to that regulation.

We also reject the Agency's argument that the remedy is inconsistent with management's general disciplinary authority under 5 U.S.C. ºº 7503 and 7512-13. We note that 5 U.S.C. ºº 7503, 7512, and 7513 specify the disciplinary actions that an agency may take against its employees, including supervisors, such as suspending them for 14 days or less, suspending them for more than 14 days, removing them, reducing their grades or pay, and instituting furloughs of 30 days or less. However, those sections do not apply to written reprimands and, therefore, the Agency's reliance on them is misplaced.

Moreover, in our view, requiring the Agency to issue a letter of reprimand to a supervisor does not directly interfere with management's right to discipline employees under section 7106(a)(2)(A) of the Statute because, as acknowledged by the Agency, that right applies only to "employees" and section 7103(a)(2) of the Statute expressly excludes supervisors from the definition of "employee."

Further, we reject the Agency's argument that the remedy is inconsistent with the Statute because the Statute precludes: (1) arbitrators from awarding remedies that adversely affect nonunit employees; or (2) parties from contractually empowering agencies to agree to discipline any supervisor found to have violated another agreement provision. Exceptions at 5, 9, 10, 14.

We note that the Agency argues that under section 7103(a)(9)(C) and (a)(12) of the Statute,

arbitrators who find that employers have violated the term of a[] negotiated agreement so as to adversely affect the conditions of employment of unit employees are empowered under section 7121 of the Statute to do no more than construct remedies which correct the effects of such violations on those conditions of employment.

Exceptions at 6 (emphasis in original). However, a matter may concern the conditions of employment of unit employees even though it also affects nonunit employees or positions. See American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 33 FLRA 335 (1988) (OPM), enforced sub nom. United States Office of Personnel Management v. FLRA, 905 F.2d 430 (D.C. Cir. 1990). The Arbitrator found, in part, that the Agency violated "Article 6, Rights of the Employee-Section b, of the Master Agreement" by threatening and harassing the grievant. Award at 14. We find that the Arbitrator's remedy in this case was designed to correct the effects of the Agency's violation of the parties' collective bargaining agreement on the grievant's conditions of employment. Having found that the grievant was harmed by the Agency's violation of the parties' collective bargaining agreement, the Arbitrator properly fashioned a remedy designed to correct the effects of that violation.

We also find that in arguing that the Statute prohibits the Arbitrator from awarding this remedy, the Agency improperly relied on negotiability cases that focused only on the effects proposals had on the conditions of employment of nonunit employees. We have reexamined the issues raised in those cases. Now, in determining the negotiability of a proposal that affects both unit and non-unit employees or positions, we do not consider the effect of the proposal on nonunit employees or positions. Rather, we look at whether the matter vitally affects the working conditions of unit employees. See OPM, 33 FLRA at 337-38. In short, the fact that a proposal affects persons outside the unit does not in and of itself render that proposal nonnegotiable. Accordingly, we reject the Agency's argument that the Statute precludes arbitrators from awarding remedies that benefit or adversely affect nonunit employees.

We have already noted that the conduct of the second-line supervisor was expressly at issue in this case and that the remedies addressed the effects of the supervisor's conduct on the grievant's conditions of employment. As the Arbitrator is authorized by section 7121 of the Statute to award remedies affecting unit employees' conditions of employment and as the Agency has failed to establish that this remedy is unlawful, we reject the Agency's argument that the Statute prohibits this remedy.

We also note the Agency's argument that even if the parties' agreement gave arbitrators the remedial authority to require that management take personnel actions against specific supervisors, "the Statute must be read as precluding parties from contractually empowering arbitrators to do so." Exceptions at 9. The Agency appears to be addressing whether a provision of the parties' agreement that provided for the remedy in this case could lawfully have been negotiated. We note at the outset that the Agency has provided no support for the conclusion that an arbitration remedy must be based on a specific provision of the contract. Moreover, even if an arbitration remedy did have to be based on a specific contract provision, nothing in the Agency's argument indicates that the Arbitrator was precluded by the Statute from granting this remedy in the circumstances before him or that such a provision would not be within the range of matters that can be bargained. Even if a contractual provision requiring management to take personnel actions against specific supervisors would be found, in a negotiability context, to directly or excessively interfere with a management right, that fact would not necessarily preclude the same type of provision from being found to be an enforceable arrangement in an arbitration context. See Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990) (Customs Service). The Agency has cited no section of the Statute precluding parties from negotiating such a provision, and none is apparent to us. Accordingly, in the context of this arbitration case, we reject the Agency's argument in this regard.

Section 7122(a) of the Statute provides that the Authority may find an arbitration award deficient if it is contrary to any law, rule, or regulation. The Agency has cited no law, rule, or regulation prohibiting an arbitrator from requiring an agency to issue a letter of reprimand to a supervisor, and none is otherwise apparent to us. Accordingly, we conclude that the Agency has failed to establish that requiring it to issue a letter of reprimand to the second-line supervisor is contrary to law, rule, or regulation. See Veterans Administration Hospital, Fort Howard, Maryland and Maryland Nurses Association, Fort Howard Chapter, 11 FLRA 10, 11 (1983) (the Authority found that the agency "fail[ed] to establish" that an arbitration award ordering the agency to admonish a supervisor was "contrary to any governing law or regulation that may be concerned with the right of an agency to discipline agency personnel, in general").

We also reject the Agency's argument that the Arbitrator exceeded his authority by issuing a "punitive" remedy that applies to a nonunit employee. We note that the Agency cites AFGE and EPA to support its assertion that the Arbitrator's remedies are improper because "nowhere in the description of the issues is there any claim that any provision of the parties' agreement calls for, or authorizes an arbitrator to order, disciplinary action be taken against . . . the supervisor who is found to have violated the agreement." Agency's Brief at 12. Those cases are distinguishable because they involved orders that provided remedies for matters or personnel beyond the scope of the issues submitted to arbitration. In this case, however, the Arbitrator had before him the conduct of the nonunit employee. As noted previously, two of the issues before the Arbitrator in this case were: (1) whether the grievant was "harassed, intimidated, restrained, coerced, threat[e]ned, and/or [whether there] were acts of reprisal demonstrated against him by [the second-line supervisor]?"; and (2) whether "the [Agency] violate[d] Article 18, [s]pecifically Section B-Assignment and Hours Of Work?" Award at 9. The remedy requiring that the second-line supervisor be issued a letter of reprimand directly addresses the harm that the supervisor's improper conduct caused the grievant. Moreover, as stated previously, the Agency's characterization of the award as "punitive" provides no independent basis for finding the award deficient.

To the extent that the Agency disagrees with the Arbitrator's formulation of the issues, such disagreement provides no basis for finding the award deficient. See, for example, U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service and National Weather Service Employees Organization, 36 FLRA 352, 362-63 (1990); and Department of Health and Human Services, Social Security Administration, Birmingham, Alabama and American Federation of Government Employees, Local 2206, 35 FLRA 830, 832-33 (1990). Further, as arbitrators have great latitude in fashioning remedies, the fact that this remedy was not requested by the Union provides no basis for setting it aside.

Finally, we reject the Agency's contention that this portion of the award fails to draw its essence from the parties' agreement. The Agency has not established that the portion of the remedy requiring the second-line supervisor to be issued a letter of reprimand is deficient under any of the tests set forth in Ogden Air Logistics Center. Rather, the Agency merely asserts that the Arbitrator "rendered an award which does not, with respect to the remedy, derive its essence from the agreement" because "[t]here are no such provisions in [its] agreement with the Union, nor does the Arbitrator refer to any provision as giving him the contractual authority to issue punitive remedies." Exceptions at 16-17. As noted previously, the Arbitrator found, in part, that the Agency "violated Article 6, Rights of the Employee-Section b, of the Master Agreement" by threatening and harassing the grievant. Award at 14. To the extent that the parties' agreement is silent on the remedy for such a violation, we have no basis on which to conclude that, consistent with the tests set forth in Ogden Air Logistics Center, the Arbitrator's remedy and interpretation of the agreement are not plausible or rational. See Ogden Air Logistics Center, 35 FLRA at 1271.

We have already noted that the fact that the Agency characterizes a remedy as "punitive" provides no basis by itself for setting aside the award. We also note that an arbitrator need not discuss the specific provisions of the agreement involved in a case. See, for example, American Federation of Government Employees, Local 3529 and U.S. Department of Defense, Defense Contract Audit Agency, 35 FLRA 1108, 1113 (1990). Accordingly, we find that the Agency's assertions constitute mere disagreement with the Arbitrator's interpretation and application of the parties' agreement and provide no basis for finding the award deficient. See, for example, U.S. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 35 FLRA 1267, 1270-71 (1990); and U.S. Department of Health and Human Services, Social Security Administration, Region VI, Dallas, Texas and American Federation of Government Employees, Local 1336, 35 FLRA 1218, 1223 (1990).

b. Provision of Letter of Reprimand to Grievant

As part of the remedy, the Arbitrator ordered the Agency to give a copy of the letter of reprimand to the grievant for his personal files. The Agency claims that by requiring that a copy of the second-line supervisor's letter of reprimand "be personally given to" the grievant, the remedy is contrary to law because it violates provisions of the Freedom of Information and Privacy Acts. Exceptions at 15.

The Privacy Act, 5 U.S.C. º 552a, states, in part, that no agency shall disclose any record which is contained in a system of records without the prior written consent of the individual to whom the record pertains. Exemption (b)(2) to the Privacy Act provides that such information may be disclosed when disclosure would be required under 5 U.S.C. º 552, the Freedom of Information Act (FOIA). In this case, the Arbitrator ordered the Agency to give the grievant a copy of the second-line supervisor's letter of reprimand. As there is no indication that the supervisor has consented to this disclosure of his personnel record, we must determine whether its disclosure would be required under FOIA. Exemption (b)(6) to FOIA authorizes withholding information in "personnel and medical files the disclosure of which would constitute a clearly unwarranted invasion of privacy." 5 U.S.C. º 552(b)(6). Therefore, if releasing the letter of reprimand to the grievant would constitute a clearly unwarranted invasion of privacy, FOIA does not require it to be released. See generally, U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515 (1990), application for enforcement filed sub nom. FLRA v. U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, No. 90-1949 (1st Cir. Oct. 1, 1990).

A letter of reprimand is information contained in an employee's personnel record and an employee has a privacy interest in not having such a disciplinary action disclosed. See National Treasury Employees Union, Chapter 237 and U.S. Department of Agriculture, Food and Nutrition Service, Midwest Region, 32 FLRA 62, 71 (1988) (Provisions 9 and 10). We note that the Union in this case did not file an opposition to the Agency's exceptions and, thus, did not indicate what, if any, interest it, the grievant, or the public had in the disclosure of the letter of reprimand. While there is an interest in having the Agency comply with the remedy to reprimand the second-line supervisor, we find that there is no asserted or apparent interest in the grievant possessing a copy of the reprimand itself. We conclude, therefore, that in the circumstances of this case, releasing the second-line supervisor's letter of reprimand to the grievant would constitute a clearly unwarranted invasion of privacy. Accordingly, we will set aside that portion of the award requiring the Agency to provide the grievant with a copy of the letter of reprimand issued to the second-line supervisor.

3. Sensitivity Training

As part of the remedy, the Arbitrator required the Agency to ensure that within 1 year from the date of the award, the second-line supervisor is given or will take a class in "'Sensitivity Training' concerning Human Relations." Arbitrator's Award at 21. The Agency argues that this portion of the award is deficient because: (1) it interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute; (2) the Arbitrator exceeded his authority by issuing a "punitive" remedy that applies to a nonunit employee; (3) the Arbitrator issued an award which does not draw its essence from the parties' agreement; or (4) such a remedy violates the Statute and could never have been contractually authorized. Exceptions at 5, 9, 12-17.

When an agency contends that an arbitrator's award enforcing a provision of the parties' collective bargaining agreement is contrary to section 7106(a), we will examine 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. Customs Service, 37 FLRA at 313-314.

In this case, the Arbitrator found that the Agency, through the actions of the second-line supervisor, violated Article 6, Rights of the Employee-Section b of the parties' agreement by failing to give proper attention to the grievant's medical concern.(2) In this regard, the Arbitrator noted that the grievant endeavored to bring his medical concern to the attention of the second-line supervisor, stating that he "just wanted to get his medication and eat a diet meal." Id. at 11-12. Further, the Arbitrator found that the supervisor: (1) "did indeed by his actions harass, intimidate, restrain, coerce, threat[en], and/or demonstrate[] acts of reprisal against [the grievant] because of his medical concern"; and (2) "was not sensitive to a [s]ubordinate's medical concern, and placed [h]is own fear of probabilistic action by inmates above that of a realistic, real life situation and the immediate needs of [the grievant]." Id. at 13.

Article 6, Section b preserves an employee's right to bring "matters of personal concern" to management's attention. As interpreted by the Arbitrator, such matters include matters relating to an employee's health. This case illustrates the adverse effects on an employee when the matter of personal concern is a potentially life-threatening condition arising at the workplace. The provision attempts to ameliorate the adverse effects and to bring employees' concerns to management's attention so that management may take appropriate action. Therefore, we find that the provision constitutes an arrangement for employees adversely affected when management exercises its rights without considering "matters of personal concern" to an employee.

Moreover, it appears from the Arbitrator's award that the required sensitivity training is intended to teach the supervisor how to better interact with employees and better understand their needs and concerns. See Award at 19. As the Arbitrator is ordering the second-line supervisor to take a class that will teach him to pay more attention to "matters of personal concern" to employees, the Arbitrator's award clearly constitutes an enforcement of Article 6, Section b of the parties' agreement.

We conclude that the Arbitrator's enforcement of Article 6, Section b does not abrogate the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. In this regard, we note that the requirement of sensitivity training does not prevent the Agency from making training determinations as to other employees and preserves the Agency's ability to determine matters including when and where the supervisor's sensitivity training is to take place, as well as its specific content and duration.

Accordingly, we reject the Agency's contention that the award is deficient because it interferes with management's right to assign work.

Furthermore, for the reasons stated in part IV., section 2.a. of this decision, we reject the Agency's arguments that: (1) the Arbitrator exceeded his authority by issuing a "punitive" remedy that applies to a nonunit employee; (2) the Arbitrator issued an award which does not draw its essence from the parties' agreement; or (3) such a remedy violates the Statute and could never have been contractually authorized.

V. Decision

The award is modified to delete the following sentence from the award: "A Copy of the Letter Of Reprimand shall be personally given to [the grievant] for his personal file."




FOOTNOTES:
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1. As the Agency did not specifically except to the portion of the remedy ordering that it not use this incident or the facts of this case in its future evaluations and performance appraisals of the grievant, we will not address that portion of the award.

2. Article 6, Rights of the Employee-Section b states as follows: "Each employee shall have the right to bring matters of persona