40:1035(92)AR - - HHS, Austin, TX and NTEU, Chapter 219 - - 1991 FLRAdec AR - - v40 p1035



[ v40 p1035 ]
40:1035(92)AR
The decision of the Authority follows:


40 FLRA No. 92

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

AUSTIN, TEXAS

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 219

(Union)

0-AR-1905

DECISION

May 24, 1991

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 Richard B. Craig filed by both the Union and 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. Each party also filed an opposition to the other party's exceptions.

The grievance concerns a 3-day suspension imposed on the grievant for engaging in rude, disrespectful, and disruptive behavior. The Arbitrator concluded that the preponderance of the evidence did not support a 3-day suspension, and mitigated the discipline to a written reprimand. The Arbitrator further ordered that if the grievant were to cause a disturbance and/or refuse to perform work within her job specifications during a specified time period, she would automatically receive a 5-day suspension without pay. The Arbitrator also retained jurisdiction on the issue of attorney fees.

The Union excepts to the Arbitrator's imposition of a written reprimand and to the automatic 5-day suspension. The Agency excepts to the automatic 5-day suspension and also requests that the Authority remand the case to the Arbitrator for the purpose of fashioning an appropriate remedy.

For the reasons discussed below, we conclude that the portion of the Arbitrator's award imposing a written reprimand is not deficient. However, the portion of the award directing an automatic 5-day suspension for future misconduct, to which both the Union and the Agency except, conflicts with management's right to discipline under section 7106(a)(2)(A) of the Statute. Accordingly, the award will be modified to delete that portion and to replace it with a provision that an automatic 5-day suspension may be imposed. Finally, as there is no basis on which to grant the Agency's request that the award be remanded, the request will be denied.

II. Background and Arbitrator's Award

The Agency suspended the grievant for 3 days for being rude and disrespectful to the members of the Regional Personnel Office (RPO) staff and for disrupting employees in the RPO with her behavior on October 19, 1989. The incident apparently was the result of the grievant's efforts to correct a discrepancy in her paycheck.

The parties stipulated the following issue for resolution before the Arbitrator:

Whether the suspension of the grievant was only for such cause as will promote the efficiency of the service? If not what is the appropriate remedy?

Award at 1.

The Arbitrator determined that the preponderance of the evidence did not support the 3-day suspension. In this regard, he found that the testimony adduced at the arbitration hearing did not support management's position that the grievant was rude and disrespectful to members of the RPO staff. The Arbitrator found that the evidence established that the grievant did not curse, threaten or physically abuse any employee. However, the Arbitrator also found that the grievant "was upset, demanding, insistant [sic] and determined to do everything she could to get her money." Id. at 6. As a remedy, the Arbitrator ordered that the grievant be given a written reprimand that was to remain in effect for one year from the date of the award. The Arbitrator further ordered that if, during that one-year period, the grievant were to cause a disturbance either in or outside her work area and/or refuse to perform work within her job specifications, she would automatically receive a 5-day suspension without pay. The Arbitrator also retained jurisdiction on the issue of attorney's fees.

III. Positions of the Parties

A. Union's Exceptions

The Union excepts to the award on two grounds: (1) the Arbitrator exceeded his authority by imposing a written reprimand on the grievant, after finding that the evidence did not support discipline; and (2) the award violates law to the extent it orders an automatic 5-day suspension without pay based on future misconduct.

In support of the exception pertaining to the imposition of a written reprimand, the Union argues that in order for the Arbitrator to have determined whether the suspension was for cause, the Arbitrator was required first to determine whether the grievant actually committed the acts alleged by the Agency. The Union argues, in this regard, that the Arbitrator found that the grievant did not engage in the conduct that served as the basis for the Agency's disciplinary action. The Union argues, therefore, that the Arbitrator "did not possess the authority to impose discipline against [the grievant,]" and that the Arbitrator exceeded his authority by doing so. Union's Exceptions at 12.

The Union also argues that the portion of the award directing an automatic 5-day suspension without pay is deficient as being contrary to law and regulation. More specifically, the Union argues that this portion of the award interferes with the Agency's right to discipline under section 7106(a)(2)(A) of the Statute, disregards certain due process and procedural protections contained in 5 U.S.C. § 7503 and 5 C.F.R. § 752.203, and automatically imposes a suspension without recourse by the grievant and the Union to the parties' negotiated grievance procedure in violation of section 7121 of the Statute and 5 C.F.R. § 752.203(f).

B. Agency's Opposition

The Agency disagrees with the Union's assertion that the Arbitrator exceeded his authority by imposing a written reprimand on the grievant. The Agency argues that the Union is merely disagreeing with the Arbitrator's findings of fact, particularly, the Arbitrator's finding that the grievant had created a disturbance. The Agency notes, in this regard, that the Arbitrator did not reject the Agency's assertion that the grievant's conduct was disruptive. According to the Agency, the Arbitrator determined that although the 3-day suspension was inappropriate for the grievant's conduct, some form of discipline was warranted.

The Agency also argues, as it has in its exceptions, that the Authority should remand the case to the Arbitrator. The reasons for this request are set forth in the discussion of the Agency's exceptions.

C. Agency's Exceptions

The Agency excepts to the award on the following bases: (1) the Arbitrator exceeded the scope of his authority in fashioning a remedy; (2) the award interferes with the Agency's right to discipline under section 7106(a)(2)(A) of the Statute; and (3) the award is contrary to 5 U.S.C. § 7503 and applicable regulations. The Agency also argues that striking the improper remedy from the award will create an ambiguity that justifies remanding the case to the Arbitrator for clarification.

With regard to the assertion that the Arbitrator exceeded his authority, the Agency argues that by imposing a 5-day suspension for future misconduct, the remedial relief is beyond the scope of the matter submitted to the Arbitrator for resolution. The Agency contends that the issue before the Arbitrator was whether there was just cause for the imposition of the 3-day suspension and that a penalty for future misconduct relates to an issue that was not before the Arbitrator. In support, the Agency relies on various provisions of the parties' agreement outlining the scope of the Arbitrator's authority.

The Agency also argues that the imposition of the 5-day suspension for future misconduct interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute. In support, the Agency relies on Social Security Administration and American Federation of Government Employees, Local 1336, 34 FLRA 670 (1990) (Social Security Administration), in which a prospective remedy was found to interfere with the exercise of management's rights. As the 5-day suspension here similarly would conflict with the exercise of a management right, the Agency argues that the award must be set aside.

Finally, the Agency argues that although the Arbitrator was authorized to mitigate the penalty imposed on the grievant, the future 5-day suspension is contrary to law and regulation. The Agency states that under 5 U.S.C. § 7503 and 5 C.F.R. §§ 752.201 et seq., the Agency could not automatically issue a 5-day suspension to the grievant but, rather, would first have to propose such action. The Agency argues, therefore, that it would not be possible to effectuate the Arbitrator's decision. Because, in the Agency's view, the Arbitrator intended to impose a penalty falling somewhere between a reprimand and a 3-day suspension, the Agency urges the Authority to remand the case to the Arbitrator for consideration of an appropriate penalty.

D. Union's Opposition

The Union opposes the Agency's request that the Authority remand the case to the Arbitrator for clarification and reconsideration of the penalty to be imposed on the grievant. The Union states that the Agency's exceptions relate solely to the Arbitrator's order directing the Agency to impose a 5-day suspension for future misconduct, and the Union has agreed that this portion of the award is contrary to law, rule and regulation. The Union argues that the Arbitrator's findings and holdings that the suspension was not for cause, that the grievant did not engage in the conduct alleged by the Agency, and that a written reprimand was the appropriate level of discipline for any conduct which may have occurred, support the Arbitrator's award. For these reasons, the Union argues that a remand to either the Arbitrator or the parties is unnecessary.

IV. Analysis and Conclusions

A. Imposition of Written Reprimand Is Not Deficient

For the following reasons, we find that the portion of the award mitigating the 3-day suspension to a written reprimand is not deficient. Accordingly, the Union's exception to this portion of the award is denied.

The Union argues that the Arbitrator exceeded his authority by imposing the written reprimand after finding that the grievant had not engaged in the conduct alleged by the Agency. More particularly, the Union states that the Arbitrator "explicitly found" that the preponderance of the evidence did not support the charges of rude and disrespectful behavior and that there was no evidence that the grievant cursed, threatened, or physically abused any employee. Union's Exceptions at 4. The Union asserts that "[h]aving found that [the grievant] did not commit the wrongdoing, the Arbitrator did not possess the authority to impose discipline against her." Id. at 12.

The Agency argues, in opposition, that the award of a written reprimand was based on the Arbitrator's finding that the grievant had created a disturbance by engaging in disruptive behavior. According to the Agency, the Union is merely disagreeing with the Arbitrator's factual findings.

An arbitrator exceeds his or her authority by resolving an issue not submitted to arbitration or by issuing an affirmative order that either awards relief to persons not encompassed within the grievance or that is beyond the scope of the matter submitted to arbitration. See, for example, U.S. Department of Health and Human Services, Social Security Administration, Southeastern Program Service Center and American Federation of Government Employees, Local 2206, 38 FLRA 1170, 1176-79 (1990); U.S. Department of Veterans Affairs Medical Center, Asheville, North Carolina and American Federation of Government Employees, Local 446, 37 FLRA 1054 (1990) (Department of Veterans Affairs).

The Union does not argue, as to this exception, that the Arbitrator exceeded his authority by resolving an issue not submitted to arbitration or awarding relief to persons not encompassed within the grievance or beyond the scope of the matter submitted to arbitration. Rather, the Union argues that the Arbitrator exceeded his authority by imposing a written reprimand notwithstanding a finding that the grievant was not guilty of the charges alleged by the Agency.

Contrary to the Union's assertion, the Arbitrator did not reject all of the grounds on which the 3-day suspension initially was imposed. The charge of engaging in disruptive conduct specifically was not rejected. To the contrary, the Arbitrator found that the grievant "was upset, demanding, insistant [sic] and determined to do everything she could to get her money." Award at 6. The mitigation of the penalty from a 3-day suspension to a written reprimand was based on the fact that some of the charges against the grievant, namely those relating to rude and disrespectful behavior, were unsubstantiated. However, the Arbitrator left standing the charge of disruptive behavior. Clearly, the imposition of the written reprimand was based on this conduct.

It is well established that an arbitrator may determine whether all or part of a disciplinary action is not for just and sufficient cause and set aside or reduce the penalty. See Department of Veterans Affairs, 37 FLRA at 1056. In this case, the Arbitrator determined that a part of the disciplinary action was not based on just cause and reduced the penalty to a written reprimand. The Arbitrator thus acted fully within his authority. Moreover, we note that in the Union's opposition to the Agency's exceptions, the Union has essentially conceded that the Arbitrator acted properly in imposing the written reprimand. The Union states, in this connection, that "[i]t is clear that the Arbitrator found that a written reprimand was the appropriate level of discipline for the conduct which may have occurred on October 19, 1989, . . ." and the Arbitrator's findings and holdings support this conclusion. Union's Opposition at 4.

Consequently, we find that the Arbitrator did not exceed his authority by imposing a written reprimand. The Union's exception to this portion of his award is denied.

B. The 5-Day Suspension for Future Misconduct Is Deficient

Both the Union and the Agency except to the portion of the award directing that a 5-day suspension without pay be imposed on the grievant if, during the one-year period in which the written reprimand is in effect, the grievant causes a disturbance in or outside the work area and/or refuses to perform work within her job specifications. The Union and the Agency argue that the award interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute and is inconsistent with 5 U.S.C. § 7503 and 5 C.F.R. Part 752. Additionally, the Union argues that the award violates section 7121 of the Statute and 5 C.F.R. § 752.203(f).

We find that the award is deficient because it conflicts with the right to discipline under section 7106(a)(2)(A) of the Statute. In Social Security Administration, the Authority was presented with exceptions concerning a virtually identical remedy as that presented here. In that case, the arbitrator determined that a 5-day suspension was not for just cause, reduced the suspension to a reprimand, and directed that the reprimand warn the grievant that any further violation would result in a 5-day suspension. We found that the portion of the award directing a future 5-day suspension improperly interfered with the exercise of management's right to discipline under section 7106(a)(2)(A) of the Statute. In reaching that result, we stated that restrictions on an agency's ability to choose the specific penalty to impose in disciplinary actions directly interfere with management's right to discipline under section 7106(a)(2)(A) by eliminating management's discretion to choose the penalty it will impose for a given offense. 34 FLRA at 673-74.

The disputed portion of the award in this case requires the Agency to impose a 5-day suspension on the grievant for future misconduct involving either a disturbance in or outside the work area, and/or a refusal to perform work within the grievant's job specifications. By directing the specific penalty to be imposed on the grievant, the award impermissibly restricts management's right to discipline under section 7106(a)(2)(A) of the Statute.(1)

Consequently, we find this portion of the award to be deficient.(2) As we did in Social Security Administration, we will modify the award by striking the language that states that the grievant "shall automatically receive a 5 day suspension without pay[,]" and replace it with a provision stating that the grievant "may receive a 5-day suspension without pay."

C. The Agency's Request for a Remand Is Denied

The Agency argues that the imposition of a future 5-day suspension cannot be implemented. The Agency also states that striking any deficient language from the award "would not be appropriate . . ." and "would not be in keeping with the [A]rbitrator's findings." Agency's Opposition at 4. According to the Agency, because the Arbitrator intended to impose a penalty falling somewhere between a 3-day suspension and a reprimand, "the only way by which that intent can be effectuated . . ." is for the Authority to remand the case so that the Arbitrator can consider an appropriate remedy. Id. at 5. We disagree.

First, we have found that the automatic 5-day suspension for future misconduct is deficient and have modified the award accordingly. The modification is consistent with the Arbitrator's findings. Therefore, the Agency's contentions that striking any portion of the award is inappropriate and not in keeping with the Arbitrator's findings lack merit.

Second, we find unpersuasive the Agency's argument that the "only way" to effectuate the Arbitrator's intent is to remand the case to the Arbitrator. While the Arbitrator intended to account for certain misconduct on the part of the grievant during the one-year period the written reprimand is to stay in effect, the Arbitrator's intent is fully satisfied by modifying the prospective remedy. The Agency may choose to impose a 5-day suspension without pay, or it may take other appropriate action. Consequently, there is no basis on which to find that a remand to the Arbitrator is warranted.

V. Decision

The award is modified to delete that portion which states that "[the grievant] shall automatically receive a 5 day suspension without pay[,]" and to add, instead, that "[the grievant] may receive a 5-day suspension without pay." The Union and Agency exceptions to the other portions of the award are denied.




FOOTNOTES:
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