41:1304(102)AR - - Air Force, Air Logistics Center, Warner Robins AFB, GA and AFGE Local 987 - - 1991 FLRAdec AR - - v41 p1304

[ v41 p1304 ]
The decision of the Authority follows:

41 FLRA No. 102













August 26, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator James J. Odom, Jr. filed by the Union 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 Agency did not file an opposition to the Union's exceptions.

In resolving a grievance over a 10-day suspension, the Arbitrator held that a provision in the parties' collective bargaining agreement was unenforceable. For the following reasons, we conclude that this portion of the award is not consistent with our decision in Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990) (Customs Service) and must be vacated. We will remand this case to the parties for further proceedings.

II. Background and Arbitrator's Award

The grievant, a Household Goods Inspector who coordinates shipments of furniture and other household goods of Federal Government employees, was given a 14-day suspension, later reduced to 10 days, for providing false and inconsistent information during an investigation. A grievance was filed over the suspension and, when the grievance was not resolved, it was submitted to arbitration.

As a procedural matter, the Union asserted that the suspension was not proposed within the time limits set forth in section 5.02 of the parties' collective bargaining agreement, which provides in pertinent part:


Where an employee is subject to discipline, it is agreed that within 45 calendar days of the offense, the Employer's awareness of the offense, or the completion of an investigation of the matter by other than the supervisor, whichever occurs later, the Employer will impose or serve upon the employee one of the following:

. . . .

(b) In the case of a . . . suspension, . . . a notice of proposed . . . suspension[.]

Award at 2. Although the Agency "admit[ted]" that the 45-day time limit set forth in section 5.02 had not been met, it contended before the Arbitrator that the time limit was unenforceable because it interfered with the Agency's right to impose discipline under section 7106(a)(2)(A) of the Statute. Id. at 7.

The Arbitrator concluded that he was required to follow a previous award of another arbitrator that the time limit in section 5.02 was not enforceable because it interfered with the Agency's right to discipline employees.(1) The Arbitrator stated that because the same parties, the same issues, and the same contract clause, were involved in both cases, "[t]he doctrine of res judicata" applied, and he would not "redecide" the issue resolved by the prior award. Id. at 8.

On the merits, the Arbitrator found that the grievant had an "exemplary" record. Id. at 13. The Arbitrator also found, however, that the grievant had engaged in some "misrepresentation." Id. Because the Arbitrator found that the 10-day suspension imposed by the Agency was "customarily . . . reserved for offenses of much greater gravity[,]" he reduced the grievant's 10-day suspension to 3 days. Id.

III. The Union's Exceptions

The Union contends that the Arbitrator erred by failing to enforce section 5.02 of the parties' agreement. In the Union's view, section 5.02 does not violate the Agency's right to discipline under section 7106(a)(2)(A) of the Statute. The Union also contends that the doctrine of res judicata should not have been applied in this case because the arbitrator in Warner Robins I erroneously concluded that section 5.02 of the parties' agreement was not enforceable.

The Union also argues that section 5.02 is an appropriate arrangement under section 7106(b)(3) of the Statute. The Union asserts that section 5.02 "was intended to address the impact upon employees from the bringing of stale charges against them." Exceptions at 5. The Union points out that the Agency agreed to section 5.02, that the provision was approved by the Agency head, and that it has been in effect for over 10 years.

In addition, the Union asserts that the Arbitrator "exceeded his authority when he gave a Command level ruling at an Activity level." Exceptions at 1 (emphasis in original). Finally, the Union argues that the Agency's decision to adopt "a practice and/or rule that is in conflict with the Command Level Agreement that has been in effect for over (ten) 10 years," constitutes an unfair labor practice under section 7116(a)(7) of the Statute. Id. at 3.

IV. Analysis and Conclusions

In Customs Service, 37 FLRA 309, we 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 the relevant provision to determine whether: (1) it constitutes an arrangement for employees adversely affected by the exercise of management's rights; and (2) as interpreted by the arbitrator, it abrogates the exercise of a management right. We explained that if 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, and we will not find that an award enforcing the provision is contrary to law. We also held that when an arbitrator is presented with a provision that constitutes an arrangement, the arbitrator may not refuse to enforce the provision on the basis of a conflict with management's rights under section 7106 of the Statute unless the provision abrogates a management right.

A Customs Service analysis is required in cases where an arbitrator is faced with a contention that a provision in an agreement is inconsistent with management's rights under section 7106(a) of the Statute. See, for example, U.S. Department of Defense, Defense Mapping Agency Aerospace Center, St. Louis, Missouri and National Federation of Federal Employees, Local 1827, 39 FLRA 286, 290 (1991) (Defense Mapping). The Arbitrator in this case did not undertake the analysis required by Customs Service to determine whether section 5.02 was enforceable. Instead, the Arbitrator refused to enforce section 5.02 based solely on a previous arbitration award. Accordingly, the portion of the award finding the time limit in section 5.02 unenforceable is deficient. See Defense Mapping, 39 FLRA at 290. Compare U.S. Department of the Air Force, Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 41 FLRA 303, 305 (1991) (Authority denied exceptions to an award where arbitrator found a grievance not arbitrable based on a prior award resolving the merits of the grievance).

As the Arbitrator's finding that the time limit in section 5.02 is unenforceable is deficient, we will vacate that portion of the award. Moreover, consistent with Customs Service, we find it evident that the time limit set forth in section 5.02 constitutes an arrangement. See U.S. Department of the Army, Army Transportation Center, Fort Eustis, Virginia and National Association of Government Employees, Local R4-6, 38 FLRA 186, 189-90 (1990) (Fort Eustis) (in denying exceptions to an award enforcing a contractual requirement that discipline be initiated within 15 days after occurrence of the incident giving rise to discipline, Authority found it clear that the provision constituted an arrangement). However, the Arbitrator's award provides no basis on which to determine whether, as interpreted and applied in this case, section 5.02 would abrogate the Agency's right to impose discipline under section 7106(a)(2)(A) of the Statute. Accordingly, we will remand this issue to the parties for resolution. See Defense Mapping, 39 FLRA at 290. Compare Fort Eustis, 38 FLRA at 190 (based on arbitrator's interpretation and application of disputed provision, Authority found that provision did not abrogate the exercise of management's right to discipline employees).

On remand, if the matter of the interpretation and application of section 5.02 remains unresolved, the parties may submit the issue to an arbitrator of their choice. However, as no exceptions were filed to the Arbitrator's resolution of the merits of the grievance, that portion of the award is not subject to relitigation. Accordingly, if an arbitrator determines, consistent with Customs Service, that section 5.02 is unenforceable, the merits portion of the Arbitrator's award will not be affected. On the other hand, noting the Agency's admission that the time limits in section 5.02 were violated, if an arbitrator determines that section 5.02 is enforceable, the disputed suspension would be vacated in toto and the grievant would be entitled to an appropriate remedy.

V. Decision

The award is vacated insofar as it finds that section 5.02 of the parties' agreement is unenforceable. The case is remanded to the parties for further p