51:0270(27)AR - - VA Medical Center, Birmingham, AL and AFGE, Local 2207 - - 1995 FLRAdec AR - - v51 p270



[ v51 p270 ]
51:0270(27)AR
The decision of the Authority follows:


51 FLRA No. 27

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER

BIRMINGHAM, ALABAMA

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2207

(Union)

0-AR-2622

_____

DECISION

September 30, 1995

_____

Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Sara McLaurin Green 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 Regulations. The Union did not file an opposition to the Agency's exceptions.

The Arbitrator ruled that the grievant's suspension was not for just cause, as required by the parties' collective bargaining agreement, and ordered that the suspension be vacated.

We conclude that the Agency has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Agency's exceptions.

II. Arbitrator's Award

On July 31, 1990, the Agency informed the grievant that he would be suspended for 14 days because he had been absent without leave (AWOL) on two occasions in June. In assessing this penalty pursuant to its progressive disciplinary system, the Agency relied on a prior reprimand of the grievant in 1989.

On August 25, 1990, the Union obtained a copy of the notice of suspension from the Agency. On September 10, 1990, the grievant filed a grievance protesting the suspension. The Agency denied the grievance as untimely because the grievant had not filed the grievance within 30 days of the date on which he was informed of the suspension, as required by the parties' collective bargaining agreement. The grievance was submitted to arbitration on the issues of whether the grievance was timely filed and, if so, whether the grievant was suspended for just cause.

The Arbitrator determined that the grievance was untimely filed with respect to the grievant, but that the Union had independent standing to file a grievance. She concluded that because the Union had assisted the grievant in preparing the grievance, which was filed 16 days after the Union received the notice of suspension, the Union was not time-barred from pursuing the grievance.

On the merits, the Arbitrator concluded that the suspension was not for just cause, as required by the parties' collective bargaining agreement,(1) based on the following factors: (1) the grievant's attendance record had improved after he was reprimanded in 1989; (2) he had not been counseled or warned that absences without an adequate excuse would subject him to charges of AWOL; (3) management substantially delayed notifying him that his tardiness in June was charged to AWOL and of the consequences of such charges; (4) management improperly applied its progressive disciplinary system; and (5) management could not rely on the 1989 reprimand to enhance the penalty. Accordingly, the Arbitrator sustained the grievance and ordered that the suspension be expunged from the grievant's record and that he be made whole for his lost wages.

III. Exceptions

A. Agency's Contentions

The Agency contends that the Arbitrator's determination that the grievance was timely filed by the Union and therefore arbitrable fails to draw its essence from the parties' collective bargaining agreement and is based on a nonfact.

The Agency claims that the award on the merits impermissibly interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute because, although the Arbitrator did not reverse the Agency's finding that the grievant was AWOL, the Arbitrator reversed the suspension without finding that the Agency had violated the agreement in imposing it. In support, the Agency cites U.S. Department of the Air Force, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 35 FLRA 1146 (1990), petition for review dismissed, 951 F.2d 276 (10th Cir. 1991) (Tinker AFB).

The Agency further contends that the award on the merits fails to draw its essence from the agreement. The Agency claims that the award is irrational because it reverses the suspension despite the grievant's past record of tardiness and the seriousness of such misconduct. The Agency argues that the award is unfounded insofar as it finds that the Agency erred in failing to advise the grievant immediately concerning his AWOL status and in considering the grievant's prior reprimand.

B. Analysis and Conclusions

1. Arbitrability

An arbitrator's determination of the procedural arbitrability of a grievance under the parties' agreement is not subject to challenge. American Federation of Government Employees, Local 2921 and U.S. Department of the Army, Army & Air Force Exchange Service, Dallas, Texas, 50 FLRA 184, 185 (1995). Such determinations may be found deficient only on grounds that do not challenge the arbitrator's determination of procedural arbitrability itself. Id. at 186. The Agency's exception to the Arbitrator's conclusion that the grievance was timely filed directly challenges her determination of procedural arbitrability. As such, this exception provides no basis for finding the award deficient under section 7122(a) of the Statute, and we deny the exception.

2. Vacating the Discipline

a. Management Rights

Under section 7106(a)(2)(A) of the Statute, management has the right to take disciplinary action against employees. The Authority has consistently held that an arbitration award setting aside or reducing a suspension does not impermissibly conflict with management's right to take disciplinary action when the arbitrator finds that the suspension was not for just cause under a collective bargaining agreement. E.g., U.S. Department of the Navy, Naval Aviation Depot, Norfolk, Virginia and International Association of Machinists and Aerospace Workers, Local 39, 42 FLRA 322, 327-28 (1991) (Naval Aviation Depot). In these cases, the Authority did not consider or apply the approaches it had established to resolve exceptions to arbitration awards claiming that awards impermissibly conflicted with other management rights under section 7106(a) of the Statute. See Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990) (Customs Service); U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1122, 34 FLRA 323 (1990) (SSA). Applying this precedent, we conclude, as discussed below, that the Arbitrator's enforcement of the parties' negotiated just cause provision does not impermissibly interfere with management's right to take disciplinary action.

The Customs Service two-prong analysis was developed and is applied when an agency contends that an arbitrator's award enforcing a provision of the parties' collective bargaining agreement is contrary to section 7106(a). 37 FLRA at 313-14; see, e.g., U.S. Department of the Treasury, Bureau of the Public Debt, Washington, D.C. and National Treasury Employees Union, Chapter 199, 37 FLRA 841, 846 (1990). The Authority stated in Customs Service that it would "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." 37 FLRA at 313-14. Applying this approach to the award in this case enforcing a contractual provision requiring just cause for discipline leads to the conclusion that the award is not deficient as inconsistent with section 7106(a)(2)(A). With respect to the first prong of the Customs Service analysis, the Authority has long held that contract provisions establishing general standards, including "fair," or "for just or specific cause," to guide the exercise of management's right to discipline constitute appropriate arrangements within the meaning of section 7106(b)(3) of the Statute.(2) As such provisions reserve to management the right to discipline employees for all conduct for which management can establish that the standards have been met, their enforcement does not abrogate management's right to discipline. Accordingly, under the Customs Service approach, the award in this case is not deficient.(3)

In resolving whether a remedy ordered in an arbitration award impermissibly conflicts with a management right in other contexts, the Authority has required that the remedy reflect a reconstruction of what management would have done had it acted properly. E.g., SSA, 34 FLRA at 328. We conclude that the Arbitrator's enforcement of the provision requiring just cause for discipline in this case constitutes such a reconstruction. Thus, where an arbitrator vacates or mitigates a disciplinary action taken in violation of a contractual just cause provision, that award operates in effect to reconstruct what management would have done had the provision been followed.

As this discussion makes clear, the application of the Authority's Customs Service and reconstruction analysis in this case results in a conclusion that the award is not deficient. This result is, in turn, consistent with prior Authority decisions involving the arbitral enforcement of provisions requiring just cause for discipline. E.g., Naval Aviation Depot; U.S. Department of Justice, Immigration and Naturalization Service, New York District Office and American Federation of Government Employees, Immigration and Naturalization Service Council, Local 1917, 42 FLRA 650, 657-58 (1991). As there is no basis in the Statute to apply a different approach to reviewing awards claimed to interfere with management's right to discipline than to reviewing claimed interference with other rights, we will henceforth apply the Customs Service and reconstruction precedent to determine whether an arbitrator's enforcement of a contractual just cause provision is deficient.

Based on the foregoing, we conclude that the award is not contrary to section 7106(a)(2)(A) of the Statute. In so finding, we reject the Agency's reliance on Tinker AFB, which did not involve an arbitrator's determination of whether a disciplinary action was for just and sufficient cause under a collective bargaining agreement.

b. Essence of the Agreement

To demonstrate that an award fails to draw its essence from the collective bargaining agreement, the party making the allegation must show that the award: (1) is so unfounded in reason and fact, and so unconnected with the wording and purposes of the collective bargaining agreement, as to manifest an infidelity to the obligation of the arbitrator; or (2) does not represent a plausible interpretation of the agreement; or (3) cannot in any rational way be derived from the agreement; or (4) evidences a manifest disregard of the agreement. E.g., United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-77 (1990). We conclude that the Agency has failed to establish that the Arbitrator's interpretation and application of the just cause provision does not draw its essence from the collective bargaining agreement under any of these tests. Accordingly, we deny the Agency's exception.

IV. Decision

The Agency's exceptions are denied.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Article 12, Section 1 of the agreement pertinently provides: "No bargaining unit employee will be subject to disciplinary