53:1301(114)AR - - HUD, Denver CO and AFGE, Local 3972 - - 1998 FLRAdec AR - - v53 p1301



[ v53 p1301 ]
53:1301(114)AR
The decision of the Authority follows:


53 FLRA No. 114

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

DENVER, COLORADO

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3972

(Union)

0-AR-2885

_____

DECISION

February 19, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

Decision by Chair Segal for the Authority.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator James J. Cronin 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 filed an opposition to the Agency's exceptions.

The Arbitrator sustained two grievances challenging a Union official's suspension for 5 days without pay and directed the Agency to provide the grievant with back pay. For the reasons explained below, we conclude that the Agency's exceptions do not establish that the award resolving the first grievance is deficient. Because we deny the exceptions to this portion of the award, we find it unnecessary to resolve the Agency's remaining exceptions.

II. Background

The grievant, an employee of the Agency's Denver field office, was a Union representative on 100 percent official time. As a result of his Union status, the grievant did not work under or have an Agency supervisor "in the normal sense" and was responsible to management only for time/attendance pay purposes. Award at 13.

Because the grievant was engaged in representational activities on a full-time basis, he was not required to sign in and out daily like the other bargaining-unit employees, but instead was permitted to use a bi-weekly attendance sheet. In addition, the grievant was given a calling card that provided access to the Federal Telecommunications System (FTS).

These privileges ended when the grievant was assigned to a new division under an Agency reorganization. The grievant's new supervisor instructed him, by memorandum, to "sign in and out consecutively with the rest of the staff." Government Exhibit 14, Attachment 1, admitted at arbitration hearing and attached to Agency's Exceptions. In addition, the memorandum directed the grievant to immediately return his phone card to his supervisor, due to the Agency's "concerns about [the grievant's] use of the . . . card in [his] role as a union official." Id. The memorandum also stated that the new supervisor would approve the grievant's leave requests and sign his time and attendance report. Id. (1)

One month later, the supervisor issued two follow-up memoranda, as a result of the grievant's failure to follow her instructions. The memoranda notified the grievant that his phone card would be deactivated immediately, and stated that, pursuant to the parties' bargaining agreement, the grievant was required to: sign in and out consecutively; provide advance notice of plans to be out of the office during official duty time; and provide travel orders in advance of travel.

Subsequently, the grievant signed in and out on the same attendance sheet as the other unit employees but not "consecutively" as instructed. In addition, the grievant made two trips--to Agency headquarters in Washington, D.C., and to a union meeting in Las Vegas--during official duty time without directly notifying his supervisor or providing her with advance copies of his travel orders. With respect to the Washington trip, the grievant submitted his travel request to, and received authorization from, Agency headquarters. After hearing about the trip, the supervisor called headquarters for, and received, verification. As for the Las Vegas trip, the grievant notified his supervisor 4 days in advance that he would be out of the office on Union representational business but did not provide her with his travel orders.

The grievant's supervisor proposed suspending him for 5 days without pay, citing failure to: sign in and out as instructed; return his phone card; directly provide the supervisor with advance notice of the Washington trip; and provide the supervisor with a travel request and agenda concerning the Las Vegas meeting.

The Director of the Office of Housing ("Director") affirmed the supervisor's proposed disciplinary action, stating in a memorandum to the grievant: "If you wish to appeal this decision, you may request that the Union invoke arbitration under the provisions of the [bargaining agreement] within 20 calendar days of the date of this notice." Government Exhibit 2 at 4. Instead of invoking arbitration, the grievant filed a Step 1 grievance (No. 95-055) under Article 22 of the parties' agreement. The grievance was denied in a decision that stated: "If you . . . wish to pursue the matter further, you may submit your grievance to the next step in the grievance procedure . . . ." Government Exhibit 5 at 2. The grievant filed the grievance at Step 2. The Step 2 decision denied the grievance and, as before, invited the grievant to submit it "to the next step[.]" Government Exhibit 8. After submitting the grievance to Step 3, however, the grievance was denied in a decision stating:

I am rejecting your grievance because the . . . Agreement does not permit the filing of a grievance of a suspension. Sections 20.01(2) and 20.04(5) of the Agreement permit the Union to contest a 5-day suspension by invoking arbitration and not by using the grievance procedures set forth in Article 22.

Government Exhibit 10.

The Union then invoked arbitration in Grievance No. 95-055. A second grievance (No. 95-056), which alleged that the Director did not have authority to take final action on the proposed discipline, was consolidated with the first and addressed at the same arbitration.

III. Arbitrator's Award

1. Grievance No. 95-055

a. Timeliness

The Arbitrator concluded that the Agency failed to show that the grievance was untimely filed and, therefore, not arbitrable. The Arbitrator examined the interplay between Article 22 of the parties' agreement, which sets forth the general grievance procedures for resolution of grievances involving bargaining unit employees,(2) and Article 20 of the agreement, which sets forth the grievance procedure for disciplinary actions and provides that the procedure is to be used "in lieu of the procedures identified in Article 22."(3) Award at 2.

The Arbitrator rejected the Agency's argument that Article 20 is the exclusive procedure for challenging a suspension for 14 days or less, and concluded that the Union had properly followed the Article 22 procedure. The Arbitrator first noted that Article 20 does not "explicitly state[]" that it is the exclusive procedure for challenging disciplinary actions. Award at 9. The Arbitrator then noted that Article 22 states that "[t]his Article constitutes the sole and exclusive procedure for the resolution of grievances" and includes within the definition of "grievance" a "claim of breach of this collective bargaining agreement[.]" Id. Because the grievance claimed that the Agency breached the just-cause provision of the agreement, the Arbitrator reasoned, the dispute fell within the plain wording of Article 22. The Arbitrator further determined that the Agency's participation in the grievance process and instruction to the Union on how to proceed through Step 3 belied the argument that Article 22 did not apply.

The Arbitrator also rejected the Agency's argument that, even if Article 20 was the only procedure under which the grievance could be filed, the grievance was not timely under that provision because the Union had not taken the matter directly to arbitration. The Arbitrator concluded that the agreement did not require that disciplinary actions be taken directly to arbitration. Specifically, the Arbitrator interpreted the statement in section 23.01 that "[a] disciplinary action . . . may be referred directly to arbitration" as giving the Union the option of either going directly to arbitration or pursuing the matter through the grievance procedures. In addition, the Arbitrator concluded that Article 20 did not mandate that grievances taken under that procedure be taken directly to arbitration. Specifically, the Arbitrator determined that the language in section 20.04(5) stating that "[i]f arbitration is not invoked by the Union, the matter is closed for purpose of the grievance/arbitration procedure[,]" did not clearly require the Union to go directly to arbitration.

b. The Merits

Turning to the merits of the grievance, the Arbitrator framed the issue as:

(1) Whether the 5 day suspension was for just and sufficient cause? (2) Whether such adverse action was for such cause as will promote the efficiency of the service? (3) Whether the penalty imposed is appropriate? And, (4) If not, with respect to either of the above, what shall be the appropriate remedy?

Id. at 14-15.(4)

In deciding the foregoing issues in the Union's favor, the Arbitrator rejected five Agency arguments. The Arbitrator rejected the Agency's argument that it had just cause to suspend the grievant because his failure to follow his supervisor's instructions violated the principle of "obey now, grieve later" embodied in section 4.05 of the agreement.(5) Id. at 21. The Arbitrator determined that the grievant did not perform "any programmatic function, job, or task for or on behalf of [the Agency]," and that he "engaged exclusively . . . . in full time Union representational activities." Id. at 21-22. Accordingly, the Arbitrator concluded that application of the "obey now, grieve later" rule to the grievant would not serve that rule's purpose of "avoid[ing] interruption of workplace production by engaging in time-consuming processing of grievances." Id. at 21.

The Arbitrator also rejected the Agency's argument that it had just cause to suspend the grievant because his failure to sign in and out sequentially on the same form as the other unit employees violated section 17.05 of the agreement, which sets forth the procedures for employees to sign in and out. In the Arbitrator's view, that provision applies only to the alternative work schedules program governed by Article 17, in which the grievant did not participate. The controlling provision, the Arbitrator determined, is section 7.07, which explicitly relieves Union representatives on 100 percent official time from daily certification of their time, and requires certification only on a bi-weekly basis. Applying that interpretation, the Arbitrator concluded that the grievant's use of a bi-weekly attendance sheet had been "substantially consistent with the contract[.]" Id. at 23.

Rejecting the Agency's argument that the grievant's use of the calling card violated the agreement, the Arbitrator found that section 8.05, which governs Union use of the FTS system, explicitly permits Union use of FTS telephone service for representational purposes and that the calling card provided access to that service. Consequently, the Arbitrator concluded that the grievant's possession and use of the card did not constitute "just and sufficient cause" for discipline. Id. at 26.

The Arbitrator also rejected the Agency's argument that it had just cause to suspend the grievant because his failure to provide his supervisor with a copy of his travel orders in advance of the trip to Agency headquarters violated section 7.07 of the agreement, which sets forth the official time procedures. The Arbitrator determined that the grievant's submission of his travel request and receipt of authorization four days before the trip was "not unusual, due to the nature of [the grievant's] work as a full-time Union representative, and [the fact] that often times he did not receive a copy of his travel orders until after the fact." Id. at 27. The Arbitrator noted that the supervisor testified that if the grievant did not have a copy of his travel orders prior to leaving, then he could not have failed to follow the supervisor's instructions. Rejecting the supervisor's argument that without the travel orders, she had been unable to certify the grievant's time and attendance, the Arbitrator stated that "where . . . [h]eadquarters authorize[s] travel by a Union representative on 100% official time, common sense dictates that [the] individual's . . . supervisor . . . will not be held responsible for his whereabouts or time and attendance." Id. at 27. The Arbitrator further determined that the supervisor had, in fact, received notice of the trip, as evidenced by her call to headquarters for verification.

Finally, the Arbitrator rejected the Agency's argument that it had just cause to suspend the grievant because his failure to provide his supervisor with a travel request and agenda concerning the Las Vegas trip violated section 7.08 of the agreement. The Arbitrator concluded that this provision did not apply in this case because that provision applies to official time for Union-sponsored training, not for conferences, and the trip to Las Vegas was for a conference.

2. Grievance No. 95-056

The Arbitrator framed the issue in Grievance No. 95-056 as "whether [the Director] had the delegated authority to issue the final decision to suspend [the grievant] for 5 days without pay?" Id. at 36.

The Arbitrator rejected the Agency's argument that section 20.04(3) of the agreement authorized the Director to issue the final decision on the grievant's suspension. The Arbitrator concluded that section 20.04(3), which states that "the final decision in short-term disciplinary actions shall be made by a higher level official than the official who proposed the action[,]" id., did not provide the Director with such authority. Relying on Agency memoranda designating "Secretary Representatives and State/Area Coordinators" as "deciding officials" in "disciplinary and adverse actions," id. at 38, the Arbitrator determined that only those officials were "higher level officials" within the meaning of section 20.04(3).

On the basis of his conclusions in the two grievances, the Arbitrator rescinded the 5-day suspension and awarded back pay to the grievant.

IV. Positions of the Parties

A. Agency's Position

1. Grievance No. 95-055

a. Essence

The Agency contends that the award fails to draw its essence from the agreement in several respects.

First, the Agency contends that the Arbitrator's conclusion that the grievant's suspension could be grieved under either Article 20 or Article 22, and, therefore, was timely filed, fails to draw its essence from the agreement. Specifically, the Agency asserts that the Arbitrator's conclusion on this point is contrary to section 20.01(2), which provides that the grievance procedure set forth in that section is "in lieu of" the Article 22 procedure. Exceptions at 5. According to the Agency, the term "in lieu of" shows the parties' intent that challenges to disciplinary actions must proceed under Article 20 instead of Article 22 because the ordinary meaning of that phrase "signifies exclusivity, not inclusion." Id. at 6. The Agency also asserts that section 20.04(5) of the agreement required the Union to go directly to arbitration. Accordingly, the Agency contends that the grievance was untimely.

Second, the Agency contends that the award is contrary to section 4.05 of the agreement, which sets forth the "obey now, grieve later" rule requiring employees to promptly comply with management's orders even if the employee intends to grieve the orders.

Third, the Agency argues that the award fails to draw its essence from Article 17 of the agreement, which requires that "all employees" sign in and out sequentially. The Agency asserts that the Arbitrator's interpretation of Article 7, as setting forth a substitute form for union representatives to fill out, fails to draw its essence from the agreement because the Article 7 report is an additional form for Union representatives, not a substitute for the Article 17 form. According to the Agency, the Arbitrator's failure to interpret the parties' agreement to require the grievant to sign in and out is deficient based on the court's decision in Georgia-Pacific Corporation v. Local 27, United Paperworkers International Union, 864 F.2d 940 (1st Cir. 1988) (Georgia-Pacific). In a supplemental submission, the Agency contends that the Judge's decision in Case No. DE-CA-50202 also supports this exception.(6)

Fourth, the Agency argues that the Arbitrator's conclusion, that section 8.05 of the agreement authorizes the issuance of phone cards to Union officials, fails to draw its essence from that provision. According to the Agency, that section permits the Union only to use FTS telephone service for long-distance calls while performing representation functions.

Fifth, the Agency contends that the portion of the award addressing the grievant's trip to Agency headquarters fails to draw its essence from sections 7.07 and 17.06 of the agreement. According to the Agency, the express terms of section 7.07 required the grievant to provide his supervisor with advance notice of the trip, and the grievant's failure to do so violated that provision, providing a basis for suspension. In addition, the Agency claims that the grievant was properly disciplined for failure to comply with section 17.06 of the agreement, which holds employees responsible for complying with rules governing alternate work schedule programs and authorizes discipline for failure to do so.

Finally, the Agency argues that the portion of the award addressing the grievant's trip to the Union meeting in Las Vegas fails to draw its essence from section 7.08 of the agreement, which required the grievant to obtain supervisory approval prior to taking time off to attend a labor relations meeting outside the office.

b. Contrary to Law

The Agency contends that the award is deficient under section 7122(a)(1) of the Statute because the award is contrary to section 7116(d) of the Statute. Specifically, the Agency argues that the Arbitrator's receipt of testimony and documentary evidence related to the Union's ULP charges violated section 7116(d) of the Statute.(7) According to the Agency, the purpose of section 7116(d) is to "permit an aggrieved party to choose between the arbitrator and the FLRA in appropriate cases, but to prevent the party from having two bites at the adjudicatory apple." Id. at 17. The Agency states that "[w]here an arbitrator has upheld a grievance based upon an issue which has been the subject of a ULP, his decision will be overturned on review." Id. Applying those principles to this case, the Agency asserts that the Arbitrator was "barred by [section] 7116(d) from rendering a decision touching on or related to the validity of [the supervisor's] directions to [the grievant] to sign in and out sequentially." Id. at 17-18.

More specifically, the Agency argues that the Arbitrator erred in permitting the Union to admit into evidence the transcript relating to the ULP hearing. According to the Agency, the transcript provided evidence of whether the supervisor's instructions were invalid, which was relevant to the ULP hearing, but provided no evidence of whether the grievant violated these instructions, which was the issue before the Arbitrator.

2. Grievance No. 95-056

The Agency contends that the award concerning the second grievance is deficient under section 7122(a) of the Statute because it fails to draw its essence from Article 20, section 20.04(3) of the parties' agreement. According to the Agency, the supervisor's proposed suspension of the grievant, and the Director's decision on that suspension, complied with section 20.04(3).

B. Union's Position

1. Grievance No. 95-055

a. Essence

First, the Union contends that the Agency's exception to the Arbitrator's arbitrability determination is a challenge to the timeliness of the Union's demand for arbitration, and therefore, is an issue of procedural arbitrability that "should not be disturbed by the Authority." Opposition to Exceptions at 2.

Second, the Union contends that the Arbitrator reasonably determined that section 4.05 of the agreement does not apply to the grievant. The Union argues that the Arbitrator properly looked to the surrounding circumstances, rather than limiting himself to the express words of section 4.05, in finding that the grievant was not an "employee" within the meaning of that section, because he spent all of his time on representational duties.

Third, the Union contends that the Arbitrator properly determined that section 7.07, rather than 17.05, controlled the manner in which the grievant was required to sign in and out. According to the Union, the Arbitrator harmonized the two provisions in light of the context in which the grievant operated -- on 100 percent official time.

Fourth, the Union contends that the Arbitrator's conclusions respecting the phone card draw their essence from section 8.05 of the agreement. In particular, the Union asserts that section 8.05 directly addresses Union use of the FTS phone system for representational functions, and that the grievant was advised to use the phone card to access FTS.

Finally, with respect to the Arbitrator's findings and conclusions regarding the grievant's travel to Agency headquarters and to Las Vegas, the Union contends generally that these rulings draw their essence from the agreement. More specifically, the Union contends that the Arbitrator properly determined that section 7.08 of the agreement did not apply because the trip to Las Vegas was a conference and not a training session.

b. Contrary to Law

The Union contends that the Arbitrator properly admitted testimony and documentary evidence relating to the Union's ULP charges because the charges were relevant to the credibility of a testifying management official. The Union also contends that the Authority should reject the argument that, under section 7116(d), the grievance is barred by the earlier-filed ULP, because, according to the Union, the legal theories and factual predicates underlying the arbitration and the ULP are different.

2. Grievance No. 95-056

The Union contends that the Arbitrator's determination that the Director did not have the authority to issue the final suspension decision is not deficient.

V. Analysis and Conclusions

A. The Agency's Challenge to the Arbitrator's Timeliness Determination is not Properly Before the Authority

An arbitrator's determination of the procedural arbitrability of a grievance is subject to challenge only on grounds other than those that directly challenge the procedural arbitrability determination. American Federation of Government Employees, Local 2921 and U.S. Department of the Army, Army & Air Force Exchange Service, Dallas, Texas, 50 FLRA 184, 185-86 (1995). In this case, the Agency challenges the Arbitrator's determination that the grievance was timely under either Article 20 or Article 22. Thus, the Agency is challenging a procedural arbitrability determination. Accordingly, we deny this exception.

B. The Award in Grievance No. 95-055 Draws its Essence from the Parties' Bargaining Agreement

To demonstrate that an award fails to draw its essence from a collective bargaining agreement, a party must show that the award: (1) is so unfounded in reason and fact and so unconnected with the working 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 evidences a manifest disregard of the agreement. United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76 (1990).

As discussed below, the Agency has not established that the award fails, in any part, to draw its essence from the agreement.

1. The Agency has not demonstrated that the award fails to draw its essence from section 4.05 of the parties' agreement

The Arbitrator concluded that application of the "obey now, grieve later" rule to the grievant, who was on 100 percent official time, would not serve that rule's purpose of avoiding interruption of workplace production by engaging in the time-consuming grievance process. The Arbitrator used a well-established method of contract interpretation in gleaning the purpose of section 4.05 from the surrounding circumstances and then construing the language of section 4.05 in light of that purpose. See E. Allan Farnsworth, Contracts 511-14 (2d ed. 1990). The Agency disagrees with the Arbitrator's interpretation, arguing that the only situations excluded from the rule are those expressly set forth in the provision. However, that section states that "[c]ontinued refusal to carry out an order or instruction may be cause for disciplinary action[,]" and that "[a]n exception would be" an employee's reasonable fear of imminent danger or death. Collective bargaining agreement, section 4.05(2) (emphasis added). This language, which indicates that the parties to the agreement contemplated other exceptions, in addition to those listed, does not support the Agency's interpretation. Accordingly, the Agency has failed to show that the Arbitrator's interpretation is irrational, implausible, or unconnected to the wording of section 4.05. We, therefore, deny this exception.

2. The Agency has not demonstrated that the award fails to draw its essence from Article 17 of the parties' agreement

Article 17 of the parties' agreement is entitled "Hours of Duty - Alternative Work Schedules[.]" Award at 16. As the Agency points out, that article requires "all employees" to sign in and out daily and in sequential order on a prescribed attendance record sheet. Exceptions at 10. Interpreting that provision, the Arbitrator concluded that because the grievant did not participate in the alternative work schedule program, the grievant was not an "employee" within the meaning of this provision. Award at 22. The Arbitrator reasoned that the grievant's sign in procedure was governed by Article 7, which provides for daily certification by Union representatives on a official time form that exempts representatives of 100% official time from the certification requirement. The Arbitrator interpreted Article 7 as relieving the grievant from daily certification of his time and requiring certification on a bi-weekly basis only. As discussed above, gleaning the purpose of a contract provision from the surrounding circumstances and then construing the language of that provision in light of that purpose is a well-established method of contract interpretation. See Contracts, 511-14. The Arbitrator followed this method in determining that Article 7 was intended to relieve Union representatives on 100 percent official time from daily certification of their time. The Agency has pointed to nothing in Article 17 which prohibits this interpretation.

The Agency's reliance on Georgia-Pacific, to show that the Arbitrator interpreted Articles 7 and 17 of the agreement in an implausible or irrational manner, is misplaced. In that case, the court found that the Arbitrator's interpretation amounted to rewriting the agreement in a manner that was contrary to the "clear and unequivocal" language of the agreement. 864 F.2d at 944. In contrast to the award in Georgia-Pacific, the award in this case is not inconsistent with clear and unequivocal language in the parties' agreement.

The Agency's reliance on the judge's decision in U.S. Department of Housing and Urban Development, Rocky Mountain Area, Denver, Colorado and American Federation of Government Employees, Local 3972, No. DE-CA-50502 (October 31, 1996), also is misplaced. The fact that an administrative law judge interpreted Article 17 in a manner different from the Arbitrator does not establish that the award is deficient. The award, based on the Arbitrator's interpretation of Article 17, is not deficient unless the award fails to draw its essence from the agreement. As set forth above, the standard for determining whether an award fails to draw its essence from an agreement involves an inquiry into the rationality or plausibility of the award -- not whether the Authority agrees with, or otherwise would reach, that interpretation. Consistent with this narrow standard of review, the Authority has previously upheld arbitration awards reaching different conclusions regarding the interpretation of identical contract provisions. See U.S. Department of Health and Human Services, Social Security Administration, San Juan, Puerto Rico and American Federation of Government Employees, Local 2608, 46 FLRA 1134, 1146 (1993).

As the Agency has failed to show that the Arbitrator's interpretation of Articles 7 and 17 is irrational, implausible, or unconnected to the wording of the agreement, we deny this exception.

3. The Agency has not demonstrated that the award fails to draw its essence from section 8.05 of the parties' agreement

The Arbitrator found that, because the telephone calling card provided access to the FTS service, the grievant's possession and use of the card was consistent with section 8.05, which provides that "[t]he Union may use FTS telephone service for long-distance calls while performing their representation functions[,]" and that "[t]he Department shall provide FTS [t]elephone service for the Union's principal Local representative at each [Agency] location . . . ." Award at 16. Although the Agency correctly points out that section 8.05 does not expressly authorize the use of telephone calling cards, that section also does not expressly prohibit it. Therefore, the Agency's argument that section 8.05 "covers use of office telephones and nothing more," is unpersuasive. Exceptions at 12. Under these circumstances, the Arbitrator's interpretation of section 8.05 is not irrational, implausible, or unconnected to the wording of the agreement. Accordingly, we deny this exception.

4. The Agency has not demonstrated that the award fails to draw its essence from sections 7.07 and 17.06 of the parties' agreement

The Agency interprets Section 7.07(1) as requiring the grievant to directly notify the supervisor of his trip to Agency headquarters. However, the Arbitrator interpreted section 7.07(1) differently, concluding, in effect, that the grievant's act of obtaining approval from Agency headquarters satisfied his obligation under the provision to notify management of his travel plans. The Arbitrator noted, in this respect, that the grievant's conduct did, in fact, result in his supervisor receiving notice of the trip. Under these circumstances, the Arbitrator's conclusion that the grievant did not violate section 7.07 is not irrational, implausible, or unconnected to the wording of the agreement.

The Agency claims that the grievant was properly disciplined for failure to comply with section 17.06 of the agreement. As discussed in Section B.2, the Arbitrator concluded that because the grievant did not participate in the alternative work schedule program, the grievant was not an "employee" within the meaning of Article 17, and therefore was not required to follow the sign in procedure set forth in that provision for "all employees." Award at 22. For the reasons explained above, the Agency has not established that this interpretation is irrational, implausible, or unconnected to the wording of the agreement. Accordingly, because the grievant is not an "employee" within the meaning of Article 17, section 17.06 does not apply to the grievant.

As the Agency has failed to show that the Arbitrator's interpretations of section 7.07 and Article 17 are implausible, irrational, or unconnected to the wording of the agreement, we deny this exception.

5. The Agency has not demonstrated that the award fails to draw its essence from section 7.08 of the parties' agreement

Section 7.08, entitled "Official Time for Union-Sponsored Training," provides that "[w]ritten requests, including an agenda describing the training to be conducted, shall be submitted not less than five . . . workdays in advance to the employee's immediate supervisor, who shall forward it to the appropriate Management official for action." Award at 16. The Arbitrator interpreted the requirements of section 7.08 to apply only when official time is sought for training. Applying that interpretation to his finding that the Las Vegas meeting was a conference, not a training session, the Arbitrator concluded that section 7.08 did not impose any obligations on the grievant. As the Union points out, the Arbitrator's conclusion is consistent with the plain wording of the provision. As the Agency has failed to show that this interpretation is implausible, irrational, or unconnected to the wording of the agreement, we deny this exception.

C. The Award in Grievance No. 95-055 is Not Contrary to Law

An exception alleging that an award is contrary to law is reviewed by the Authority de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)).

In order for a grievance to be precluded under section 7116(d) of the Statute by an earlier-filed ULP charge: (1) the issue that is the subject matter of the grievance must be the same as the issue that is the subject matter of the ULP; (2) such issue must have been earlier raised under the ULP procedures; and (3) the selection of the ULP procedures must have been at the discretion of the aggrieved party. American Federation of Government Employees, National Council of EEOC Locals No. 216 and U.S. Equal Employment Opportunity Commission, 49 FLRA 906, 914-16 (1994). In determining whether a grievance and a ULP charge involve the same issue, the Authority examines whether the ULP charge and the grievance arose from the same set of factual circumstances and whether the legal theories advanced in support of the ULP charge and the grievance are substantially similar. Id.

In this case, the grievance and the ULP rest on different legal theories. The grievance alleges that the Agency did not have just cause to suspend the grievant under Article 20 of the parties' agreement. Government Exhibit 3, Attachments, Tab 4. The ULP charge alleges that the supervisor's instructions constituted unlawful unilateral changes in conditions of employment under the Statute. ULP Charge, Attachments to Agency's Exceptions, Tab 4. Because the grievance rests on a contract theory and the ULP charge rests on a statutory theory, the grievance was not barred by section 7116(d) of the Statute.

The Agency's reliance on AFGE Local 1411 and Helen Owens v. FLRA, 960 F.2d 176 (D.C. Cir. 1992) (Local 1411), to show that the grievance is barred by the ULP, is misplaced. In that case, the court held that a grievance challenging a final suspension was barred under section 7116(d), by an earlier- filed ULP challenging a proposed suspension, because the same facts and decision were involved in both challenges.

Id. at 178. The court distinguished Overseas Education Association v. FLRA, 824 F.2d 61 (D.C. Cir. 1987) (OEA), where it had found that a ULP charge alleging that agency management discriminatorily proposed to eliminate a position held by a union official did not bar a later-filed grievance protesting the union official's notice of dismissal. Id. The court in Local 1411 explained that, unlike Local 1411, OEA "did not depend upon the distinction . . . between proposed and actual agency action." Local 1411, 960 F.2d at 178. Instead, the court explained, the ULP and the grievance were based upon different factual and legal predicates. Id. In addition, the court explained that the ULP charge in OEA alleged a violation of section 7116(a), while the grievance claimed a breach of the bargaining agreement. Id.

As discussed above, in this case the legal theories underlying the ULP and the grievance are different. Therefore, the court's decision in Local 1411 does not support the Agency's claim that the grievance is barred by the ULP charge. Further, the Agency has provided no authority, and we have found none, to support the argument that evidence adduced at a ULP hearing, or otherwise related to a ULP charge, is inadmissible in a subsequent arbitration involving the same subject matter.(8) Accordingly, the Agency has failed to show that, under section 7116(d), the grievance is barred by the earlier-filed ULP.

D. The Authority Need Not Decide Whether the Award Concerning Grievance No. 95-056 Draws Its Essence From Article 20 of the Parties' Agreement

The Agency's exception to the second grievance argues that the Director had authority to make a final decision on the proposed 5-day suspension. Regardless of the merits of this argument, our conclusion that the Arbitrator properly determined that the Director's suspension of the grievant was not for just cause and was outside the Director's authority obviates the need to decide whether the Director had the authority to suspend the grievant. Accordingly, we decline to decide whether award on Grievance No. 95-056 draws its essence from Article 20 of the parties' agreement.

VI. Decision

The Agency's exceptions to Grievance No. 95-055 are denied. It is not necessary to resolve the Agency's exceptions to Grievance No. 95-056.




FOOTNOTES:
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1. In response to the memorandum, the grievant attempted, without success, to initiate bargaining over the disputed sign-in and phone card privileges. The grievant then filed an unfair labor practice (ULP) charge alleging that the Agency violated the Statute by unilaterally changing the sign-in procedures without giving the Union notice and an opportunity to bargain. Union Exhibit 7, admitted at arbitration hearing and attached to Union's opposition to exceptions. ULP proceedings resulting from that charge took place concurrently with the arbitration that is the subject of this appeal. In U.S. Department of Housing and Urban Development, Rocky Mountain Area, Denver, Colorado and American Federation of Government Employees, Local 3972, No. DE-CA-50202 (October 31, 1996), the administrative law judge held that the Agency did not unilaterally change a past practice by requiring the Union president to sign in and out sequentially with all other employees at the workplace rather than on a separate form and, therefore, did not violate section 7116(a)(1) and (5). The General Counsel filed exceptions to the judge's decision, which are pending before the Authority.

2. Article 22, entitled "GRIEVANCE PROCEDURES," sets forth the 3-step grievance procedure, and provides that where the matter is not resolved through this procedure, the grieving party may invoke arbitration pursuant to Article 23 of the agreement.

3. Article 20, Section 20.04 provides that for suspensions of 14 days or less for misconduct, management first provides an employee with written notice of and specific reasons for proposed disciplinary action. The employee has an opportunity to respond thereto orally and/or in writing. Management then issues a final written decision, citing specific reasons, "including a statement of the employee's appeal rights." Award at 2. Certain time limits are specified for each stage of this process.

4. Section 20.01(3) of the agreement sets forth the parties' negotiated "just cause" provision.

5. Section 4.05 provides that employees have a responsibility to "promptly comply with all orders and instructions from their supervisors," and that continued refusal to do so may be cause for disciplinary action.

6. The Agency submitted the Judge's decision, dated October 31, 1996, to the Authority in a supplemental submission dated November 6, 1997, explaining that it was "not aware" of the Judge's decision when it filed its exceptions on November 1, 1996. The Union does not oppose the filing of the supplemental submission or the consideration of the Judge's decision submitted therein. Although the Authority's Regulations do not provide for the filing of supplemental submissions, the Authority may, pursuant to 5 C.F.R. § 2429.26, grant leave to file documents as the Authority deems appropriate. See, e.g., U.S. Equal Employment Opportunity Commission and National Council of EEOC Locals No. 216, American Federation of Government Employees, 51 FLRA 248 n.1 (1995); U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California and Federal Employees Metal Trades Council, 49 FLRA 802 n.1 (1994). As the Agency has established sufficient reason for the filing of the supplemental submission in this case, the Authority accepts this submission.

7. Section 7116(d) provides:

Issues which can properly be raised under an appeals procedure may not be raised as unfair labor practices prohibited under this section. . . . [I]ssues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under this section, but not under both procedures.

8. The Agency's challenge to the Arbitrator's consideration of the evidence discussed above also could be construed as a claim that the Arbitrator failed to conduct a fair hearing. The Authority will find an award deficient on this ground when it is established that an arbitrator refused to consider pertinent and material evidence or engaged in other actions which prejudiced a party and affected the fairness of the proceeding as a whole. American Federation of Government Employees, Council 215 and Social Security Administration, Office of Hearings and Appeals, Falls Church, Virginia, 52 FLRA 85, 87 (1996); American Federation of Government Employees, Local 22 and U.S. Department of the Navy, Norfolk Naval Shipyard, 51 FLRA 1496, 1497 (1996). Because the liberal admission of testimony and evidence by an arbitrator is a permissible practice, a party's disagreement with an arbitrator's determination regarding the relevance of the evidence is not a ground for finding an award deficient. Id. at 1497. The Agency in this case has failed to show that the Arbitrator's admission of the disput