53:1782(160)AR - - Federal Trade Commission, HQ, Washington, DC and AFGE Local 2211 - - 1998 FLRAdec AR - - v53 p1782
[ v53 p1782 ]
The decision of the Authority follows:
53 FLRA No. 160
FEDERAL LABOR RELATIONS AUTHORITY
FEDERAL TRADE COMMISSION
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
March 31, 1998
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Louis B. Aronin 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 a grievance challenging the 14-day suspension of the grievant for making threats of violence to other employees. For the following reasons, we remand the case to the parties for resubmission, absent settlement, to the Arbitrator for a clarification of the award.
II. Background and Arbitrator's Award
The grievant's suspension was based on three statements concerning his relationship with his immediate supervisor, which the grievant admitted to making. First, the grievant complained to the Chief of General Services that his supervisor was denying him overtime and stated that this "was hurting his pocketbook and his family" and "that there were ways of dealing with anyone who hurt his family." Award at 2.
A week later, the grievant met with a personnel management specialist to request a medical accommodation from stress in the workplace. The grievant presented a doctor's note that indicated that he was experiencing a stress-related illness and that he would benefit from a less stressful work environment. The grievant complained of harassment by the supervisor and stated "that when people, or employees, are harassed, it can cause people to blow up the place." Id. at 3. Finally, during a meeting to discuss a charge of absence without leave (AWOL) for leaving the workplace without permission, the grievant stated to a Union representative and various supervisors "that he had to take leave, even if not approved, for his health and for his supervisor's health." Id. at 5.
The Arbitrator framed the issue as: "Was the 14-day suspension imposed on [the] [g]rievant based on just cause? If not, what is the appropriate remedy?" Id. at 2.
The Arbitrator concluded that the 14-day suspension was not for just cause. He concluded the Agency should have sent the grievant for a psychological examination before deciding to discipline him. The Arbitrator rejected the Agency's argument that it did not have the authority to take this step, finding that the applicable regulation, 5 C.F.R. § 339.302,(1) (section 302) permitted an agency to direct a psychological examination in any circumstances where the agency needs additional medical documentation to make an informed management decision. Indicating that this was such a situation, the Arbitrator noted that the Agency had shown its supervisors and managers a training film that instructed officials that employees who talk about violence excessively are "sending a signal and should be identified for counseling to avoid possible workplace violence." Id. at 10.
The Arbitrator concluded that the grievant's statements were consistent with the pattern of behavior described in the training film addressing workplace violence. He determined, however, that the statements did not warrant discipline, but rather warranted "treatment to prevent the potential blow up with resulting injury to persons and property." Id. The Arbitrator concluded that, in the circumstances of this case, the Agency had a right and "an obligation[,] under [5 C.F.R. § 339.302,] to send [the] [g]rievant for a psychological examination before taking any personnel action, including the instant 14 day suspension." Id. at 11-12. Accordingly, the Arbitrator vacated the suspension and ordered back pay.
III. Positions of the Parties
A. Agency's Exceptions
The Agency contends that the award is deficient on several grounds. First, the Agency contends that the award is contrary to Government-wide and other regulations. It asserts that section 302 provides that an agency may make an offer to an employee to take a psychological examination, but does not authorize an agency to require an employee to do so, as ordered by the Arbitrator.
The Agency also argues that the award conflicts with 5 C.F.R. § 339.301(e)(1)(2) (section 301), which sets out the conditions for mandatory psychological examinations. It argues that the circumstances underlying the grievance do not meet the requirements of that Government-wide regulation. Similarly, the Agency argues that the award conflicts with an agency regulation that sets out requirements for mandatory examinations similar to those contained in section 301. FTC Manual, Chapter 3, Section 300.6(B)(1)(d).
Second, the Agency contends that the award is contrary to management's right to discipline under section 7106(a)(2)(A) of the Statute, "in accordance with applicable laws". Exceptions at 12. In this regard, the Agency asserts again that the award conflicts with section 301.
Finally, the Agency contends that the Arbitrator committed a legal error by imposing on the Agency the burden of providing medical documentation of the grievant's condition. The Agency asserts that, under 5 C.F.R. Part 339, the grievant bears this burden.
B. Union's Opposition
The Union contends that the award is not contrary to sections 301 and 302. The Union asserts that the Arbitrator did not permit the Agency to require a psychological examination, but rather found that the Agency should have exercised its "discretionary authority" under section 302 to offer the grievant a psychological examination, rather than suspend him. Opposition at 4. Further, the Union maintains that the award is not contrary to any management rights.
Finally, the Union disputes the Agency's contention that the Arbitrator improperly imposed on the Agency the burden of providing the grievant's medical documentation. The Union asserts that neither the grievant nor the Union ever argued that a medical or psychological condition affected the grievant's conduct.
IV. Analysis and Conclusions
The Agency argues that the award is contrary to sections 301 and 302, which are binding Government-wide regulations. As the Agency's exceptions allege that the award is contrary to law, we review them de novo. 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)).(3)
Sections 301 and 302 set out precise limitations on the use of psychiatric examinations in federal employment. Section 302 describes the circumstances under which an agency has the discretion to offer a psychological examination to an employee because the agency "needs additional medical documentation to make an informed management decision." For example, an agency may offer a psychological examination to an employee who requests a change in duty status, assignments, or working conditions for medical reasons. Id.
In contrast, Section 301 sets out the much more limited circumstances in which an agency may order an employee to submit to a psychological examination. These circumstances are very narrow because an order to undergo such an exam is "highly invasive of an employee's privacy[.]" Harris v. Department of the Air Force, 62 MSPR 524, 529 (1994). Such an order may be made "only when": (i) a properly ordered physical examination "indicates no physical explanation for behavior or actions which may affect the safe and efficient performance of the individual or others"; or (ii) a psychiatric examination "is specifically called for in a position having medical standards or subject to a[n established] medical evaluation program." Section 301(e)(1). Additionally, the FTC Manual sets forth the virtually same requirements that are set forth in section 301(e)(1). See FTC Manual, Chapter 3, Section 300.6 (B)(1)(d).
The parties agree that any authority for a psychological examination of the grievant would derive from section 302, rather than section 301. The conditions for a mandatory examination under section 301 did not exist at the time the grievant's threats were being evaluated by the Agency.(4)
Like the parties, the Arbitrator found that section 302, rather than section 301, was applicable. However, it is not clear from his decision that the Arbitrator properly construed section 302 as providing for optional examinations, at the suggestion of the agency.
In finding that the Agency should have considered referral to a psychologist for an evaluation prior to imposing discipline, the Arbitrator held that, under section 302, the Agency "had a clear right to send [g]rievant for a fitness for duty examination" and "an obligation under the facts of this case to send [g]rievant for a psychological examination[.]" Award at 11. While these conclusions appear inconsistent with section 302's non-mandatory terms, the Arbitrator also construed that regulation as "permitting a psychiatric examination 'in any situation where the agency needs additional medical documentation to make an informed management decision.'" Award at 12 (emphasis in Award) (quoting section 302).
We are unable to determine from the award whether, as the Agency alleges, the Arbitrator based the award on a finding that the Agency improperly failed to order a psychological examination for the grievant prior to the imposition of discipline. Such a finding would be inconsistent with the regulations. The award may be based, as argued by the Union, on a finding that the Agency improperly failed to offer the grievant a psychological examination prior to the imposition of discipline. Such a finding would be consistent with the regulations and within the Arbitrator's discretion.
In situations such as this, where the Authority is unable to determine whether an arbitrator's award is deficient, the practice of the Authority is to remand the case to the parties for resubmission to the arbitrator, absent settlement, for a clarification of the basis of the award. See U.S. Department of Defense Dependents Schools and Federal Education Association, 53 FLRA 249, 255 (1997); National Federation of Federal Employees, Local 1442 and U.S. Department of the Army, Letterkenny Army Depot, Chambersburg, Pennsylvania, 46 FLRA 1631 (1993) (case remanded for clarification of ambiguous award); U.S. Department of the Air Force, 509th Bombardment Wing, Pease Air Force Base, New Hampshire and National Association of Government Employees, Local R1-111, 41 FLRA 1035, 1040-41 (1991).(5)
On remand, absent settlement, the Arbitrator is instructed to clarify the award, applying the correct construction of section 302. In particular, the Arbitrator must clarify whether the award is based on a finding that the Agency improperly failed to order a psychological examination, or whether it is based on finding that the Agency improperly failed to offer such an examination.
This case is remanded to the parties for resubmission, absent settlement, to the Arbitrator for a clarification of the basis of the award.
(If blank, the decision does not have footnotes.)
1. 5 C.F.R. § 339.302 provides:
An agency may, at its option, offer a medical examination (including a psychiatric evaluation) in any situation where the agency needs additional medical documentation to make an informed management decision. This may include situations where an individual requests for medical reasons a change in duty status, assignment, working conditions, or any other benefit or special treatment (including reasonable accommodation or reemployment on the basis of full or partial recovery from a medical condition) or where the individual has a performance or conduct problem which may require agency action. Reasons for offering an examination must be documented. An offer of an examination shall be carried out and used in accordance with 29 CFR 1613.706.
2. 5 C.F.R. § 339.301(e)(1) provides:
An agency may order a psychiatric examination (including a psychological assessment) only when: (i) The result of a current general medical examination which the agency has the authority to order under this section indicates no physical explanation for behavior or actions which may affect the safe and efficient performance of the individual or others, or (ii) A psychiatric examination is specifically called for in a position having medical standards or subject to a medical evaluation program established under this part.
3. The Agency also alleges that the award is contrary to management's right to discipline employees pursuant to section 7106(a)(2)(A) of the Statute, "in accordance with applicable laws". The laws referred to by the Agency to support this allegation are sections 301 and 302. The Agency does not offer any reason, and none is apparent, that distinguishes this argument from its contention that the award directly violates these regulations. See 5 U.S.C. 7122(a)(1). We thus do not address this argument separately.
4. For the same reasons, the FTC Manual, Chapter 3, Section 300.6(B)(1)(d), would not apply to an examination of the grievant, because that Agency regulation sets forth virtually the same requirements that are set forth in 5 C.F.R. § 339.301(e)(1).
5. Because we are unable to determine the basis for the Arbitrator's award, we also cannot address the Agency's argument that the Arbitrator adopted an improper burden of proof, requiring the Agency to establish medical facts that are the burden of the grievant to prove