54:1467(125)AR - - AFGE Local 2028 and VA Medical Center, Pittsburgh, PA [ Veterans Affairs ] - - 1998 FLRAdec AR - - v54 p1467



[ v54 p1467 ]
54:1467(125)AR
The decision of the Authority follows:


54 FLRA No. 125

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2028

(Union)

and

U.S. DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER

PITTSBURGH, PENNSYLVANIA

(Agency)

0-AR-3079

_____

DECISION

October 30, 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 M. Bernard Keisler 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 Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator denied a grievance, determining that there was just and sufficient cause for the Agency's 3-day suspension of the grievant based on the unauthorized removal of Government property. However, the Arbitrator determined there was not sufficient cause for the total discipline imposed, which encompassed a demotion and change in shift schedule.

For the following reasons, we conclude that the Union has not established that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Union's exceptions.

II. Background and Arbitrator's Award

The grievant is employed by the Agency as a food service worker. The grievant is responsible for, among other things, the security of food items kept in storage at the Nutrition and Food Service. The grievant was given a written notice of proposed removal which was reduced by the Agency Associate Director to a three day suspension. The notice indicated that "a bag of . . . coffee under [the grievant's] control, was with [the grievant's] knowledge, removed from a supply cart by a non Nutrition and Food Service employee and taken outside the service." Union's Exceptions, Attachment 1 at 1. The notice further stated that the grievant was "charged with complicity in the unauthorized removal of Government property on [Agency] premises." Id.

The grievant received notice that he was being removed from full-time status, that he was being changed from the day to the evening shift, and that his temporary promotion was essentially being rescinded. The grievant's unscheduled days were also changed from Saturday and Sunday to Wednesday and Thursday. The grievant and the Union filed a grievance and when it was not resolved, submitted the matter to arbitration.

The Arbitrator evaluated the evidence presented by the Agency to determine whether there was just and sufficient cause to support the grievant's suspension under Articles 10 and 12 of the parties' collective bargaining agreement.(*)

The Arbitrator determined that beyond evidence obtained from interviewing two employees, there was no evidence establishing the grievant directly handed the coffee over or gave permission to the employee to take the coffee. Furthermore, there was no evidence that the employee who took the coffee had actually been in contact with the grievant. However, the Arbitrator found that "[w]ithout a doubt," foodstuffs had not been properly secured and protected by the grievant who "must bear some responsibility for their loss and be subject to some discipline." Award at 5. Accordingly, the Arbitrator concluded there was just cause for the suspension. However, the Arbitrator concluded that there was not sufficient cause for the total discipline imposed on the grievant. Examining the progressive discipline clause of the contract, the Arbitrator decided to restore the grievant's temporary promotion and shift schedule.

III. Positions of the Parties

A. Union's Exceptions

The Union maintains that the Arbitrator exceeded his authority by deciding an issue not before him. The Union contends that the issue in this case was whether or not the Agency had just and sufficient cause for the 3-day suspension of the grievant based on charges of complicity in the unauthorized removal of Government property. By definition, the Union argues that the charge of complicity "requires the association or participation in . . . the wrongful act on the part of the grievant." Union's Exceptions at 2 (footnote omitted). The Union argues the Arbitrator's determinations do not support the charge of complicity. Rather, the Union maintains the Arbitrator's findings support a different charge, i.e., failure to properly secure and protect foodstuffs.

The Union also maintains that under 5 U.S.C. § 7503(b), an employee is entitled to, among other things, an advance written notice stating the specific reasons for the proposed action and an opportunity to answer. The Union argues that since the Arbitrator's award exonerates the grievant on the specific charge of complicity, an award sustaining the suspension for reasons other than those proposed by the Agency must be found contrary to law. To hold otherwise, the Union maintains, would be to deny the grievant his due process rights guaranteed under section 7503.

B. Agency's Opposition

The Agency asserts that the Arbitrator clearly did not exceed his authority. The Agency contends that the charge of complicity is subsumed in the overall "unauthorized removal" charge. The Agency also states that this case is similar to an Authority decision upholding an award where the grievant, a nurse, was charged with abandonment of a patient and the arbitrator determined that the grievant's failure to take responsibility was the basis of the charge of abandonment. See National Association of Government Employees, Local R5-188 and U.S. Department of the Air Force, Seymour Johnson Air Force Base, Goldsboro, North Carolina, 54 FLRA 76 (1998) (NAGE, Local R5-188).

The Agency also asserts the Union's argument with respect to 5 U.S.C. § 7503(b) is unsupported. The Agency contends that the Arbitrator's overall finding that the grievant failed to properly secure and protect foodstuffs is subsumed in the complicity charge.

IV. Analysis and Conclusions

A. The Arbitrator Did Not Exceed His Authority

Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, disregard specific limitations on their authority, or award relief to parties not included within the grievance. See NAGE, Local R5-188, 54 FLRA at 80. It is well established that, in the absence of a stipulated issue, an arbitrator's formulation of the issues is accorded substantial deference. See U.S. Department of Defense, Defense Contract Audit Agency, Central Region and American Federation of Government Employees, Local 3529, 51 FLRA 1161, 1164 (1996).

In this case it is not argued, and the Arbitrator did not find, that the parties stipulated the issue to be resolved. Rather, the Arbitrator formulated the issue in terms of the Agency's compliance with Article 10, which provides in part that the disciplinary action may not be based on an ill-founded basis and Article 12, which requires that discipline be based on just and sufficient cause. Based on the facts, the Arbitrator ultimately concluded the Agency's action was justified because the grievant did not properly secure and protect the foodstuffs for which he was responsible. Award at 5. Therefore, the award is directly responsive to the issue as formulated by the Arbitrator. This exception does not provide a basis for finding the award deficient.

B. The Award Is Not Contrary to 5 U.S.C. § 7503(b)

In circumstances where a party's exceptions involve an award's consistency with law, the Authority reviews the question of law raised by the arbitrator's award and the party's exception 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 applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. Id.

Title 5, United States Code, section 7503(b), provides that "[a]n employee against whom a suspension for 14 days or less is proposed is entitled to . . . an advance written notice stating the specific reasons for the proposed action[.]" The Union contends the Arbitrator's award is inconsistent with this provision because the Arbitrator sustained the suspension for reasons different from those proposed by the Agency and for which the grievant did not receive the required notice.

The fact that the Arbitrator sustained the discipline on the basis that the grievant was responsible for the loss of coffee because he did not properly secure and protect the food item does not render the charges against the grievant deficient under section 7503(b). The requirements of the cited statutory provision are designed to afford an employee against whom disciplinary action is imposed the opportunity to defend against the charge. Cf. Hernandez v. Department of Education, 42 MSPR 61, 71 (1989) (in reviewing an agency's decision to take an adverse action, the Merit Systems Protection Board may not consider charges not included in the notice of proposed action because the employee must have full notice of the charges); Hunger v. Department of the Interior, 2 MSPR 107, 108 (1980) (the requirement that an agency afford an employee advance notice of the charges is designed to afford the employee the opportunity to defend against the proposed charges).

Both the Merit Systems Protection Board (Board) and the Authority have upheld decisions of the Board's presiding officials and arbitrators, respectively, who sustained agency actions on grounds other than those precisely stated by the agencies in their notices to affected employees. In such cases, the MSPB and the Authority have examined whether the charges set forth in the notices encompassed the charges addressed by the presiding officials and arbitrators and whether the affected employees were sufficiently on notice to defend against the charges. For example, in Johnson v. Department of the Air Force, 11 MSPR 239 (1982), the Board upheld its presiding official's finding that an employee had properly been disciplined for failing to perform supervisory responsibilities even though the employee had been charged with causing damage to Government property and endangering the lives of personnel. According to the Board, "[w]hile the agency may have phrased the specification differently, the [employee] knew he was basically being charged with negligence in the performance of his supervisory duties." 11 MSPR at 240. In U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589 (1993), the Authority upheld an arbitration award in which the arbitrator sustained a grievant's discipline for fighting on duty. Although the arbitrator took into account the grievant's aggressive actions after the conclusion of the fight, which was the sole subject of the notice, the Authority found that the grievant "was clearly notified that the [a]gency proposed to suspend him for fighting on duty and inflicting bodily harm on another." 48 FLRA at 596.

In this case, the grievant was clearly on notice that foodstuffs under his control were removed by an employee outside the Nutrition and Food Service and, as a result of this loss, he was facing a possible suspension. The notice of proposed discipline provided to the grievant indicated, among other things, that he was facing disciplinary action for removal of "a bag of . . . coffee under [his] control," and specified the date, time and other circumstances surrounding the removal. Union's Exceptions, Attachment 1 at 1. The Union acknowledges that a charge of complicity "requires the association or participation in . . . the wrongful act on the part of the grievant." Union's Exceptions at 2 (footnote omitted). The Arbitrator's factual finding, to which we defer, that the grievant had not properly secured and protected foodstuffs fully supports the Arbitrator's conclusion sustaining the suspension since it establishes the grievant's association with or participation in the removal of the coffee.

Further, as relevant, the Authority has indicated in assessing due process rights under section 7503(b) that Federal employees suspended for 14 days or less are not entitled to post-suspension proceedings. See National Treasury Employees Union, Chapter 45 and U.S. Department of the Treasury, Internal Revenue Service, Tulsa, Oklahoma, 52 FLRA 1458, 1464 (1997), citing U.S. Department of Veterans Affairs, National Memorial Cemetery of the Pacific and International Association of Machinists and Aerospace Workers, Hawaii Federal Lodge 1998, 45 FLRA 1164, 1177 (1992) (Hawaii Lodge). Such due process rights attach to the predecisional proceedings. Hawaii Lodge, 45 FLRA at 1177. In this case, it is not clear