American Federation of Government Employees, Local 1741 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Milan, Michigan

[ v55 p174 ]

55 FLRA No. 30

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1741
(Union)

and

U.S. DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
MILAN, MICHIGAN
(Agency)

0-AR-3039

_____

DECISION

January 29, 1999

_____

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 Thomas L. Gravelle 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 alleging that the Agency violated the parties' collective bargaining agreement when it attempted to require the grievant to submit to a fitness-for-duty examination.

      For the following reasons, we find that the Union has failed to establish that the award is deficient.

II. Background and Arbitrator's Award

      The dispute arose when the grievant, a correctional officer, was injured on the job. The Agency agreed to accommodate the grievant's physical limitations. The grievant provided the Agency with information on his medical condition, including the submission of a letter from his doctor that characterized the grievant's condition as "nonprogressive." Award at 8. In October 1996, the grievant was directed to meet with the Agency's personnel representative to discuss the grievant's condition. The Agency also sought the grievant's authorization for the release of medical information. The grievant met with the Agency without Union representation. Subsequently, the Agency directed the grievant to report for a [ v55 p175 ] fitness-for-duty medical examination. The grievant was advised that a failure to report for the examination could result in disciplinary action, up to and including removal. The grievant then sought Union representation and, after meeting with the Agency, the grievant authorized the release of some medical information. When the grievant's doctor later described the grievant's condition as "degenerative" and "progressive," the Agency again scheduled a fitness-for-duty examination. Id. at 11. The grievant was once again advised that a failure to report for the examination could result in disciplinary action.

      The grievant filed a grievance alleging that the Agency violated Article 6(b), 6(h) and Article 18 (j) of the parties' collective bargaining agreement. [n1]  These provisions address "Rights of the Employee" and "Hours of Work." Further dealings between the parties related to the release of information on the grievant's medical condition and whether the grievant would be required to take a fitness-for-duty examination. During this time, the Union invoked arbitration over the grievance and "all post-grievance issues." Id. at 15.

      The Arbitrator framed the issue as whether the grievant was "treated in a discriminatory manner in violation of the parties' collective bargaining agreement[.]" Id. at 2. The Arbitrator stated that the "core" of the Union's argument was that the Agency violated Article 6(h) by not reminding the grievant of his right to Union representation for the October 4, 1996 meeting. Id. at 20. Examining Articles 6(b), (g), (h) and (i), the Arbitrator found that the grievant did not request Union representation and, thus, Article 6(h) was not violated. The Arbitrator also found that Article 6(h) does not "require" the Agency to tell employees about their right to Union representation and that the provision applies only when disciplinary action is likely to result. Id. The Arbitrator determined that discussions regarding an employee's ability to perform the essential functions of a job was neither disciplinary nor likely to result in disciplinary action against an employee.

      As to whether the Agency violated Article 18(j) of the agreement, the Arbitrator rejected the Union's argument that the express terms of that provision permit an Agency review of the health condition of employees only when an employee requests an assignment change. The Arbitrator found that Article 18(j) must be read in conjunction with Articles 3 and 5 of the agreement, which provide authority to the Agency to require fitness-for-duty examinations. The Arbitrator also found that 5 C.F.R. § 339.301 "authorized the [Agency] to request an authorization to release medical records from the [g]rievant, and to schedule him for a fitness for duty physical examination . . . ." [n2]  Award at 24. Applying § 339.301, the Arbitrator stated that the grievant "`occupies' a position which has medical standards or physical requirements." Id. Also, the Arbitrator concluded that a "direct question" about the grievant's "continued capacity to meet the physical or medical requirements of [his] position was posed" based, in part, on the lack of specificity in some of the medical documentation. Id.

      The Arbitrator also determined that what most "troubled" the grievant was the concern that he might be removed from his employment if he performed poorly on the examination. Id. at 25. Noting the grievant's fears, the Arbitrator concluded that the Agency did not violate Articles 6(b), 6(h) or 18(j) of the agreement because "[t]hese sections do not forbid the [Agency] from ordering fitness for duty examinations in appropriate circumstances (as here). The statement that the [g]rievant could be disciplined for violating the order is permissible." Id.

      Finally, the Arbitrator addressed the Union's claim that the Agency violated additional agreement provisions. Stating that Article 32(a) of the parties' master agreement prohibits a modification of the issues without mutual consent, the Arbitrator found that the Agency had not consented to an expanded grievance. Nonetheless, the Arbitrator found that the provisions had not been violated. [ v55 p176 ]

III. Positions of the Parties

A. Union's Exceptions

      The Union argues that the Arbitrator failed to find that the Agency violated Article 6(h) of the agreement and section 7103(a)(16) of the Statute. [n3]  In this connection, the Union argues that the Arbitrator failed to recognize the representation rights of the grievant and the Union. The Union also argues that the Arbitrator's interpretation and application of Article 6(b) of the agreement was not "understandable" because it did not address the grievant's complaints of "reprisal, coercion and intimidation and fear for loss of employment." Exceptions at 1. The Union adds that the Arbitrator's failure to address these matters is a violation of the Americans with Disabilities Act.

      The Union further states that the Agency "coerced the grievant to waive his privacy rights or submit to a fitness for duty exam without the `direct question' being identified[.]" Id. The Union argues that the "conditions of the accommodation had not changed[,]" and that the Arbitrator's finding that the Agency could conduct a fitness-for-duty examination violated 5 C.F.R. § 339.301. In addition, the Union objects to the Arbitrator's failure to allow the Union's "presentation of additional provisions of law to assert its position . . . ." Id. at 2. The Union also argues that the Arbitrator failed to consider the Agency's retrieval and use of medical information without the grievant's authorization, and that these acts constituted a "post-grievance violation" of the Privacy Act. Id. at 4-5.

B. The Agency's Opposition

      The Agency claims that the Union has failed to identify any law, rule or regulation with which the award conflicts and that the exceptions constitute disagreement with the Arbitrator's evaluation of the evidence.

IV. Analysis and Conclusions

A. The Arbitrator Did Not Exceed His Authority

      The Union frames its exceptions as contentions that the Arbitrator erred when he failed to conclude that the Americans with Disabilities Act, the Privacy Act and section 7114(a)(2)(A) of the Statute were violated. We construe these arguments as an exception that the Arbitrator exceeded his Authority.

      Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority or award relief to those not encompassed within the grievance. See American Federation of Government Employees, Local 1617 and U.S. Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas, 51 FLRA 1645, 1647 (1996). In the absence of a stipulated issue, the arbitrator's formulation of the issue is accorded substantial deference. See U.S. Department of the Army Corps of Engineers, Memphis District, Memphis, Tennessee and National Federation of Federal Employees, Local 259, 52 FLRA 920, 924 (1997).

      The Union essentially argues that the Arbitrator failed to resolve issues, including post-grievance violations, that were submitted to arbitration. However, the parties did not stipulate the issue to be resolved by the Arbitrator. Instead, the Arbitrator framed the issue as whether the Agency discriminated against the grievant in violation of the parties' agreement. In finding that the Agency did not violate Articles 6(b), 6(h) and 18(j), the award was directly responsive to the issue formulated by the Arbitrator. Accordingly, we find that the Union has failed to demonstrate that the Arbitrator exceeded his authority. See U.S. Department of Health and Human Services, Social Security Administration, Region X, Office of Hearings and Appeals and American Federation of Government Employees, Local 3937, 49 FLRA 691 (1994).

B. The Award Draws Its Essence From the Agreement

      In order for an arbitrator's award to be found deficient as failing to draw its essence from a collective bargaining agreement, it must be established that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purpose of the collective bargaining agreement as to "manifest an infidelity to the obligation of the arbitrator"; (3) does not represent a plausible interpretation of the agreement; or (4) cannot in any rational way be derived from the agreement or evidences a manifest disregard of the agreement. American Federation of Government Employees Council 220 and Social Security Administration, Baltimore, Maryland, 54 FLRA 156, 159 (1998); United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990) (Department of Labor (OSHA)).

      Here, the Union argues that, in interpreting Article 6(h) of the agreement, the Arbitrator failed to recognize [ v55 p177 ] the employee's representation rights and the alleged threats made to the grievant in regard to those rights. Contrary to the Union's assertion, however, the Arbitrator specifically analyzed Article 6(h) and concluded that it did not require the Agency to inform the grievant as to his right to Union representation in this case. The Arbitrator also concluded that, "[t]hroughout the period from October 4, 1996 through January 23, 1997, the [Agency] never denied the [g]rievant Union representation[.]" Award at 15.

      The Union also argues that the Arbitrator failed to apply Article 6(b) of the agreement "understandabl[y]" in the context of the alleged coercion and intimidation of the grievant. Exceptions at 1. Contrary to this assertion, however, the Arbitrator "[d]uly not[ed] the [g]rievant's fears" and applied the facts in interpreting Article 6(b). Award at 25. Noting that the Agency insisted that the grievant report for a fitness-for-duty examination, the Arbitrator concluded that while "[t]he [g]rievant was very fearful that . . . he might be removed from employment[,] . . . Articles 6, Sections b and h, and Article 18, Section j . . . do not forbid the [Agency] from ordering fitness for duty examinations in appropriate circumstances (as here)." Id. Applying these provisions to the Agency's statement that a failure to report for the examination by the grievant could result in disciplinary action, the Arbitrator concluded that the statement was permissible.

      As to both Articles 6(b) and 6(h), we find that the Union has failed to establish that the Arbitrator's interpretation of the provisions did not draw its essence from the agreement.

      We reach the same result with regard to the Arbitrator's interpretation of Article 32. In this connection, the Union asserts that the Arbitrator failed to consider post-grievance acts by the Agency that violated the grievant's privacy concerns. However, the Arbitrator interpreted Article 32(a) to preclude his consideration of post-grievance issues because there was no "mutual consent" to do so. Id. at 26. To the extent the Arbitrator addressed post-grievance issues and determined that no violations occurred, we find that the Union has failed to establish that the Arbitrator's conclusions are inconsistent with the standard enunciated in Department of Labor (OSHA).

C. The Award Is Not Contrary to 5 C.F.R. § 339.301

      The Authority's role in reviewing arbitration awards depends on the nature of the exceptions raised by the appealing party. U.S. Customs Service v. FLRA, 43 F.3d 682, 686 (D.C. Cir. 1994). If the arbitrator's decision is challenged on the ground that it is contrary to any law, rule, or regulation, the Authority reviews the legal question de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995). In applying the standard of de novo review, the Authority assesses whether the Arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. 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.

      The authorization to conduct fitness-for-duty examinations is set forth in part 339 of title 5 of the Code of Federal Regulations. By its plain wording, § 339.301(b) empowers an agency, in relevant part, to:

require an individual who . . . occupies a position which has medical standards or physical requirements . . . to report for a medical examination . . . [w]henever there is a direct question about an employee's continued capacity to meet the physical or medical requirements of a position.

      Here, the Arbitrator applied the plain meaning of the regulation in determining that the Agency was empowered to schedule the grievant for a fitness-for-duty examination because the grievant "`occupies' a position which has medical standards or physical requirements." Award at 24. The Arbitrator also found that letters from the grievant's doctor regarding the grievant's medical condition created a "direct question" justifying the fitness-for-duty examination. Although the Union challenges the Arbitrator's finding of a "direct question," the Union offers no support for concluding that the Arbitrator's finding is inconsistent with the regulation. Accordingly, we find that the award is not inconsistent with the regulation and that the exception provides no basis for finding the award deficient.

V. Order

      The Union's exceptions are denied. [ v55 p178 ]


APPENDIX

Article 3 -- GOVERNING REGULATIONS

Section a. In the administration of all matters covered by this Agreement, officials and employees are governed by existing or future laws and the regulations of appropriate higher authorities. . . .

Article 5 -- RIGHTS OF THE EMPLOYER

Section a. Nothing in this Agreement shall affect the authority of any management official of the Federal Bureau of Prisons
. . . .
2. in accordance with applicable laws:
a. to hire, assign, direct, layoff and retain employees in the Federal Bureau of Prisons, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees. . . .

Article 6 -- RIGHTS OF THE EMPLOYEE

Section b. Each employee shall have the right to bring matters of personal concern to the attention of appropriate management officials.
. . . .
Section g. Unit employees, including probationary employees, shall have the right to a union representative during any examination by, or prior to submission of any written report to, a representative of the Employer in connection with an investigation if:
1. [T]he employee reasonably believes that the examination or written report may result in disciplinary action against the employee; and
2. [T]he employee requests representation.
Section h. . . . Supervisors should also remind employees of their rights to request a Union representative prior to any examination or submission of a written report which is likely to result in disciplinary action against the employee. This is not intended to interfere with the routine questions supervisors ask employees in the normal course of a workday, and the failure of a supervisor to so inform the employee will not affect any administrative action against the employee which may result.
Section i. If the employee requests a representative under Sections g. or h., above, no further questioning will take place until the representative is present, provided that if the representative is not available within a reasonable period of time, the questioning and/or submission of a written report may proceed without the representative being present. All employees are required to answer questions regard