National Gallery of Art and American Federation of Government Employees, Local 1831

[ v55 p480 ]

55 FLRA No. 80

NATIONAL GALLERY OF ART
WASHINGTON, D.C.
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1831
(Union)

0-AR-3133

_____

DECISION

May 27, 1999

_____

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 Eugene T. Herbert 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 found that there was just cause for the Agency to suspend the grievant. However, he ordered that the suspension be held in abeyance for a period of 1 year and expunged if certain conditions are met. For the following reasons, we conclude that the Agency has failed to establishthat the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

      The Agency suspended the grievant for five days for "physically aggressive behavior" toward his supervisor. Award at 1. The suspension was grieved and, when the grievance was not resolved, the matter was submitted to arbitration. The Arbitrator stated the issue to be resolved as follows: "Was the five-day suspension of [g]rievant reasonable and for just cause?" Id. at 2.

      The Arbitrator found that the Agency had established that the action taken against the grievant was for just cause. In this regard, the Arbitrator found the supervisor's description of the encounter with the grievant to be "essentially true." Id. at 8. However, the Arbitrator found that the grievant's actions could have been misconstrued by the supervisor, and that it was "impossible to know" whether the supervisor's perception that the grievant had or might have assaulted him was reasonable. Id. at 8-9. As his award, the Arbitrator decided:

The [g]rievance is denied. However, the discipline of five work days suspension is to be held in abeyance for a period of one year from the date of this [a]ward and, shall be enforced only if Grievant commits a further offense during that period while under supervision different from at present but, if not, the instant offense and any record thereof shall be expunged.

Id. at 9.

III.     Preliminary Matter

      The Union filed its opposition to the Agency's exceptions by facsimile (fax). The Union subsequently was directed to show cause why, consistent with section 2429.24(e) of the Authority's Regulations, the opposition should be considered by the Authority. [n1]  The Union's attorney responded that he was unfamiliar with the filing requirements in the Authority's Regulations, and that the Authority's notice acknowledging the filing of the exceptions and stating filing requirements was forwarded to a Union representative other than the attorney.

      Section 2429.24(e) of the Authority's Regulations, which sets forth the proper methods of filing documents with the Authority, provides that certain documents may be filed with the Authority by fax. An opposition to exceptions is not one of the documents specifically identified as appropriate for fax filing. It also is not a "similar matter" to the documents that are specifically identified. In this regard, the regulation provides for the fax filing of procedural motions and responses thereto; it does not permit fax filing of other documents. [ v55 p481 ]

      The regulation does not contain exceptions to the filing requirements. Further, the Union's response to the order to show cause does not provide a basis for excusing its failure to comply with the regulation. In this regard, parties filing actions with the Authority are "responsible for being knowledgeable" of the statutory and regulatory filing requirements. American Federation of Government Employees, Local 2065 and U.S. Department of the Navy, U.S. Marine Corps, 50 FLRA 538 (1995). Accordingly, we do not consider the opposition.

IV.     Agency's Exceptions

      The Agency argues that the Arbitrator exceeded his authority by disregarding specific limitations he formulated in framing the issue. The Agency maintains that the Arbitrator unambiguously stated the issue to be whether the disputed suspension of the grievant was reasonable and for just cause. The Agency argues that this issue was decided when the Arbitrator concluded that there was just cause for the discipline, and that, by suspending the penalty, he decided issues not submitted to arbitration.

      The Agency also asserts that the award violates section 7106(a)(2)(A) of the Statute because it interferes with the Agency's rights to discipline and assign employees. The Agency states that the award interferes with its right to discipline because it mandates a five-day suspension for the next offense. The Agency contends that the award interferes with the right to assign employees because the award directs it to assign the grievant to another supervisor during the abeyance period.

      Additionally, the Agency asserts that the award is contradictory, so as to make implementation impossible. According to the Agency, the reduced penalty contradicts the Arbitrator's finding that the Agency took action against the grievant for just cause.

V.     Analysis and Conclusions

A.     The Arbitrator did not exceed his authority.

      An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. U.S. Department of the Navy, Naval Base, Norfolk, Virginia and American Federation of Government Employees, Local 22, 51 FLRA 305, 307-08 (1995). It is well established that, in the absence of a stipulated issue, an arbitrator's formulation of the issues is accorded substantial deference. U.S. Department of Defense, Defense Contract Audit Agency, Central Region and American Federation of Government Employees, Local 3529, 51 FLRA 1161, 1164 (1996).

      The Agency does not argue, and there is no basis in the record on which to conclude, that the parties stipulated the issues to be resolved by the Arbitrator.

      The Arbitrator framed the issue as, "Was the five-day suspension of [g]rievant reasonable and for just cause?" Award at 2. This formulation of the issue expressly contemplates that the Arbitrator will make two determinations: (1) whether there was just cause for the suspension, and (2) whether the suspension was reasonable. The Arbitrator found that there was just cause for the suspension. However, the Arbitrator also found that it was "impossible to know" whether the supervisor's belief that "he was, or might be assaulted" by the grievant was "reasonable," or "whether his interpretation of [the] [g]rievant's behavior was, in part, a product of history." Id. at 8-9 (emphasis in original). We conclude that the Arbitrator's award that the suspension be held in abeyance was his determination of the "reasonableness" of the suspension.

      The Agency has provided no reason why, in view of the Arbitrator's formulation of the issue, the Arbitrator's determination of reasonableness was not proper. As such, we deny the Agency's exception that the Arbitrator exceeded his authority.

B.     The award does not affect management's right to discipline and to assign employees under section 7106(a)(2)(a) of the Statute.

      The Agency argues that the award violates its management rights to discipline and assign employees. We review the questions of law raised by these assertions and the Arbitrator's award 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, we assess whether an arbitrator's legal conclusions are consistent with the applicable standard of law, based on the arbitrator's 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) (Army Research). In making that assessment, we defer to the Arbitrator's underlying factual findings. See id.

      Where an agency asserts that an arbitrator's award violates management's rights, the Authority first deter- [ v55 p482 ] mines whether the award affects management's rights. See United States Small Business Administration and American Federation of Government Employees, Local 2951, 55 FLRA 179, 184 (1999). If it does, then the Authority applies the two-prong test set forth in U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146, 151-54 (1997) (BEP). If the award does not affect management's rights, then the BEP analysis is not required.

1.     The award does not affect management's right to discipline employees.

      The Agency argues that the remedy interferes with its right to discipline, asserting that the award directs it to impose a five-day suspension on the grievant for the next offense committed during the abeyance period. [n2]  The Agency relies on case law holding that restrictions on an agency's ability to choose the specific penalty to impose in disciplinary actions directly interfere with management's right to discipline by eliminating management's discretion to choose the penalty it will impose for a given infraction. Exceptions at 4 (citing U.S. Department of Health and Human Services, Austin, Texas and National Treasury Employees Union, Chapter 219, 40 FLRA 1035 (1991)).

      The award in this case states that the "discipline of five work days suspension is to be held in abeyance for a period of one year . . . and, shall be enforced only if [g]rievant commits a further offense during that period while under supervision different from at present . . . ." Award at 9. As plainly worded, the award permits the Agency to enforce the penalty for the infraction involved in this case. That is, it mandates that the five-day suspension for the prior offense be automatically reinstated upon the occurrence of a further infraction. As such, the award does not limit, in any way, the appropriate penalty for a new infraction. Therefore, the award does not affect the Agency's right to discipline employees under section 7106(a)(2)(a) of the Statute.

2.     The award does not affect management's right to assign employees.

      The Agency argues that this award directs it to assign the grievant to a different supervisor during the period in which the suspension is held in abeyance and, therefore, restricts its right to assign employees under section 7106(a)(2)(a) of the Statute.

      The award states only that the grievant's suspension will be enforced if another infraction is committed while the grievant is under the direction of a different supervisor. Thus, the award limits the infraction that would trigger the enforcement of the suspended discipline to an infraction involving another supervisor. However, this does not require the Agency to assign the grievant to a new supervisor. Therefore, the award does not affect the Agency's right to assign employees under section 7106(a)(2)(a) of the Statute.

C.     The award is not contradictory.

      The Authority will find an award deficient when it is incomplete, ambiguous, or contradictory so as to make implementation of the award impossible. American Federation of Government Employees, Local 1869 and U.S. Department of the Air Force, Charleston Air Force Base, Charleston, South Carolina, 50 FLRA 172, 174 (1995).

      As discussed above, the Arbitrator framed the issue in this case as involving both whether there was just cause for the disputed discipline and whether the discipline was reasonable. The award resolved both issues by finding just cause but modifying the penalty. The Agency has provided no basis on which to conclude that this separation and resolution of issues resulted in an incomplete, ambiguous, or contradictory award. As such, the Agency has failed to establish that the award is deficient on the ground asserted.

VI.     Decision

      The Agency's exceptions are denied.






Footnote # 1 for 55 FLRA No. 80

   5 C.F.R. § 2429.24(e) provides:

All documents filed pursuant to this section shall be filed in person, by commercial delivery, by first-class mail, or by certified mail. Provided, however, that where facsimile equipment is available, motions; information pertaining to prehearing disclosure, conferences, orders