Federal Trade Commission, Headquarters Washington, D.C. (Agency) and American Federation of Government Employees, Local 2211 (Union)

[ v56 p464 ]

56 FLRA No. 68

FEDERAL TRADE COMMISSION
HEADQUARTERS WASHINGTON, D.C.
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2211
(Union)

0-AR-2900-001

_____

DECISION

June 22, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.

Decision by Member Cabaniss for the Authority

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Louis 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. This award arises out of the remand ordered by the Authority in Federal Trade Commission Headquarters, Washington, D.C. and American Federation of Government Employees, Local 2211, 53 FLRA 1782 (1998) (FTC). The Union filed an opposition to the Agency's exceptions. The Office of Personnel Management (OPM) filed an Amicus Curiae brief. Both the Union and the Agency filed a reply to OPM's Amicus Curiae brief.

      For the reasons set forth below, we find that the Agency has not established that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Agency's exceptions.

II.     Background, Arbitrator's Original Award and Authority's Decision in 53 FLRA No. 160

      The original award arose out of a fourteen day suspension of the grievant for making threats of violence to other employees. The Arbitrator found that the fourteen day suspension was not for just cause, that the grievant's conduct did not warrant discipline, and that the grievant's behavior warranted a psychological examination rather than discipline. Original Award at 12. The Arbitrator rejected the Agency's argument that it did not have the authority to order the grievant to undergo such an examination, finding that the applicable regulation, 5 C.F.R. § 339.302, [n1]  (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 to consider employees who talk about violence excessively as "sending a signal and should be identified for counseling to avoid possible workplace violence." Id. at 10.

      The Arbitrator found that the grievant's statements were consistent with the pattern of behavior described in the training film addressing workplace violence. He determined the statements did not warrant discipline, but the grievant's conduct warranted "treatment to prevent the potential blow up with resulting injury to persons and property." Id. at 11. 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[.]" Id. at 11-12. The Arbitrator vacated the suspension and ordered back pay.

      The Agency excepted to the award based on: ( 1) a claimed inconsistency with OPM regulations, (2) a claimed interference with management's right to discipline under § 7106(a)(2)(A) of the Statute, and (3) a claim that the Arbitrator committed a legal error by imposing an improper burden of proof on the Agency.

      In FTC the Authority remanded the case because it was unable to determine whether the award as to the psychiatric examination was based on a finding that the Agency improperly failed to order a psychological examination, or whether it was based on a finding that the Agency improperly failed to offer such an examination. In light of the remand, the Authority did not address the Agency's argument that the Arbitrator [ v56 p465 ] adopted an improper burden of proof requiring the Agency to establish medical facts that are the burden of the grievant to prove.

III.     Arbitrator's Most Recent Award

      On remand, the Arbitrator issued a one page clarification of his earlier award. That clarification in relevant part stated:

The Award is clarified to provide that by failing to offer Grievant an opportunity to go for a fitness for duty examination the imposition of the fourteen day suspension was not based on just cause and is rescinded. All other aspects of the award are reaffirmed.

IV.     Positions of the Parties

A.     Agency's Exceptions

      The Agency excepts to the clarified award on the ground that it is contrary to Government-wide regulations and therefore interferes with the Agency's right to take disciplinary action in accordance with 5 U.S.C. § 7106(a)(2)(A). The Agency raises two issues:  (1) the award is deficient under section 7122(a)(1) of the Statute because the Arbitrator's conclusion concerning a psychological evaluation is contrary to law, rule or regulation; and (2) the award is deficient under section 7122(a)(1) of the Statute because the Arbitrator committed a legal error by imposing on the Agency the burden of proof to ascertain an employee's medical condition before determining whether discipline is warranted.

1.     Contrary to Law, Rule or Regulation - 5 C.F.R. § 339.302

      The Agency asserts the Arbitrator's award improperly converts § 339.302 into a provision that requires management to screen all discipline cases for instances in which an employee would find counseling necessary. Exceptions to Final Award at 5. The Agency argues that § 339.302 expressly vests discretion with the Agency to determine whether it needs additional medical information to help it make its disciplinary decision and that the use of the word "may" clearly shows that the Agency cannot be required to seek such information if it does not determine it needs to do so. Id. at 6. Accordingly, by finding that the Agency erred by not offering the grievant the opportunity to go for a fitness for duty examination, the Arbitrator issued an award that is contrary to 5 C.F.R. § 339.302.

2.     Contrary to Law, Rule or Regulation - Burden of Proof

      The Agency alleges that employees bear the burden of proof to show both the existence of a medical or mental condition and the existence of a causal connection between the condition and the alleged misconduct. Exceptions to Final Award at 9-10. The Agency argues, as it also asserted in its earlier exceptions, that the Arbitrator's award improperly places the burden upon it to ascertain the grievant's medical condition. Id.

B.     Union's Opposition

      The Union claims that the clarified award is consistent with the regulatory requirements of 5 C.F.R. § 339.302. Opposition at 4. According to the Union, the plain language of the regulation states that an agency may offer a psychiatric evaluation to an employee "in any situation where the agency needs additional medical documentation to make an informed decision." Id. The Union argues that the Arbitrator found this case was such a situation and that the Agency should have used its discretion to offer the grievant a psychiatric examination. Id.

      The Union argues that the Arbitrator clarified his decision to show that he was basing his award on the fact that the Agency had the discretion to offer an examination, not that it required the Agency to do so, which would be consistent with the regulation and within the Arbitrator's discretion. Id. at 8-9.

      The Union further argues that the alleged lack of legal authority for the Arbitrator to reverse a discipline decision is merely disagreement with the factual conclusions of the Arbitrator that no just cause existed to support the disciplinary action, and is not a justification to overturn the award.

      Finally, the Union asserts that the award did not shift the burden of proof onto the Agency to prove that the grievant had a disabling medical condition. Opposition at 8. The Union asserts that the cases cited by the Agency stand for the proposition that, when an employee raises a disabling condition as an affirmative defense, the employee has the burden to establish that he suffers from the condition and that there is a causal connection between the condition and the alleged misconduct. Id. The Union does not argue that these general principles are not true, simply that they are not relevant to this case because the grievant never offered his medical condition as an affirmative defense. Therefore, the arbitration award does not have the effect of reversing the burden of proof. [ v56 p466 ]

C.     Amicus Curiae

      OPM filed an amicus curiae brief to offer its interpretation of 5 C.F.R. § 339.302 and how that regulation should be applied in this case. OPM agrees with the Agency's exceptions and supports the Agency's position that the award is contrary to law and Government-wide regulation. OPM maintains that "[t]he remand award and the Authority's decision [in 53 FLRA No. 160] misinterpret and are inconsistent with OPM's fitness for duty regulation and Chapter 75, title 5, United States Code, which codifies Civil service laws administered by OPM." OPM's Amicus Brief at 7-8. OPM maintains the regulation is clear in that only an agency has the authority to offer a psychiatric evaluation, and no one may decide for the agency whether or not it needs the information for management purposes. Id. at 11.

      OPM suggests that the Authority remand the case to the Arbitrator to determine if the Agency otherwise had "just cause" for taking the disciplinary action.

D.     Agency's Reply to OPM's Amicus Curiae Brief

      The Agency agrees with OPM on its construction of 5 C.F.R. § 339.302. The agency states the regulation was not intended to impose any obligation on an agency to offer a medical examination, regardless of the situation. Agency's Amicus Reply Brief at 1-2.

      However, the Agency does not agree with OPM's recommendation to remand the case to the Arbitrator for a determination as to whether the grievant's conduct constituted a threat. Id. at 2. The Agency argues that it is clear from statements made by the Arbitrator in his decision that he found the grievant's conduct to constitute threats. The only question, claims the Agency, was whether those threats were direct or indirect, and since this factual issue was resolved in favor of the Agency, there is no need for the case to be remanded. Id.

E.     Union's Reply to OPM's Amicus Curiae Brief

      The Union argues the Arbitrator's award was not inconsistent with 5 C.F.R. § 339.302 because under the regulation, an agency may offer an employee an examination where the agency feels this information will help it to make an informed management decision. In this respect, the Union argues, all the Arbitrator did was find this case to be such a situation, and therefore found the Agency should have offered the grievant a psychiatric examination rather than suspending him. Union's Amicus Reply Brief at 2.

      The Union also disagrees with OPM's conclusion that the award is inconsistent with Chapter 75 of Title 5 of the U.S. Code. Id. at 5. The Union argues that a just cause provision, such as the one in the instant case, constitutes the parties' capsulation of the standard contained in § 7503, and the Authority has consistently permitted arbitrators to set aside a disciplinary penalty utilizing the just cause standard. Id. at 5-6. Therefore, the Arbitrator's conclusions of no just cause for the suspension of the grievant, and that the Agency should have offered him the opportunity to submit to a psychological examination, are consistent with Authority precedent. Union's Amicus Reply Brief at 7.

V.     Analysis and Conclusions

A.     The Arbitrator Did Not Improperly Place the Burden of Proof on the Agency to Ascertain the Grievant's Medical Condition

      The Agency alleges that the Arbitrator improperly placed the burden of proof on it with respect to the grievant's medical condition. The Agency cites to Ajanaku v. Department of Defense, 44 M.S.P.R. 350, 353 (1990) and Curry v. Department of the Air Force, 35 M.S.P.R. 301, 306 (1987) for the proposition that in order to avoid discipline imposed as a result of misconduct, an employee must prove the existence of a medical condition, and the existence of a causal connection between the condition and the misconduct. Exceptions to Final Award at 9-10. However, the Merit Systems Protection Board decisions relied on by the Agency are inapposite because they concern employee claims for medical accommodation. The grievant has not asserted either that he has a medical condition for which he is seeking accommodation, or that there is a causal relationship between any such medical condition and his conduct. Accordingly, the cases cited by the Agency provide no support for the conclusion asserted herein by the Agency.

      The Agency has not shown the award improperly placed the burden of proof on the Agency in violation of the cited case law. As such, this exception is denied.

B.     The Award Sets Forth A Sufficient Basis for Finding There Was No Just Cause for Disciplining the Grievant

      In the Arbitrator's original award, it is evident that he made sufficient factual findings, independent of any concern regarding a fitness for duty examination, establishing that there was no just cause for disciplining the grievant, thereby justifying his overturning of the grievant's 14-day suspension.

      The Arbitrator specifically found the grievant's statements were not "insubordinate statements or as [ v56 p467 ] direct threats to any one person." Original Award at 10. The Arbitrator also found the grievant was sending a message that he was under stress and "[t]hat message does not warrant discipline." Id. at 11. Finally, the Arbitrator stated:

[w]e can perceive of 14 days rest as reducing stress because of physical separation. That, however, does not constitute just cause for a 14-day suspension. An employee with the flu may be cured in 10 days, but an imposed disciplinary leave, in lieu of a medical leave, does not constitute just cause for the disciplinary suspension.

Id. These are specific factual findings by the Arbitrator which set forth a sufficient basis for a finding of no just cause. We therefore find that the Arbitrator made a sufficient finding that no just cause existed for the discipline imposed, regardless of any concerns raised by the Arbitrator as to the failure to offer the grievant a fitness for duty examination.

      The Authority will uphold an award when one or more alternative arbitral holdings supporting the award exist. See, e.g., U.S. Department of Justice, Immigration and Naturalization Service and National Border Patrol Council, American Federation of Government Employees, 43 FLRA 939, 950 (1992) (where the arbitrator found no just cause for the discipline, the Authority need not examine an additional rationale (engaging in protected activity) relied on by the arbitrator to overturn the discipline).

      Based on our determination that the Arbitrator made a sufficient just cause determination independent of the fitness for duty question, we do not find it necessary to address the merits of the Agency's exception that the award was contrary to 5 C.F.R. § 339.302, or OPM's interpretation of 5 C.F.R. § 339.302 in its Amicus Curiae brief.

VI.     Decision

      The Agency's exceptions are denied.



Footnote # 1 for 56 FLRA No. 68

   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 re