Social Security Administration, Detroit Northwest Regional Office, Detroit, Michigan (Agency) and American Federation of Government Employees, Local 3239 (Union)

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56 FLRA No. 74

SOCIAL SECURITY ADMINISTRATION
DETROIT NORTHWEST REGIONAL OFFICE
DETROIT, MICHIGAN
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3239
(Union)

0-AR-3251

_____

DECISION

July 7, 2000

_____

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

Decision by Chairman Wasserman for the Authority.

I.     Statement of the Case

      This matter is before the Authority on an exception to an award of Arbitrator Charles A. Morgan, Jr., 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 exception.

      The Arbitrator determined that the suspension of the grievant for discourtesy was not based on just cause, and he set aside the suspension. For the following reasons, we conclude that the Agency has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Agency's exception.

II.     Background and Arbitrator's Award

      The grievant was suspended for 2 days because of a complaint from a member of the public that the grievant: (1) was rude in responding to a telephone inquiry; and (2) hung up on her. According to the Arbitrator, the suspension was based solely on these two charges. A grievance was filed over the suspension and, when the grievance was not resolved, was submitted to arbitration, where the Arbitrator framed the issue as "whether the . . . suspension was proper." Award at 2.

      The Arbitrator concluded that the suspension was "not for such cause as will promote the efficiency of the service within the meaning of . . . 5 U.S.C. 7503(a)." [n1]  Id. at 4. According to the Arbitrator, the suspension was inconsistent with section 7503(a) because the alleged discourtesy did not constitute a pattern of discourteous conduct and because it was based on only two examples within the previous year. The Arbitrator directed the Agency to reimburse the grievant for the loss of pay she suffered from the suspension.

III.      Positions of the Parties

A.     Agency's Exception

      The Agency argues that the award is contrary to law because the Arbitrator's "narrow" interpretation of section 7503(a) interferes with its right to take disciplinary action under section 7106(a)(2)(A) of the Statute. Exception at 2. In the Agency's view, section 7503(a) does not limit the situations in which discipline may be imposed but merely provides "two examples of situations where a suspension may be warranted for discourteous conduct." Id. According to the Agency, its interpretation of section 7503(a) is supported by applicable legislative history. Id. at 2-3 (citation omitted).

B.     Union's Opposition

      The Union contends that the award does not violate the Agency's right to discipline under section 7106 of the Statute because an arbitrator may set aside discipline that does not satisfy contractual or statutory requirements. The Union further argues that the Arbitrator properly construed and applied section 7503(a), which, according to the Union, requires either four instances of discourteous conduct within a year or a pattern of such conduct as cause for a suspension.

IV.      Analysis and Conclusion

      The Authority reviews the questions of law raised by the award and the Agency's exceptions de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing 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 the Arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. National Federation of [ v56 p484 ] 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.

      The Agency argues that the Arbitrator's interpretation of section 7503(a) interferes with its right to discipline employees under to section 7106(a)(2)(A). The Authority's framework for resolving exceptions alleging that an award violates management's rights under section 7106 of the Statute is 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). Upon finding that an award affects a management right under section 7106(a), the Authority applies a two-prong test. Under prong I, the Authority examines whether the award remedies a violation of either applicable law, within the meaning of section 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to section 7106(b) of the Statute. Id. at 153. Under prong II, the Authority considers whether the award reflects a reconstruction of what management would have done if it had not violated the law or contractual provision at issue. Id. at 154.

      Applying this standard, it is not disputed that the award affects the Agency's right to discipline employees. With respect to prong I of BEP, the award enforces a requirement of section 7503(a), which constitutes an "applicable law" within the meaning of section 7106(a)(2) of the Statute. With respect to prong II, an arbitrator's enforcement of a just cause provision in a collective bargaining agreement "operates in effect to reconstruct what management would have done had the provision been followed." U.S. Department of Veterans Affairs, Medical Center, Birmingham, Alabama and American Federation of Government Employees, Local 2207, 51 FLRA 270, 274 (1995). Thus, if the Arbitrator correctly interpreted section 7503(a), then the award is not deficient as inconsistent with the Agency's right to discipline employees. Cf. U.S. Department of Justice Federal Bureau of Prisons, Federal Correctional Institution, Cumberland, Maryland and American Federation of Government Employees, Council of Prisons Local 4010, 53 FLRA 278, 283 (1997) (finding arbitrator's application of section 7503(a) not contrary to law).

      In discerning the meaning of a statutory provision, the Authority examines first the wording of the provision itself and second its legislative history. See generally National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs Medical Center, Lexington, Kentucky, 51 FLRA 386, 389-91 (1995).

      Section 7503(a) provides that an employee may be suspended for 14 days or less "for such cause as will promote the efficiency of the service[.]" See n.*, supra. The section specifies that such conduct includes discourteous conduct to the public that is "confirmed by [a] . . . report of four such instances within any one-year period or any other pattern of discourteous conduct[]." See id. Thus, although section 7503(a) clearly includes discourteous conduct to the public within the conduct for which a suspension may be imposed, the section specifically identifies the discourteous conduct that is included as: (1) four instances of such conduct within a year, and (2) a pattern of such conduct.

      We conclude that the most straightforward reading of section 7503(a) is that it limits an agency's ability to impose suspensions based on discourteous conduct to the two situations specified in the section. That is, fewer than four instances of discourteous conduct in 1 year does not constitute cause for a suspension unless such instances constitute a pattern of such conduct. This is the interpretation that the Arbitrator adopted, finding no cause for the disputed suspension because there were only two charges of discourteous conduct against the grievant and because the charges did not constitute a pattern of discourtesy. We note that the Agency does not dispute the Arbitrator's findings concerning the number of instances of discourteous conduct or the lack of a pattern of such conduct.

      The Agency asserts that the section 7503(a) merely sets forth two examples of situations where a suspension may be imposed for discourteous conduct. However, the Agency provides no reason why, if Congress intended only to provide examples, it included as an example a specific number of instances of discourteous conduct. If (apart from a pattern of discourteous conduct) any number of instances of discourteous conduct constitutes grounds for a suspension, then it is unnecessary to specify that a suspension may be imposed for four such instances.

      Nothing in the legislative history contradicts this interpretation. The Agency cites a statement from Representative Levitas that Congress' intent was to "give a very clear mandate . . . to eliminate unprovoked discourtesy by federal employees. . . ." Exceptions at 3 (citing 124 Cong. Rec H9384 (daily ed. Sept. 11, 1978)). Although this statement clearly indicates Congress' interest in discouraging discourteous conduct, it does not indicate that Congress intended to permit agencies to suspend employees for any number of instances of [ v56 p485 ] discourtesy. In fact, there are other indications in the legislative history that section 7503(a) should not be broadly construed. First, Representative Udall, the sponsor of the legislation, indicated concern that this provision could "be used mischievously by supervisors if we are not careful with the way it is administered." Id. Second, while the initial House version of the legislation contained wording similar to section 7503(a) in three sections, the final bill removed the wording in all but section 7503(a) because of "great concern . . . that this very vague standard of discourtesy could be abused as a ground for discharge or a ground for punishing an employee." Id. This concern indicates that the section should not be construed to include conduct that is not specifically included in it.

      With respect to the Agency's argument that, under the Arbitrator's interpretation of section 7503(a), it would have the discretion to impose discipline for fewer than four instances of discourteous conduct to anyone except a member of to the public, nothing in section 7503(a) prohibits an Agency from disciplining an employee either for a pattern of discourtesy or for discourtesy