American Federation of Government Employees, Local 2382 (Union) and United States, Department of Veterans Affairs, Carl T. Hayden Medical Center, Phoenix, Arizona (Agency)

[ v58 p270 ]

58 FLRA No. 62

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 2382
(Union)

and

UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS,
CARL T. HAYDEN MEDICAL CENTER,
PHOENIX, ARIZONA
(Agency)

0-AR-3535

_____

DECISION

December 24, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Donald A. Anderson filed by the Union under § 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 found that the Agency did not justify its 1-day suspension of the grievant, and ordered the Agency to rescind the suspension and make the grievant whole. The Arbitrator also found that the grievant had not appropriately followed established sick leave procedures and on that basis ordered the Agency to give the grievant "a final warning . . . that another instance similar to that involved in this arbitration[] could result in summary termination." Award at 10-11. The Union excepts to this quoted portion of the Arbitrator's award.

      For the reasons discussed below, we deny the Union's exceptions.

II.     Background and Award

      The grievant is a medical technician who has worked at the Agency for about 10 years. On August 31 and September 1, 2000, the grievant did not report for work. The Arbitrator found that the grievant requested leave for this time through his leadperson, who told the grievant that she did not have authority to grant sick leave and that the grievant should seek approval from his supervisor. The grievant did not do so.

      Nonetheless, the grievant claimed that he had received approval for the sick leave after an examination and diagnosis from a Medical Center podiatrist who stated that the grievant should not perform his normal duties after having had foot surgery. [n2]  The Agency stated that the grievant had sought out this opinion after having been told by the surgeon who performed the surgery that he could perform light duty.

      The Agency decided that the grievant had not properly requested sick leave. Because he had exhibited similar conduct previously, the Agency suspended him for 1 day without pay, which it maintained was the next disciplinary step in the progressive discipline procedure.

      The grievant filed a grievance claiming that he could not have performed his duties on the days in question because of the surgery, and claimed that since the podiatrist had agreed with him, he assumed he had a valid sick leave approval.

      The Arbitrator stated the "submission issue" as follows:

Whether or not the one, (1) day suspension given to [g]rievant . . . for his AWOL on August 31 and September 1, 2000 was for just and sufficient cause?
If not, what should the remedy be?

Award at 1.

      As relevant here, the Arbitrator found that while the Agency did not have just and sufficient cause to suspend the grievant for 1 day, "neither was [the Arbitrator] convinced that Grievant conducted himself in an appropriate manner for carrying out his employee responsibility to acknowledge and follow established sick leave procedure protoc[o]l." Id. at 10. After ordering the Agency to rescind the suspension and make the grievant whole, the Arbitrator stated the following:

However, and acknowledging Grievant's sometimes less than forthright approach in dealing with the Agency's sick leave policy and procedure, the suspension shall be reduced to a final warning to him that another instance similar to that involved 271 in this arbitration, could result in summary termination.

Id. at 10-11. [n3]  [ v58 p271 ]

III.     Positions of the Parties

A.     Union's Exceptions

      The Union contends that the Arbitrator exceeded his authority by replacing the suspension "with an unconscionable penalty which denies [the grievant his] normal and usual employee rights and privileges." Exceptions at 1. According to the Union, the Arbitrator's revised sanction is "a type of last chance imposition that allows the Agency to terminate [the grievant] without abiding by his legal rights and privileges. . . . This in fact imposes a higher penalty on the grievant th[a]n the one-day suspension that the Arbitrator removed." Id.

      The Union also contends that the award demonstrates the Arbitrator's "failure to understand the law and apply it to the facts of this case." Id. Specifically, the Union contends that the award is contrary to the grievant's rights under "[t]he Privacy Act and all other Privacy Laws" regarding his medical treatment, id., and that the Agency improperly relied on an expired Agency leave policy to impose discipline.

      Finally, the Union states that "since the decision itself indicates a substantial finding in favor of the Union/[grievant], the attorney fees [should] include the cost of this exception." Id. at 2.

B.     Agency's Opposition

      The Agency argues that the Union's characterization of the award is incorrect. The Agency cites the award as providing only that another instance similar to that involved in this arbitration "could" result in summary termination. Opposition at 3. The Agency asserts that as the language is not mandatory, the award is not contrary to law because "nothing in [the] award requires [it] to summarily terminate" the grievant. Id. Rather, the Agency states that it "remains bound by the terms of the negotiated agreement . . . and by federal regulations to accord all career employees such as [the grievant] proper notification as to the reasons for their proposed removal and various rights and procedures to be followed in adverse action cases." Id.

      The Agency argues that since the award "leaves the discretion on any proposed adverse action squarely with the [A]gency based upon its review of the evidence, requirements of the negotiated agreements, and federal rules and regulations[,]" there is nothing in the award that is contrary to any law, rule, or federal regulation. Id.

      Regarding the Union's Privacy Act exception, the Agency asserts that the grievant gave a note with the signatures of both the surgeon and the podiatrist to management and thereby "waived his right to the Privacy Act." Id. at 2. In addition, the Agency argues that the medical records at issue were Agency records in the employee's file and were not records covered by the Privacy Act.

      Concerning the Union's argument about the expired leave policy, the Agency notes that the Arbitrator found that the expired leave policy was not controlling. The Agency argues that it "put forward evidence that the negotiated agreement had an article that dealt with leave procedures." Id. Further, according to the Agency, the Arbitrator concluded that the Agency "conducted itself in an acceptable mode when it dealt with the Grievant's conduct in this case," and that the grievant violated a "known policy of expected conduct and knew and understood the operating procedure." Id.

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, 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, 51 FLRA 1645, 1647 (1996). When an exception concerns whether the remedy awarded by the arbitrator exceeded the arbitrator's authority, the Authority grants the arbitrator broad discretion to fashion a remedy that the arbitrator considers to be appropriate. See United States Dep't of Defense Dependents Schools, 49 FLRA 658, 663 (1994) (DODDS).

      In this case, the issues before the Arbitrator were whether the discipline was for just cause and, if not, what remedy was appropriate. The Arbitrator found that the 1-day suspension was not warranted and directed that the suspension be reduced to a final warning to the grievant that another similar instance "could" result in summary termination. In the absence of any applicable contractual provisions limiting the Arbitrator's discretion, his action of reducing the suspension to such a warning clearly falls within the broad discretion the Authority gives to an arbitrator to fashion a remedy that the arbitrator considers to be appropriate. See id.

B.     The Award Is Not Contrary to Law

      The Authority reviews questions of law de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable [ v58 p272 ] standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

      The Union has misconstrued the effect of the award. The award provides for the suspension to be reduced to a "final warning" and that future misconduct "could result in summary termination." Award at 10-11, emphasis added. Contrary to the Union's claim that the award permits the Agency to terminate the grievant without affording him his legal rights, nothing in the award denies the grievant any of his legal rights.

      The language of the award is not mandatory, and nothing in the award requires the Agency to terminate the grievant in the event of future misconduct. As the Agency states in its opposition, it "remains bound by the terms of the negotiated agreement . . . and by federal regulations to accord all career employees such as [the grievant] proper notification as to the reasons for their proposed removal and various rights and procedures to be followed in adverse action cases." Opposition at 3. The Agency correctly asserts that since the award "leaves the discretion on any proposed adverse action squarely with the agency based upon its review of the evidence, requirements of the negotiated agreements, and federal rules and regulations[,]" there is nothing in the award that is contrary to any law, rule, or federal regulation. Id.

      Regarding the Union's Privacy Act exception, the Union does not specify in what manner the award allegedly is inconsistent with the Privacy Act. Moreover, as noted, the part of the award that the Union objects to is not mandatory and does not require the Agency to act in any manner contrary to laws and regulations. As such, the award does not require the release of any records and consequently does not in any way implicate the Privacy Act. Cf. United States Dep't of Health and Human Services, Soc. Sec. Admin., Office of Hearings and Appeals, Houston, Tex., 46 FLRA 529, 532-33 (1992) (Authority rejected claim that by sustaining an agency's use of certain information and documents in connection with its decision to suspend grievant, an award violated the Privacy Act).

      Finally, although the Union argues that the Arbitrator should have found the discipline improper because it was based on an expired Agency leave policy, the Arbitrator in fact concluded that the expired leave policy was not "controlling" and therefore did not rely on the policy for his award. Award at 9.

      Accordingly, the award is not contrary to law. See United States Dep't of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, SC, 56 FLRA 381, 386 (2000) (finding that agency misconstrued arbitrator's award and in that case rejecting agency's argument that the award was contrary to regulation).

C.     Attorneys' Fees

      In its exceptions, the Union requests that it be awarded attorneys' fees, including the cost of its exceptions. While the Arbitrator acknowledged the Union's initial request for attorneys' fees, he made no ruling on the request and has not had the opportunity to rule on the request for attorneys' fees for preparation of the exceptions. [n4]  We therefore construe the award as not resolving either the initial or subsequent requests.

      The Authority will not consider a request for attorneys' fees and costs for expenses incurred in the preparation of exceptions and oppositions in cases filed under 5 U.S.C. § 7122. Social Security Administration, 57 FLRA 530, 537 n.16 (2001). Instead, a "request for attorneys' fees `may be presented only to the appropriate authority that corrected or directed the correction of the unjustified or unwarranted personnel action.'" Nat'l Gallery of Art, Washington, D.C., 48 FLRA 841, 844 n.2 (1993) (quoting United States Dep't of Housing and Urban Dev., 47 FLRA 1053, 1064 (1993) (in turn quoting 5 C.F.R. § 550.807(a))). Therefore, the award is not ripe for review at this time.

V.     Decision

      The exceptions are denied.

      Concurring opinion of Chairman Cabaniss:

      Although I agree with the outcome of this decision, I write separately to confirm my dissenting opinion in AFGE, Local 987, 57 FLRA 551, 558 (2001), that the Privacy Act does not constitute a "law, rule, or regulation affecting conditions of employment" under § 7103(a)(9) of our Statute, and thus does not fall within the ambit of matters subject to arbitral review.



Footnote # 1 for 58 FLRA No. 62 - Authority's Decision

   Chairman Cabaniss' concurring opinion is set forth at the end of this decision.


Footnote # 2 for 58 FLRA No. 62 - Authority's Decision

   It is evident from the award that the Arbitrator inadvertently left out the word "not" after "should" when he stated that the doctor had concluded that the grievant "should perform his normal duties . . . ." Award at 2.


Footnote # 3 for 58 FLRA No. 62 - Authority's Decision

   No exceptions were filed to the portion of the award ordering the Agency to rescind the suspension and make the grievant whole.


Footnote # 4 for 58 FLRA No. 62 - Authority's Decision

   The Arbitrator stated that he was not persuaded that the Union had established a basis for "monetary damages," a ph