Social Security Administration (Agency) and American Federation of Government Employees, Council 220 (Union)

[ v59 p257 ]

59 FLRA No. 39

SOCIAL SECURITY ADMINISTRATION
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
COUNCIL 220
(Union)

0-AR-3557

_____

DECISION

September 29, 2003

_____

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 Stephen L. Hayford filed by the Agency under § 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 Agency suspended the grievant for 2 days. The Arbitrator determined that discipline was warranted under the parties' collective bargaining agreement, but that the 2-day suspension was not for just cause. As a remedy, the Arbitrator ordered the Agency to substitute a written disciplinary warning. We conclude that the remedial portion of the award is deficient, and we set it aside because a written warning does not constitute a disciplinary action under the parties' agreement.

II.      Background and Arbitrator's Award

      The grievant accessed the computer record of the daughter of a coworker. The Agency suspended the grievant for 2 days for violating the Agency's unauthorized system access policy. The grievant filed a grievance claiming that the suspension was not for just cause under Article 23 of the parties' collective bargaining agreement.

      The Arbitrator sustained the grievance in part and denied the grievance in part. Because the grievance was brought under the parties' expedited arbitration procedure, the Arbitrator's analysis was brief. He ruled that the grievant's conduct constituted a violation of the Agency's unauthorized system access policy and that "discipline is warranted . . . under the policy and the Article 23 contractual just cause standard." Award at 6. However, he ruled that the penalty of a 2-day suspension was not warranted under the just cause standard. Instead, he determined that a "written warning was justified." Id. Accordingly, as a remedy, he ordered the Agency to rescind the suspension and substitute "a written disciplinary warning." Id. He also ordered that the grievant be made whole for lost pay.

III.      Positions of the Parties

A.      Agency's Exceptions

      The Agency maintains that the Arbitrator found just cause for discipline, but set the discipline aside in its entirety. The Agency asserts that a written warning does not constitute discipline under Article 23. [n2]  Accordingly, the Agency contends that the award is deficient because it is contrary to management's right to take disciplinary action under § 7106(a)(2)(A) of the Statute and fails to draw its essence from the parties' collective bargaining agreement.

B.      Union's Opposition

      The Union disputes the Agency's assertion that the written warning ordered by the Arbitrator does not constitute discipline under Article 23. Accordingly, the Union contends that the Authority should deny the Agency's exceptions.

IV.      Analysis and Conclusions

      This case is identical in all substantive respects to another case involving the same parties, Soc. Sec. Admin., Lansing, Mich., 58 FLRA 93 (Member Pope dissenting) (SSA, Lansing), reconsideration denied, 58 FLRA 181 (2002). There, the grievants were suspended for 2 days for violating the unauthorized system access policy. The arbitrator ruled that discipline was warranted, but that the 2-day suspensions were not for just cause. The arbitrator modified the suspensions to a written warning. As it has done in this case, the Agency filed exceptions in SSA, Lansing contending that a written warning did not constitute discipline under Article 23 and that consequently, the remedial portion of the [ v59 p258 ] award failed to draw its essence from the agreement and was contrary to § 7106 of the Statute.

      We ruled that the award was deficient because it failed to draw its essence from the agreement. We concluded that the arbitrator's imposition of a written warning did not constitute discipline as the parties have defined it under Article 23 of the collective bargaining agreement.

      Specifically, we noted that Article 23 reflects the parties' agreement concerning the types of discipline that the Agency may impose on employees in the bargaining unit, and that the minimum form of discipline is an official reprimand under Article 23, Section 4. In addition to outlining reprimands and other disciplinary actions that the Agency can impose, the parties also defined actions that the Agency can take in advance of discipline. Those actions consist of counseling and oral warnings that are "informal in nature and are not recorded." Article 23, Section 3.

      In terms of this case, nothing in Article 23 includes a provision for a written disciplinary warning. The specific provision on written warnings in Section 3 provides for unrecorded oral warnings only and provides that such warnings do not constitute discipline. Consequently, we find, as we found in SSA, Lansing, that the remedy directed by the Arbitrator does not comport with any of the disciplinary actions that the parties agreed the Agency could take under Article 23. As in SSA, Lansing, the Arbitrator, after finding that discipline was warranted under the just cause standard of Article 23, in effect imposed no discipline at all within the meaning of the parties' agreement.

      Accordingly, we reach the same result as we reached in SSA, Lansing. We conclude that the remedial portion of the award is deficient because it fails to draw its essence from the parties' agreement. [n3]  Because the Arbitrator found that the Agency had a legitimate basis to discipline the grievant, his award, by not providing any discipline, does not represent a plausible interpretation of the agreement. We also take the same action with respect to the award in this case as we took in SSA, Lansing; namely, we set aside the remedial portion of the award.

      In setting aside the remedial portion of the award, we explicitly state what was implicit in SSA, Lansing: that we do not remand for further proceedings. Our reasons for finding that a remand in this matter is not necessary follow.

      Here, the Arbitrator found that the grievant had committed an act for which discipline was warranted under the terms of the Agency's policy and the collective bargaining agreement. That portion of the award remains unaffected. However, the Arbitrator