American Federation of Government Employees, Local 1760, AFL-CIO (Union) and Department of Health and Welfare, Office of Program Centers of the Social Security Administration (Activity)  

 6 FLRA No. 46
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1760, AFL-CIO
 Union
 
 and
 
 DEPARTMENT OF HEALTH, EDUCATION,
 AND WELFARE, OFFICE OF PROGRAM
 CENTERS OF THE SOCIAL SECURITY
 ADMINISTRATION
 Activity
 
                                            Case No. O-AR-140
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR ERIC J. SCHMERTZ FILED BY THE UNION UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)).
 
    ACCORDING TO THE ARBITRATOR'S AWARD, THE DISPUTE IN THIS MATTER AROSE
 WHEN THE ACTIVITY IN AUGUST 1979 SUSPENDED THE GRIEVANT FOR TEN WORKING
 DAYS FOR VIOLATION OF A WORK RULE REQUIRING EMPLOYEES TO CALL IN ON DAYS
 THEY ARE TO BE ABSENT TO NOTIFY MANAGEMENT OF THE ABSENCE AND THE
 REASONS THEREFOR, AND TO SEEK LEAVE.  THE GRIEVANT FILED A GRIEVANCE
 DISPUTING THE SUSPENSION AND THE GRIEVANCE WAS ULTIMATELY SUBMITTED TO
 ARBITRATION.  THE PARTIES STIPULATED THE ISSUE BEFORE THE ARBITRATOR TO
 BE:
 
    WAS THE SUSPENSION OF (THE GRIEVANT) FOR TEN WORKING DAYS FOR JUST
 AND SUFFICIENT CAUSE AND
 
    TO PROMOTE THE EFFICIENCY OF THE SERVICE?  IF NOT WHAT SHALL BE THE
 REMEDY?
 
    THE ARBITRATOR NOTED THAT THE GRIEVANT CLAIMED THAT SHE HAD NOT BEEN
 INFORMED OF THE RULE, THAT AT TIMES SHE EITHER CALLED IN OR HAD A MEMBER
 OF HER FAMILY DO SO FOR HER, AND THAT AT TIMES SHE WAS SO ILL WITH
 "SWOLLEN GLAND" THAT SHE WAS UNABLE TO SPEAK ON THE TELEPHONE.  AFTER
 REVIEWING THE EVIDENCE BEFORE HIM, THE ARBITRATOR REJECTED THE
 GRIEVANT'S CONTENTIONS.  INSTEAD, HE DETERMINED THAT THE GRIEVANT HAD
 BEEN REPEATEDLY INFORMED OF THE RULE, BOTH ORALLY AND IN WRITING, AND
 THAT THE ACTIVITY'S RECORD-KEEPING SYSTEM, WHICH SHOWED NO RECORD OF HER
 HAVING CALLED IN, WAS COMPLETE AND ACCURATE.  FURTHER, IN THE ABSENCE OF
 EXPLICIT SUPPORTING MEDICAL EVIDENCE, THE ARBITRATOR REFUSED TO ACCEPT
 THE GRIEVANT'S CLAIM THAT HER "SWOLLEN GLAND" CONDITION MADE SPEAKING ON
 THE TELEPHONE IMPOSSIBLE.  NOTING THAT THE GRIEVANT HAD BEEN PREVIOUSLY
 WARNED BOTH VERBALLY AND IN WRITING TO COMPLY WITH THE RULE, THE
 ARBITRATOR FOUND THAT A SUSPENSION WAS WARRANTED AND TEN WORKING DAYS
 WAS NOT EXCESSIVE.  ACCORDINGLY, AS IN HIS AWARD, THE ARBITRATOR RULED:
 
    THE SUSPENSION OF (THE GRIEVANT) FOR TEN WORKING DAYS WAS FOR JUST
 AND SUFFICIENT CAUSE AND
 
    WAS TO PROMOTE THE EFFICIENCY OF THE SERVICE.
 
    THE UNION FILED AN EXCEPTION TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /1/
 AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5 CFR PART 2425.
  THE AGENCY DID NOT FILE AN OPPOSITION.
 
    IN ITS EXCEPTION THE UNION CONTENDS THAT THE AWARD IS CONTRARY TO
 "APPROPRIATE RULES AND REGULATIONS." SPECIFICALLY, THE UNION CONTENDS
 THAT THE AWARD IS CONTRARY TO 5 CFR 752.202 CONCERNING ADVERSE ACTION
 PROCEDURES WHICH IS CITED BY THE UNION AS REQUIRING THAT THE DECISION TO
 TAKE AN ADVERSE ACTION AGAINST AN EMPLOYEE "SHALL BE MADE BY A HIGHER
 LEVEL OFFICIAL OF THE AGENCY, WHEN THERE IS ONE, THAN THE OFFICIAL WHO
 PROPOSED THE ADVERSE ACTION." THE UNION ALSO CONTENDS THAT THE AWARD IS
 CONTRARY TO AGENCY REGULATION, SPECIFICALLY "SSA INSTRUCTION 250-14,
 ISSUED JUNE 27, 1980," CONCERNING ADVERSE ACTIONS WHICH ARE DEFINED FOR
 PURPOSES OF THE INSTRUCTION TO INCLUDE ANY SUSPENSION REGARDLESS OF
 DURATION.  THE INSTRUCTION STATES IN PART THAT THE "AUTHORITY TO SIGN
 THE DECISION NOTICE ON AN ADVERSE ACTION SHALL NOT BE EXERCISED BY AN
 OFFICIAL WHO HAS PARTICIPATED IN THE DECISION TO ISSUE THE ADVANCE
 NOTICE PROPOSING THE ADVERSE ACTION." THE UNION MAINTAINS THAT THE
 OFFICIAL WHO PROPOSED THE GRIEVANT'S SUSPENSION TESTIFIED AT THE
 ARBITRATION HEARING THAT SHE HAD DISCUSSED THE SUSPENSION WITH THE
 OFFICIAL WHO WAS THE DECIDING AUTHORITY AND THAT HE RECOMMENDED THAT SHE
 PROPOSE THE GRIEVANT'S SUSPENSION.  THUS, THE UNION ARGUES THAT THE
 DECIDING AUTHORITY FOR THE GRIEVANT'S SUSPENSION PARTICIPATED IN THE
 DECISION TO PROPOSE THE GRIEVANT'S SUSPENSION IN VIOLATION OF 5 CFR
 752.202 AND SSA INSTRUCTION 250-14.  THE UNION CLAIMS THAT CONSEQUENTLY
 THE AWARD IS DEFICIENT BECAUSE IT SUSTAINS A SUSPENSION THAT IS CONTRARY
 TO APPLICABLE REGULATIONS.
 
    ALTHOUGH THE UNION'S EXCEPTION THAT THE AWARD IS CONTRARY TO
 "APPROPRIATE RULES AND REGULATIONS" STATES IN GENERAL TERMS A GROUND ON
 WHICH THE AUTHORITY WILL FIND AN ARBITRATION AWARD DEFICIENT UNDER
 SECTION 7122(A)(1) OF THE STATUTE, THE UNION HAS PROVIDED NO BASIS FOR
 FINDING THE AWARD DEFICIENT.  AS TO THE UNION'S CONTENTION THAT THE
 AWARD IS CONTRARY TO 5 CFR 752.202, THE PROVISION CITED BY THE UNION IS
 FROM THE 1978 CODE OF FEDERAL REGULATIONS AND BY ITS OWN TERMS DID NOT
 APPLY TO SUSPENSIONS OF TEN WORKING DAYS.  /2/ MOREOVER, THE REGULATIONS
 APPLICABLE TO THE GRIEVANT'S SUSPENSION IN AUGUST 1979, 5 CFR PART 752,
 SUBPARTS A-B(1979), HAD NO SUCH PROVISION.  THEREFORE, THIS PART OF THE
 UNION'S EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT.
 
    AS TO THE UNION'S CONTENTION THAT THE AWARD IS CONTRARY TO "SSA
 INSTRUCTION 250-14, ISSUED JUNE 27, 1980," THE UNION HAS NOT
 DEMONSTRATED HOW THE RELEVANT PROVISIONS OF THAT INSTRUCTION, ISSUED IN
 1980, ARE IN ANY MANNER APPLICABLE TO THE GRIEVANT'S SUSPENSION IN 1979.
  THEREFORE, THIS PART OF THE UNION'S EXCEPTION LIKEWISE PROVIDES NO
 BASIS FOR FINDING THE AWARD DEFICIENT UNDER THE STATUTE.  /3/
 CONSEQUENTLY, THE UNION'S EXCEPTION PROVIDES NO BASIS FOR FINDING THE
 AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF THE
 AUTHORITY'S RULES AND REGULATIONS.
 
    FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2425.4 OF THE
 AUTHORITY'S RULES AND REGULATIONS, THE ARBITRATOR'S AWARD IS SUSTAINED.
 
    ISSUED, WASHINGTON, D.C., JULY 15, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                          CERTIFICATE OF SERVICE
 
    COPIES OF THE DECISION OF THE FLRA IN THE SUBJECT PROCEEDING HAVE
 THIS DAY BEEN MAILED TO THE PARTIES LISTED:
 
    MR. HERBERT COLLENDER
 
    PRESIDENT, LOCAL 1760
 
    AMERICAN FEDERATION OF GOVERNMENT
 
    EMPLOYEES, AFL-CIO
 
    P.O. BOX 626
 
    CORONA-ELMHURST, NEW YORK 11373
 
    MR. JULIAN BERGMAN
 
    LABOR RELATIONS SPECIALIST
 
    NORTHEASTERN PROGRAM SERVICE CENTER
 
    SOCIAL SECURITY ADMINISTRATION
 
    96-05 HORACE HARDING EXPRESSWAY
 
    FLUSHING, NEW YORK 11368
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ 5 U.S.C. 7122(A) PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION TO ANY ARBITRATOR'S AWARD PURSUANT TO THE
 ARBITRATION (OTHER THAN AN AWARD RELATING TO A MATTER DESCRIBED IN
 SECTION 7121(F) OF THIS TITLE).  IF UPON REVIEW THE AUTHORITY FINDS THAT
 THE AWARD IS DEFICIENT --
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR
 
    LABOR-MANAGEMENT RELATIONS;
 
    THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
 CONCERNING THE AWARD AS IT CONSIDERS NECESSARY, CONSISTENT WITH
 APPLICABLE LAWS, RULES, OR REGULATIONS.
 
    /2/ 5 CFR PART 752, SUBPART B(1978), AS RELEVANT HERE, APPLIED ONLY
 TO SUSPENSIONS FOR MORE THAN 30 DAYS.  5 CFR 752.201(B)(2).
 
    /3/ IN VIEW OF THIS DISPOSITION, IT IS UNNECESSARY FOR THE AUTHORITY
 TO DECIDE WHETHER THE SSA INSTRUCTION CONSTITUTES A RULE OR REGULATION
 WITHIN THE MEANING OF SECTION 7122(A)(1) OF THE STATUTE, OR WHETHER, IN
 FACT, THE AWARD IS CONTRARY TO THE INSTRUCTION.