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The decision of the Authority follows:
32 FLRA No. 103
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
SOCIAL SECURITY ADMINISTRATION
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1336
Case No. 0-AR-1484
I. Statement of the Case
This matter is before the Authority on an exception to the award of Arbitrator Alvin N. Zachrich 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 Rules and Regulations. The Union filed an opposition.
The grievant was given a 5-day suspension for matters relating to absences from work. The grievance was submitted to arbitration. Based on his finding that the parties' agreement required the Agency to apply each step of a progressive discipline sequence, the Arbitrator found that the suspension was not for just cause and sustained the grievance.
For the reasons discussed below, we remand the award to the parties for resubmission to the Arbitrator.
II. Background and Arbitrator's Award
The grievant, an Agency employee with 27 years of service, had health difficulties for approximately 6 years. Since December 1984, the grievant had been counseled concerning his use of sick leave and had been placed on sick leave restriction. In March 1987, the grievant was warned that the Agency would consider disciplinary action concerning absence without leave (AWOL) or any failure by the grievant to follow the rules governing requests for and approval of leave. In May 1987, the grievant was informed that his failure to make immediate improvement in his manner of requesting and using leave would require corrective action including disciplinary action.
On July 21, 1987, the grievant informed management that he was unable to report to duty from July 21 through July 24, 1987. On August 4, 1987, the grievant was given an oral warning that if his attendance and manner of requesting leave did not improve he would be subject to disciplinary action. The grievant was also unable to work from August 18 through August 21, 1987.
To cover the July and August absences, the grievant provided medical statements certifying that he was physically incapacitated and under a doctor's care on those dates. The grievant requested 70 1/2 hours of leave without pay to cover the absences. The Agency denied the request and the grievant's leave was charged as absence without leave.
On September 21, 1987, the grievant was suspended for 5 days for: (1) his failure to follow the rules and regulations for requesting and obtaining approval of leave; (2) being AWOL for 70 1/2 hours; and (3) lack of dependability. A grievance was filed and submitted to arbitration on the issue of whether there was just cause for the suspension and, if not, what the remedy should be.
The Arbitrator found that the Agency was aware that the grievant had serious health problems. He stated that the Agency could have used either the discipline article or the fitness-for-duty article in the parties' agreement to stop the grievant's poor attendance record. He found that the Agency elected to follow Article 23 of the parties' agreement--Disciplinary and Adverse Actions.
The Arbitrator stated that Article 23 "clearly requires each progressive discipline step to be followed:
Section 3 - Counseling and Warnings
Section 4 - Reprimand
Section 5 - Short-Term Suspensions
Section 6 - Removal, Suspension etc."
Award at 5 (emphasis in original).
The Arbitrator stated that "management considered the progressive discipline steps as somehow a 'judgmental matter' when it skipped over the required Section 4-Reprimand." Id. The Arbitrator found that under Article 23 all sections of the progressive discipline are applicable and all steps must be implemented. He stated that "the Agency had more than adequate reason to attempt to stop the grievant's poor attendance record" and that the Agency had acted correctly when it counseled and warned the grievant. Id. 4-5. The Arbitrator concluded, however, that the Agency "acted improperly when it stepped over the required written reprimand Section 4." Id. at 5.
Based on his finding that the Agency erred "when it improperly failed to provide the grievant a reprimand prior to the suspension as required under Article 23," the Arbitrator found that the Agency did not have just cause to suspend the grievant. Id. at 7. The Arbitrator directed the Agency to: (1) remove from its records all references to the grievant's suspension; and (2) reimburse the grievant for all pay withheld as a result of the suspension.
III. Positions of the Parties
The Agency contends that the Arbitrator's award is contrary to law. The Agency argues that the award conflicts with its right to take disciplinary action against employees under section 7106(a)(2)(A) of the Statute and that the Arbitrator's interpretation of the parties' agreement excessively interferes with management's exercise of that right. The Agency asserts that contrary to Authority precedent, the award impermissibly requires management to follow a prescribed sequence of discipline. The Agency asserts that "[t]his illegal misinterpretation and misapplication of the parties' contractual 'progressive discipline' provision served as the basis for the [A]rbitrator's conclusion that the discipline was not for 'just cause.'" Exceptions at 7. The Agency requests that the award be vacated or remanded to the Arbitrator for reconsideration.
The Union contends that the Agency's exception is improperly before the Authority because the parties agreed that exceptions are not permitted to be filed with respect to expedited arbitration cases like this one. The Union also argues that the award is consistent with section 7106 of the Statute.
Initially, we confirm that the Agency's exceptions are properly before the Authority for decision. The Authority has previously addressed and rejected the Union's argument that under the parties' collective bargaining agreement, exceptions may not be filed to expedited arbitration awards.
See Health Care Financing Administration and American Federation of Government Employees, Local 1923, 25 FLRA 725 (1987); Social Security Administration and American Federation of Government Employees, AFL-CIO, 16 FLRA 552 (1984).
An arbitrator properly may determine that all or part of a disciplinary penalty was not for just cause as required by a negotiated agreement and may set aside or mitigate the penalty. National Treasury Employees Union and U.S. Customs Service, Northeast Region, 28 FLRA 280 (1987); Portsmouth Naval Shipyard and Federal Employees Metal Trades Council, AFL-CIO, 5 FLRA 230 (1981). Therefore, an arbitrator generally does not violate management's right under section 7106(a)(2)(A) in determining whether an agency has just cause to discipline an employee.
However, in New York State Nurses Association and Veterans Administration Bronx Medical Center, 30 FLRA 706 (1987) (Proposal 11, Section 7.10), petition for review as to other matters filed sub nom. Veterans Administration Bronx Medical Center v. FLRA, No. 88-1150 (D.C. Cir. Feb. 2, 1988), we found a proposal requiring an agency to administer discipline to employees in accordance with a table of penalties to be nonnegotiable. Because the proposal required management to follow the table of penalties when it chose to impose discipline, the proposal restricted management's choice of the appropriate penalty and, therefore, violated management's right to discipline employees under section 7106(a)(2)(A). Further, in National Federation of Federal Employees, Council of Veterans Administration Locals and Veterans Administration, 31 FLRA 360 (1988) (Proposal 19, Section 7, Paragraph 10), petition for review as to other matters filed sub nom. Veterans Administration v. FLRA, No. 88-1314 (D.C. Cir. Apr. 22, 1988), we found that a proposal that the "concept of progressive discipline" should be followed by an agency when it exercises its right to discipline employees is also outside the duty to bargain. In that case, the proposal violated management's right to discipline employees under section 7106(a)(2)(A) because the agency's discretion to determine appropriate discipline would be impermissibly limited by the proposal.
In the case before us, the Arbitrator construed Article 23 of the parties' agreement to require the Agency to apply each step of the progressive discipline sequence without exception. That construction of Article 23 violates management's right to discipline.
While an arbitrator may properly determine whether an agency has just cause to discipline an employee, that determination may not be based solely on an interpretation of the parties' agreement which violates the Statute. Here, the Arbitrator based his "just cause" decision solely on his finding that the parties' agreement required the Agency to follow each step of the progressive discipline article. Accordingly, the Arbitrator's award is deficient.
We are unable to determine from the record whether, apart from the Arbitrator's impermissible construction of Article 23, he would have found that the Agency had just cause to discipline the grievant. Therefore, we find, as suggested by the Agency, that a remand of this matter is appropriate. We will remand the case to the parties for resubmission to the Arbitrator to determine, consistent with this decision, whether the Agency had just cause to suspend the grievant.
Accordingly, we remand the Arbitrator's award to the parties with the direction that they resubmit the award to the Arbitrator for clarification and interpretation. The parties should request the Arbitrator to clarify and interpret his award to determine whether, in light of the above discussion, the Agency had just cause to suspend the grievant. On receipt of the award as clarified by the Arbitrator, either party may file exceptions with the Authority to that award.
Issued, Washington, D.C.,
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
(If blank, the decision does not have footnotes.)