32:0765(111)AR - - SSA and AFGE Local 1923 - - 1988 FLRAdec AR - - v32 p765



[ v32 p765 ]
32:0765(111)AR
The decision of the Authority follows:


32 FLRA No. 111

UNITED STATES OF AMERICA
BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.

 

SOCIAL SECURITY ADMINISTRATION
Agency

and 

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 1923
Union

Case No. O-AR-1487

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Donald W. Jarrell. The Arbitrator sustained, in part, the grievance over the 14-day suspension of the grievant and directed that the suspension be reduced to 7 days.

The Agency and the grievant filed exceptions 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 to the Agency's exception.

We conclude that the grievant is not entitled to file exceptions to the Arbitrator's award. Accordingly, we dismiss the grievant's exceptions.

We conclude that the Agency has failed to establish that the award is contrary to law or public policy or that the Arbitrator erred by finding disparate treatment and mitigating the penalty on that basis. Accordingly, we deny the Agency's exceptions.

II. Background and Arbitrator's Award

The Agency suspended the grievant for 14 days for fighting with another employee. The same penalty was proposed for the other employee. The grievant filed a grievance claiming that the suspension violated provisions of the parties' collective bargaining agreement, including the provision that suspensions must be for such cause as will promote the efficiency of the service. By mutual agreement of the Union and the Agency, the other employee's suspension was reduced to 7 days. The grievant's grievance was not settled and was submitted to arbitration on the issue of whether the grievant was "appropriately placed on suspension" for 14 days. Arbitrator's Award at 1.

The Arbitrator concluded that the grievant's conduct warranted disciplinary action. However, he determined that "fair and equitable discipline requires that employees similarly situated receive similar treatment." Award at 3. He found no basis for the Agency to suspend the grievant for 14 days while suspending the other employee for only 7 days. Accordingly, the Arbitrator sustained the grievance in part and directed that the grievant's suspension be reduced to 7 days.

III. Grievant's Exceptions

A. Contentions

The grievant contends that the award violates law, the intent of Congress, and public policy.

B. Analysis and Conclusions

We conclude that the grievant is not entitled to file exceptions to the Arbitrator's award.

Under section 7122 of the Statute and section 2425.1 of our Rules, either party to an arbitration may file exceptions with the Authority to the arbitrator's award. Section 2421.11 of our Rules defines the term "party" to include "any person who participated as a party . . . in a matter where the award of an arbitrator was issued[.]"

In this case, the Social Security Administration and the American Federation of Government Employees, Local 1923 participated as parties in the matter before the Arbitrator. The Arbitrator noted that the grievant appeared for the Union as a "technical advisor." Award at 1. There is no indication in the record that the grievant participated as a "party" in the matter before the Arbitrator. Consequently, the grievant is not entitled to file exceptions to the Arbitrator's award and the grievant's exceptions will be dismissed. For example, American Federation of Government Employees, Local 1960 and Department of the Navy Development Center, 29 FLRA 680 (1987).

IV. Agency's First Exception

A. Positions of the Parties

The Agency contends that the award is contrary to law and public policy. The Agency states that section 7101 sets forth the finding of Congress that collective bargaining "facilitates and encourages the amicable settlements of disputes between employees and their employers involving conditions of employment{.}" The Agency asserts that courts have consistently held that law and public policy favor settlements. The Agency maintains that as part of this policy, "evidence of offers to settle and the terms of a settlement are inadmissible to demonstrate liability on the part of the party making an offer." Agency's Exceptions at 4. The Agency claims that this exclusion further applies to settlement discussions involving third parties. The Agency argues that to allow evidence of settlements to be introduced in arbitration proceedings will have a "chilling effect on future settlements." Agency's Exceptions at 5. The Agency argues that the award is deficient because the Arbitrator should not have admitted the settlement into evidence and should not have reduced the grievant's suspension to 7 days based on that evidence.

The Union contends that the Arbitrator's consideration of the settlement does not conflict with section 7101 of the Statute or with case law.

B. Analysis and Conclusions

We conclude that the Agency fails to establish that the award is contrary to law or public policy.

Under section 7122(a)(2) of the Statute, we will find an arbitration award deficient on grounds similar to those applied by Federal courts in private sector labor relations cases. In the private sector, courts will find an arbitration award deficient when the award is contrary to public policy. However, this ground is "extremely narrow." U.S. Postal Service v. National Association of Letter Carriers, 810 F.2d 1239, 1241 (D.C. Cir. 1987), cert. dismissed, 108 S. Ct. 1589 (1988) (NALC). In order to find the award deficient, the public policy in question must be "explicit," "well defined, and dominant." W.R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 766 (1983) (W.R. Grace). In addition, the policy is to be ascertained "by reference to the laws and legal precedents and not from general considerations of supposed pu