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38:1532(123)AR - - Army, White Sands Missile Range, White Sands Missile Range, NM and NFFE Local 2049 - - 1991 FLRAdec AR - - v38 p1532

[ v38 p1532 ]
The decision of the Authority follows:

38 FLRA No. 123









LOCAL 2049




January 17, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator P.M. Williams. The exceptions were filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute). The Union filed an opposition to the Agency's exceptions.

A grievance was filed over the Agency's decision to suspend the grievant for 2 days. The Arbitrator sustained the grievance, finding that the discipline was untimely. The Arbitrator ordered that the suspension be expunged from the grievant's personnel file, directed that the grievant be made whole, and ordered payment of attorney fees.

For the following reasons, we conclude that the Agency has failed to establish that the award is based on a nonfact or violates management's right to discipline. Accordingly, the exceptions are denied.

II. Background and Arbitrator's Award

On August 16, 1989, the grievant was issued a memorandum proposing a 5-day suspension for misconduct relating to sexual harassment and creating a disturbance at the workplace. The memorandum outlined specific instances of alleged misconduct that commenced in January 1989, and culminated in a counseling session with the grievant on May 3, 1989. The grievant responded orally and in writing to the proposed suspension. On September 29, 1989, the proposed 5-day suspension was reduced to 2 days.

The Union grieved the 2-day suspension alleging, in part, that the imposition of discipline was untimely and should have been processed in accordance with regulations of the Equal Employment Opportunity Commission (EEOC). When the grievance was not resolved, it was submitted to arbitration.

The Arbitrator did not conduct a hearing. Instead, the parties stipulated the record and transmitted it to the Arbitrator for resolution. The parties stipulated the following issue to be resolved by the Arbitrator:

Has the Employer untimely imposed discipline upon [the grievant] contrary to the provisions of Article 11, Section 2, of the Agreement?

Award at 8. (1)

As relevant here, the Arbitrator concluded that the disciplinary action was untimely and sustained the grievance. In so doing, the Arbitrator interpreted the parties' agreement as well as laws and regulations which he found were incorporated into the agreement. The Arbitrator noted, among others, the following provisions of the parties' agreement:

Article 21 - Equal Employment Opportunity

Section 8. The Employer has the right to administer appropriate discipline in instances where any individual has been properly found to have engaged in discriminatory acts in accordance with applicable law and regulation . . . .

Article 24 - Discipline

Section 4. . . . The Employer agrees to conduct an expeditious investigation of any alleged employee offense, and to initiate timely action following the investigation . . . .

Id. at 14-15.

The Arbitrator first addressed the timeliness of the disputed discipline under provisions of "Title VII" and EEOC regulations. Id. at 16.(2) The Arbitrator noted that although the employee who allegedly was harassed by the grievant did not file a formal complaint of sexual harassment, EEOC regulations establish a 30-day time limit for filing such complaints unless there is a basis for extending that period.(3) The Arbitrator concluded that:

[I]f the person who is the subject of sexual harassment has but 30 days from the event(s) happening to come forward for purposes of making a formal complaint . . . , the Agency, as the substitute if not the alter ego of the person, is not free to indefinitely defer completing an investigation of a discovered and allegedly unlawful discrimination event. Neither may it unreasonably and without good cause defer taking appropriate disciplinary action after all relevant facts are known.

Id. at 19.

The Arbitrator stated that the Agency had "made no showing of good cause for the delay of 3 1/2 months in proposing the suspension." Id. According to the Arbitrator, the Agency asserted only that the "harmful-error rule prevented the grievant from asserting its delay in acting as [a] valid procedural defense." Id. The Arbitrator rejected the Agency's assertion, finding that the harmful-error rule did not apply in the case before him. (4)

The Arbitrator also concluded, however, that even if he was wrong about the applicability of the time limits for individual allegations of sexual harassment to the Agency's imposition of discipline, the parties' collective bargaining agreement was "replete with references . . . to time limits that relate to when one or both of the parties is mandated to act in a great many circumstances." Id. at 21. The Arbitrator found the conclusion "inescapable" that the parties' intent with respect to the agreement was "that at the very least the Agency must initiate disciplinary action within a reasonable time after it becomes aware of a given incident . . . ." Id. According to the Arbitrator, an exception to the requirement that disciplinary action be initiated within a reasonable time "must be for the most extenuating of circumstances." Id.

The Arbitrator stated that, based on the record before him, he was "unable to find the . . . circumstances extenuating." Id. Moreover, he stated that the Agency's "delay of 105 days in taking action [was] not a reasonable delay." Id. Accordingly, as the Arbitrator determined that the Agency was "mandated by the provisions of the [parties' agreement] to issue disciplinary action against an employee within a reasonable time after it learns that a violation of Title VII and/or the EEOC regulations has likely occurred[,]" he sustained the grievance. Id.

The Arbitrator stated, in conclusion, that the Agency "untimely imposed discipline . . . contrary to the provisions of Article 11, Section 2 of the Agreement[.]" Id. at 26. The Arbitrator directed the Agency to expunge any records of the suspension from the grievant's personnel files, make the grievant whole, with interest, for the improper suspension, and "pay and/or reimburse the Union and the grievant for the attorney fees each has incurred as a result of his suspension." Id. at 27.

III. Agency's Exceptions

The Agency argues that the award is deficient because it is based on a nonfact and violates management's right to discipline.

With regard to the claim that the award is based on a nonfact, the Agency argues that the Arbitrator improperly imposed the time constraints contained in Title VII and EEOC regulations for the filing of complaints, on disciplinary actions taken by management in cases of sexual harassment. The Agency contends that by equating the two time periods, the Arbitrator created "a nonfactual requirement. This central fact underlying the award is concededly erroneous and in effect is a gross mistake of fact but for which a different result would have been reached." Exceptions at 5.

The Agency also argues that the Arbitrator's "assimilation of Title VII into this disciplinary action is contrary to established case law." Id. at 4. In support of its position, the Agency cites Jordan v. United States Postal Service, 44 M.S.P.R. 225 (1990), in which the Merit Systems Protection Board held that an agency which charges an employee with violating Title VII must meet the standards established therein but that the agency need not meet those standards when taking disciplinary actions under valid agency regulations. The Agency claims that the suspension in this case was taken in accordance with the provisions of a valid Agency regulation.

With regard to the assertion that the award violates management's right to discipline, the Agency argues that the Arbitrator established a 30-day statute of limitations under which disciplinary actions for sexual harassment must be taken and that this requirement could prevent the Agency from taking disciplinary actions in certain circumstances. The Agency also argues that the Arbitrator mistakenly found that the suspension improperly was delayed for 105 days. The Agency states that the Arbitrator failed to consider that during that time, management investigated the complaint and took other actions in order to properly effect the suspension and afford the grievant his rights under law and the Agency's regulations.

IV. Union's Opposition

The Union argues that the Agency's exceptions were not timely filed. Consequently, the Union claims that the exceptions should be dismissed. The Union also requests that it be granted "attorney's fees, costs and expenses of this appeal, and for the underlying Arbitration proceedings and causes brought by the Agency against Grievant." Opposition at 2.

V. Preliminary Matters

A. The Agency's Exceptions Were Timely Filed

Subsequent to the filing of its opposition to the exceptions, the Union filed a request with the Authority for certain information pertaining to this case. In response to the request, the Union was advised that: (1) the time limit for filing exceptions to an award is 30 days beginning on the date the award is served on the filing party, 5 C.F.R. §§ 2425.1(b) and 2429.21(a); (2) the date of service is the date the arbitration award is deposited in the U.S. mail or is delivered in person, 5 C.F.R. § 2429.27(d); (3) if an award is served by mail, 5 days are added to the period for filing exceptions to the award, 5 C.F.R. § 2429.22; and (4) absent evidence to the contrary, the date of the arbitration award is presumed to be the date of service of the award. See Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local No. 916, 32 FLRA 165, 167 (1988). The Union was further advised that the Agency's exceptions appeared to have been filed timely in accordance with the Authority's Rules and Regulations.

The Arbitrator's award is dated May 27, 1990. Presuming that the award was deposited in the U.S. mail on that same date, exceptions had to be either postmarked by the U.S. Postal Service or received in person at the Authority's Docket Room no later than July 2, 1990, in order to be considered timely filed. The Union has not asserted that the award was not served by mail. Accordingly, the Agency's exceptions, which were filed by personal delivery June 27, 1990, were timely filed.

B. Attorney Fees

The Arbitrator directed the Agency to pay the grievant's and the Union's attorney fees. As no exceptions were filed to this portion of the Arbitrator's award, we will not address it further.

In addition, however, the Union has requested the Authority to direct the Agency to pay the attorney fees, costs and expenses for preparation of its opposition to the Agency's exceptions.

Under the Back Pay Act, 5 U.S.C. § 5596, a request for attorney fees related to an unjustified or unwarranted personnel action "may be presented only to the appropriate authority that corrected or directed the correction of the unjustified or unwarranted personnel action." U.S. Department of Agriculture, Animal and Plant Health Inspection Service and National Association of Agriculture Employees, 35 FLRA 998, 1004 (1990) (quoting 5 C.F.R. § 550.807(a)). Here, the Arbitrator is the appropriate authority that resolved the grievance and, consequently, is the appropriate authority to resolve the Union's request. Accordingly, the Union's request is not properly before us and will be dismissed.

VI. Analysis and Conclusions

A. Nonfact

Where a party contends that an arbitrator's award is deficient under the Statute because it is based on a nonfact, the party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. For example, American Federation of Government Employees, Local 1568 and U.S. Department of Housing and Urban Development, 34 FLRA 630 (1990).

We disagree with the Agency's assertion that the award is deficient because, by equating the time periods within which a complaint of sex discrimination can be filed with the time period within which the Agency can take disciplinary action, the Arbitrator created a nonfactual requirement which constitutes the central fact underlying the award. The Arbitrator did not base his award solely on his interpretation of Title VII or EEOC regulations. Instead, as is amply demonstrated by portions of the award previously discussed, the Arbitrator found also that the disciplinary action was untimely under the parties' collective bargaining agreement.

As the Arbitrator's award is not based solely on his findings regarding the applicability of Title VII and/or EEOC regulations, the Agency has not demonstrated that, even if the Arbitrator's findings constitute erroneous facts, they were central to the award. Accordingly, the Agency has not demonstrated that the award is based on a nonfact.

B. The Agency's Right to Discipline

We reject the Agency's assertion that the award is deficient because the Arbitrator established a 30-day statute of limitations by which disciplinary action would have to be taken.

The Agency's assertion is based on a misreading of the award. As previously noted, the Arbitrator found, as a separate basis for his award, that the Agency was required by the parties' agreement to take disciplinary action within a "reasonable time after it becomes aware of a given incident . . . ." Award at 21. The Arbitrator found also that any exceptions to this requirement had to be based on "the most extenuating of circumstances." Id. The Arbitrator sustained the grievance because he concluded that the Agency unreasonably delayed the disciplinary action and because there were no extenuating circumstances. Id.

Simply put, the Arbitrator did not establish or impose a 30-day statute of limitations on the Agency's right to take disciplinary action. Compare U.S. Department of the Army, Army Transportation Center, Fort Eustis, Virginia and National Association of Government Employees, Local R4-6, 38 FLRA 186 (1990) (Authority rejected agency's assertion that an award enforcing contractual requirement that discipline be imposed within 15 working days after the incident for which discipline is imposed, absent extenuating circumstances, was deficient as violating the agency's right to discipline). Moreover, the Agency does not assert that a requirement that it take disciplinary action within a reasonable period of time after discovering the basis for the discipline impermissibly interferes with its right to discipline employees. We find it unnecessary, therefore, to apply the framework applicable to resolving such an exception. See id. See generally Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990). Accordingly, the Agency's exception provides no basis for finding the award deficient.

Similarly, we reject the Agency's assertion that the award is deficient because the Arbitrator failed to consider the reasons for the delay in taking action. It is clear that the Arbitrator considered the facts and circumstances presented to him in concluding that the Agency did not take timely disciplinary action. The Agency's assertion constitutes nothing more than disagreement with the Arbitrator's evaluation of the evidence and arguments before him and with his conclusions based thereon. This disagreement provides no basis for finding the award deficient. See, for example, U.S. Department of Health and Human Services, Social Security Administration, Region VI, Dallas, Texas and American Federation of Government Employees, Local 1336, 35 FLRA 1218, 1222 (1990).

In sum, we find that the Agency has not demonstrated that the award is deficient because it is based on a nonfact or impermissibly interferes with the Agency's right to discipline employees. We will, therefore, deny the exceptions.

VII. Order

The Agency's exceptions are denied. The Union's request that the Authority direct the Agency to pay attorney fees and costs relating to its opposition to the Agency's exceptions is dismissed.

(If blank, the decision does not have footnotes.)

1. Article 11, Section 2 provides:

Article 11 - Grievance Procedure

Section 2. The Union and the Employer recognize the importance of settling disagreements and disputes in a prompt, fair, and orderly manner which will maintain the self-respect of the parties involved and be consistent with the principles of good management. To accomplish this, every effort will be made to settle grievances expeditiously and at the lowest possible level of supervision . . . .

Award at 11.

2. We assume that the reference to "Title VII" is to the Civil Rights Act of 1964, P.L. No. 88-352, 78 Stat. 241.

3. It is not clear how the Arbitrator interpreted "formal complaint." We note that EEOC regulations provide that a written complaint of discrimination is not timely unless the complainant brought to the attention of his/her agency's EEO Counselor "the matter causing him/her to believe he/she had been discriminated against within 30 calendar days of the date of the alleged discriminatory event[.]" 29 C.F.R. § 1613.214(a)(i). See also 29 C.F.R. § 1613.213(a), which provides that if the matter has not been resolved to the satisfaction of the complainant within 21 calendar days after the date on which the matter was brought to the attention of the counselor, the complainant "shall be immediately informed of his or her right to file a complaint of discrimination." The complainant or his/her representative must submit a written complaint within 15 calendar days after receipt of notice of the right to file a complaint. 29 C.F.R. § 1613.214(a)(ii). For the reasons set forth in our analysis of the Agency's exceptions, the Arbitrator's interpretation of these regulations is not dispositive in this matter.

4. Although the Agency does not except to the Arbitrator's conclusion regarding the harmful-error rule, we confirm that as the grievance involved a 2-day suspension, the Arbitrator correctly concluded that the rule did not apply. See, for example, U.S. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 35 FLRA 1267, 1269-70 (1990).