53:1751(157)AR - - SSA, Baltimore, Md. And AFGE Local 1923 - - 1998 FLRAdec AR - - v53 p1751

[ v53 p1751 ]
The decision of the Authority follows:

53 FLRA No. 157









LOCAL 1923





March 31, 1998


Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Ira F. Jaffe 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 Regulations. The Union did not file an opposition to the Agency's exceptions.

The Arbitrator sustained a grievance challenging a 14-day suspension. He directed the Agency to revoke the suspension and to pay the grievant backpay. For the reasons that follow, we deny the Agency's exceptions.

II. Background and Arbitrator's Award

The grievant is an employee who also served as a Union steward. She was suspended for 14 days for 3 acts of misconduct: (1) failure to attend a required training class; (2) inappropriate behavior towards a supervisor; and (3) inappropriate action and creating a disruptive atmosphere with respect to the posting of materials on a bulletin board.

The Arbitrator stated the issues as whether the grievant was suspended for just cause and whether the suspension was influenced by the grievant's exercise of her "protected Union activities." Award at 1.

The Arbitrator found that the Agency instituted disciplinary action against the grievant after the Union declined to remove her as a union representative. Specifically, he found that at a meeting the "Agency told the Union . . . that it was considering taking disciplinary action against the Grievant and would not do so if the Union agreed to remove the Grievant from further representational duties . . . ." Id. at 24-25. He also found that, in the proposed letter of suspension, which was issued shortly after this meeting, the Agency referenced the grievant's status as a Union representative in assessing the suspension.

Turning to the specific charges, the Arbitrator found that the second and third charges of inappropriate and disruptive behavior did not provide valid grounds for discipline. According to the Arbitrator, this conduct occurred while the grievant was engaged in protected activities and did not constitute flagrant misconduct, the standard for discipline involving protected activity.

As to the charge of failure to attend training, the Arbitrator found that the grievant's actions were insubordinate and unprotected by the Statute. The Arbitrator stated that under normal circumstances, such actions would have provided just cause for the imposition of some disciplinary action. The Arbitrator found, however, that a number of factors persuaded him to overturn the suspension. The Arbitrator found that the "record [was] devoid of any other similar examples of insubordination which would permit [him] to determine the level of disciplinary action which the Agency might initially have imposed upon the [g]rievant if it were not preoccupied with her continuing representational activities and status." Id. at 32. The Arbitrator further found that "taking into account the Agency's improper[] linkage of the [g]rievant's suspension with her representational activities and her status as a Union representative," the appropriate remedy was to direct the Agency to remove the suspension from the grievant's record. Id.

The Arbitrator concluded, therefore, that just cause did not exist for the grievant's suspension and that the Agency "discriminated against [her] in imposing the suspension" due to her representational activities in violation of the agreement and the Statute. Id. at 22 and 33.

III. Agency's Exceptions

The Agency asserts that the award violates section 7106(a)(2)(A) of the Statute, because it affects management's right to discipline employees. The Agency contends that the Arbitrator has substituted his judgment for the Agency's.

Next, the Agency argues that it met its burden of proving misconduct with respect to the first charge. According to the Agency, by finding that the grievant was insubordinate, but vacating the suspension and not allowing any discipline to be imposed, the award effectively allows the grievant and other Union officials to be insulated from possible discipline for insubordinate behavior.

The Agency also cites Merit Systems Protection Board (MSPB) and Authority precedent in support of its contention that it had sufficient cause to discipline the grievant for insubordinate behavior. The Agency argues that because the grievant was not acting in her capacity as a Union representative, discipline was appropriate under the circumstances.

Based on the above, the Agency contends that even considering the deficiency of the second and third charges, it had grounds to discipline the grievant based on the Arbitrator's finding of insubordination on the first charge of misconduct.

IV. Analysis and Conclusions

A. The Award Does Not Violate Management's Rights

The Authority applies a two-prong test to determine whether an arbitration award that implicates management's rights set out in section 7106(a)(2) of the Statute is deficient as contrary to those rights. First, an arbitrator must be enforcing either applicable law, within the meaning of section 7106(a)(2), or a contract provision that was negotiated pursuant to the exceptions to section 7106(a) that are set forth in section 7106(b). Second, the award must constitute a reconstruction of what management would have done had management acted properly. U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146, 153 (1997)(BEP); U.S. Department of Veterans Affairs, Medical Center, Birmingham, Alabama and American Federation of Government Employees, Local 2207, 51 FLRA 270, 274 (1995) (VAMC, Birmingham).

Applying this standard, the Authority has held that just