U.S. Department of Housing and Urban Development, Detroit, Michigan (Agency) and National Federation of Federal Employees, Local 1804 (Union)

[ v57 p170 ]

57 FLRA No. 42







May 22, 2001


Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members. [n1] 

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator David W. Grissom filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

      The Arbitrator found that the disciplinary action taken against the grievant by the Agency was untimely. The Arbitrator sustained the grievance on procedural grounds and did not reach the merits of the case. For the following reasons, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

      During a meeting between the grievant and her supervisor to discuss the grievant's work, the grievant became upset and tore up a memo that the supervisor had given her. Thirty six days after the incident, the grievant received a written admonishment.

      The grievant filed a grievance alleging that the written admonishment was not for just cause and was untimely pursuant to Article XIII, § 13.1 of the parties' collective bargaining agreement[n2]  When the grievance was not resolved, it was submitted to arbitration where the arbitrator set forth the following issues: "1) Whether the [w]ritten [a]dmonishment was untimely issued and is therefore null and void for purposes of disciplinary action? 2) If the [w]ritten [a]dmonishment was timely issued and the merits are reached, was that disciplinary action . . . for just cause?" Award at 13.

      The Arbitrator found that Article XIII, § 13.1(4) of the parties' agreement establishes a 30-day time limitation within which the Agency must take disciplinary actions. The Arbitrator found that because both parties agreed to this 30-day time limitation, he was "bound to honor the [c]ontract language as written and consummated by the parties." Id. at 14. Regarding the Agency's contention that the provision interfered with its right to discipline employees, the Arbitrator found that "the parties to a collective bargaining [a]greement may negotiate between themselves to effectuate mutually binding contractual provisions regarding disciplinary action." Id. at 15-16 (citing 5 U.S.C. §§ 7106(b)(2) and (b)(3)). Consequently, the Arbitrator concluded that the disciplinary action was untimely pursuant to Article XIII, § 13.1(4) of the parties' agreement, and rescinded the written admonishment. Finding this issue dispositive, the Arbitrator did not decide the merits of the grievance.

III.     Positions of the Parties

1.     Agency's Exceptions

      The Agency asserts that the Arbitrator erred by finding that Article XIII, § 13.1(4) of the parties' agreement was enforceable and by not addressing the merits of the case. In this regard, the Agency claims that Article XIII, § 13.1(4) excessively interferes with management's right to discipline employees under § 7106(a)(2)(A) of the Statute. According to the Agency, "a contractual provision which excessively interferes with a [m]anagement right is not enforceable." Exceptions at 6. Moreover, according to the Agency, "[a] proposal which would result in a substantive limitation on the exercise of a [m]anagement right is not negotiable as an appropriate arrangement." Id. Therefore, the Agency asserts that Article XIII, § 13.1(4) is not an appropriate arrangement.

      Additionally, the Agency asserts that the Arbitrator's award makes it clear that the Arbitrator "would have ruled in favor of the Department of Housing and Urban Development had the merits of the grievance been [ v57 p171 ] reached." Id. at 7. Therefore, the Agency requests that the award be reversed and the grievance be dismissed. In the alternative, the Agency requests that the case be remanded to the Arbitrator for a decision on the merits.

2.     Union's Opposition

      The Union, relying on § 7106(b)(2) and (b)(3) of the Statute, asserts that Article XIII, § 13.1(4) of the parties' agreement is enforceable. The Union asserts that when an Agency head fails to either approve or disapprove a provision within 30 days of execution, which is what happened here, the provision is binding.

IV.     Analysis and Conclusions

The Award Does Not Abrogate Management's Right to Discipline Employees

      When an exception alleges that an award violates management's rights under § 7106 of the Statute, the Authority first determines whether the award affects a management right under § 7106(a) of the Statute. See United States Small Bus. Admin., 55 FLRA 179, 184 (1999) (SBA). If it does, the Authority applies the framework established in United States Dep't of the Treasury, BEP, Wash., D.C., 53 FLRA 146, 151-54 (1997) (BEP). See id. Under prong I of this framework, the Authority examines whether the award provides a remedy for a violation of either an applicable law, within the meaning of § 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to § 7106(b) of the Statute. See id. at 153. Under prong II, the Authority considers whether the award reflects a reconstruction of what management would have done had management not violated the law or contractual provision at issue. See id. at 154. It is undisputed that the award in this case affects management's right to discipline employees. It is also clear that the Arbitrator enforced Article XIII, &