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57 FLRA No. 42
U.S. DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT, DETROIT, MICHIGAN
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1804
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, § 13.1(4) of the parties' agreement. Accordingly, our first inquiry under the BEP framework is whether the contract provision enforced by the Arbitrator was negotiated pursuant to § 7106(b) of the Statute.
Because the Agency's exception focuses on whether Article XIII, § 13.1(4) is enforceable under § 7106(b)(3) of the Statute, we will examine the provision to determine (1) if it constitutes an arrangement for employees adversely affected by the exercise of management's rights, and (2) if, as interpreted by the arbitrator, it abrogates the exercise of a management right. See Department of the Treasury, United States Customs Serv., 37 FLRA 309, 313-14 (1990) (Customs Service).
The Agency does not dispute that Article XIII, § 13.1(4) is an arrangement for employees adversely affected by the exercise of a management right. The Agency argues only that the provision is not an appropriate arrangement because it "excessively interferes with a [m]anagement right." Exceptions at 6. We reject the Agency's argument for two reasons. First, the argument is based on the excessive interference standard rather than the abrogation standard adopted in Customs Service and applied in arbitration cases. See United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Transfer Ctr., Oklahoma City, Okla., 57 FLRA No. 40, Slip op. at 9 (May 18, 2001) (Chairman Cabaniss dissenting).
Second, applying the proper standard, we find that Article XIII, § 13.1(4), as interpreted and applied by the Arbitrator, does not abrogate management's right to discipline employees. As the Authority explained in Customs Service, "abrogates" means "precludes an agency from exercising a management right." Customs Service, 37 FLRA at 314.
The Arbitrator found that the Agency could not discipline the employee only because the Agency failed to take the disciplinary action within 30 days as required by the parties' agreement. With that one exception, the Arbitrator's interpretation and application of Article XIII, § 13.1(4) permits the Agency to take disciplinary actions against the grievant. That is, provided the Agency initiates the discipline within 30 days of the incident, the provision leaves the Agency free to determine whether and when to discipline employees. Therefore, Article XIII, § 13.1(4) does not abrogate management's right to discipline employees, and is an appropriate arrangement under § 7106(b)(3) of the Statute. Cf. United States Dep't of the Army, Army Transp. Ctr., Fort Eustis, Va., 38 FLRA 186, 190 (1990) (management's right to discipline not abrogated where award vacated disciplinary action based on a provision of the parties' agreement requiring agency to initiate discipline within 15 days or establish extenuating circumstances).
Based on the foregoing, we conclude that the award satisfies Prong I of the BEP framework. As the Agency does not claim that the award fails to reflect a reconstruction of what management would have done had it not violated the contractual provision at issue, we find that the award also satisfies prong II of the BEP framework. Therefore, the award is not deficient as inconsistent with management's right to discipline employees. In view of our determination, we do not address the Agency's exception that the Arbitrator erred by not ruling on the merits of the case. [ v57 p172 ]
The Agency's exceptions are denied.
Dissenting Opinion of Chairman Cabaniss:
Consistent with my dissent in United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Transfer Ctr., Oklahoma City, Okla., 57 FLRA No. 40, Slip op. at 9 (May 18, 2001), I would overturn the Arbitrator's award because it excessively interferes with the Agency's § 7106(a) right to discipline employees. This outcome is based upon my disagreement with the validity of the "abrogates" test set out in Dep't of the Treasury, United States Customs Service, 37 FLRA 309 (1990), to resolve exceptions where (as here) an agency asserts that an arbitrator's award conflicts with Authority negotiability precedent regarding what constitutes a lawful "appropriate arrangement" under § 7106 of our Statute.
Footnote # 1 for 57 FLRA No. 42
Footnote # 2 for 57 FLRA No. 42
Article XIII, § 13.1(4) of the parties' agreement states, in relevant part, "[w]hen a supervisor is considering disciplinary action, he/she will inform the employee within 30 days of the incident in question, or within 30 days after the supervisor knew about the incident." Award at 14 (quoting the parties' agreement) (emphasis in original).