[ v58 p 93 ]
58 FLRA No. 18
SOCIAL SECURITY ADMINISTRATION
AMERICAN FEDERATION OF GOVERNMENT
September 12, 2002
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Marvin J. Feldman 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 although the grievants' actions were improper, the Agency violated the parties' agreement by suspending the grievants for 2 days. As a remedy, he directed the Agency to give the grievants written warnings to be placed in their personnel files.
For the reasons that follow, we conclude that the remedial portion of the award is deficient. Accordingly, we set it aside.
II. Background and Award
Two employees were disciplined for violating the Agency's unauthorized system access rule. Under the rule, employees may not access their own Agency computer records or the records of family, friends or neighbors. The facts show that, in an effort to assist her recently widowed mother, one employee asked a colleague to review the information contained in her father's benefit records to determine if her father's death [ v58 p94 ] certificate had been posted. The colleague agreed. Thereafter, both employees received 14-day suspensions. Subsequently, the suspensions were reduced to 2 days. The employees filed grievances challenging the 2-day suspensions, and the grievances were submitted to expedited arbitration.
The parties did not stipulate the issues to be resolved. The Arbitrator stated that he would resolve the parties' dispute "solely upon the just cause provision" (Article 23, Section 1) of their collective bargaining agreement. Award at 6. [n2] In so stating, the Arbitrator noted that the original 14-day suspensions had been levied pursuant to the Agency's Table of Penalties, which was the subject of another arbitration proceeding. [n3]
The Arbitrator found that the grievants knew the unauthorized access rule and "knew that they had violated the rule." Award at 7. However, after reviewing the grievants' reputations and service records with the Agency, the Arbitrator found that "management overreacted in the matter at hand." Id. at 8. He concluded that although the grievants' activity "was certainly contrary to rule," the suspensions should not have been invoked since the grievants' actions did not result in any irreparable harm. Id. The Arbitrator modified the suspensions "into a written warning which will find its way into the personnel file of each [grievant]" and directed that the grievants be reimbursed for their suspensions. Id.
III. Positions of the Parties
A. Agency's Exceptions
The Agency contends that the award fails to draw its essence from the parties' bargaining agreement. In support of this contention, the Agency relies on United States Dep't of Justice, INS, Del Rio Border Patrol Sector, Tex., 45 FLRA 926 (1992) (INS, Del Rio), a case in which the Authority overturned an award setting aside a grievant's suspension. The Agency argues that, as in INS, Del Rio, the award in this case is deficient because the Arbitrator found just cause for the grievants' discipline but set the discipline aside in its entirety.
The Agency further argues that the award is contrary to § 7106(a)(2)(A) of the Statute. The Agency contends that despite the fact that the Arbitrator effectively found that it had "just cause" for disciplining the grievants, the Arbitrator "inexplicably set aside the discipline entirely." Exceptions at 6. According to the Agency, "[a] written warning does not constitute discipline under Article 23[.]" Id. at 6 n.2. The Agency asks that the Authority reinstate the Agency's discipline.
B. Union's Opposition
The Union disputes the Agency's assertion that the warning directed by the Arbitrator does not constitute discipline under the parties' bargaining agreement. The Union states that, "[n]otwithstanding any ambiguity in the nature and effect of a `warning' under § 3 of Article 23," Section 4 of Article 23 "would seem to be the operative provision." Opposition at 3. According to the Union, "the substance of the [A]rbitrator's directive matches a § 4 reprimand and does not match a § 3 warning." Id. at 4. The Union contends that since a reprimand is a form of discipline under the parties' agreement, the award merely mitigated the employees' discipline without being in conflict with the Agency's right to discipline.
The Union also maintains that this case is distinguishable from INS, Del Rio because here, unlike in INS, Del Rio, the "[A]rbitrator replaced one form of discipline with another . . . ." Id. at 5. Therefore, the Union asserts that the Authority should reject the Agency's claim that the award fails to draw its essence from the parties' bargaining agreement.
IV. Analysis and Conclusions
The Authority will find an award deficient as failing to draw its essence from a collective bargaining agreement when the appealing party establishes that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).
As set forth in the Appendix to this decision, Article 23 reflects the parties' agreement concerning the types of discipline that the Agency may impose with respect to employees in the bargaining unit. The minimum form of discipline is an official reprimand under Article 23, Section 4. In addition to outlining reprimands [ v58 p95 ] and other disciplinary actions the Agency can impose, the parties also defined actions that the Agency can take in advance of discipline. Those actions consist of counseling and oral warnings "which are informal in nature and are not recorded." See Appendix, Article 23, Section 3. Nothing in Article 23 includes a provision for a written warning that would be placed in personnel files, which is what the Arbitrator directed. As noted, the specific provision on warnings that the parties negotiated in Section 3, provides for unrecorded oral warnings only, and such warnings do not constitute discipline. Furthermore, neither the Arbitrator nor the Union refers to any portion of the parties' agreement suggesting that written warnings were contemplated. Consequently, we find that the remedy directed by the Arbitrator does not comport with any of the disciplinary actions that the parties agreed the Agency could take in Article 23 of their agreement.
We are reluctant to ascribe to the award the meaning urged by the Union, namely, that "the substance of the [A]rbitrator's directive matches a § 4 reprimand . . . ." Opposition at 4. The Union's contention implicitly concedes that, taken literally, the "written warning" imposed by the Arbitrator does not constitute an Article 23, Section 4 "Reprimand." Had the Arbitrator intended to order the Agency to issue a written reprimand, the Arbitrator could have easily done so in a clear fashion. Instead, the Arbitrator devised his own remedy, which does not, on its face, fall within the confines of the parties' agreement.
As the Agency asserts, the award here is comparable to the award in INS, Del Rio. In that case, the arbitrator found just cause to sustain a disciplinary action. Despite that finding, however, the arbitrator set aside the disciplinary action in its entirety. On review, the Authority found that the award could not be derived rationally from the parties' agreement and evidenced a disregard for the agreement. As a result, the Authority concluded that the award failed to draw its essence from the agreement and set the award aside.
Similarly, in this case, the Arbitrator's imposition of a written warning does not constitute discipline as the parties have defined it under Article 23 of their collective bargaining agreement. In effect, the Arbitrator, after finding that the Agency had just cause to discipline the grievants, set aside the disciplinary action in its entirety. Because the Arbitrator found that the Agency had just cause to discipline the grievants, his award, which does not provide any form of discipline, does not represent a plausible interpretation of the agreement and, therefore, fails to draw its essence from the agreement. Accordingly, the award must be set aside. See, United States Small Business Admin., 55 FLRA 179, 182 (1999) (portion of award ordering agency to pay all costs of arbitration failed to draw its essence from parties' agreement where agreement stated that costs would be shared equally by the parties); United States Dep't of Justice, Federal Bureau of Prisons, United States Penitentiary, Leavenworth, Kan., 53 FLRA 29, 33 (1997) (award deficient because arbitrator's assertion of jurisdiction over the grievance was not compatible with a plausible interpretation of the parties' collective bargaining agreement, which incorporated an exclusion of such grievances under the agreement); United States Dep't of the Air Force, Oklahoma City Air Logistics Command, Tinker AFB, Okla., 48 FLRA 342, 348-49 (1993) (award deficient where arbitrator's interpretation of agreement, requiring that certain offenses be subject to judicial proceedings only, was incompatible with agreement's plain wording, which also allowed the agency to take administrative action for such offenses).
The remedial portion of the award is set aside. [n4]
Article 23, Sections 1 through 4 of the parties' bargaining agreement state:
Disciplinary and Adverse Actions.
Section 1-- Statement of Purpose and Policy
The parties agree that the objective of discipline is to correct and improve employee behavior so as to promote the efficiency of the service. The parties agree to the concept of progressive discipline designed primarily to correct and improve employee behavior. Bargaining unit employees will be the subject of disciplinary or adverse action only for just cause.
Section 2-- Definition of "Day"
For the purpose of this article, the word "day" means calendar day unless otherwise specified.
Section 3-- Counseling and Warnings
Normally, discipline will be preceded by counseling and assistance including oral warnings which are informal in nature and are not recorded. [ v58 p96 ]
Counseling and warnings will be conducted privately and in such a manner so as to avoid embarrassment of the employee.
Section 4-- Reprimand
An official reprimand is a written disciplinary action which specifies the reasons for the action. The reprimand will specify that the employee may be subject to more severe disciplinary action upon any further offense and that a copy of the reprimand will be made a part of both the SF-7B Extension File and the Official Personnel Folder for up to 1 year.
If a discussion is to be held when a reprimand is given, the supervisor will advise the employee of his/her right to Union representation prior to the start of the discussion. The letter of reprimand will inform the employee that he/she has the right to file a grievance on the reprimand under the negotiated grievance procedure, and the right to Union representation.
Section 5-- Short-Term Suspensions
A. An employee against whom a suspension for 14 days or less is proposed is entitled to:
1. An advance written notice of fifteen (15) calendar days stating the specific reasons for the proposed action;
2. Ten (10) calendar days to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer; and
3. Be represented.
B. After considering the employee's response, the Administration will issue a written decision. If the decision [is] unfavorable to the employee, the decision may be grieved, beginning with the last (prearbitration) step of the grievance procedure.
Exceptions, Exhibit F.
The remaining sections of Article 23 are entitled Removal, Suspension for More Than 14 Days, Reduction-in-Grade, Reduction-in-Pay, and Furlough of 30 Days or Less (Section 6); Requests for Time Extensions on Proposals (Section 7); Notice to Union (Section 8); and Timeliness of Discipline (Section 9). Id.
File 1: Authority's Decision in 58 FLRA No.
File 2: Opinion of Member Pope
Footnote # 1 for 58 FLRA No. 18 - Authority's Decision
Footnote # 2 for 58 FLRA No. 18 - Authority's Decision
Footnote # 3 for 58 FLRA No. 18 - Authority's Decision
That arbitration proceeding was the subject of the Authority's decision in SSA, Headquarters, Baltimore, Md., 57 FLRA 459 (2001) (SSA), which was issued shortly after the award in the instant case. In SSA, an arbitrator denied the union's grievance alleging that the agency had improperly implemented a Table of Penalties for certain computer system security violations, and the Authority denied the union's exceptions challenging that award.
Footnote # 4 for 58 FLRA No. 18 - Authority's Decision