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59 FLRA No. 120
SOCIAL SECURITY ADMINISTRATION
BOSTON, REGION 1
OF GOVERNMENT EMPLOYEES,
February 20, 2004
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 William Croasdale 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 Agency suspended the grievant for 2 days. The Arbitrator found that the suspension was excessive and reduced the suspension to counseling. For the reasons that follow, we remand this case to the parties.
II. Background and Arbitrator's Award
The Agency suspended the grievant for 2 days for violating the Agency's unauthorized system access policy. A grievance was filed disputing the suspension and was submitted to expedited arbitration on the issue of whether the grievant was justly suspended.
The Arbitrator determined that the Agency's policy is necessary to protect information from intrusion and that the grievant violated the policy. Accordingly, he ruled that "some level of culpability" existed on the part of the grievant. Award at 9. However, he determined that "the discipline applied in this case appears to be excessive." Id. He found that "[f]or the level of violation, it seems more appropriate to provide counseling." Id. at 10. Accordingly, as his award, the Arbitrator ordered the 2-day suspension reduced to counseling.
III. Positions of the Parties
The Agency contends that the award fails to draw its essence from the agreement and is contrary to management's right to take disciplinary action under § 7106(a)(2)(A) of the Statute.
The Agency asserts on the basis of Soc. Sec. Admin., Lansing, Mich., 58 FLRA 93 (2002) (Member Pope dissenting), (SSA, Lansing), reconsideration denied, 58 FLRA 181 (2002), that the award fails to draw its essence from the agreement and is contrary to management's right to take disciplinary action by finding just cause for discipline, but ordering counseling that does not constitute discipline under Article 23 of the agreement. [n2] The Agency claims that although the Arbitrator did not expressly find just cause for discipline, his findings "are tantamount to a finding that the [A]gency had `just cause' for disciplining the grievant." Exceptions at 2. The Agency maintains that the Arbitrator recognized the vital importance of the Agency's unauthorized access policy and found "culpability" on the part of the grievant. Id. at 4 (quoting award at 9). In addition, the Agency requests that the Authority reinstate the two-day suspension.
The Union contends that the Agency fails to establish that the award is deficient. The Union disputes the Agency's claim that this case is like SSA, Lansing. The Union argues that unlike the arbitrator in SSA, Lansing, the Arbitrator did not find just cause for discipline. For the same reason, the Union asserts that the Agency's request to reinstate the 2-day suspension should be denied.
IV. Analysis and Conclusions
Both SSA, Lansing, and Soc. Sec. Admin., 59 FLRA 257 (2003) (Member Pope dissenting in part) (SSA), presented circumstances similar to this case. In both cases, the grievants were suspended for 2 days for violating the unauthorized system access policy. In both cases, the arbitrators ruled that discipline was warranted, but that the 2-day suspensions were not for just cause. In both cases, the arbitrators substituted a written [ v59 p672 ] warning for the suspension. In both cases, the Agency filed exceptions. As in this case, the Agency contended that a written warning did not constitute discipline under Article 23 and that consequently, the remedial portion of the award did not draw its essence from the agreement and was contrary to § 7106 of the Statute.
In both cases, we ruled that the awards were deficient because they failed to draw their essence from the agreement. We concluded that the imposition of a written warning did not constitute discipline as the parties have defined it under Article 23 of the agreement.
Specifically, we noted that Article 23 reflects the parties' agreement concerning the types of discipline that the Agency may impose on employees in the bargaining unit and that the minimum form of discipline is an official reprimand under Article 23, Section 4. In addition to outlining reprimands and other disciplinary actions that the Agency can impose, the parties also defined actions that the Agency can take in advance of discipline. Those actions include counseling and oral warnings that are "informal in nature and are not recorded." [n3]
As the Authority has recognized, the enforcement of a contractual just cause standard presents two questions: whether discipline was warranted, and if so, whether the penalty assessed was appropriate. See, e.g., United States Dep't of Justice, Immigration and Naturalization Serv., New York Dist. Office, 42 FLRA 650, 658 (1991). In both SSA, Lansing and SSA, the arbitrators expressly determined that discipline was warranted.
In this case, the Arbitrator did not expressly address whether discipline was warranted. The Agency argues that the Arbitrator's findings are tantamount to a finding that discipline was warranted. The Union argues that the Arbitrator's award does not reasonably support a finding that the Arbitrator viewed discipline of the grievant to be warranted in the circumstances presented.
In view of our decisions in SSA, Lansing and SSA, the Arbitrator's failure to expressly address whether the Agency had just cause to discipline the grievant presents a critical ambiguity in the award. Both the Agency and the Union make plausible arguments as to how the award should be construed. In such circumstances, we conclude that the ambiguity precludes resolution of the Agency's exceptions. In our view, this matter must be remanded to the parties for resubmission to the Arbitrator, absent settlement, to have the Arbitrator clarify his award to specify whether the Agency had just cause to discipline the grievant. See, e.g., United States Dep't of the Navy, Navy Public Works Ctr., Norfolk, Va., 59 FLRA 551 (2003) (Member Pope dissenting) (matter remanded to the parties for resubmission to the arbitrator to have the arbitrator clarify his award to specify whether the grievant engaged in the misconduct with which he was charged).
This matter is remanded to the parties for further proceedings consistent with this decision.
Article 23, Sections 1-4 of the parties' collective bargaining agreement provide as follows:
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 which is designed primarily to correct and improve employee behavior. A common pattern of progressive discipline is reprimand, short term suspension, long term suspension and removal. Any of these steps may be bypassed where management determines by the severe nature of the behavior that a lesser form of discipline would not be appropriate.
The parties further agree that normally, discipline should be preceded by counseling and assistance including oral warnings which are informal in nature and not recorded. Counseling and warnings will be conducted privately and in such a manner so as to avoid embarrassment to the employee. Bargaining unit employees will be subject to disciplinary or adverse action only for just cause.
Section 2 - Timeliness of Discipline
If the Agency feels that disciplinary or adverse action is necessary, such action will be initiated timely after the offense was committed or made known to the Agency. [ v59 p673 ]
Section 3 - Definition of "Day"
For the purpose of this Article, the word "day" means calendar day unless otherwise specified.
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.
Upon request, the employee and or his designated representative will be provided, in a timely manner, copy(s) of the material relied upon to support the reprimand.
The remaining sections of Article 23 are entitled Short-Term Suspensions (Section 5); Removal, Suspension for More Than 14 Days, Reduction-in-Grade, Reduction-in-Pay, and Furlough of 30 Days or Less (Section 6); Request for Information (Section 7); Requests for Time Extensions on Proposals (Section 8); and Notice to Union (Section 9).
Member Carol Waller Pope, dissenting:
In this case, the majority ventures even further down the misguided path it constructed in SSA, Lansing, 58 FLRA 98 (2002) (Member Pope dissenting). As in that case, the majority continues to ignore its statutory responsibility to review arbitration awards on narrow grounds and to engage in de novo contract interpretation. The majority manufactures a "critical ambiguity" in the award, which requires a remand for the parties to obtain a clarification from the Arbitrator. Majority Opinion at 4. In truth, however, the majority is requiring the parties to spend time and money to clarify what is exceedingly clear: the Arbitrator found that the grievant's actions merited counseling but not a suspension. This finding undoubtedly draws its essence from the parties' agreement and respects the Agency's right to discipline under the Statute. As a result, the Agency's exceptions should be denied.
An examination of the wording of the parties' agreement and the Arbitrator's findings illustrates the lengths the majority will go to second-guess awards that mitigate employee discipline. In this regard, Article 23, Section 1 of the parties' agreement provides, in relevant part, that:
A common pattern of progressive discipline is reprimand, short term suspension, long term suspension and removal. Any of these steps may be bypassed where management determines . . . that a lesser form of discipline would not be appropriate.
The parties further agree that normally, discipline should be preceded by counseling and assistance including oral warnings which are informal in nature and not recorded. . . . Bargaining unit employees will be subject to disciplinary or adverse action only for just cause.
Award at 2.
Interpreting and applying this contractual provision, the Arbitrator made the following findings:
The grievant did violate the policy . . . . Under these circumstances, it appears that some level of culpability exists. However, the discipline applied in this case appears to be excessive . . . . For the level of violation, it seems more appropriate to provide counseling . . . .
Id. at 9-10.
Against this backdrop, it is easy to see that the majority's purported "critical ambiguity" is a sham. [ v59 p674 ] The Arbitrator did not fail to address the just cause issue. Quite to the contrary, the Arbitrator clearly and unambiguously found that the discipline imposed by the Agency was "excessive" and the "more appropriate" action was counseling. Id. Put differently, the Arbitrator found that there was no just cause for a suspension and that the suspension should be mitigated to counseling. There is simply no other logical way to interpret the award. As counseling is explicitly set out in the contract as an appropriate action in these circumstances, there is no rational basis for concluding that the award fails to draw its essence from the agreement.
Consistent with the foregoing, I would deny the Agency's essence exception. I also would deny the exception asserting that the award is contrary to the Agency's right to discipline because the award satisfies the two-prong test set forth in United States Dep't of the Treasury, BEP, Wash., D.C., 53 FLRA 146 (1997) (BEP). With regard to the first prong of BEP, the Authority consistently has found that just cause provisions, like the one enforced in this case, are enforceable under § 7106(b)(3). See, e.g., United States Dep't of Energy, S.W. Power Admin., Tulsa, Okla., 56 FLRA 624, 626 (2000) (Dep't of Energy); United States Dep't of Veterans Affairs, Med. Ctr., Coatesville, Pa., 53 FLRA 1426, 1429-30 (1998). With regard to the second prong of BEP, the Authority has repeatedly held that "an arbitrator's enforcement of a just cause provision, by setting aside or reducing the disciplinary action, `operates in effect to reconstruct what management would have done had the provision been followed.'" Dep't of Energy, 56 FLRA at 626 (quoting SSA, Balt., Md., 53 FLRA 1751, 1754 (1998)).
Accordingly, I dissent.
Footnote # 1 for 59 FLRA No. 120 - Authority's Decision
Footnote # 2 for 59 FLRA No. 120 - Authority's Decision
Footnote # 3 for 59 FLRA No. 120 - Authority's Decision
In the parties' current collective bargaining agreement, this language is set forth in Article 23, Section 1. In the parties' prior collective bargaining agreement, applicable in SSA, Lansing and SSA, this language was set forth in Article 23, Section 3.