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60 FLRA No. 17
SOCIAL SECURITY ADMINISTRATION
OFFICE OF LABOR MANAGEMENT RELATIONS
OF GOVERNMENT EMPLOYEES,
June 30, 2004
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Charles F. Ipavec 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 Agency violated the parties' agreement by suspending the grievant for two days without just cause, and he set aside the suspension.
For the following reasons, we set aside the award.
II. Background and Arbitrator's Award
On two occasions, the grievant accessed the computer records of a former co-worker's sister and disclosed them to the former co-worker. The Agency suspended the grievant for two days for violating the Agency's unauthorized system access policy. The grievant filed a grievance claiming that the suspension violated Article 23 of the parties' collective bargaining agreement. [n1] The grievance was unresolved and submitted to arbitration, where the Arbitrator set forth the issues as follows: "[D]id the Agency have just cause to impose a two-day disciplinary suspension upon the [g]rievant and if not what should the remedy be?" Award at 8.
Citing the Agency's Table of Penalties, the Arbitrator stated that the Agency classified the grievant's conduct as a Category II-A violation, which occurs "where an employee improperly accesses a record and discloses information to a person who is entitled to receive that information." Id. at 9 (emphasis added). The Arbitrator noted that a Category II-B violation occurs "where an employee improperly accesses a record and discloses the information to a person who is not entitled to receive that information." Id. (emphasis added). According to the Arbitrator, the minimum penalty for a Category II-A violation is a two-day suspension and the minimum penalty for a Category II-B violation is a fourteen-day suspension.
The Arbitrator found that it is a violation of the security requirements to access records on behalf of a co-worker and that the definition of a "co-worker" in the security requirements includes former co-workers from the grievant's current office. The Arbitrator also found that, on the two occasions the grievant accessed the record of her former co-worker's sister, the former co-worker was not entitled to receive any information from her sister's file. The Arbitrator determined, in this regard, that although the sister submitted documentation to the Agency authorizing the former co-worker to obtain information from her file, the documentation was received after the two occasions on which the grievant accessed the record.
The Arbitrator concluded as follows:
In the opinion of the Arbitrator, . . . the [g]rievant made an unauthorized access which would call for a Category II-B penalty. The evidence presented is very clear that [the former co-worker] was not entitled to receive any information from the file of [the former co-worker's sister] . . . . The Agency did not follow its own Security Protections and it must be ruled by the Arbitrator that the Agency then did not have just cause to discipline the [g]rievant.
Id. at 11-12. As a remedy, the Arbitrator directed the Agency to reimburse the grievant for the loss of pay she suffered from the suspension and to expunge all references to the discipline from the grievant's personnel file.
III. Positions of the Parties
A. Agency's Exceptions
The Agency contends that the award fails to draw its essence from the parties' agreement. In support, the Agency relies on United States Dep't of Justice, INS, Del Rio Border Patrol Sector, Tex., 45 FLRA 926 (INS, Del Rio), where the Authority overturned an award setting aside a grievant's suspension. The Agency asserts that, as in INS, Del Rio, the award in this case is deficient [ v60 p67 ] because the Arbitrator found just cause for discipline but set the Agency-imposed discipline aside in its entirety.
In addition, the Agency argues that the award is contrary to management's right to discipline under § 7106(a)(2)(A) of the Statute. In this regard, the Agency asserts that despite the fact that the Arbitrator effectively found just cause for a fourteen-day suspension, the Arbitrator set aside the two-day suspension because the Agency imposed "too little, rather than too much, discipline." Exceptions at 6-7.
B. Union's Opposition
The Union asserts that the award does not fail to draw its essence from the parties' agreement and is not contrary to management's right to discipline. According to the Union, the Agency's assumption that the Arbitrator found just cause to discipline is erroneous. In this regard, the Union contends that the Arbitrator specifically ruled that the Agency did not have just cause for the two-day suspension because the Agency did not follow its own policy.
The Union also argues that two of the Arbitrator's findings relied on by the Agency in its exceptions -- that the person requesting the information was a co-worker and that the grievant committed a Category II-B violation -- were both unnecessary and erroneous, and that the Arbitrator exceeded his authority by making these findings.
IV. Preliminary Issue
As noted, the Union claims that the Arbitrator made unnecessary and erroneous findings and, thereby, exceeded his authority. These claims, made in the Union's opposition, relate to the validity of the underlying award and, as such, we construe the claims as exceptions to the award. See Fort McClellan, Educ. Ass'n, 56 FLRA 644, 645 n.3 (2000) (Fort McClellan); Picatinny Arsenal, United States Army Armament Research and Dev. Command, Dover, N.J., 7 FLRA 703, n.2 (1982) (Picatinny Arsenal). So construed, the exceptions, filed more than thirty-five days after the award was served on the parties by mail, were not timely filed. See 5 C.F.R. §§ 2425.1(b), 2429.22, and 2429.27(d). As the exceptions were not timely filed, they are dismissed. See Fort McClellan, 56 FLRA at 645 n.3; Picatinny Arsenal, 7 FLRA at 703 n.2.
V. Analysis and Conclusions
The award fails to draw its essence from the parties' agreement.
In order for an award to be found deficient as failing to draw its essence from the collective bargaining agreement, it must be established 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, e.g., United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).
Article 23 of the parties' agreement provides, in pertinent part, that "[b]argaining unit employees will be subject to disciplinary or adverse action only for just cause." Award at 5. The Arbitrator agreed with the Agency that the grievant made an unauthorized access and disclosure of confidential records. In fact, the Arbitrator found that the grievant made an unauthorized access and disclosure that called for a minimum fourteen-day suspension. See Award at 11. That is, the Arbitrator effectively found just cause for more serious discipline than that imposed by the Agency.
Despite the Arbitrator's finding that the grievant engaged in misconduct deserving of a fourteen-day suspension, the Arbitrator found no just cause for the two-day suspension imposed by the Agency. We conclude that, by setting aside the two-day suspension in these circumstances, the award does not represent a plausible interpretation of Article 23 of the parties' agreement and, as a result, that the award fails to draw its essence from the agreement. [n2] See INS, Del Rio, 45 FLRA at 932-33 (Authority found award deficient where arbitrator found just cause for a more serious charge but set aside discipline based on a lesser charge). As such, we set aside the award. [n3]
The award is set aside.
Footnote # 1 for 60 FLRA No. 17 - Authority's Decision
Footnote # 2 for 60 FLRA No. 17 - Authority's Decision
The Authority has set aside awards involving unauthorized employee access to Agency records as failing to draw their essence from Article 23. See SSA, 59 FLRA 257 (2003) (Member Pope dissenting); SSA, Lansing, Mich., 58 FLRA 93 (2002) (Member Pope dissenting). Member Pope dissented in SSA and SSA, Lansing on the ground, among others, that the arbitrators' mitigation of discipline in those cases constituted arbitral determinations that there was no just cause for the discipline imposed and that lesser discipline was appropriate. Here, by contrast, the Arbitrator found that the grievant engaged in misconduct that warranted more severe discipline and, as a result, Member Pope agrees that the Arbitrator's award finding no just cause for less severe discipline is deficient.
Footnote # 3 for 60 FLRA No. 17 - Authority's Decision