[ v61 p92 ]
61 FLRA No. 18
SOCIAL SECURITY ADMINISTRATION
ST. PAUL, MINNESOTA
OF GOVERNMENT EMPLOYEES
July 13, 2005
Before the Authority: Dale Cabaniss, Chairman, and
arol 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 Paul B. Grant 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 after determining that the grievant had improperly accessed computer records on two occasions. The Arbitrator determined that the grievant's actions were serious and that discipline was warranted, but that the 2-day suspension was excessive and should be mitigated to a written reprimand.
For the following reasons, we find that the award is deficient and set it aside.
II. Background and Arbitrator's Award
The Agency's regulations prohibit employees from accessing their own records or the records of friends, relatives and acquaintances. In case of doubt, employees are instructed to seek clarification from their supervisor. Penalties have been established for failure to follow these rules, and the Agency and the Union have agreed that "such violations are among the most serious in the system." Award at 1.
On two occasions, the grievant accessed the computer records concerning her sister's ex-husband without authorization. The first incident occurred after the grievant received a telephone call from her sister in which the sister mentioned her attempts to contact a claims representative handling a case for child support benefits from the ex-husband. The grievant accessed the computer records on the ex-husband, pulled the records and left them with a note to call the sister on the desk of a claims representative who was busy with other matters. She also stated in the note that the claims representative should be aware that the case concerned the family of an employee.
The second incident occurred when, in the course of handling garnishment papers, the grievant came across papers relating to a garnishment of the disability benefits of the ex-husband for child support. The grievant accessed the ex-husband's files and processed the garnishment.
The Agency suspended the grievant for 2 days for unauthorized systems access violations. A grievance was filed disputing the suspension. The grievance was not resolved and was submitted to expedited arbitration.
The Arbitrator determined that the 2-day suspension should be modified to a written reprimand. Although the Arbitrator found that the grievant's actions were "serious," he also found that her actions "appear to have come from a desire to be helpful and to complete the work rather than malice of any kind." Id. at 2. In this regard, the Arbitrator found that the grievant "believed that what she did was the most efficient way of handling each incident." Id. The Arbitrator determined that when weighed against the grievant's "long and meritorious service," the 2-day suspension "appears too harsh." Id. at 3. In this connection, the Arbitrator expressed his "belie[f] that the Douglas factors support this analysis." [n2] Id.
The Arbitrator concluded as follows:
The employee did violate the rules and should be sanctioned. Bearing in mind that the purpose of discipline is corrective and the employee's obvious remorse for a violation of any kind, the arbitrator believes that the two day suspension [ v61 p93 ] should be modified to a written reprimand. I believe this will best assist the efficiency of the SSA.
Id. Based on the foregoing, the Arbitrator directed the Agency to mitigate the 2-day suspension to a written reprimand and to make the grievant whole. Id.
III. Positions of the Parties
A. The Agency
The Agency contends that the award is deficient on two grounds.
First, the Agency contends that the Arbitrator disregarded Article 23, Section 1 of the parties' collective bargaining agreement. [n3] The Agency claims that under this provision, management retains discretion in certain situations to determine that a penalty lesser than a suspension is inappropriate due to the severe nature of the behavior. Exceptions at 2, 5. The Agency explains that when it enacted the "Uniform System Sanctions policy and its accompanying table of penalties," [n4] it determined that system access violations were so severe in nature that a lesser penalty, such as a reprimand, would not be appropriate, and that the minimum discipline for such misconduct should be a short suspension. Id. at 5. The Agency argues that, having found that it had just cause to discipline the grievant and that her misconduct was among the most serious violations of Agency policy, the Arbitrator was compelled to conclude that the Agency acted properly in imposing a 2-day suspension.
Second, the Agency contends that the award is contrary to law because the Arbitrator failed to properly apply the Douglas factors. See Exceptions at 4-5. The Agency asserts that the Arbitrator substituted his judgment for that of the Agency without finding that its disciplinary action was arbitrary and capricious, and thereby failed to apply the correct standard for reviewing the Agency's disciplinary decision.
B. The Union
The Union contends that, based on Authority precedent, an arbitrator has the authority to mitigate penalties as the Arbitrator did in this case. The Union further contends that there is no support for the Agency's contention that the award is inconsistent with the parties' agreement.
IV. Analysis and Conclusions
We construe the Agency's contention that the Arbitrator disregarded Article 23, Section 1 as a claim that the award fails to draw its essence from the parties' agreement. For the following reasons, we agree with the Agency's contention that 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 United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).
At issue in this case is the application of Article 23. Article 23, Section 1 reflects the parties' agreement concerning the types of discipline that the Agency may impose with respect to employees in the bargaining unit. It provides, in 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 by the severe nature of the behavior that a lesser form of discipline would not be appropriate."
In his expedited arbitration award, the Arbitrator did not explicitly state the standard of review he applied. However, the record reveals that the parties' contract contains a "just cause" standard. 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 & Naturalization Serv., New York Dist. Office, 42 FLRA 650, 658 (1991). Here, the Arbitrator's determination that discipline was warranted is not disputed. Rather, the Agency challenges the Arbitrator's assessment of the penalty.
The Arbitrator's mitigation of the grievant's 2-day suspension to a written reprimand constituted an arbitral determination that there was no just cause under Article 23 of the parties' agreement for a penalty of a 2-day suspension. In our view, the Arbitrator [ v61 p94 ] exhibited a manifest disregard of Article 23 in making that determination.
The parties' agreement states that management may bypass progressive discipline where it determines by the severe nature of the behavior that a lesser form of discipline would not be appropriate. The Arbitrator found that, on two occasions, the grievant engaged in actions that constituted unauthorized systems access violations. Additionally, the Arbitrator specifically found that the grievant's actions were "serious" and, in both parties' view, "are among the most serious in the system." Award at 2, 1. Notwithstanding these findings and the Agency's right under Article 23 to impose more severe discipline where the "severe nature of [an employee's] behavior" warrants such discipline, the Arbitrator imposed the least serious form of discipline possible provided in Article 23. In these circumstances, the Arbitrator's interpretation of the agreement as precluding the Agency from imposing the degree of discipline that the Agency is solely authorized to determine, namely, a 2-day suspension, is a manifest disregard of the agreement. Stated otherwise, having determined that the grievant had twice accessed computer records and that these actions were serious, the Arbitrator was required to uphold the Agency's determination of the penalty given management's negotiated right to "bypass" lesser forms of discipline.
Accordingly, the award fails to draw its essence from the parties' agreement and we find that the award is deficient under § 7122(a)(2) of the Statute. [n5] See United States Dep't of Justice, Fed. Bureau of Prisons, Metro. Det. Ctr., Guaynabo, P.R., 58 FLRA 553, 554 (2003); United States Small Bus. Admin., 55 FLRA 179, 182 (1999); United States Dep't of Justice, Fed. Bureau of Prisons, United States Penitentiary, Leavenworth, Kan., 53 FLRA 29, 33 (1997); United States Dep't of the Air Force, Oklahoma City Air Logistics Command, Tinker AFB, Okla., 48 FLRA 342, 348-49 (1993). [n6]
The award is set aside.
Article 23 of the parties' collective bargaining agreement provides, in relevant part:
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 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. [ v61 p95 ]
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. The right to review the material which is relied on to support the reason(s) for the proposed actions;
3. Ten (10) calendar days to respond orally and in writing and to furnish affidavits and other documentary evidence in support of the response; and
4. Be represented.
B. The employee will be given a reasonable amount of duty time to prepare and present a response to the proposal.
C. 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.
Opposition, Exhibit B.
File 1: Authority's Decision in 61
File 2: Opinion of Member Pope
Footnote # 1 for 61 FLRA No. 18 - Authority's Decision
Footnote # 2 for 61 FLRA No. 18 - Authority's Decision
The "Douglas factors" refer to factors established by the Merit Systems Protection Board in Douglas v. Veterans Admin., 5 MSPR 280 (1981) (Douglas). Douglas is discussed below in Part IV of this decision.
Footnote # 3 for 61 FLRA No. 18 - Authority's Decision
Footnote # 4 for 61 FLRA No. 18 - Authority's Decision
Footnote # 5 for 61 FLRA No. 18 - Authority's Decision
We note that in Soc. Sec. Admin., Seattle Region, 58 FLRA 374, 375 (2003) (Member Pope concurring), an arbitrator found that discipline was warranted for violation of the Agency's unauthorized system access policy, but mitigated the assessed 2-day suspension to a 1-day suspension. The Authority denied the Agency's exception, which alleged only that the award was based on a nonfact. The instant case is distinguishable because the Agency alleges here that the award fails to draw its essence from the agreement.
Footnote # 6 for 61 FLRA No. 18 - Authority's Decision
Having found that the award fails to draw its essence from the parties' agreement, we need not resolve the Agency's contention that the award is contrary to law because the Arbitrator failed to properly apply the Douglas factors. See Exceptions at 4-5. We note, however, that arbitrators are not required by law to consider the Douglas factors in cases, like the instant one, involving suspensions of 14 days or less, unless the parties have incorporated the requirements of the Douglas factors into their contract. See Nat'l Air Traffic Controllers Ass'n, MEBA/NMU, 52 FLRA 787, 792 (1996) (arbitrators are not required to consider the Douglas factors in cases involving suspensions of 14 days or less, and the union's contention that the arbitrator misapplied those factors did not provide a basis for finding the award deficient). Cf. United States Gen'l Servs. Admin., NE. & Caribbean Region, New York, N.Y., 60 FLRA 864, 867 (2005) (collective bargaining agreement required arbitrator to apply Douglas factors to a suspension of 14 days).