[ v63 p169 ]
63 FLRA No. 69
OF GOVERNMENT EMPLOYEES
DEPARTMENT OF VETERANS AFFAIRS
CENTRAL ARKANSAS VETERANS
NORTH LITTLE ROCK, ARKANSAS
March 26, 2009
Before the Authority:
Carol Waller Pope, Acting Chairman and
Thomas M. Beck, Member
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Rex H. Wiant filed by the Union under § 7122 of the Federal Service Labor Management-Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions. [n1]
The Union filed a grievance alleging that the Agency did not have just and sufficient cause to suspend the grievant for five days for allegedly violating the Agency's Medical Center Memorandum 05-11, Standards of Ethical Conduct and Related Responsibilities (Standards) involving patient care. At the hearing on the grievance, the Union amended the grievance to incorporate an unfair labor practice (ULP) charge alleging that the Agency conducted formal discussions by interviewing bargaining unit employees prior to the hearing without notice to the Union. The Arbitrator sustained that part of the grievance contesting a five-day suspension imposed on the grievant for allegedly violating the Agency's Standards and denied the portion of the grievance concerning the ULP charge. Subsequently, in a supplemental award, the Arbitrator denied the Union's request for attorney fees.
For the reasons that follow, we remand the award to the parties for resubmission to the Arbitrator, absent settlement, for further action consistent with this decision.
II. Background and Arbitrator's Award
The grievant is a Registered Nurse who works in the surgical intensive care unit (SICU). The grievant was given a notice of a proposed five-day suspension for violations that occurred as a result of three incidents that the Agency alleged violated the Standards and constituted conduct "unbecoming a federal employee." Initial Award at 3. The alleged incidents were disrespectful conduct toward: (1) a patient's family by refusing to allow a family member to visit a patient who had just come out of surgery; (2) a patient's family by refusing to speak with the family about the patient; and (3) a tracheotomy patient's family by not giving the patient his call light.
The Union filed a grievance and the matter was submitted to arbitration. Before the arbitration hearing was held, the Agency took actions that the Union believed constituted a ULP. Specifically, in preparation for the hearing, the Agency requested employees who were on the Union's witness list, including the grievant, to leave their assigned post in SICU and travel to the downtown Human Resources Office for an "interview about the case." Id. at 8. Several employees participated.
At the arbitration, the Union amended the grievance to include a claim that the Agency committed a ULP when it held formal discussions with unit employees, by interviewing them about the case, without notifying the Union. The Agency objected to the Arbitrator deciding the ULP and the Arbitrator instructed the Union to file a ULP charge with the FLRA, while he retained jurisdiction. The Union then filed a ULP charge, which the Regional Director of the FLRA, Dallas Regional Office (FLRA, Regional Office) dismissed on the ground that it was barred by § 7116(d) of the Statute because it had been previously raised in the grievance. Thereafter, the Arbitrator accepted jurisdiction over the ULP.
[ v63 p170 ] Concerning the suspension, the Arbitrator stated the issue as follows: "Did the [Agency] have just and sufficient cause to suspend the [g]rievant for five (5) days for specific actions that occurred on February 7 and March 4, 2005?"
Id. at 2.
In resolving this issue, the Arbitrator considered Article 13, section 1 of the parties' collective bargaining agreement (CBA), which provides:
Article 13. Discipline and Adverse Action
Section 1. General. The Department and the Union recognize that the public interest requires the maintenance of high standards of conduct. No bargaining unit employees will be subject to disciplinary action except for just and sufficient cause. . . .
Id. at 4. Interpreting Article 13, the Arbitrator found that the Agency "failed to meet [the] standard in this case." Id. In so concluding, the Arbitrator examined the three incidents. With respect to the first, he found that the Agency's SICU policies allow the patient's nurse to determine when family can visit, in contrast to the Agency's Post Anesthesia Unit (PACU) policies, which allow for a role by the physician and the Nurse Manager. [n2] As the patient was in the SICU, the Arbitrator found that the Agency's "own policies" gave the grievant the authority to determine whether the patient was ready to be seen by the family. Id. at 7. The Arbitrator further found that there was "no disrespectful conduct to the patient's family." Id.
As to the second incident, the Arbitrator found that another nurse spoke with the patient's family and determined that the family wanted to speak with a surgeon. The Arbitrator found that, as the family was able to speak to the surgeon, there was "no disrespect and the conduct did not rise to a level unbecoming of a federal employee." Id.
Concerning the last incident, the Arbitrator found that for forty hours, a patient who had been given a tracheotomy and who was, therefore, unable to speak, did not have access to his call light because the switch had been moved from the bed. According to the Arbitrator, the grievant was responsible for thirty-two of the forty hours. The Arbitrator found that it was not clear who was responsible for the other eight hours, but the grievant was the only one disciplined for the call light. The Arbitrator found that the Agency "cannot pick out only one employee to discipline when more may be responsible." Id. at 8.
Based on the above, the Arbitrator sustained this portion of the grievance and directed that the discipline be removed from the grievant's file and that she be made whole.
Concerning the ULP, the Arbitrator noted that he had retained jurisdiction over the ULP until the FLRA, Regional Office ruled on the matter. The Arbitrator thus found that the ULP was properly before him. The Arbitrator further stated that "[w]hat happened here is highly questionable." Id. at 9. However, the Arbitrator found that "[n]o evidence was presented that any of the employees were pressured or otherwise threatened to change their testimony. No discussions or negotiations were held in attempt to settle the matter." Id. The Arbitrator found that while the matter "could have been handled in a better manner no [ULP] was committed." Id. Accordingly, he denied the ULP.
Subsequently, in a post-award motion, the Union requested the Arbitrator to consider a request for attorney fees. The Union noted that it had requested an award of attorney fees in its closing brief, but the award did not mention this request. Thereafter, the Arbitrator issued a supplemental award denying the Union's request. The award states, in its entirety:
On May 30, 2006, I received via fax a brief requesting attorney fees in a grievance arbitration case involving [the grievant]. In that award I ordered the discipline to be removed and the [g]rievant be made whole. I did not grant attorney fees. After reading and studying his brief, I have not changed my mind. The request for attorney fees is denied.
Supplemental Award at 1. [ v63 p171 ]
III. Positions of the Parties
A. Union's Exceptions
The Union contends that, as the Arbitrator ordered the Agency to remove the five-day suspension of the grievant and make her whole, back pay is owed to the grievant. As a result, according to the Union, attorney fees are available under the Back Pay Act, 5 U.S.C. § 5596. The Union asserts that the Arbitrator's denial of its request for attorney fees is deficient because it contains no discussion or reasoning.
As to the Arbitrator's denial of the ULP, the Union cites § 7114(a)(2)(A) of the Statute and contends that the Arbitrator "did not follow settled law on formal discussions." Exceptions at 2. Citing, United States Dep't of the Army, New Cumberland Army Depot, New Cumberland, Pa., 38 FLRA 671, 671-79 (1990) (Dep't of Army), the Union contends that it established that there was a discussion, which was formal, between one or more unit employees and management representatives concerning a grievance. The Union also asserts that it established that an agency cannot hold formal discussions with witnesses who are members of the bargaining unit without notifying and giving the union an opportunity to assign a representative. In support, the Union cites Dep't of the Air Force, Sacramento, Air Logistics Center, McClellan Air Force Base, Calif., 29 FLRA 594 (1987) (McClellan AF Base). The Union asserts that, as a result, the Arbitrator "misapplied the law" in denying its claim and the award is deficient. Exceptions at 5.
Based on the foregoing, the Union requests the Authority to remand the case to the parties for submission to the Arbitrator on the question of the entitlement to attorney fees and the ULP.
B. Agency's Opposition
The Agency asserts that the Authority should deny the exceptions. According to the Agency, "it can be inferred one of the reasons the Arbitrator decided not to award attorney's fees was the protracted animosity displayed by [the Union's] counsel[,]" while another "inferred" reason is that the Union "contributed to a long, tenuous production extending the length of the arbitration . . . ." Opposition at 1, 2.
As to the ULP, the Agency contends that the Union never filed a grievance prior to raising the ULP issue in arbitration. The Agency asserts that, in not filing a grievance, the Union failed to adhere to Articles 40 and 42 of the parties' CBA.
On the merits of the ULP claim, the Agency "does not deny the meetings took place . . . [and] that formal meetings between bargaining unit employees and the Agency could be wrong." Id. at 4. However, the Agency contends that the grievant, who was the first interviewee, was accompanied by the Union President and, during this meeting between the grievant, the Agency, and the Union President, the Agency "disclosed other bargaining unit employees were coming to be interviewed by the Agency." Id. According to the Agency, "[a]t no time did the Union [P]resident object . . . nor did she suggest each interviewee needed Union representation." Id. Therefore, the Agency asserts that "the Union had notice of such meetings[.]" Id.
IV. The record is insufficient for a determination as to whether the award is contrary to law
The Union argues that the award is contrary to law. When an exception involves an award's consistency with law, the Authority reviews any question of law raised by the exception and the award de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. United States Dep't of Def., Dep'ts of the Army and the Air Force, Alabama Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. Id.
A. Attorney Fees
The threshold requirement for entitlement to attorney fees under the Back Pay Act, 5 U.S.C. § 5596, is a finding that the grievant was affected by an unjustified or unwarranted personnel action, which resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials. See United States Dep't of Defense, Defense Distribution Region E., New Cumberland, Pa., 51 FLRA 155, 158 (1995). The Back Pay Act further requires that an award of fees must be: (1) in conjunction with an award of back pay to the grievant on correction of the personnel action; (2) reasonable and related to the personnel action; and (3) in accordance with the standards established under 5 U.S.C. § 7701(g). See id. The prerequisites for an award of attorney fees under § 7701(g) are that: (1) the employee must be the prevailing party; (2) the award of fees must be warranted in the interest of justice; (3) the amount of the fees must be reasonable; and (4) the fees must have been incurred by the employee. See id.
[ v63 p172 ] The Arbitrator did not articulate the reasons for denying the Union's request for attorney fees and the record, as submitted to the Authority, does not contain any evidence that would assist the Authority in determining the Arbitrator's basis for denying the Union's request for attorney fees. Because the Arbitrator has not explained his denial of the request and the record does not permit the Authority to resolve the exception, this portion of the award must be remanded to the parties for resubmission to the Arbitrator, absent settlement, to clarify, consistent with the foregoing standards, the reasons for the denial of attorney fees. See AFGE, Local 3239, 61 FLRA 808, 810 (2006) (citing United States Dep't of Agric., Animal and Plant Health Inspection Serv., Plant Prot. and Quarantine, 53 FLRA 1668, 1695 (1998) and AFGE, Council 220, 60 FLRA 1, 4 (2004).
B. ULP Allegation
According to the Union, it established that the Agency conducted a formal discussion within the meaning of § 7114(a)(2)(A) of the Statute, without providing the Union notice, and as a result, committed a ULP in violation of § 7116(a)(1) and (a)(8) of the Statute.
In deciding a grievance that alleges a ULP, "the arbitrator must apply the same standards and burdens that would be applied by an [Administrative Law Judge] in a ULP proceeding under § 7118." NTEU, Chapter 168, 55 FLRA 237, 241 (1990). That is, in resolving a grievance alleging a ULP under § 7116 of the Statute, an arbitrator functions as an Administrative Law Judge (ALJ). NTEU, 61 FLRA 729, 732 (2006).
Section 7114(a)(2)(A) of the Statute provides, in part:
(2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at --
(A) any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment[.]
Section 7103(a)(9) of the Statute pertinently defines "grievance" as "any complaint . . . by any employee concerning any matter relating to the employment of the employee[.]"
In order for a union to have a right to representation under § 7114(a)(2)(A), there must be: (1) a discussion; (2) which is formal; (3) between one or more representatives of the agency and one or more unit employees or their representatives; (4) concerning any grievance or any personnel policy or practice or other general condition of employment. E.g., AFGE, Council 214, 38 FLRA 309, 329-30 (1990), aff'd, 949 F.2d 475 (D.C. Cir 1991). In determining whether the elements of § 7114(a)(2)(A) exist in a particular case, the Authority is guided by the intent and purpose of the section to provide the union with an opportunity to safeguard its interests and the interests of unit employees viewed in the context of the union's full range of responsibilities under the Statute. Id. at 330.
The Arbitrator here did not specifically address the elements of § 7114(a)(2)(A). However, the Arbitrator's factual findings show, and there is no dispute, that the Agency interviews were conducted with employees who were scheduled to testify for the Union in a grievance arbitration hearing. Thus, the interviews concerned a grievance within the meaning of § 7114(a)(2)(A). See, e.g., United States Dep't of the Air Force, Ogden Air Logistics Ctr., Hill Air Force Base, Utah, 36 FLRA 748, 768-69 (1990) (citing McClellan AF Base, 29 FLRA at 603-04) (management's interview of a bargaining unit employee, whom management knew would be a union witness at arbitration, prior to arbitration concerned a "grievance" within the meaning of § 7114(a)(2)(A) of the Statute). Further, the Arbitrator's factual findings show, and there is no dispute, that the interviews were between one or more Agency representatives and a unit employee. See, e.g., McClellan AF Base, 29 FLRA at 603 (meeting conducted by three management representatives was "formal" where employee was interviewed concerning a union-filed grievance scheduled for arbitration).
In determining whether a discussion is formal within the meaning of § 7114(a)(2)(A), the Authority has advised that the totality of the circumstances presented must be examined, but that a number of factors are relevant: (1) the status of the individual who held the discussions; (2) whether any other management representatives attended; (3) the site of the discussions; (4) how the meetings for the discussions were called; (5) how long the discussions lasted; (6) whether a formal agenda was established for the discussions; and (7) the manner in which the discussions were conducted. See GSA, Region 9, 48 FLRA 1348, 1355 (1994). In some cases, the Authority has considered an eighth factor, namely, whether attendance by the bargaining unit employee was mandatory. See, e.g., United States Dep't of Labor, Office of the Assistant Sec'y for Admin. and Mgmt., Chi., Ill., 32 FLRA 465, 470 (1988). However, these factors are illustrative, and other factors [ v63 p173 ] may be identified and applied as appropriate. United States Dep't of Veterans Affairs, N. Arizona Veterans Affairs HealthCare, Prescott, Ariz., 61 FLRA 181, 185 (2005) (citing F.E. Warren Air Force Base, Cheyenne, Wyo., 52 FLRA 149, 155-57 (1996)).
The award contains no factual findings relating to the Arbitrator's application of the foregoing "formality" factors. Moreover, the Agency argues that the Union had notice of such meetings because at the first meeting conducted with the grievant, who was accompanied by the Union President, the Agency disclosed that other bargaining unit employees were going to be interviewed by the Agency. In claiming to the contrary, the Union refers to pages in the transcript where the Agency personnel specialist testified that the Union was not notified of the interviews. See Exceptions at 6 and 8 and Attachment 8 at 15. As with the formality factors, the award contains no factual findings regarding whether the Union had notice. Rather, the Arbitrator stated only that "[w]hat happened here is highly questionable." Award at 9. Thus, the record does not contain sufficient findings of fact to determine whether the Agency's interviews with the employees constituted a formal discussion under § 7114(a)(2)(A) of the Statute and whether the Agency conducted such discussions without providing the Union notice so as to constitute a ULP violation.
In these circumstances, we are unable to assess, based on the record, whether the award is deficient under § 7114(a)(2)(A) and § 7116(a)(1) and (8) of the Statute as the Union claims. Where an arbitrator has not made sufficient factual findings for the Authority to assess or determine an arbitrator's legal conclusions, and those findings cannot be derived from the record, the Authority will remand the award to the parties for further action. See, e.g., United States Dep't of Transp., Maritime Admin., 61 FLRA 816, 822, (2006); NFFE, Local 1437, 53 FLRA 1703, 1710-11 (1998). Accordingly, we remand the award to the parties for resubmission to the Arbitrator, absent settlement, for clarification, consistent with the foregoing standards, of the reasons for the denial of the ULP. [n3]
The case is remanded to the parties, for resubmission to the Arbitrator, absent settlement, for further action consistent with this decision.
Footnote # 1 for 63 FLRA No. 69 - Authority's Decision
The Union filed an unsolicited response to the Agency's opposition. As the Authority's Regulations do not provide for the filing of supplemental submissions, and as the Union failed to request permission to file its submission under § 2429.26, we have not considered the submission. See, e.g., AFGE, Local 12, 61 FLRA 355, 355 n.1 (2005) (citing United States Dep't of HHS, FDA, 60 FLRA 250, 250 n.1 (2004)).
Footnote # 2 for 63 FLRA No. 69 - Authority's Decision
The SICU policies provide, in pertinent part, as follows:
Ordinarily, only two . . . per patient are permitted to visit at one time. However, when a patient is received from surgery all family members present may visit at the same time, once a patient's nurse has determined the patient is stable and ready to be seen by the family. Other exception would be, when death of the patient is [imminent], then family members will be given private time with their loved one.
Award at 7 (emphasis in award).
The PACU guidelines provide, in pertinent part, as follows:
Due to the level of patient care required, visitors are not permitted in PACU except under limited circumstances. Exceptions may be based on the physician's request and at the discretion of the Primary Nurse and the Nurse Manager or designee. Id. (emphasis in award.)
Footnote # 3 for 63 FLRA No. 69 - Authority's Decision
To the extent that the Agency claims that the ULP was not properly before the Arbitrator because the Union did not file a grievance alleging the ULP, the claim is an exception challenging the Arbitrator's procedural arbitrability determination. Since the Agency did not file a timely exception to the Arbitrator's award, the claim is dismissed. See, e.g., AFGE, Local 1938, 61 FLRA 645, 646 n.1 (2006) (citing United States Dep't of Transp., Fed. Aviation Admin, 55 FLRA 797, 797 n.1 (1999) ("Exceptions within an opposition are considered only if filed within the time limit . . . for exceptions.").
With respect to this finding, Member Beck notes that, in light of Authority precedent interpreting § 7122(b) of the Statute and its implementing regulation, § 2425.1 of the Authority's Regulations, which provide that the "time limit for filing an exception to an arbitration award is thirty (30) days beginning on the date the award is served on the filing party[,]" he agrees with this finding. However, Member Beck notes that in most such proceedings, "day one" for calculating the deadline for filing or serving a responsive paper is the first day after service of the paper to which the receiving party is responding. See, e.g., Fed. R. Civ. P. 6(a)(1) (excluding the day of the event that begins the time period); Minasyan v. Mukasey, 553 F.3d 1224, 1228 (9th Cir. 2009); Downs v. McNeil, 520 F.3d 1311, 1318 (11th Cir. 2008); see also Fed. R. Crim. P. 45(a) (also excluding the day of the act or event that begins the time period); United States v. Carver, 671 F.2d 577 (D.C. Cir. 1982). Further, in AFGE v. FLRA, 802 F.2d 47 (2nd Cir. 1986), the court held that, under 5 U.S.C. § 7123(a) of the Statute, the date of issuance of an Authority order should not be counted in determining the timeliness of a petition for judicial review. The wording of § 7123(a) is similar to that of § 7122(b), which suggests that the date an arbitral award is served should not be counted in determining the timeliness of a party's exceptions to that award. Noting the above authorities, Member Beck believes that the question of whether the date that an arbitral award is served should be included or excluded in calculating the 30-day period to file exceptions under 5 U.S.C. § 7122(b) of the Statute and § 2425.1 of the Authority's Regulations should be revisited either through the rulemaking process or when such issue is properly raised by a party filing exceptions.