[ v59 p108 ]
59 FLRA No. 20
SOCIAL SECURITY ADMINISTRATION
(Agency)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2206
(Union)
0-AR-3632
_____
DECISION
September 5, 2003
_____
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
This matter is before the Authority on exceptions to an award of Arbitrator Samuel J. Nicholas, Jr. 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 lacked just cause for issuing the grievant a formal written reprimand, and directed that the reprimand be expunged from her personnel file. For the reasons discussed below, we deny the Agency's exceptions.
The grievant is a claims representative who has worked for the Agency for 35 years and had not been disciplined previously. On Friday afternoon, February 2, 2001, the grievant and her supervisor had a discussion relating to the grievant's use of a small portable television at her work station. On Monday, February 5, the grievant gave the supervisor a memo concerning the supervisor's alleged harassment of the grievant in connection with their discussion. [n1] On February 12, the Agency issued the grievant a written reprimand stating that the grievant had violated the Agency's standards of conduct by her disruptive and disrespectful behavior towards the supervisor during their discussion. The reprimand was received by the grievant and the Union on February 13. A grievance was filed over the reprimand.
The grievance was not resolved and was submitted to arbitration. The parties stipulated the issue before the Arbitrator as follows:
Did the Agency violate Articles 1, 3, 4, 10, 18, 23 or 24 of the National Agreement between AFGE and SSA by reprimanding [the grievant] on February 12, 2001? If so, in what way was the Agreement violated and what should the remedy be?
Award at 1. [n2]
The Arbitrator found that the Agency did not show by a preponderance of the evidence that the grievant's actions violated the Agency's standards of conduct. In reaching this result, the Arbitrator stated: "It is undisputed that [g]rievant was issued the subject reprimand as the result of [g]rievant's Memorandum to [the supervisor], dated February 5, 2001." Id. at 2. The Arbitrator found controlling Article 3, Section 2.I of the parties' agreement, under which conduct-related matters must be brought to an employee's attention. Consistent with this provision, the Arbitrator found that the grievant's due process rights were violated because the Agency did not interview the grievant and consider any information that it would have received prior to disciplining her.
The Arbitrator also found that the Agency's conduct was not in compliance with Article 3, Section 5.D, which relates to furnishing employees with information placed in their official personnel folder. In reaching this result, the Arbitrator rejected the Agency's argument that "the date for tolling the bell for timely procedural protection was the date of [g]rievant's memo, February 5." Id. at 4. The Arbitrator found that "the subject reprimand, . . . issued on February 12, 2001, takes issue with [g]rievant's behavior and communication with [the supervisor] on February 2, not as a result of [the grievant] communicating in writing to [the supervisor] some three days later." Id.
In sum, and based on the foregoing, the Arbitrator found that the Agency lacked just cause under Article 23, Section 1 for issuing the reprimand. He ordered that the written reprimand be expunged from the grievant's personnel file. [n3] [ v59 p109 ]
The Agency asserts that the award is based on a nonfact. According to the Agency, the Arbitrator's finding that it was undisputed that the reprimand was issued as a result of the February 5 memo from the grievant to the supervisor is a nonfact because it is inconsistent with the Arbitrator's subsequent finding that the reprimand was not issued as a result of the February 5 memo.
The Agency also contends that the award conflicts with management's right to take disciplinary action under § 7106(a)(2)(A) of the Statute. The Agency notes that the discussion between the grievant and her supervisor occurred late on a Friday afternoon and that the grievant's memo was sent on Monday, the next work day. The Agency asserts that, by the Arbitrator's reasoning, management would be prevented from ever disciplining any employee who chose to send a communication to management unless management could act quickly enough to take disciplinary action before receiving the communication.
Further, the Agency contends that the award fails to draw its essence from the agreement. Specifically, the Agency asserts that the Arbitrator's finding that Article 3, Section 2.I of the contract is "controlling" does not draw its essence from the agreement because that provision addresses complaints from either a member of the public or a co-worker and the incident here involved a member of management. Exceptions at 8.
The Agency also claims that the Arbitrator erred in finding that the reprimand was not in compliance with Article 3, Section 5.D. The Agency states that the provision contains no reference to disciplinary actions and is not applicable to this case. According to the Agency, the only provision relevant to the timeliness for taking disciplinary actions is Article 23, Section 2, "Timeliness of Discipline," which states that discipline "will be initiated timely after the offense was committed or made known to the Agency." Id. at 10. The Agency asserts that the parties did not intend to apply the 3-day limit in Article 3, Section 5.D to the initiation of disciplinary actions under Article 23, and the Arbitrator erred in finding such a requirement.
The Agency also contends that the Arbitrator's determination that the Agency was required to initiate disciplinary action within 3 working days of an incident is contrary to law and regulation. The Agency contends that the Authority has long held that proposals requiring an agency to initiate disciplinary action within a specific time limit are contrary to law because they violate management's right to discipline employees. Noting the Authority's decision in United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Transfer Ctr., Oklahoma City, Okla., 58 FLRA 109 (2002), the Agency asserts that the 3-day limit imposed by the Arbitrator excessively interferes with management's right to discipline employees under § 7106(a)(2)(A) of the Statute.
With respect to the Agency's nonfact claim, the Union asserts that the two cited findings by the Arbitrator are not in direct conflict and are not ambiguous or contradictory. In addition, the Union contends that the award does not interfere with management's right to discipline. Further, according to the Union, the Agency has not established that the award fails to draw its essence from the agreement. Finally, the Union contends that, contrary to the Agency's claim, the Arbitrator did not specify a time limit within which the Agency was required to initiate disciplinary action. [n4]
To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. United States Dep't of the Air Force, Lowry AFB, Denver, Colo., 48 FLRA 589, 593 (1993). However, the Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at arbitration. Id. at 594 (citing Nat'l Post Office Mailhandlers v. United States Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985)). Additionally, "[t]he mere fact that the appealing party disputes an arbitral finding does not provide a basis for finding that an award is based on a nonfact." AFGE, Local 1923, 51 FLRA 576, 579 (1995). These principles appropriately accord deference to an arbitrator's factual findings because the parties have bargained for the facts to be [ v59 p110 ] found by an arbitrator whom they have chosen. AFGE, Local 1858, 56 FLRA 422, 424 (2000).
The Agency alleges that the Arbitrator's finding that it was undisputed that the reprimand was issued as a result of the February 5 memo from the grievant to the supervisor is a nonfact because it is inconsistent with the Arbitrator's subsequent finding that the reprimand was not issued as a result of the February 5 memo. [n5]
As an initial matter, we do not view the Arbitrator's award as being inconsistent. The Arbitrator's first statement refers to the reason for which he found that the reprimand was issued. The second statement was based on his rejection of the Agency's procedural claim regarding the "tolling" of time limits in Article 3, Section 5.D of the parties' agreement. In any event, it is clear from the record that the reason for the reprimand was disputed below and the Agency acknowledges this. See Exceptions at 7 ("The Arbitrator's finding that the reprimand was issued as a result of the memorandum . . . was disputed throughout the hearing."). Since the reason for the discipline was disputed before the Arbitrator, it is not challengeable as a nonfact and provides no basis for finding the award deficient. Accordingly, we deny this exception.
When an exception involves an award's consistency with law, the Authority reviews any question of law raised by an exception and the award de novo. See 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. See United States Dep't of Def., Dep'ts of the Army & the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
The Agency claims that the award violates § 7106(a)(2)(A) of the Statute because management would be prevented from ever disciplining any employee who chooses to send a communication to management unless management can act quickly enough to take disciplinary action before receiving the communication. The Agency has misconstrued the award. The award imposes no such requirement. The Arbitrator simply found that, in the circumstances of this case, the Agency would not have issued the reprimand if the grievant had not sent the memo to the supervisor.
The Agency further contends that the Arbitrator's determination under Article 3, Section 5.D, that the Agency was required to initiate disciplinary action within 3 working days of an incident is contrary to law and regulation because it violates management's right to discipline employees under § 7106(a)(2)(a) of the Statute. The Agency has again misconstrued the Arbitrator's award. The Arbitrator made no finding that the Agency was required to take disciplinary action within 3 days.
Accordingly, we deny the Agency's exception. [n6]
For an award to be deficient as failing to draw its essence from the parties' 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 agreement as to manifest an infidelity to the obligation of an 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). The Authority's long-established standard in reviewing an arbitrator's interpretation of contract provisions is deferential because it is the arbitrator's interpretation for which the parties bargained. See United States Dep't of the Air Force, Seymour Johnson Air Force Base, N.C., 56 FLRA 249, 251 (2000) (citing Dep't of Health and Human Servs., Soc. Sec. Admin., 32 FLRA 79, 88 (1988)).
The Agency asserts that the Arbitrator's finding that Article 3, Section 2.I of the contract is controlling does not draw its essence from the parties' agreement because "[t]here was no complaint from either a member of the public or from a co-worker regarding the [g]rievant." Exceptions at 9. The Agency argues that [ v59 p111 ] because the incident was between the grievant and a member of management, the provision is inapplicable.
The Arbitrator relied on the provision's requirement that matters be brought to an employee's attention "as soon as possible" to find that, in this situation, the Agency had not made the grievant "part of the investigative process," thereby violating her right to due process. Award at 3. The Agency provides no basis for finding that the Arbitrator's interpretation of Article 3, Section 2.I is irrational, unfounded, implausible, or in manifest disregard of the agreement.
The Agency also claims that the Arbitrator erred in finding that there is a 3-day time limit for initiating a disciplinary action. As we stated previously, the Arbitrator made no such determination. Consequently, the Agency has not established that the award fails to draw its essence from the agreement on this basis.
The Agency's exceptions are denied.
Article 3, Section 2.I of the parties' agreement provides:
Complaints to management about an employee from members of the public or co-workers shall be brought to the attention of the employee as soon as possible. Any observation or complaint regarding an employee's conduct or performance that may be used to propose discipline or a performance based action in accordance with Article 21 or Article 23 will be brought to the attention of the employee as soon as possible after the event.
Article 3, Section 5.D of the parties' agreement provides:
Employees shall be advised of the nature and purpose of their official personnel folder, SF-7B Extension File, and their locations. Employees shall be notified and given a photocopy of any material placed in the SF-7B Extension File within three (3) working days. Employees may review their Official Personnel File and request a copy of any material therein. Employees should acknowledge receipt by signature. It is understood such acknowledgment does not constitute agreement with the contents. It is understood an employee may request and, within reason, receive additional copies at any time.
Article 23, Section 1 of the parties' agreement provides in pertinent part:
The parties further agree that normally discipline should be preceded by counseling and assistances 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 of the employee. Bargaining unit employees will be subject to disciplinary adverse actions only for just cause.
Award at 3.
All dates refer to 2001 unless otherwise noted.
Relevant provisions of the parties' agreement, as reflected in the record, are set forth in the Appendix to this decision. The parties did not provide the Authority with all of the provisions that were alleged to have been violated.
The Arbitrator also denied the grievant's request for monetary damages. No exception was taken to this finding.
The Union also claims that the Agency's exceptions are not a "self-contained document" within the meaning of § 2425.2(d) of the Authority's Regulations because the Agency did not include copies of a section of the Statute and the Authority decisions it cites. Opposition at 6, 10-11. We conclude that the Agency's exceptions comply with § 2425.2(d) of the Authority's Regulations. See Soc. Sec. Admin., Baltimore, Md., 57 FLRA 697, 697 n.* (2002).
Specifically, the Arbitrator stated: "It is undisputed that [g]rievant was issued the subject reprimand as the result of [g]rievant's Memorandum to [the supervisor], dated February 5, 2001." Award at 2. He later stated: "But again I cannot agree, for the subject reprimand, and as issued on February 12, 2001, takes issue with [g]rievants's behavior and communication with [the supervisor] on February 2, not as a result of [grievant] communicating in writing to [the supervisor] some three days later." Id. at 4.
The Agency makes no claim that the Arbitrator's order, expunging the written reprimand, is contrary to the right to discipline. Therefore, we do not apply the analysis in United States Dep't of the Treasury, Bureau of Engraving & Printing, Wash., D.C., 53 FLRA 146, 151-54 (1997).