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59 FLRA No. 39
SOCIAL SECURITY ADMINISTRATION
(Agency)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
COUNCIL 220
(Union)
0-AR-3557
_____
DECISION
September 29, 2003
_____
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 Stephen L. Hayford 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 determined that discipline was warranted under the parties' collective bargaining agreement, but that the 2-day suspension was not for just cause. As a remedy, the Arbitrator ordered the Agency to substitute a written disciplinary warning. We conclude that the remedial portion of the award is deficient, and we set it aside because a written warning does not constitute a disciplinary action under the parties' agreement.
II. Background and Arbitrator's Award
The grievant accessed the computer record of the daughter of a coworker. The Agency suspended the grievant for 2 days for violating the Agency's unauthorized system access policy. The grievant filed a grievance claiming that the suspension was not for just cause under Article 23 of the parties' collective bargaining agreement.
The Arbitrator sustained the grievance in part and denied the grievance in part. Because the grievance was brought under the parties' expedited arbitration procedure, the Arbitrator's analysis was brief. He ruled that the grievant's conduct constituted a violation of the Agency's unauthorized system access policy and that "discipline is warranted . . . under the policy and the Article 23 contractual just cause standard." Award at 6. However, he ruled that the penalty of a 2-day suspension was not warranted under the just cause standard. Instead, he determined that a "written warning was justified." Id. Accordingly, as a remedy, he ordered the Agency to rescind the suspension and substitute "a written disciplinary warning." Id. He also ordered that the grievant be made whole for lost pay.
III. Positions of the Parties
A. Agency's Exceptions
The Agency maintains that the Arbitrator found just cause for discipline, but set the discipline aside in its entirety. The Agency asserts that a written warning does not constitute discipline under Article 23. [n2] Accordingly, the Agency contends that the award is deficient because it is contrary to management's right to take disciplinary action under § 7106(a)(2)(A) of the Statute and fails to draw its essence from the parties' collective bargaining agreement.
B. Union's Opposition
The Union disputes the Agency's assertion that the written warning ordered by the Arbitrator does not constitute discipline under Article 23. Accordingly, the Union contends that the Authority should deny the Agency's exceptions.
IV. Analysis and Conclusions
This case is identical in all substantive respects to another case involving the same parties, Soc. Sec. Admin., Lansing, Mich., 58 FLRA 93 (Member Pope dissenting) (SSA, Lansing), reconsideration denied, 58 FLRA 181 (2002). There, the grievants were suspended for 2 days for violating the unauthorized system access policy. The arbitrator ruled that discipline was warranted, but that the 2-day suspensions were not for just cause. The arbitrator modified the suspensions to a written warning. As it has done in this case, the Agency filed exceptions in SSA, Lansing contending that a written warning did not constitute discipline under Article 23 and that consequently, the remedial portion of the [ v59 p258 ] award failed to draw its essence from the agreement and was contrary to § 7106 of the Statute.
We ruled that the award was deficient because it failed to draw its essence from the agreement. We concluded that the arbitrator's imposition of a written warning did not constitute discipline as the parties have defined it under Article 23 of the collective bargaining 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 consist of counseling and oral warnings that are "informal in nature and are not recorded." Article 23, Section 3.
In terms of this case, nothing in Article 23 includes a provision for a written disciplinary warning. The specific provision on written warnings in Section 3 provides for unrecorded oral warnings only and provides that such warnings do not constitute discipline. Consequently, we find, as we found in SSA, Lansing, that the remedy directed by the Arbitrator does not comport with any of the disciplinary actions that the parties agreed the Agency could take under Article 23. As in SSA, Lansing, the Arbitrator, after finding that discipline was warranted under the just cause standard of Article 23, in effect imposed no discipline at all within the meaning of the parties' agreement.
Accordingly, we reach the same result as we reached in SSA, Lansing. We conclude that the remedial portion of the award is deficient because it fails to draw its essence from the parties' agreement. [n3] Because the Arbitrator found that the Agency had a legitimate basis to discipline the grievant, his award, by not providing any discipline, does not represent a plausible interpretation of the agreement. We also take the same action with respect to the award in this case as we took in SSA, Lansing; namely, we set aside the remedial portion of the award.
In setting aside the remedial portion of the award, we explicitly state what was implicit in SSA, Lansing: that we do not remand for further proceedings. Our reasons for finding that a remand in this matter is not necessary follow.
Here, the Arbitrator found that the grievant had committed an act for which discipline was warranted under the terms of the Agency's policy and the collective bargaining agreement. That portion of the award remains unaffected. However, the Arbitrator then concluded that the discipline actually imposed, a 2-day suspension, was not for just cause under the particular circumstances of the case. That portion of the award also remains unaffected. As a remedy for the latter finding, the Arbitrator ordered a written warning. That remedy, as we found above and in SSA Lansing, is not a disciplinary action under the collective bargaining agreement and thus fails to draw its essence from the parties' agreement.
Consequently, the Agency retains the right to discipline the grievant for the misconduct, but has effectively made no decision on the penalty because both the Agency's original choice of penalty as well as the Arbitrator's deficient substitution of a written warning have been found improper. As such, nothing further needs to be done by the Authority at this time because there is nothing to remand. In this regard, if the Agency decides to reimpose some level of discipline less than a 2-day suspension for this misconduct, it does not need a remand from the Authority in order to do so. Similarly, if the Agency decides, for whatever reason, that it does not want to reimpose any discipline, it does not need a remand from the Authority in order to do so. In sum, there is no further role at this point for the arbitral process in this matter, remand or otherwise, unless and until the Agency takes further action and there is a new grievance challenging the Agency's action.
V. Decision
The remedial portion of the award is set aside. [ v59 p259 ]
APPENDIX
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 designed primarily to correct and improve employee behavior. Bargaining unit employees will be the subject of disciplinary or adverse action only for just cause.
Section 2 -- Definition of "Day"
For the purpose of this article, the word "day" means calendar day unless otherwise specified.
Section 3 -- Counseling and Warnings
Normally, discipline will be preceded by counseling and assistance including oral warnings which are informal in nature and are not recorded.
Counseling and warnings will be conducted privately and in such a manner so as to avoid embarrassment of the employee.
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.
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); Requests for Time Extensions on Proposals (Section 7); Notice to Union (Section 8); and Timeliness of Discipline (Section 9).
File 1: Authority's Decision in 59 FLRA No.
39
File 2: Opinion of Member Pope
Footnote # 1 for 59 FLRA No. 39 - Authority's Decision
The separate opinion of Member Pope, dissenting in part, is set forth at the end of this decision.
Footnote # 2 for 59 FLRA No. 39 - Authority's Decision
Article 23 is set forth in the appendix to this decision.
Footnote # 3 for 59 FLRA No. 39 - Authority's Decision
In view of this decision, we do not address whether the award is contrary to § 7106.