American Federation of Government Employees, Local 1770 (Union) and United States Department of the Army, Womack Army Medical Center, Fort Bragg, North Carolina (Agency)

 

67 FLRA No. 22    
 
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1770
(Union)
 
and
 
UNITED STATES
DEPARTMENT OF THE ARMY
WOMACK ARMY MEDICAL CENTER
FORT BRAGG, NORTH CAROLINA
(Agency)
 
0-AR-4839
 
_____
 
DECISION
 
December 21, 2012
 
_____
 
Before the Authority: Carol Waller Pope, Chairman, and
Ernest DuBester, Member
 
I.             Statement of the Case
 
                This matter is before the Authority on exceptions to an award of Arbitrator Kathryn Durham filed by the Union under § 7122(a) 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. 
 
                The Union filed a grievance challenging the Agency’s decision to suspend the grievant for three days for disorderly conduct. Award at 2-4. The Arbitrator sustained the grievance, in part, and reduced the grievant’s penalty to a written reprimand. Id. at 2, 6‑7. 
 
For the reasons that follow,we deny the Union’s exceptions.
  
II.            Background and Arbitrator’s Award
               
The Union filed a grievance challenging the Agency’s three‑day suspension of the grievant. Award at 2-3. The Agency denied the grievance, and the parties submitted the matter to arbitration. Id. at 3. The parties stipulated to the following issue: “[W]hether the      three-day suspension issued to [the g]rievant was for just cause and taken to promote the efficiency of the service.” Id. at 2. 
 
The incident underlying the suspension involved a discussion between the grievant, a licensed practical nurse at Womack Army Medical Center, and her supervisor, regarding the grievant’s time‑card entries. Id.  After the counseling session, the grievant walked out of the supervisor’s office and commented, “[T]his place!” or “[Y]ou people!” Id. The grievant re-entered the supervisor’s office a few moments later, claimed that she was being treated unfairly, and said that she was planning to file a grievance. Id. The supervisor subsequently issued a notice of proposed suspension (notice) to the grievant, recommending a suspension of five days on the charge of disorderly conduct. Id. at 2-3. 
 
                The Agency reviewing official later re-evaluated the grievant’s charge and determined that the grievant’s conduct “fit [the Agency’s] [t]able of [p]enalties item #7a—[d]iscourtesy, e.g. rude, unmannerly, impolite acts or remarks (non‑discriminatory).” Id. at 3. The reviewing official also reduced the grievant’s suspension to three days. Id.
 
                The Arbitrator found that the charge of disorderly conduct, as specified in the notice, “[was] not an offense included in the Agency’s [t]able of [p]enalties.” Id. at 3, 5. In this connection, the Arbitrator found that the Agency failed to prove the charge of disorderly conduct at the hearing. Id. at 5. However, the Arbitrator found that the grievant’s supervisors “looked to a different charge, [d]iscourtesy, in the [t]able of [p]enalties” in deciding to suspend the grievant for three days. Id. at 5.  The Arbitrator found that the Agency proved the discourtesy charge. Id. at 4. Moreover, concluding that the Union presented no authority “indicat[ing] that an employee cannot be charged with an offense that is not recognized in the [t]able of [p]enalties,” and finding that the notice “clearly stat[ed] the alleged conduct” upon which the Agency based the charge, the Arbitrator found that the Agency afforded the grievant appropriate due process. Id. at 5. But, after considering the factors set forth in Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305 (1981) (Douglas), the Arbitrator mitigated the grievant’s discipline to a written reprimand.  Id. at 5-7. 
 
III.          Positions of the Parties 
 
A.            Union’s Exceptions 
 
In its exceptions, the Union claims that the Arbitrator exceeded her authority by resolving an issue that was not submitted to arbitration. Exceptions at 2. Specifically, the Union argues that the Arbitrator erroneously considered the charge of discourtesy because the Agency did not charge the grievant with that offense. Id. at 1-2.  On this same basis, the Union also argues that the award is based on a nonfact. Id. at 3.  According to the Union, the Arbitrator ordered the Agency to discipline the grievant for an offense “that simply did not exist in the record.” Id. Finally, the Union argues that the award is contrary to law because it “negat[es] the [grievant’s] due process right to know she is charged with discourtesy before she is punished for such a charge.” Id. at 4. Consequently, the Union asks that the Authority “reverse[]” the grievant’s written reprimand. Id.  
 
B.            Agency’s Opposition
 
                The Agency argues that the Arbitrator properly exercised her authority in basing the award on a charge of discourtesy, because the Arbitrator addressed the stipulated issue, which the Agency argues includes “issues closely related to the issue giving rise to the grievance.” Opp’n at 2-3. Further, the Agency contends that the Union’s nonfact argument must fail because the charge was an issue disputed by the parties during arbitration, and because the argument challenges the Arbitrator’s legal conclusions. Id. at 3‑4. Finally, the Agency asserts that the Union has not demonstrated that the grievant was denied due process. Id. at 4‑6.
 
IV.          Analysis and Conclusions
 
A.            The Arbitrator did not exceed her authority.
 
The Union claims that the Arbitrator exceeded her authority by resolving an issue that was not submitted to arbitration. Exceptions at 2. Specifically, the Union claims that the Arbitrator erred in considering the charge of discourtesy because the Agency did not charge the grievant with that offense. Id. 
 
Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority, or award relief to those not encompassed within the grievance.  See AFGE, Local 1617, 51 FLRA 1645, 1647 (1996).  Arbitrators do not exceed their authority when the award is directly responsive to the stipulated issue.  AFGE, Local 1235, 66 FLRA 624, 625 (2012). 
 
                Here, the Arbitrator resolved the issue submitted by the parties—whether the grievant’s three-day suspension was for just cause and taken to promote the efficiency of the service. Award at 2.  In resolving the issue, the Arbitrator evaluated the grievant’s undisputed conduct and found that the Agency proved the grievant’s conduct amounted to an offense for which the Agency could impose discipline—namely, discourtesy. Id. at 5. After a thorough review of the Douglas factors, the Arbitrator went on to find that a three‑day suspension for that conduct was not for just cause, and reduced the penalty to a written reprimand. Id. at 5‑7. The award’s consideration of just cause, and the award’s remedy, are directly responsive to the stipulated issue. 
 
                Moreover, the Arbitrator expressly found that although the Agency charged the grievant with disorderly conduct in the notice, the Agency “looked to a different charge, [d]iscourtesy, in the [t]able of [p]enalties” in deciding to suspend the grievant for three days. Award at 3, 5. Thus, both charges were related to the issue giving rise to the grievance and the Arbitrator properly considered both charges in addressing the issue as stipulated by the parties. See, e.g., NFFE, Local 858, 63 FLRA 227, 229‑30 (2009); SSA, Balt., Md., 57 FLRA 181, 183 (2001) (arbitrators do not exceed their authority by resolving issues closely related to the issue giving rise to the grievance); NATCA, MEBA/NMU, 51 FLRA 993, 996 (1996) (arbitrators do not exceed their authority by addressing an issue that is necessary to decide a stipulated issue).  Consequently, we deny the Union’s exceeds-authority exception.
 
B.   &nbs