U.S. Department of the Air Force, Air Logistics Center, Warner Robins Air Force Base, Georgia and American Federation of Government Employees, Local 987 (Authority decision, August 26, 1991)

FLRA remand decision. The Authority vacates the finding that the agreement's 45-day discipline deadline cannot be enforced and returns that issue to the parties. Whether the deadline eliminates the suspension remains unresolved. This decision does not present a final judicial-review period under 5 U.S.C. § 7123(a).

Plain-English summary

The Air Logistics Center suspended a household goods inspector for 10 days after an investigation into false and inconsistent statements. An arbitrator reduced the suspension to three days but refused to enforce the union agreement's 45-day deadline for proposing discipline because an earlier arbitrator had rejected that provision. The Authority held that the deadline protects employees against stale charges, but the arbitrator still had to decide whether enforcing it would eliminate management's statutory right to discipline. It vacated the deadline ruling and returned that question to the parties. The separate finding reducing the suspension to three days cannot be reopened. If the deadline is enforceable, the entire suspension will be vacated; if it is not, the three-day result stands.

Decision snapshot

• Authority: Discipline right and negotiated arrangements under 5 U.S.C. §§ 7106(a)(2)(A) and 7106(b)(3).
• Outcome: Deadline ruling vacated and remanded; merits reduction to three days remains in place pending the deadline ruling.
• Key point: A prior arbitration ruling alone could not excuse review of whether the negotiated deadline abrogated management's discipline right.

Full text (FLRA public release)

[ v41 p1304 ]

41:1304(102)AR

The decision of the Authority follows:

41 FLRA No. 102

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE AIR FORCE

AIR LOGISTICS CENTER

WARNER ROBINS AIR FORCE BASE, GEORGIA

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 987

(Union)

0-AR-2090

DECISION

August 26, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an
award of Arbitrator James J. Odom, Jr. filed by the Union under
section 7122(a) of the Federal Service Labor-Management
Relations Statute (the Statute) and part 2425 of the
Authority's Rules and Regulations. The Agency did not file an
opposition to the Union's exceptions.

In resolving a grievance over a 10-day suspension, the
Arbitrator held that a provision in the parties' collective
bargaining agreement was unenforceable. For the following
reasons, we conclude that this portion of the award is not
consistent with our decision in Department of the Treasury,
U.S. Customs Service and National Treasury Employees Union, 37
FLRA 309 (1990) (Customs Service) and must be vacated. We will
remand this case to the parties for further proceedings.

II. Background and Arbitrator's Award

The grievant, a Household Goods Inspector who coordinates
shipments of furniture and other household goods of Federal
Government employees, was given a 14-day suspension, later
reduced to 10 days, for providing false and inconsistent
information during an investigation. A grievance was filed
over the suspension and, when the grievance was not resolved,
it was submitted to arbitration.

As a procedural matter, the Union asserted that the
suspension was not proposed within the time limits set forth in
section 5.02 of the parties' collective bargaining agreement,
which provides in pertinent part:

Section 5.02: TIME LIMITS FOR TAKING DISCIPLINE

Where an employee is subject to discipline, it
is agreed that within 45 calendar days of the
offense, the Employer's awareness of the
offense, or the completion of an investigation
of the matter by other than the supervisor,
whichever occurs later, the Employer will impose
or serve upon the employee one of the following:

. . . .

(b) In the case of a . . . suspension, . . . a
notice of proposed . . . suspension[.]

Award at 2. Although the Agency "admit[ted]"
that the 45-day time limit set forth in section
5.02 had not been met, it contended before the
Arbitrator that the time limit was unenforceable
because it interfered with the Agency's right to
impose discipline under section 7106(a)(2)(A) of
the Statute. Id. at 7.

The Arbitrator concluded that he was required
to follow a previous award of another arbitrator
that the time limit in section 5.02 was not
enforceable because it interfered with the
Agency's right to discipline employees.(1) The
Arbitrator stated that because the same parties,
the same issues, and the same contract clause,
were involved in both cases, "[t]he
doctrine of res judicata" applied, and he would
not "redecide" the issue resolved by the prior
award. Id. at 8.

On the merits, the Arbitrator found that the
grievant had an "exemplary" record. Id. at 13.
The Arbitrator also found, however, that the
grievant had engaged in some
"misrepresentation." Id. Because the
Arbitrator found that the 10-day suspension
imposed by the Agency was "customarily . . .
reserved for offenses of much greater
gravity[,]" he reduced the grievant's 10-day
suspension to 3 days. Id.

III. The Union's Exceptions

The Union contends that the Arbitrator erred
by failing to enforce section 5.02 of the
parties' agreement. In the Union's view,
section 5.02 does not violate the Agency's right
to discipline under section 7106(a)(2)(A) of the
Statute. The Union also contends that the
doctrine of res judicata should not have been
applied in this case because the arbitrator in
Warner Robins I erroneously concluded that
section 5.02 of the parties' agreement was not
enforceable.

The Union also argues that section 5.02 is an
appropriate arrangement under section 7106(b)(3)
of the Statute. The Union asserts that section
5.02 "was intended to address the impact upon
employees from the bringing of stale charges
against them." Exceptions at 5. The Union
points out that the Agency agreed to section
5.02, that the provision was approved by the
Agency head, and that it has been in effect for
over 10 years.

In addition, the Union asserts that the
Arbitrator "exceeded his authority when he gave
a Command level ruling at an Activity level."
Exceptions at 1 (emphasis in original).
Finally, the Union argues that the Agency's
decision to adopt "a practice and/or rule that
is in conflict with the Command Level Agreement
that has been in effect for over (ten) 10
years," constitutes an unfair labor practice
under section 7116(a)(7) of the Statute. Id. at
3.

IV. Analysis and Conclusions

In Customs Service, 37 FLRA 309, we
reexamined our approach to cases in which an
agency contends that an arbitrator's award,
enforcing a provision of the parties' collective
bargaining agreement, is contrary to
management's rights under section 7106(a). We
held that when an agency makes such a contention
we will examine the relevant provision to
determine whether: (1) it constitutes an
arrangement for employees adversely affected by
the exercise of management's rights; and (2) as
interpreted by the arbitrator, it abrogates the
exercise of a management right. We explained
that if the provision constitutes an arrangement
and, as interpreted by the arbitrator, does not
abrogate management's rights, the provision is
within the range of matters that can be
bargained under the Statute, and we will not
find that an award enforcing the provision is
contrary to law. We also held that when an
arbitrator is presented with a provision that
constitutes an arrangement, the arbitrator may
not refuse to enforce the provision on the basis
of a conflict with management's rights under
section 7106 of the Statute unless the provision
abrogates a management right.

A Customs Service analysis is required in
cases where an arbitrator is faced with a
contention that a provision in an agreement is
inconsistent with management's rights under
section 7106(a) of the Statute. See, for
example, U.S. Department of Defense, Defense
Mapping Agency Aerospace Center, St. Louis,
Missouri and National Federation of Federal
Employees, Local 1827, 39 FLRA 286, 290 (1991)
(Defense Mapping). The Arbitrator in this case
did not undertake the analysis required by
Customs Service to determine whether section
5.02 was enforceable. Instead, the Arbitrator
refused to enforce section 5.02 based solely on
a previous arbitration award. Accordingly, the
portion of the award finding the time limit in
section 5.02 unenforceable is deficient. See
Defense Mapping, 39 FLRA at 290. Compare U.S.
Department of the Air Force, Air Logistics
Center, Tinker Air Force Base, Oklahoma and
American Federation of Government Employees,
Local 916, 41 FLRA 303, 305 (1991) (Authority
denied exceptions to an award where arbitrator
found a grievance not arbitrable based on a
prior award resolving the merits of the
grievance).

As the Arbitrator's finding that the time
limit in section 5.02 is unenforceable is
deficient, we will vacate that portion of the
award. Moreover, consistent with Customs
Service, we find it evident that the time limit
set forth in section 5.02 constitutes an
arrangement. See U.S. Department of the Army,
Army Transportation Center, Fort Eustis,
Virginia and National Association of Government
Employees, Local R4-6, 38 FLRA 186, 189-90
(1990) (Fort Eustis) (in denying exceptions to
an award enforcing a contractual requirement
that discipline be initiated within 15 days
after occurrence of the incident giving rise to
discipline, Authority found it clear that the
provision constituted an arrangement). However,
the Arbitrator's award provides no basis on
which to determine whether, as interpreted and
applied in this case, section 5.02 would
abrogate the Agency's right to impose discipline
under section 7106(a)(2)(A) of the Statute.
Accordingly, we will remand this issue to the
parties for resolution. See Defense Mapping, 39
FLRA at 290. Compare Fort Eustis, 38 FLRA at
190 (based on arbitrator's interpretation and
application of disputed provision, Authority
found that provision did not abrogate the
exercise of management's right to discipline
employees).

On remand, if the matter of the
interpretation and application of section 5.02
remains unresolved, the parties may submit the
issue to an arbitrator of their choice.
However, as no exceptions were filed to the
Arbitrator's resolution of the merits of the
grievance, that portion of the award is not
subject to relitigation. Accordingly, if an
arbitrator determines, consistent with Customs
Service, that section 5.02 is unenforceable, the
merits portion of the Arbitrator's award will
not be affected. On the other hand, noting the
Agency's admission that the time limits in
section 5.02 were violated, if an arbitrator
determines that section 5.02 is enforceable, the
disputed suspension would be vacated in toto and
the grievant would be entitled to an appropriate
remedy.

V. Decision

The award is vacated insofar as it finds that
section 5.02 of the parties' agreement is
unenforceable. The case is remanded to the
parties for further processing in accordance
with this decision.(2)

FOOTNOTES:
(If blank, the decision does not
have footnotes.)

1. The Union filed exceptions with the
   Authority to the award relied on by the
   Arbitrator. In U.S. Department of the Air
   Force, Warner Robins Air Logistics Center,
   Robins Air Force Base, Georgia and American
   Federation of Government Employees, Local 987,
   35 FLRA 1086 (1990) (Warner Robins I), the
   Authority dismissed the exceptions as
   interlocutory.

2. In view of our decision, we do not address
   the Union's remaining exceptions.