Number 136                    July 2000

COURT DECISIONS  |   FLRA   |   MSPB

Jeffrey W. Eisinger v. Federal Labor Relations Authority, No. 98-70766 (9th Cir. July 17, 2000).

Federal Trade Commission and American Federation of Government Employees, Local 2211, 0-AR-2900-001, June 22, 2000, 56 FLRA No. 68.

Although FLRA initially (in 53 FLRA No. 160) remanded an award setting aside a 14-day suspension for making threats because it was unable to determine whether the arbitrator held that the agency improperly failed to order (or to offer) a fitness-for-duty exam, it found a sufficient basis, independent of the arbitrator's concern regarding such an exam, to affirm the award, thereby avoiding any need to address OPM's claim, in its amicus brief, that both the arbitrator and the Authority in its initial decision misconstrued 5 CFR 339.302.

In his October 15, 1996 award, the arbitrator set aside a 14-day suspension of an employee who, on different occasions, made threatening remarks about "blowing up the place," talking about ways of "dealing with anyone hurting his family" (by denying him overtime), and saying that "he had to take leave, even if not approved, for his heath and for his supervisor's health." The arbitrator concluded that the activity should have sent the grievant for psychological testing before deciding to discipline him. The agency filed exceptions, claiming, among other things, that the award came into conflict with 5 CFR 339.302.

In 53 FLRA No. 160, decided March 31, 1998, the Authority was unable to determine whether the award was based on a findings that the activity improperly failed to order a psychological examination before imposing discipline (which, according to FLRA, would have been inconsistent with OPM's regulations) or on a finding that the agency improperly failed to offer the grievant such an exam (which, according to FLRA, would have been consistent with the regulations). It therefore remanded the matter for resubmission to the arbitrator for a clarification of his award.

On June 26, 1996, the arbitrator clarified his award: there was no just cause to suspend the grievant because the agency failed to offer the grievant a psychological exam.

In addition to the agency filing exceptions to the clarified award, OPM filed an amicus curiae brief, in which it argued that both the arbitrator and the Authority, in its earlier decision, misconstrued 5 CFR 339.302. OPM maintained that only an agency has the authority to offer a psychiatric evaluation, and no one may decide for the agency whether or not it needs the information for management purposes.

On June 22, 2000, the Authority avoided having to address the OPM assertion by finding a sufficient basis for finding there was no just cause for disciplining the grievant that was independent of the arbitrator's apparent reliance on a fitness-for-duty exam. It went through the original award and found a couple of statements that it believed would support such a conclusion. For example, it noted that the arbitrator found that the grievant's statements were not "insubordinate statements or as direct threats to any one person." And it also noted that the arbitrator found that the grievant "was sending a message that he was under stress and '[t]hat message does not warrant discipline.'" FLRA also quoted the following statement by the arbitrator:

We can perceive of 14 days rest as reducing stress because of physical separation. That, however, does not constitute just cause for a 14-day suspension. An employee with the flu may be cured in 10 days, but an imposed disciplinary leave, in lieu of medical leave, does not constitute just cause for the disciplinary suspension.

FLRA concluded that the above factual findings by the arbitrator set forth a sufficient basis for a finding of no just cause. "Based on our determination that the Arbitrator made a sufficient just cause determination, independent of the fitness for duty question, we do not find it necessary to address the merits of the Agency's exception that the award was contrary to 5 C.F.R. 339.302, or OPM's interpretation of 5 C.F.R. 339.302 in its Amicus Curiae brief."

One is tempted to view this decision as an example of creative, albeit time-consuming, problem-solving. Apparently OPM's challenge to FLRA's interpretation of 5 C.F.R. 339.302 gave FLRA an incentive to reinterpret—or at least to look much more closely at—an arbitration award that, in retrospect, must be viewed as being more esoteric than it seemed when FLRA first examined it in its earlier decision. It now seems that all that discussion of the need for a psychological exam was just a lot of distracting dicta hiding the real basis of the award.