Click here to view the decision.
56 FLRA No. 98
U.S. Department of Energy, Southwestern Power Administration, Tulsa, Oklahoma and International Brotherhood of Electrical Workers, Local 1002 (Cipolla, Arbitrator), 0-AR-3269 (Decided September 8, 2000)
The Arbitrator mitigated the grievant's 2-day suspension to a 1-day suspension after finding that it was excessive. The Authority found that the mitigation of the Grievant's discipline was not contrary to law.
The Authority explained that when an agency asserts that an arbitrator's award violates management's rights as set out in section 7106(a) of the Statute, it first determines whether the award affects those rights. If it does, then the Authority applies the two-prong test set forth 53 FLRA 146. Under prong I, the Authority determines whether the arbitrator was enforcing either an applicable law, within the meaning of section 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to section 7106(b) of the Statute. Under prong II, the Authority determines whether the award constitutes a reconstruction of what management would have done if it had not violated the applicable law or contract provision at issue.
Here, the Authority found that because the Arbitrator mitigated a 2-day suspension to a 1-day suspension, thereby affecting management's right to discipline, it was necessary to apply the two-prong test. The Authority found that the award in this case satisfied prong I. With regard to prong II, the Authority noted that it has held that an arbitrator's enforcement of a just cause provision, by setting aside or reducing the disciplinary action, operates in effect to reconstruct what management would have done had the provision been followed. Here, the Arbitrator's mitigation of the suspension based on Section 19.1 of the parties' agreement in effect reconstructed what management would have done if it had complied with that provision, thus prong II was also satisfied. Accordingly, the Authority concluded that the award was not inconsistent with management's right to discipline employees under section 7106(a)(2)(A) of the Statute.
The Authority also concluded that the Arbitrator's determination that the grievance was sufficiently specific was not deficient. Also rejected was the allegation that the Arbitrator's application of the contractual burden of proof was deficient, as well as the allegation that the award failed to derive its essence from the agreement.