24:0447(48)AR - VA and AFGE Local 2798 -- 1986 FLRAdec AR
[ v24 p447 ]
The decision of the Authority follows:
24 FLRA No. 48 VETERANS ADMINISTRATION Agency and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, Local 2798 Union Case No. 0-AR-1021 DECISION I. STATEMENT OF THE CASE This matter is before the Authority on exceptions to the award of Arbitrator Malcolm L. Pritzker filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition. /1/ II. BACKGROUND AND ARBITRATOR'S AWARD The grievance in this case concerns the termination of the grievant's appointment on November 30, 1984. The grievant was selected as an outreach specialist on an appointment that was not to exceed September 30, 1982. Subsequently, his appointment was extended with the last extension not to exceed November 30, 1984. After he was terminated, the grievant filed a grievance challenging the decision not to further extend his appointment. The grievance was submitted to arbitration where the parties were unable to agree on the issues. Accordingly, Arbitrator framed the issues submitted as follows: 1. Is the agency's termination (of the grievant) arbitrable? 2. If arbitrable, was the termination (of the grievant) in compliance with the collective bargaining agreement and applicable laws and regulations? If not, what is the appropriate remedy? In resolution of these issues, the Arbitrator concluded as follows: 1. The decision not to renew (the grievant's) appointment is grievable and arbitrable. 2. The decision not to renew (the grievant's) appointment is not in violation of the collective bargaining agreement and applicable laws and regulations. After reaching these conclusions, the Arbitrator expressed concern over the conflict between testimony of an agency regional manager and a suggestion of an agency auditor. The Arbitrator stated that he understood the manager's testimony to be that he would not consider the grievant for any excepted service positions at GS-9 and below while the auditor had recommended that the grievant be reassigned rather than terminated. In order to apply the auditor's recommendation and avoid an inference of disparate treatment, the Arbitrator consequently ruled in addition that the grievant be informed of agency vacancies and be allowed to apply for those vacancies. Accordingly, the Arbitrator awarded as follows: 1. The decision not to renew (the grievant's appointment is grievable and arbitrable. 2. The decision not to renew (the grievant's) appointment is not in violation of the collective bargaining agreement and applicable law and regulations. 3. For a period of twelve months from the date the decision is received the agency should communicate all openings in the VA at the GS-9 level or below to (the grievant) either by mail or by making the announcement of the openings available at an office location to be selected by the agency which location should be communicated to (the grievant). (The grievant) may apply for openings for which he believes he is qualified. The agency will apply its usual selection criteria to applications made by (the grievant). III. EXCEPTIONS As one of its exceptions, the Agency contends that the Arbitrator exceeded his authority in paragraph 3 of the award. Specifically, the Agency maintains that as framed by the Arbitrator, the issue submitted to arbitration on the merits was whether the grievant's termination violated the collective bargaining agreement or applicable law and regulation and, if so, what remedy was appropriate. Thus, the Agency argues that once the Arbitrator resolved this issue by finding no violation, he had no authority to fashion a remedy and no authority to apply a recommendation of an agency auditor. In opposition the Union contends that the Arbitrator did not exceed his authority. The Union contends that the Arbitrator did not exceed his authority. The Union argues that paragraph 3 constitutes an appropriate mitigation by the Arbitrator of the penalty of the termination of the grievant's employment. IV. ANALYSIS AND CONCLUSIONS We agree with the Agency that the Arbitrator exceeded his authority in paragraph 3 of the award. The Authority has specifically held that an arbitrator's award will be found deficient as in excess of the arbitrator's authority when the arbitrator resolves an issue not submitted to arbitration. National Center for Toxicological Research, Jefferson, Arkansas and American Federation of Government Employees, Local 3393, NCTR, Jefferson, Arkansas, 20 FLRA No. 81 (1985); Federal Aviation Science and Technological Association, Local No. 291, Fort Worth, Texas and Federal Aviation Administration, For Worth Air Route Traffic Control Center, Airway Facilities Sector, Southwest Region, Fort Worth, Texas, 3 FLRA 544 (1980). The Authority, like the Federal courts, will accord an arbitrator's interpretation of a submission agreement and an arbitrator's formulation of the issues submitted in the absence of a stipulation the same substantial deference accorded an arbitrator's interpretation and application of the collective bargaining agreement. For example, Mobil Oil Corp. v. Independent Oil Workers Union, 679 F.2d 299 (3d Cir. 1982). Similarly, both the Authority and Federal courts have consistently emphasized the broad discretion to be accorded arbitrators in the fashioning of appropriate remedies. For example, U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution, Lexington, Kentucky and American Federation of Government Employees, Local 817, 21 FLRA No. 108 (1986); IAM District 776 v. Texas Steel Co., 639 F.2d 279 (5th Cir. 1981). Nevertheless, both the Authority and Federal courts in private sector cases have indicated that in determining whether arbitrators have exceeded their authority, it is a fundamental principle that arbitrators must confine their decisions and possible remedies to those issues submitted to arbitration for resolution. See National Center for Toxicological Research; Texas Steel Co., 639 F.2d 279; IAM District 776 v. Texas Steel Co., 538 F.2d 1116 (5th Cir. 1976), cert. denied, 429 U.S. 1095 (1977). Arbitrators must not dispense their own brand of industrial justice. Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597 (1960); see Naval Undersea Warfar Engineering Station, Keyport, Washington and International Association of Machinists and Aerospace Workers, Local 282, 22 FLRA No. 96 (1986). Applying these principles to this case, we conclude that the Arbitrator exceeded his authority when he failed to confine his decision and any possible remedy to the issues submitted as he unambiguously framed them. The Arbitrator clearly specified the issue on the merits to be whether the grievant's termination was in violation of the collective bargaining agreement or applicable law and regulation and, if so, what remedy appropriate. When the Arbitrator answered precisely that issue by concluding that the grievant's termination did not violate the agreement or any applicable law and regulation, the Arbitrator had decided the merits of the issue submitted to him. By further ruling that the grievant be informed of and be allowed to apply for agency vacancies and directing the remedial relief set forth in paragraph 3 of the award, the Arbitrator exceeded his authority by deciding, and awarding a remedy concerning an issue not submitted to arbitration. Furthermore, nothing in the Arbitrator's framing of the issue or the record before the Authority indicates that the evidence and testimony referred to by the Arbitrator in awarding the relief set forth in paragraph 3 were elicited for other than the purpose of resolving the precise issue submitted to the Arbitrator of whether the grievant's termination was improper. Arbitrators may legitimately bring their judgment to bear in reaching a fair resolution of a dispute as submitted to or formulated by them, but they may not decide matters which are not before them. By awarding the grievant remedial relief beyond the scope of the matter submitted, the Arbitrator exceeded his authority and the award must be modified accordingly. Although we conclude that the award must be modified because the Arbitrator exceeded his authority, we are constrained to note that the portion of the award which we modify is quite reasonable. All the Agency was asked to do was to notify the grievant of job openings for which he might apply. The grievant had worked for the Agency for nearly five years at the time his appointment was terminated, and was found to be a "valuable" employee by the Agency's own representative. That representative also found that the grievant's problems in clinical situations dealing with stress at the Vet Center were due to the "significant stress" he continued to suffer. Implementation of the Arbitrator's award would have taken only minimal effort on the part of the Agency and, indeeed, would have demonstrated the Agency's concern and commitment to its mission. V. DECISION For the reasons stated above, we find that the award is deficient and modify the award by striking paragraph 3. /2/ Issued, Washington, D.C. December 15, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS DEPARTMENT --------------- FOOTNOTES$ --------------- (1) In its opposition the Union argues that the award relates to a matter described in section 7121(f) of the Statute and that therefore the exceptions should be dismissed for lack of jurisdiction under section 7122(a). Specifically, the Union argues that the award relates to the removal of the grievant under 5 U.S.C. Section 4303 or Section 7512 which are matters described in section 7121(f). As is clearly stated by the Arbitrator, this matter concerns the termination of the grievant's appointment on the expiration date specified in the 1983 extension of his appointment. Regulations specifically exclude from the coverage of the actions set forth in section 4303 and 7512 the termination of an appointment on an expiration date if the date was specified as a condition of employment at the time the appointment was made. 5 CFR Sections 432.201(c)(3)(xii), 752.401(c)(6). Consequently, we find that the award does not relate to a matter described in section 7121(f) and that no basis is provided for dismissing the exceptions under section 7122(a). (2) In view of this decision, it is not necessary to address the Agency's other exception to the award. Also in view of this decision and under established precedent of the Authority, no basis is provided for awarding the Union and the grievant attorney fees under the Equal Access to Justice Act and the Union's request for attorney fees is therefore denied. See United States Customs Service and National Treasury Employees Union, 22 FLRA No. 68 (1986).