24:0447(48)AR - VA and AFGE Local 2798 -- 1986 FLRAdec AR

 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.,