34:0601(103)AR - - Army Transportation Center, Ft. Eustis, Virginia and NAGE Local R4-106 - - 1990 FLRAdec AR - - v34 p601
[ v34 p601 ]
The decision of the Authority follows:
34 FLRA No. 103
FEDERAL LABOR RELATIONS AUTHORITY
U.S. ARMY TRANSPORTATION CENTER
FT. EUSTIS, VIRGINIA
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
(33 FLRA 391)
ORDER DENYING MOTION FOR CLARIFICATION
AND DISMISSING REQUEST FOR RECONSIDERATION
January 26 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority as follows. The National Association of Government Employees, Local R4-106 (the Union) filed a motion seeking clarification of the Authority's decision in U.S. Army Transportation Center, Ft. Eustis, Virginia and National Association of Government Employees, Local R4-106, 33 FLRA 391 (1988) (U.S. Army Transportation Center, Ft. Eustis). While this motion for clarification was pending before the Authority, the Union filed a letter requesting reconsideration of the same decision. The U.S. Army Transportation Center, Ft. Eustis, Virginia (the Agency) did not file an opposition to the motion for clarification or the request for reconsideration. For the following reasons, we deny the motion for clarification and find the request for reconsideration untimely.
In U.S. Army Transportation Center, Ft. Eustis, the Arbitrator concluded that the Agency was arbitrary and capricious and violated an Agency regulation by rejecting a rating of "exceeded" for the grievant and instead adopting a rating of "having met" the performance standards. The Arbitrator ordered that: (1) the employee be given "exceeded" in all rating elements; (2) the first rating of "exceeded" should stand; (3) based on the rating agreed to at step 1, the rating of "exceeded" should stand; (4) supervisors should be trained in their responsibility to discuss performance with the employee; and (5) the employee be allowed to participate in developing his performance standards.
In U.S. Army Transportation Center, Ft. Eustis, the Authority reiterated its decision in Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156 (1988) (Social Security Administration). In Social Security Administration the Authority held that an arbitrator may cancel a performance rating only when the arbitrator determines that (1) management has not applied the established elements and standards, or (2) management has applied the established standards in violation of law, regulation or a properly negotiated provision of the parties' collective bargaining agreement. Id. at 1160. The Authority determined that the Arbitrator made neither of these findings in this case. Thus, the Authority held that the first three remedies rendered the award deficient because they were inconsistent with management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Federal Service Labor-Management Relations Statute (the Statute).
The Authority also determined that the fourth remedy, which directed training for supervisors, concerned the assignment of work and was inconsistent with management's right to assign work under section 7106(a)(2)(B) of the Statute. Accordingly, the Authority set aside the first four remedies.
The Authority determined that the fifth remedy was consistent with law. In addition, the Authority noted that no exception had been raised as to the fifth remedy. Thus, the Authority upheld the fifth remedy.
III. The Union's Motion for Clarification is Denied
The Union requests the Authority to clarify its decision in U.S. Army Transportation Center, Ft. Eustis. The Union argues that the Authority's decision provides no instruction as to whether the case is remanded to the Arbitrator for a more complete opinion or whether the case is dismissed. The Union claims "that the Arbitrator has sufficient information to render a decision which is not legally deficient, and would comply with the Authority's ruling." Motion for Clarification at 1. The Union argues further "that the flaw cited by the FLRA was not in the Union's evidence, but in the Arbitrator's decision." Id. According to the Union, the appropriate remedy is to set aside the Arbitrator's decision and to remand it to the Arbitrator for a decision consistent with the Authority's ruling. Thus, the Union concludes that it would "be appropriate for the Arbitrator to bring his decision into conformity with the parameters and decision of the Authority." Id. at 2.
The Authority's decision of October 27, 1988, requires no clarification. When the Authority determines under section 7122 of the Statute that an arbitrator's award is deficient and, as a result, sets aside the award in whole or in part, the award is dismissed as to the portion or portions set aside. In contrast, when the Authority remands an award to the parties, the Authority's decision will specify that the arbitrator's award is remanded. See, for example, Social Security Administration and American Federation of Government Employees, Local 1336, 32 FLRA 712 (1988) (the Authority found that it was appropriate to remand the arbitrator's award to the parties with the direction that they resubmit the award to the arbitrator for further interpretation and clarification).
In this case, the Authority set aside the first four remedies awarded by the Arbitrator and upheld the fifth remedy. Consequently, the first four remedies are dismisse