34:0601(103)AR - - Army Transportation Center, Ft. Eustis, Virginia and NAGE Local R4-106 - - 1990 FLRAdec AR - - v34 p601



[ v34 p601 ]
34:0601(103)AR
The decision of the Authority follows:


34 FLRA No. 103

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. ARMY TRANSPORTATION CENTER

FT. EUSTIS, VIRGINIA

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R4-106

0-AR-1536

(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.

II. Background

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 dismissed and the fifth remedy is binding on the parties. Therefore, without determining whether the Authority's Rules and Regulations provide for the filing of a request for clarification, we find that clarification is not warranted in this case.

We also find no basis to support the Union's request that this case be remanded to the arbitrator. In an appropriate case, we will remand an arbitrator's award to the parties with the direction that they resubmit the award to the arbitrator for clarification. See, for example, Veterans Administration and American Federation of Government Employees, Local 3692, 19 FLRA 164 (1985). This might have been the appropriate course of action in this case if the award had been unclear as to whether the Arbitrator had made findings regarding the application by the Agency of established elements and standards or whether that application violated a law, regulation or a properly negotiated provision of the parties' collective bargaining agreement. See U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1122, 34 FLRA No. 62 (1990). In contrast, however, the Arbitrator in this case found only that the Agency's action was "arbitrary and capricious and the intent, spirit and thrust of [an Agency regulation] was violated . . . ." Award at 7. Thus, the Arbitrator did not attempt to analyze the Agency's actions in relation to established elements or standards or to properly determine what the grievant's rating would have been if the violation found had not occurred. U.S. Army Transportation Center, Ft. Eustis, 33 FLRA 391, 395. In such circumstances, the Authority will find an award to be deficient and will set aside that award. New Cumberland Army Depot and American Federation of Government Employees, Local 2004, 19 FLRA 389 (1985). See generally National Association of Air Traffic Specialists and Federal Aviation Administration, Washington Flight Service Station, 21 FLRA 169, 173 (1986). We find that a claim that the Arbitrator could now render a legally sufficient decision does not establish a basis on which to remand this case to the Arbitrator.

IV. The Union's Request for Reconsideration is Untimely

The Union claims that while its motion for clarification was pending before the Authority, the Authority issued its decision in Social Security Administration, 30 FLRA 1156. The Union requests that the Authority reconsider its decision in U.S. Army Transportation Center, Ft. Eustis in view of its decision in Social Security Administration.

Under section 2429.17 of the Authority's Rules and Regulations, a party may request reconsideration of a final decision or order of the Authority when the party can establish "extraordinary circumstances." Such a request for reconsideration, however, must be filed with the Authority within 10 days after service of the Authority's decision and order.

The Authority's decision in U.S. Army Transportation Center, Ft. Eustis was issued on October 27, 1988. The Union's request was not filed until February 7, 1989, or more than 10 days after service of the Authority's decision. Because the Union's request for reconsideration is untimely, it is dismissed.

Moreover, even if the Union's request for reconsideration were timely, the Union is incorrect in its contention that Social Security Administration was decided while its motion for clarification was pending before the Authority. The Authority's decision in Social Security Administr