37:0775(62)AR - - Treasury, IRS, Oklahoma City District, Lawton, OK and NTEU Chapter 45 - - 1990 FLRAdec AR - - v37 p775



[ v37 p775 ]
37:0775(62)AR
The decision of the Authority follows:


37 FLRA No. 62

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

OKLAHOMA CITY DISTRICT

LAWTON, OKLAHOMA

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 45

(Union)

0-AR-1850

ORDER DISMISSING AGENCY EXCEPTION

DECISION ON UNION EXCEPTIONS

September 28, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Milden J. Fox, Jr. filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's exceptions.(1)

The consolidated arbitration proceeding in this case concerned three issues: (1) a 14-day suspension for absence without leave (AWOL) and making false statements; (2) a second 14-day suspension for separate incidents of AWOL and making false statements; and (3) a reassignment.

The Arbitrator found that the first 14-day suspension was not for such cause as would promote the efficiency of the service and ordered the suspension rescinded. The Arbitrator also concluded that the second suspension was not for such cause as would promote the efficiency of the service. However, he found that no remedy was appropriate as to the second suspension because he found that there was no grievance before him on that matter. With regard to the reassignment, the Arbitrator found that although the Agency had proposed to reassign the grievant in a manner which would violate the parties' collective bargaining agreement, there was no remedy to be granted because the reassignment was never effected. Finally, the Arbitrator denied the Union's request for attorney fees.

The Union excepts to the Arbitrator's finding that the second suspension was not properly before him, and to the Arbitrator's denial of attorney fees. For the reasons discussed below, we find that the Arbitrator exceeded his authority by determining that the issue of the second suspension was not properly before him despite the fact that the parties had stipulated that the second suspension was properly before the Arbitrator. We also find that the Arbitrator's award does not satisfy the requirement of the Back Pay Act, 5 U.S.C. § 5596, for a fully articulated, reasoned decision explaining the denial of attorney fees. Accordingly, we will remand the case to the parties for the purpose of requesting the Arbitrator to issue a remedy consistent with his finding that the second 14-day suspension was not for such cause as would promote the efficiency of the service and to respond to the Union's request for attorney fees in accordance with applicable law.

II. Background and Arbitrator's Award

A. Arbitrator's Award

In January 1989, the Agency proposed to suspend the grievant for 14 days for being absent without leave (AWOL) in November 1988. The Agency charged that the grievant failed to return to work when he was released from jury duty before the end of the workday. The Agency also charged the grievant with making false statements when he initially claimed a full week of court leave even though he had been released from jury duty prior to the end of the workday on 3 of the 5 days.

On February 8, 1989, prior to a decision on the proposed suspension, the Agency proposed a second, separate 14-day suspension, alleging that the grievant had once again abused attendance policy with respect to jury duty on December 28, 1988. Subsequently, the Agency issued decisions sustaining all charges against the grievant and suspending the grievant for two 14-day periods. Pursuant to the terms of the parties' collective bargaining agreement, the suspensions were stayed pending arbitration.

In December 1988, while investigating the grievant's first alleged abuse of court leave, the Agency informed the grievant that he would be reassigned from his post of duty at Lawton, Oklahoma, to the Agency's office in Oklahoma City for an indefinite period of time. However, the grievant requested, and was granted, annual leave in lieu of the reassignment and the reassignment never took place. The Union filed a grievance claiming that the reassignment was in lieu of discipline and, therefore, violated the collective bargaining agreement.

The caption of the Arbitrator's award states "Reference: [Grievant's Name] - 3 Grievances[,]" and the award states that the parties "stipulated that the grievances were properly before the Arbitrator." Award at 1, 21. The parties agreed on the following statement of the issues:

1. Whether the first suspension of the Grievant was for such cause as will promote the efficiency of the Service? If not, what is the appropriate remedy?

2. Whether the second suspension of the Grievant was for such cause as will promote the efficiency of the Service? If not, what is the appropriate remedy?

3. Whether the Agency's decision to send the Grievant to Oklahoma City violated Article 15, Section 1(A) of the Contract? If so, what is the appropriate remedy?

Id. at 3-4.

The Arbitrator first considered the third issue. He found that the proposed reassignment, if carried out, would have been in violation of the parties' contract. However, because the grievant took voluntary annual leave in lieu of the reassignment and was unable to substantiate the amount of annual leave taken for that purpose, the Arbitrator ruled that there was no appropriate remedy available for the third issue.

Regarding the first 14-day suspension, the Arbitrator found numerous "discrepancies" in the action management took and ruled that the suspension "was not for such cause as would promote the efficiency of the service." Id. at 41, 42. The Arbitrator ordered the suspension rescinded and ordered that the Agency make the grievant whole for the 16 hours of unpaid AWOL which formed the basis of the suspension. As the suspension had been stayed pending arbitration, the grievant lost no other compensation as a result of the Agency's actions.

The Arbitrator also found discrepancies in the Agency's action with regard to the second suspension and concluded that the second suspension was not for such cause as would promote the efficiency of the service. However, he found that no remedy was appropriate because "the Arbitrator [did] not have a grievance on which to rule." Award at 43. The Arbitrator found that a grievance over the AWOL charge which was the basis of the second suspension had been withdrawn, and that "[t]here is nothing in the record to indicate that the Union or Grievant filed a grievance or requested arbitration over [the Agency's decision to impose the second suspension.]" Id. The Arbitrator ordered that the second suspension must stand.

Finally, the Arbitrator denied the Union's request for attorney fees, stating without further elaboration that "[t]his case, with its Awards, is unsuitable for the awarding of attorneys' fees to the Union under the provisions of the Backpay Act." Id.

B. Arbitrator's Supplemental Memorandum

In its opposition, the Agency points out that prior to filing exceptions with the Authority, the Union requested the Arbitrator to modify his award because it conflicted with the stipulations of the parties. Opposition at 4-5. The Agency included the Arbitrator's supplemental memorandum, dated January 18, 1990, as Attachment D to the Opposition. In the supplemental memorandum, the Arbitrator stated that he would not reopen or modify the award. However, he noted that, under the Authority's decision in American Federation of Government Employees, Local 1923, AFL-CIO and Health Care Financing Administration, Department of Health and Human Services, 33 FLRA 88, 93-94 (1988), reconsideration as to other matters denied, 34 FLRA 301 (1990), he could address an ambiguity in his award. The Arbitrator responded to the Union's request for clarification or modification by stating that "the issue of arbitrability was set forth by the Agency on page 32 of its post-Hearing brief, that is regarding the second 14 day suspension." Supplemental Memorandum at 2, found at Opposition, Attachment D. The Arbitrator further stated that although the parties' agreement required that an appeal to arbitration be delivered to the appropriate deciding official, "[n]o appeal to arbitration or grievance was present in the exhibits furnished the Arbitrator regarding the second 14 day suspension." Id. at 3. The Arbitrator concluded that his award as to the second suspension "stands." Id.

III. Procedural Issue

In its opposition, the Agency claims that the Arbitrator applied an improper standard of evidence to the issues before him. The Agency contends that while the Arbitrator acknowledged that the parties' collective bargaining agreement requires that the Agency must prove its case by substantial evidence, the Arbitrator found that the Agency failed to support the suspensions by a preponderance of the evidence. Accordingly, the Agency concludes that the Arbitrator held the Agency to a higher standard of proof than the contract requires.

Although the Agency did not label it as such, this claim is appropriately considered as an exception filed by the Agency. The Agency filed its opposition, including this exception, with the Authority more than 30 days after service of the award. The time period for filing an exception begins with the service of an arbitrator's original award. A request for clarification of an award does not operate to extend the time limit for filing exceptions. U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL-CIO, 23 FLRA 157, 158 (1986). Only when an arbitrator modifies an award and the modifications give rise to the deficiencies alleged in the exceptions has the Authority held that the filing period began with the arbitrator's response to the request for clarification. Id. Accordingly, the Agency's exception is untimely and will not be considered. See American Federation of Government Employees, Local 12 and United States Department of Labor, 32 FLRA 771 (1988) (exception included in party's opposition found untimely when opposition submitted later than 30 days from service of the award).

IV. The Arbitrator's Finding That the Second Suspension Was Not Properly Before Him

A. Positions of the Parties

The Union claims that the Arbitrator exceeded his authority when he determined that the second 14-day suspension was not properly before him. The Union contends that the parties jointly submitted the issues to the Arbitrator and stipulated at the hearing that all issues were properly before the Arbitrator. Further, the Union asserts that the Agency never raised the issue of the arbitrability of the second suspension. Therefore, the Union argues, the Arbitrator decided an issue not submitted to him when he ruled that the second suspension was not arbitrable.

The Union also contends that the award is deficient because it is based on a nonfact. Specifically, the Union asserts that the Arbitrator erroneously found that there was no grievance before him concerning the second suspension and that finding was a gross mistake of fact but for which a different result would have been reached. The Union argues that the Arbitrator's finding is clearly erroneous because the parties' stipulation expressly states that the issues presented, including the second suspension, were properly before the Arbitrator. The Union contends that that finding was the central fact underlying the award because the Arbitrator had concluded that the suspension was not for such cause as would promote the efficiency of the service, but he failed to provide an appropriate remedy solely on the ground there was no proper grievance before him.

The Agency contends that the Arbitrator decided "the exact issue submitted by the parties[.]" Opposition at 6. The Agency agrees that the Arbitrator determined, as asked, whether there was proper cause for the second suspension, but asserts that the Arbitrator further determined that there was no available remedy because there was not a proper grievance before him. The Agency contends that the Union's exception constitutes mere disagreement with the Arbitrator's decision that there was insufficient evidence to show that the matter was timely and properly grieved. The Agency points out that in the supplemental memorandum "the [A]rbitrator held that although there was a stipulation, the [A]gency had not waived arbitrability." Id. at 4.

The Agency also asserts that the Arbitrator examined the record for evidence that arbitration was properly invoked and, finding none, reasonably concluded that the matter was not arbitrable. In this regard, the Agency noted that the Arbitrator further explained his decision in his supplemental memorandum. According to the Agency, the Arbitrator found that the Agency raised arbitrability in its post-hearing brief, and in response, the Arbitrator then searched the record for evidence that arbitration had been properly invoked. The Agency maintains that because the Arbitrator's conclusion has support in the record, the Union's exception constitutes nothing but a disagreement with the Arbitrator's interpretation of the evidence.

B. Analysis and Conclusions

We find that the Arbitrator exceeded his authority by determining that the issue of the second suspension was not properly before him despite the fact that the parties had stipulated that the second suspension was properly before the Arbitrator. The Arbitrator's determination that the second suspension was not properly before him was inconsistent with the express stipulation of the parties.

The record in the case shows that the parties clearly stipulated the issues to be arbitrated, including the validity of the second 14-day suspension. As acknowledged by the Arbitrator, the parties "stipulated that the grievances were properly before the Arbitrator." Award at 21; Transcript at 6, found at Attachment B to the Union's Exceptions. The Arbitrator had no authority to look behind the stipulation of the parties or to ignore the stipulation in deciding the case before him. See U.S. Department of Veterans Administration, Medical Center, Houston, Texas and American Federation of Government Employees, Local 1633, 36 FLRA 122, 127-28 (1990) (arbitrator exceeded his authority by considering an issue not included in the narrow issue stipulated by the parties); General Services Administration and American Federation of Government Employees, Local 2600, 34 FLRA 1123, 1128 (1990) (arbitrator exceeded his authority when he ignored a relevant stipulation made in a separate but related arbitration).

We reject the Agency's argument that the Arbitrator did not exceed his authority because he answered precisely the question before him, namely whether the second suspension was for just cause and, if not, what is the appropriate remedy. The Agency claims that the Arbitrator first found that the suspension was not for just cause, but also found that there was no appropriate remedy because of the lack of a proper grievance. The Agency contends that the absence of the grievance allowed the Arbitrator to examine the matter of just cause but did not permit the awarding of a remedy.

The Arbitrator was required to render his award on the issues that were properly stipulated by the parties. The stipulation of the issues plainly included whether the second 14-day suspension "was for such cause as will promote the efficiency of the Service" and, "[i]f not, what is the appropriate remedy?" Award at 4. Moreover, in light of the parties' express stipulation, the Agency's reference in its post-hearing brief to the issue of arbitrability regarding the second suspension, noted in the Arbitrator's Supplemental Memorandum at 2, is insufficient to put the matter before the Arbitrator. Because the parties stipulated that the matter was before him, the Arbitrator exceeded his authority by ruling on that issue.

Accordingly, the portion of the award that finds that the issue of the second suspension was not before the Arbitrator and, therefore, no remedy is appropriate for the violation regarding that suspension is deficient and will be set aside. The grievance on the second 14-day suspension will be remanded to the parties for resubmission to the Arbitrator for formulation of an appropriate remedy consistent with his finding that the suspension was not for such cause as would promote the efficiency of the service. In view of our disposition, we do not address the other contentions of the parties regarding the Arbitrator's finding that the second suspension was not properly before him.

V. The Arbitrator's Denial of Attorney Fees

A. Positions of the Parties

The Union contends that the award is deficient with regard to the denial of attorney fees. The Union cites International Brotherhood of Electrical Workers and United States Army Support Command, Hawaii, 14 FLRA 680, 683-84 (1984), which holds that an arbitrator's decision on the issue of attorney fees under the Back Pay Act, 5 U.S.C. § 5596, must provide a fully articulated rationale, setting forth specific findings relevant to each statutory requirement for an attorney fee award. The Union claims that the Arbitrator's one-sentence determination to the effect that "[t]his case, with its Awards, is unsuitable for awarding attorney's fees to the Union under the Back Pay Act[,]" does not satisfy that requirement. Exceptions at 13, referencing Award at 43.

The Agency argues that the Arbitrator is "clear and concise" regarding his decision denying attorney fees. Opposition at 10. The Agency asserts that "[t]he [A]rbitrator's denial of attorneys' fees is based upon the mixed nature of the relief awarded." Id.

B. Analysis and Conclusions

In agreement with the Union, we find that the Arbitrator's denial of attorney fees does not satisfy the requirements of the Back Pay Act. The standards established under 5 U.S.C. § 7701(g), which must be applied under the Back Pay Act, require a fully articulated, reasoned decision resolving a request for attorney fees which sets forth specific findings supporting the determination on each pertinent statutory requirement. National Association of Government Employees, Local R4-106 and Department of the Air Force, Langley Air Force Base, Virginia, 32 FLRA 1159, 1165 (1988) (Langley AFB