38:1464(116)AR - - Army, Army Information Systems Command, Savanna Army Depot and NAGE Local R7-36 - - 1991 FLRAdec AR - - v38 p1464
[ v38 p1464 ]
The decision of the Authority follows:
38 FLRA No. 116
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE ARMY
ARMY INFORMATION SYSTEMS COMMAND
SAVANNA ARMY DEPOT
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
ORDER DISMISSING EXCEPTIONS
January 15, 1991
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 John P. McGury 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 did not file an opposition to the Union's exceptions.
A grievance was filed over a 14-day suspension of the grievant. The Arbitrator sustained the grievance and directed the Agency to give the grievant a written reprimand instead of a suspension. The Union excepted to the Arbitrator's failure to grant the grievant backpay for the suspension.
For the following reasons, we conclude that the Union's exceptions are moot. Accordingly, we will dismiss the exceptions.
II. Background and Arbitrator's Award
The grievant was suspended for 14 days for a safety violation that resulted in damage to Government property. A grievance was filed over the suspension and was submitted to arbitration on the following stipulated issue:
Was there just cause to discipline the Grievant and was discipline reasonable?
Award at 2.
As relevant here, the Arbitrator determined that the suspension constituted an "abuse of [the Agency's] discretion." Id. at 8. The Arbitrator noted, in this regard, that the grievant's group leader had received only an oral admonishment for the incident involved in the grievance. As his award, the Arbitrator provided:
There was reason to discipline the Grievant but the penalty involved disparate treatment, was excessive, unreasonable, and an abuse of discretion. The 14[-]day suspension is converted to a written reprimand.
III. The Union's Exceptions
The Union asserts that the award is deficient on two grounds. First, the Union claims that the Arbitrator's failure to award the grievant backpay for the 14-day suspension violates the Back Pay Act, 5 U.S.C. º 5596. According to the Union, the grievant was entitled to backpay when the suspension was reduced to a written reprimand.
Second, the Union asserts that the award is deficient because the Arbitrator refused the Union's request to modify and clarify his award to include backpay. Accordingly, the Union requests the Authority to remand the matter to the Arbitrator to enable him to clarify his award so as to require the Agency to provide backpay to the grievant.
IV. Events Subsequent to the Filing of the Union's Exceptions
On August 17, 1990, subsequent to the filing of the Union's exceptions, the Agency requested a 30-day extension of time to file an opposition to the exceptions. The Agency stated that the grounds for its request were "that the [A]rbitrator has reversed himself and decided that he will entertain the [U]nion's request for clarifi[c]ation." August 17 Motion for Extension of Time at 1. The Agency attached to its motion a copy of a letter from the Arbitrator to the parties, dated August 13, 1990, which stated, in pertinent part:
With respect to a request to clarify the Award in this case, I have previously indicated that I did not consider myself empowered to issue a clarification.
After going over the Award again, I have reconsidered. I am now prepared to communicate a clarification of the Award.
Attachment to August 17 Motion for Extension of Time. In the letter, the Arbitrator provided the parties with a period of time in which to comment further on the matter before he issued his clarification.
On October 22, 1990, the Arbitrator served the parties with a clarification of his award and provided a copy of the clarification to the Authority. In the clarification, the Arbitrator noted that subsequent to his receipt of the Union's request for clarification, he had requested from the parties a joint request for clarification and that the Agency had refused to join in the Union's request. The Arbitrator noted also that, in his August 13 letter to the parties, he had reconsidered his position with respect to the clarification. The Arbitrator continued as follows:
The Arbitrator did not make an express finding that the suspension was "unwarranted or unjustified." The Arbitrator did find that the suspension was excessive, unreasonable, involved disparate treatment and was an abuse of discretion. The Arbitrator's conclusions characterizing the Employer's action were stronger than "unwarranted or unjustified." The Award converted the 14[-]day suspension to a written reprimand. It should be considered implicit that the Grievant be made whole for any loss due to the 14[-]day suspension. The Arbitrator hereby undertakes to cure his error and make it explicit that the Employer is required to make the Grievant whole for any loss in wages or benefits due to the 14[-]day suspension.
Clarification at 2.
Subsequent to the filing of the Agency's request for an extension of time to file an opposition, no further submissions were received from the parties. In particular, the Agency did not file an opposition to the Union's exception and neither party filed exceptions to, or addressed in any way, the Arbitrator's clarification of his award.
V. Preliminary Matter
The Arbitrator served the parties with the clarification of his initial award on October 22, 1990. The Arbitrator stated, in this regard, that the Agency did not join in the Union's request for clarification. No exceptions were filed to the clarification, however, and the Agency has not in any other way indicated that the award, as clarified, is deficient on any grounds specified in section 7122(a) of the Statute. Moreover, after requesting an extension of time to file an opposition to the Union's exceptions, the Agency failed to file an opposition.
In these circumstances, and for the following reasons, we will consider the Arbitrator's award, as clarified, in resolving the Union's exceptions. We note two things. First, we find that the Arbitrator was empowered to issue the clarification. It is well-established that an arbitrator may clarify an ambiguous award and restate the basis for an award which conforms to the arbitrator's original findings. See, for example, American Federation of Government Employees, Local 1923, AFL-CIO and Health Care Financing Administration, Department of Health and Human Services, 33 FLRA 88, 93 (1988) and the cases cited therein. An arbitrator's authority to clarify an award does not depend on a joint request from the parties. Id. Compare Health Care Financing Administration, Department of Health and Human Services and American Federation of Government Employees, Local 1923, 35 FLRA 274, 281 (1990) (Arbitrator may not reconsider an award or issue a new decision without a joint request from the parties).
Here, there is no assertion, or any other basis on which to conclude, that the Arbitrator's clarification constitutes a reconsideration of, or a replacement for, his initial award. Instead, it is apparent that the Arbitrator merely clarified his initial award to make "explicit" what he viewed as the "implicit" requirement in the initial award that the grievant be made whole for the suspension. Clarification at 2. Accordingly, we conclude that the Arbitrator was empowered to issue the clarification.
Second, we conclude that there is no regulatory prohibition on our considering the clarification, which was served on the parties and the Authority by the Arbitrator. The Arbitrator has not, in this regard, requested the Authority to take action with respect to the clarification and has not, in any way, argued the merits of his award. In fact, the Arbitrator's clarification, and covering letter, is not addressed to the Authority. Instead, the Arbitrator provided the Authority with a copy of the clarification as well as his covering letter addressed to the parties.
As the Arbitrator has not communicated directly to the Authority regarding the merits of his award, and as the clarification does not include or constitute such argument, we find that it is appropriate to accept and consider the clarification. Compare U.S. Department of Veterans Affairs Medical Center, St. Albans, New York, and American Federation of Government Employees, Local 1988, 38 FLRA No. 114 (1991), slip op. at 2 (as the arbitrator was not a party to the arbitral proceeding, the Authority did not accept or consider the arbitrator's request for reconsideration of previous Authority decision).
VI. Analysis and Conclusions
The award, as clarified, requires the Agency to rescind the 14-day suspension, substitute a written reprimand for the suspension, and make the employee whole for any loss in wages or benefits he incurred as a result of the suspension. Accordingly, the Union's exceptions that the Arbitrator erred by failing to require the Agency to provide the grievant with backpay and by failing to clarify his award are moot. As the Union's exceptions are moot, they will be dismissed.