42:1098(75)AR - - Treasury, IRS, Midwest Region, Chicago, IL and NTEU - - 1991 FLRAdec AR - - v42 p1098
[ v42 p1098 ]
The decision of the Authority follows:
42 FLRA No. 75
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator George R. Fleischli filed by the Agency 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 Union filed an opposition to the Agency's exceptions.
The Arbitrator found that two Agency officials violated the grievant's rights under the parties' collective bargaining agreement in connection with an interview of the grievant by a police detective. The Arbitrator directed the two officials to provide the grievant with letters of apology.
For the following reasons, we conclude that the Agency fails to establish that the award is deficient and we will deny the exceptions.
II. Background and Arbitrator's Award
An inspector in the Agency's Inspection Division agreed to allow a city detective to interview the grievant on Agency premises concerning a police matter. The Agency inspector contacted the chief of the Agency's Employee Relations (ER) Section to arrange the interview. The ER chief asked the grievant's immediate supervisor to have the grievant report to the ER Section for the police interview. The ER chief advised the supervisor of the reason for the request, but asked her to indicate to the grievant that the purpose was to discuss insurance matters. On her arrival at the ER Section, the ER chief asked the grievant "a couple of perfunctory questions about her insurance and then led her to a room which the Agency had made available to a member of the [police], . . . for the purpose of conducting an interview." Award at 2 (footnote omitted). After questioning by the detective, the Agency inspector interviewed the grievant to ascertain whether she had any knowledge of certain illegal activity.
A grievance was filed over the Agency's conduct in connection with the police interview. When the grievance was not resolved, it was submitted to arbitration. As relevant here, the parties agreed that the following two issues, as framed by the Arbitrator, were appropriate for resolution:
Did the Agency violate the contract, . . . Article 5 in the incident involving [the grievant] that occurred on January 29, 1990; and, if so, what is the appropriate remedy?(1)
Did the Agency violate the contract, . . . Appendix 5-5, in the incident involving [the grievant] that occurred on January 29, 1990; and, if so, what is the appropriate remedy?(2)
Id. at 12 (footnotes added).
The Arbitrator found that the Agency inspector violated Article 5 of the agreement by failing to advise the grievant of her right to Union representation during the interview. The Arbitrator stated that the inspector's interview with the grievant occurred in a "coercive context," immediately following "a surprise felony investigation." Id. at 36. The Arbitrator found that "[c]ommon sense would dictate that the grievant should have been advised of her rights during a 'third party witness' interview" if the inspector wanted to question the grievant about illegal activity. Id.
The Arbitrator also found that the Agency's ER chief violated Appendix 5-5 of the agreement by failing to timely inform the grievant of the police interview. The Arbitrator found that, "accepting that [the ER chief] was justified in employing a 'subterfuge' in conveying the request that she come to his office for the reasons he gave, there was no justification for his subsequent failure to candidly explain to the grievant the real purpose of his request." Id. at 38. Accordingly, the Arbitrator found that the grievant "was not treated with appropriate courtesy and tact under the circumstances." Id.
The Arbitrator awarded the following remedies for the two violations of the collective bargaining agreement:
A. The grievant should be sent a letter, over the signature of [the Agency inspector], acknowledging that her rights were violated . . . when he conducted the interview with her and apologizing for that violation . . . .
B. The grievant should be sent a second letter, over the signature of [the Agency ER chief], acknowledging that her right to be treated with courtesy and tact was violated by his failure to inform her in a timely and candid manner of the real purpose for calling her to his office and apologizing for such violation of her rights. . . .
Id. at 40-41.
III. The First Exception
A. Positions of the Parties
The Agency maintains that the Arbitrator exceeded his authority when he provided a remedy for a matter that, according to the Agency, was not an issue in arbitration. The Agency asserts that the Union argued only that the city police detective denied the grievant's contractual right to courteous and tactful treatment. According to the Agency, the Union "did not request the [A]rbitrator to decide whether [the ER chief] had to divulge the purpose of the Grievant's presence in ER immediately upon her arrival." Agency's Exceptions at 5. In the Agency's view, the Arbitrator "gratuitously and inappropriately" decided that the ER chief had failed to treat the grievant with courtesy and tact. Id.
The Union maintains that the award is not deficient on any of the grounds set forth in section 7122(a) of the Statute. According to the Union, the issue of whether the grievant was treated with tact and courtesy encompassed all incidents and persons involved with the grievant's interview by the police detective.
B. Analysis and Conclusions
An arbitrator exceeds his or her authority when, among other things, the arbitrator resolves an issue not submitted to arbitration, or awards relief to persons who are not encompassed within the grievance. American Federation of Government Employees, Local 3258 and U.S. Department of Housing and Urban Development, Boston, Massachusetts, 38 FLRA 600, 606 (1990) (HUD).
According to the Arbitrator, the parties "agreed" that one of the issues before him was whether the Agency violated Appendix 5-5 of the parties' agreement. Award at 12. Nothing in the award demonstrates that this issue was to encompass actions by the city police detective only. In resolving the issue, the Arbitrator found that the ER chief violated the grievant's contractual right to courteous and tactful treatment when he failed to inform the grievant of the real reason she had been asked to report to his office. As the Arbitrator's finding is directly responsive to the issue before him, there is no basis on which to conclude that the Arbitrator exceeded his authority. The Agency's exception constitutes mere disagreement with the Arbitrator's resolution of the issue before him. As such, the exception provides no basis for finding the award deficient. See HUD, 38 FLRA at 606.
IV. The Second Exception
A. Positions of the Parties
The Agency contends that, by requiring letters of apology, the Arbitrator violated the collective bargaining agreement. The Agency argues that Article 43, Section 4A18 of the agreement "prohibits an arbitrator from imposing, 'on either the Employer or the Union any limitation or obligation not specifically provided for'" in the collective bargaining agreement. Agency's Exceptions at 5. The Agency argues that awarding letters of apology is "beyond the authority granted to the arbitrator . . . ." Id. at 6.
The Agency asserts that this case is distinguishable from U.S. Department of Justice, U.S. Federal Bureau of Prisons, U.S. Penitentiary, Lewisburg, Pennsylvania and American Federation of Government Employees, Council of Prison Locals, Local 148 C-33, 39 FLRA 1288 (1991) (Bureau of Prisons), petition for review filed sub nom. U.S. Department of Justice, U.S. Federal Bureau of Prisons, U.S. Penitentiary, Lewisburg, Pennsylvania v. FLRA, No. 91-1232 (D.C. Cir. May 21, 1991), where the Authority upheld an arbitrator's award of a letter of apology. The Agency argues that, unlike Bureau of Prisons, the Agency officials involved in this case did not "flagrant[ly] disregard" the parties' agreement and the Arbitrator did not find that the officials acted with "vindictiveness or animosity . . . ." Exceptions at 6.
The Union asserts that the Agency "has identified no express prohibition in law or in the contract that prevents the Arbitrator from ordering letters of apology to [the grievant]." Opposition at 6. In the Union's view, the collective bargaining agreement "grants an arbitrator broad, general authority to make an employee whole by issuing a final, binding remedy, as long as the remedy complies with law." Id. at 7.
B. Analysis and Conclusions
We construe the Agency's exception as a contention that the award fails to draw its essence from the parties' agreement and that the Arbitrator exceeded his authority.
To demonstrate that an award fails to draw its essence from an agreement, it must be shown that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact, and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, U.S. Department of Commerce, Patent and Trademark Office and Patent Office Professional Association, 41 FLRA 1042, 1048 (1991). As noted previously, an arbitrator exceeds his/her authority if, for example, the arbitrator resolves an issue not in dispute or awards relief to persons not encompassed by a grievance.
As noted by the Union, Article 43, Section 4(A)(8) of the parties' agreement provides arbitrators with "the authority to make an aggrieved employee whole to the extent such remedy is not limited by law . . . ." Enclosure 2 to Agency's Exceptions at 72. The Agency has not established that this authority excludes written apologies. Moreover, the Agency has not established that the award is irrational, implausible, or unconnected to the wording or purpose of the collective bargaining agreement, including Article 43, Section 4(A)(18). Accordingly, the Agency has not established that the award fails to draw its essence from the agreement.
In addition, the issues before the Arbitrator, as agreed to by the parties, encompassed determinations as to an appropriate remedy for any contractual violations. As the Arbitrator's remedies are responsive to the issues before him, there is no basis on which to conclude that the Arbitrator exceeded his authority.
Finally, we find unpersuasive the Agency's argument that the Arbitrator exceeded his authority based on Bureau of Prisons. In Bureau of Prisons, the Authority concluded that "[a]s the conduct of the [a]gency and its officials was directly at issue . . . the [a]rbitrator did not exceed his authority when he ordered the [a]gency to issue a written apology to the grievant . . . ." 39 FLRA at 1296. We reach the same conclusion here. Consequently, Bureau of Prisons provides no basis for finding the award deficient.
As the Agency's exceptions provide no basis for finding the award deficient, we will deny the exceptions.
The Agency's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. Article 5, Section 4(A) of the agreement provides, in pertinent part:
A. Any employee who is the subject of a conduct investigation or who reasonably believes that an interview with Internal Security may result in disciplinary action has the right to representation by a person designated by the Union as follows:
. . . .
2. Prior to beginning interviews with employees who are being interviewed as third party witnesses, the employees will be provided with IRS Form 9142[.] (See Appendix 5-4.)
Award at 8. IRS Form 9142 advises employees that they may request Union representation at any time during a third party witness interview, if they believe they may be subject to discipline because of their statements.
2. As relevant, Appendix 5-5 provides:
Based on contractual agreements between the [Union] and the [Agency], all [Agency] bargaining unit employees have the following rights:
--To be treated with courtesy and tact . . . .
Award at 11.