43:0927(73)AR - - Justice, INS, Honolulu District Office, Honolulu, HI and AFGE, National INS Council - - 1992 FLRAdec AR - - v43 p927



[ v43 p927 ]
43:0927(73)AR
The decision of the Authority follows:


43 FLRA No. 73

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF JUSTICE

IMMIGRATION AND NATURALIZATION SERVICE

HONOLULU DISTRICT OFFICE

HONOLULU, HAWAII

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL IMMIGRATION AND NATURALIZATION

SERVICE COUNCIL

(Union)

0-AR-2118

DECISION

January 7, 1992

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 Paul P. Tinning 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 Union filed a grievance disputing the Agency's 7-day suspension of an employee for "neglect of duty and . . . failure or delay in carrying out the orders, work assignments, or instructions of superiors." Exceptions, Exhibit 2. The Arbitrator determined that the Agency did not violate any existing laws, rules, regulations or the parties' negotiated agreement by disciplining the employee and, therefore, denied the grievance. After denying the grievance, the Arbitrator then determined that the 7-day suspension was excessive and directed the Agency to: (1) rescind the suspension and, instead, issue an official reprimand for the misconduct found; and (2) reimburse the employee for any pay or benefits lost as a result of the suspension.

For the reasons discussed below, we conclude that the award is ambiguous and must be remanded to the parties for resubmission to the Arbitrator.

II. Background

The grievant has been employed by the Agency for over 16 years as a criminal investigator and special agent. Currently, he works as a special agent in the Agency's Honolulu District Office (HDO). The grievant also serves as chief steward for the Union.

The HDO is responsible for all law enforcement in that jurisdiction that is within the Agency's authority. On April 11, 1990, the assistant district director for investigations of the HDO directed the grievant to "initiate a seizure case against" a fishing vessel called the Magic Dragon. Award at 7.(1) To initiate such proceeding, the grievant had to prepare an affidavit, "which is a requisite in seizure proceedings[.]" Id. at 10.

On May 11, the assistant district director advised the grievant that he wanted to see the affidavit on May 14. On May 14, he met with the grievant and the grievant's supervisor to review the affidavit and during this meeting advised the grievant that the affidavit was insufficient and that it must be completed for presentation on May 30. Later, the assistant district director was told by the acting district director that the affidavit must be completed no later than May 25. On May 25, the grievant's supervisor informed the assistant district director that the grievant was not ready to present the case for seizure. Later, the grievant's supervisor advised the assistant district director that on May 29, the grievant informed him that he was scheduled for training for Union officers and that he had not completed the affidavit. Subsequently, the assistant district director advised the grievant of his failure to complete the seizure assignment. On June 4, the assistant district director advised the district director that he was initiating disciplinary action against the grievant for "'failure to carry out orders and dereliction of duty.'" Id. at 14.

By letter dated July 16, the deputy district director, the proposing official in disciplinary matters, informed the grievant that, based upon the record submitted to him, he proposed that the grievant be suspended without pay for 7 days for "'[n]eglect of duty and failure/delay in carrying out orders, work assignments, or instructions of superiors.'" Id. at 17. The deputy district director asserted that the discipline was based on the Agency's schedule of disciplinary offenses and penalties.

Subsequently, the grievant's Union representative responded to the deputy district director's letter and informed the district director that several of the allegations against the grievant were untrue. By memorandum of August 29, the district director rejected the Union representative's contentions and, on August 30, suspended the grievant, without pay, effective September 16 through September 22. A grievance disputing the suspension was filed and submitted to arbitration. The stipulated issue presented before the Arbitrator was:

Did the Agency violate any existing laws, rules, regulations, or the negotiated agreement when it suspended the grievant . . . from duty? And, if so, what is the remedy?

Id. at 3 (footnote omitted).

III. Arbitrator's Award

The Arbitrator found that the record showed that no special agent in the Western Region, except the grievant, had been disciplined for failing to meet a work deadline. According to the Arbitrator, this evidence suggested that work performance deficiency problems are addressed through means other than disciplinary measures, such as performance improvement plans (PIP). In the Arbitrator's view, a PIP, rather than the suspension, would have been the appropriate forum in which to correct the grievant's alleged deficiencies. The Arbitrator noted that the Agency did place the grievant on a PIP in late October to correct the "same work performance deficiencies for which he initially received a seven-day disciplinary suspension" in September. Id. at 32-33. The Arbitrator, noting that discipline is generally viewed as corrective rather than punitive in nature and noting the Agency's reliance on the schedule of disciplinary offenses and penalties, stated that, in this case, if discipline is viewed as corrective, an "'official reprimand,' rather than a punitive seven-day suspension, would clearly have been within the discretion of [the] Agency . . . ." Id. at 34. The Arbitrator rejected the Agency's claim that the Magic Dragon seizure was a high profile case because there was "no evidence" to support this claim. Id.

The Arbitrator stated that the "weight of [the] record evidence . . . strongly suggests that the subject disciplinary action was taken largely, if not entirely, because of an alleged attitudinal problem on the part of the grievant rather than substantive deficiencies" in the affidavit. Id. at 35. The Arbitrator found that the assistant district director's instructions and guidance to the grievant in preparing the affidavit, including the two, not three, deadlines that he set for completion of the work, "were not unreasonable in terms of time." Id. at 39. In this regard, the Arbitrator found that although the Agency claimed that the grievant failed to meet three deadlines for completion of the affidavit, the evidence revealed that the grievant was not informed of the May 25 deadline. The Arbitrator further stated that the assistant district director's instructions and guidance to the grievant "lend themselves to scrutiny in view of the information conveyed to" the grievant and his supervisor as to what was needed in the affidavit, coupled with doubt raised in the matter as a result of the deputy district director's remark to the assistant district director that he was "'out to get'" the grievant for his alleged involvement in a matter causing an internal investigation of a trip made by the deputy district director. Id. at 38 and 39.

Nevertheless, the Arbitrator further found that the grievant was "dilatory in completing the assignment as requested." Id. at 39. The Arbitrator noted that this was "especially" true in light of the grievant's statement that, in his view, the assistant district director was "'running the case'" and his claim that other Agency employees were the ones that would determine what needed to be done. Id. Therefore, the Arbitrator stated that he was "compelled to conclude that the Agency did not violate any existing laws, rules, regulations or the negotiated agreement by taking the subject disciplinary action against the grievant." Id. at 40. The Arbitrator also stated that, "in light of the overall findings and reasons" in his decision, the 7-day suspension was excessive for the misconduct found. Id. As his award, the Arbitrator concluded that the "issue presented for determination must be answered in the NEGATIVE, that is the Agency did not violate any existing laws, rules, regulations, or the negotiated agreement by taking the subject disciplinary action against the grievant." Id. at 41 (emphasis in original). Accordingly, he denied the grievance.

After denying the grievance, the Arbitrator repeated his conclusion that the 7-day suspension, "in light of the overall findings and reasons," was "excessive for the grievant's dilatory conduct found." Id. The Arbitrator directed the Agency to: (1) rescind the suspension in its entirety; (2) issue an official reprimand to the grievant for the dilatory conduct; and (3) reimburse the grievant for any pay or benefits lost as a result of the suspension.

IV. Agency's Exceptions

The Agency contends that the award is deficient because the Arbitrator exceeded his authority under the parties' agreement. The Agency states that the parties stipulated that the issue for determination was "'did the Agency violate any existing laws, rules, regulations, or the negotiated agreement when it suspended the grievant . . .,'" and that "only" if the Arbitrator found that the Agency committed such violation was he then authorized to remedy that violation. Exceptions at 8. The Agency asserts that notwithstanding the Arbitrator's determination that the Agency did "'not violate[] any existing laws, rules, regulations, or the negotiated agreement,'" by suspending the grievant, he, nonetheless, fashioned a remedy rescinding the suspension. Id. Relying on the Authority's decision in Veterans Administration and American Federation of Government Employees, Local 2798, 24 FLRA 447 (1986) (Veterans Administration), the Agency contends that the Arbitrator's award constitutes a clear case of the Arbitrator "exceeding the authority granted to him by the parties' submission." Id. Therefore, the Agency contends that the award, to the extent that it requires the Agency to rescind the suspension and instead issue a reprimand and to provide the grievant with backpay, "must be set aside as in excess of the Arbitrator's authority." Id. at 9.

The Agency next argues that, even assuming that the Arbitrator did not exceed his authority, the remedy "is predicated on a non-fact." Id. The Agency states that the Arbitrator "was concerned that the suspension action was 'punitive' rather than 'corrective' in nature because of the fact that management subsequently placed the grievant on a PIP on October 30, 1990." Id. at 10. According to the Agency, the Arbitrator was concerned that management "was not privileged to take what he incorrectly viewed as two separate personnel actions against the grievant" based on the same incident involving the seizure affidavit. Id. The Agency contends that the Arbitrator was "laboring under the unwarranted misapprehension that the grievant had been placed in some form of double jeopardy, and that it was this misapprehension" that motivated the Arbitrator to order that the suspension be rescinded notwithstanding his finding that the suspension did not violate any law, rule, regulation, or the parties' agreement. Id. The Agency asserts that the Arbitrator's "error of fact in this regard was compounded by his initial error in considering the October 30, 1990 action . . . to be a central fact" which was relevant to the appropriateness of the suspension and his "assumption that a PIP was a separate personnel action." Id. at 11 and 12. In conclusion, the Agency asserts that the Arbitrator's "finding" that the suspension was "'punitive'" was based on the "non-fact that management was precluded by law from putting the grievant on a PIP." Id. at 13.

The Agency further contends that the award directly interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. Citing the Supreme Court's decision in Department of the Treasury, Internal Revenue Service v. FLRA, 110 S. Ct. 1623 (1990), the Agency asserts that the Court made it clear that arbitrators may not reverse an agency's decision under section 7106(a)(2) of the Statute, such as the right to "'suspend,'" unless they find that the decision was not "in accordance with applicable laws." Exceptions at 13. The Agency argues that as the Arbitrator found that management did not violate any applicable laws or any rules, regulations, or the negotiated agreement, the Arbitrator "had no legal basis" for directing the Agency to rescind the suspension. Id. at 14.

Finally, the Agency asserts that the award of backpay is deficient under the Back Pay Act, 5 U.S.C. § 5596. The Agency states that, as a prerequisite for an award of backpay, a grievant must demonstrate that the challenged personnel action violated applicable law, rule, regulation or the parties' collective bargaining agreement. The Agency asserts that in this case, the Arbitrator "affirmatively found[]" to the contrary. Id. at 15. The Agency argues, therefore, that the award of backpay is deficient.

V. Union's Opposition

The Union asserts that the Agency "seeks to overturn the [Arbitrator's] decision on the grounds of a minor error in the crafting" of his award. Opposition at 2. The Union states that while the Union might have written the award differently, "the [a]ward is well thought out . . . and should be allowed to stand." Id. The Union asserts that if there is a question as to the Arbitrator's meaning or a need for clarification, the award should be remanded to the Arbitrator for clarification. However, the Union also states that, in its view, "such action is not necessary as the . . . [a]ward [is] clear and unambiguous despite the seeming contradiction." Id. at 4.

The Union acknowledges that the Arbitrator "plainly found there was no contract violation in the Agency's decision to discipline [the] grievant." Id. at 3. However, the Union also contends that the Arbitrator found, "on the separate but included issue, that the discipline imposed was excessive." Id. (emphasis in original). The Union asserts that what the Arbitrator failed to do was include in his award a statement to the effect that "although discipline was appropriate, and did not violate the contract, law or regulation, the discipline imposed was excessive to such a degree that it did not comport with the contract." Id. (emphasis in original). According to the Union, it is only in this respect that the award may be lacking. In this regard, the Union contends that it believes that the purposes of the agreement, the grievance procedure and its just cause provisions, and the Statute, are to promote good labor relations and substantial justice in the relationship between the Agency and the employees. According to the Union, "[s]uch provisions demand more than a mere dot your i and cross your t approach to personnel matters." Id. at 4.

As to the Agency's specific contentions, the Union asserts that the Arbitrator did not exceed his authority. The Union asserts that although the Arbitrator found that management's decision to discipline the grievant did not violate any authorities, he had "implicit jurisdiction to find the penalty excessive." Id. at 6. According to the Union, this jurisdiction is contained "within the language of [Article 31, Section H(1) of] the contract which states that discipline must be taken only for reasons that are 'just and sufficient,'" and will promote the efficiency of the Agency. Id. (emphasis in original).(2) The Union contends that the issue before the Arbitrator "incorporated the questions of sufficiency of cause within it by reference to the agreement." Id.

The Union states that it is not inappropriate for an arbitrator to find that just cause exists for discipline while also finding sufficient cause lacking to sustain discipline in the degree imposed. In the Union's view, the Arbitrator found that the discipline imposed was affected "by unacceptable considerations, among them a desire for vengeance and the punitive rather than corrective nature of the action." Id. at 7. According to the Union, the Arbitrator found that these considerations "merited mitigation of the penalty." Id. In the Union's view, nothing in the issue presented to the Arbitrator "limited his authority to mitigate the discipline imposed if he first found discipline per se justified." Id. Therefore, the Union asserts that the Arbitrator did not exceed his authority by requiring the Agency to mitigate the penalty.

The Union further contends that there is no basis for the Agency's contention that the award is based on a nonfact because the Arbitrator did not find that the suspension and the imposition of a PIP on the grievant were both improper. The Union also asserts that the award does not interfere with management's right to discipline employees because the award "clearly draws its essence from the language of the agreement." Id. at 9. Finally, the Union contends that the award does not violate the Back Pay Act. According to the Union, the Arbitrator's finding that the discipline imposed was excessive "makes it (the discipline) a wrongful personnel action." Id. at 10.

VI. Analysis and Conclusions

For the reasons discussed below, we conclude that the award is ambiguous and, therefore, we cannot determine whether the award is deficient under section 7122(a) of the Statute. Thus, the award must be remanded to the parties for resubmission to the Arbitrator for clarification.

In its exceptions, the Agency contends, among other things, that the Arbitrator failed to confine his award to the stipulated issue and that he exceeded his authority by directing the Agency to rescind the suspension, issue a reprimand, and to pay backpay. It is well established that an arbitrator exceeds his or her authority by, among other things, resolving an issue not submitted to arbitration. See, for example, U.S. Department of Veterans Affairs Medical Center, Asheville, North Carolina and American Federation of Government Employees, Local 446, 37 FLRA 1054 (1990) (arbitrator exceeded his authority by directing an agency to reassign a grievant to his former position); Veterans Administration Medical Center, Houston, Texas and American Federation of Government Employees, Local 1633, 36 FLRA 122, 127-28 (1990) (arbitrator's award resolving an issue not properly before him found deficient as in excess of his authority); Veterans Administration, 24 FLRA at 450-51 (arbitrator exceeded his authority when he failed to confine his decision and remedy to the issues as he framed them).

On the other hand, an arbitrator does not exceed his or her authority when the arbitrator resolves an issue or issues an affirmative order that is within the scope of the matter submitted to arbitration. See U.S. Department of Health and Human Services, Austin, Texas and National Treasury Employees Union, Chapter 219, 40 FLRA 1035, 1041 (1991) (HHS) (arbitrator acted within his authority when he determined that a part of the disciplinary action was not based on just caused and reduced a 3-day suspension to a written reprimand). In HHS, we noted that it is well established that an arbitrator may determine whether or not all or part of a disciplinary action is for just and sufficient cause and may accordingly set aside or reduce the penalty. Id.

In this case, the parties stipulated the issue as: "[d]id the Agency violate any existing laws, rules, regulations, or the negotiated agreement when it suspended the grievant . . . from duty? And, if so, what is the remedy?" Award at 3 (footnote omitted). Thus, the issue before the Arbitrator, as agreed to by the parties, encompassed determinations as to the appropriate remedy for any violation of laws, rules, regulations or the parties' negotiated agreement. In other words, if the Arbitrator answered the issues presented to him by concluding that the Agency's decision to discipline the grievant, including the disciplinary penalty, did not violate any laws, rules, regulations, or the parties' negotiated agreement, then the Arbitrator would have decided the issues presented to him. If the Arbitrator answered the issues presented to him by concluding that the Agency's decision to discipline the grievant did not violate any of the applicable authorities, but that the disciplinary penalty did violate applicable authorities, then it would be within the scope of the Arbitrator's authority to mitigate the penalty.

Having reviewed the record, we are not certain of the Arbitrator's determinations. That is, the award is ambiguous as to: (1) whether the Arbitrator determined that the Agency's decision to discipline the grievant, including the disciplinary penalty, did not violate any laws, rules, regulations, or the parties' negotiated agreement; or (2) whether he determined that the Agency's decision to discipline the grievant did not violate any of the applicable authorities, but that the severity of the disciplinary penalty did violate applicable authorities. In this regard, the Arbitrator stated:

Based upon the record of this case in its entirety and for the reasons and specific findings contained herein, the Arbitrator concludes that the issue presented for determination must be answered in the NEGATIVE, that is, the Agency did not violate any existing laws, rules, regulations, or the negotiated agreement by taking the subject disciplinary action against the grievant.

Accordingly, the subject grievance is hereby denied.

Id. at 41 (emphasis in original).

Having denied the grievance, the Arbitrator then stated:

The Arbitrator, however, finds and concludes that the seven-day disciplinary suspension, in light of the overall findings and reasons contained herein, is excessive for the grievant's dilatory conduct found herein. Accordingly, the Arbitrator directs the Agency to rescind the subject disciplinary suspension in its entirety while, at the same time, further directs the Agency to issue the grievant an official reprimand for the grievant's dilatory conduct found herein. The Arbitrator further directs the Agency to reimburse the grievant for any pay or benefits lost as a result of the subject disciplinary suspension.

Id. at 41-42.

We note, as conceded by the Union, that the Arbitrator did not cite specific violations of the parties' agreement or law, rule, or regulation with respect to this determination. However, we note that in his decision, the Arbitrator discussed the Agency's schedule of disciplinary offenses and penalties, the Agency's reliance on this schedule in determining the grievant's penalty, and the range of penalties applicable to the offense for which the grievant was charged. In considering the schedule of disciplinary offenses and penalties, the Arbitrator rejected the Agency's official reason for imposing a suspension rather than a reprimand. The Arbitrator's mitigation of the penalty, therefore, can be viewed as a determination that the Agency, under its schedule of penalties, did not have just cause to suspend the grievant for seven days and, therefore, the penalty violated applicable authority.

On the other hand, the Arbitrator determined, "based upon the record of the case in its entirety[,]" that the issue presented for determination must be answered in the "NEGATIVE, that is, the Agency did not violate any existing laws, rules, regulations, or the negotiated agreement by taking the subject disciplinary action." Id. at 41. That language makes the award unclear as to whether the Arbitrator's mitigation of the penalty is based on a finding of a specific violation of applicable authority. Therefore, we are unable to determine whether the Arbitrator's award exceeds the authority granted to him by the parties.

As the Arbitrator's award is unclear, we find it necessary to remand the award to the parties for the purpose of obtaining a clarification of the award from the Arbitrator. The remand is for the limited purpose of having the Arbitrator clarify and interpret his award by stating the basis for his affirmative order directing the Agency to rescind the suspension, issue a reprimand, and to pay backpay in light of his conclusion that the Agency did not violate any existing laws, rules, regulations, or the negotiated agreement by "taking the subject disciplinary action against the grievant." Id. On receipt of the award, as clarified, either party may file timely exceptions to that award.(3)

VII. Decision

The award is remanded to the parties in accordance with this decision.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Unless otherwise noted, all dates refer to 1990.

2. Article 31, Section H(1) provides:

The parties agree that letters [of] reprimand, suspensions of less than fifteen (15) days, and other adverse actions will be taken only for appropriate cause as provided in applicable law. Such cause, in the case of actions which are not based on unacceptable performance, shall be just and sufficient and only for reasons as will promote the efficiency of the service.

Award at 5.

3. In view of this decision, it is unnecessary