United States Small Business Administration and American Federation of Government Employees, Local 2951

[ v55 p179 ]

55 FLRA No. 31

UNITED STATES SMALL BUSINESS
ADMINISTRATION
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2951
(Union)

0-AR-2987

_____

DECISION

January 29, 1999

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

Decision by Member Wasserman for the Authority

I. Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Albert Heller 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 Regulations. The Union filed an opposition to the Agency's exceptions. [n1] 

      The Arbitrator sustained a grievance challenging the grievant's reprimand and transfer, and ordered the Agency to make the grievant whole, remove the discipline, reimburse all costs, and place the grievant in a new position. For the reasons that follow, we grant the Agency's exceptions in part, deny in part, and remand in part.

II. Background and Arbitrator's Award

A. Facts Giving Rise to this Grievance

      This case concerns a dispute between the American Federation of Government Employees, Local 2951 (hereinafter referred to as "Union") and the United States Small Business Administration (hereinafter "Agency") over the Agency's issuance of a letter of reprimand to an employee (hereinafter "grievant") on May 7, 1996.

      The grievant is a 19-year employee and secretary of the Union. The letter of reprimand was issued following a series of events that began on April 12, 1996, when the grievant found her rented parking space occupied by an Agency van. The grievant, who was on annual leave that day, arrived at the Agency office to visit another employee. Following discovery of the van in her parking space, the grievant attempted to contact a supervisor in order to have the van removed, but was unsuccessful. On April 16, 1996, the grievant wrote a letter to management requesting an investigation of the matter and reimbursement for unauthorized use of her parking space.

      In the May 7, 1996 letter of reprimand, the acting district director stated that discipline was warranted because the grievant's behavior on April 12 created a disturbance that adversely affected production and morale.

      Prior to the reprimand, the grievant had been temporarily reassigned on two occasions. Effective February 5, 1996, the former district director reassigned the grievant to another position for 120 days. Prior to the completion of that reassignment, and subsequent to the arrival of the acting district director, who issued the reprimand, the grievant was detailed to another position. The detail occurred on March 12, 1996. Also prior to the reprimand, the grievant, along with other Union officers, opposed a "Memorandum of Understanding" pertaining to a "waiver of existing rights or conditions of work." The acting district director had been involved with the Memorandum.

      Immediately after issuance of the reprimand, the grievant and the Union notified the acting district director of their intent to file a grievance. Thereafter, on May 12, 1996, the acting district director reassigned the grievant to a different position in another division. [n2]  The grievance was filed on May 22, 1996.

B. Arbitrator's Award

      There is no specific statement in the record that the parties stipulated the issues, and no indication that the Arbitrator framed the questions to be resolved. Rather, [ v55 p180 ] the Arbitrator addressed the issues outlined in the grievance.

      As relevant to these exceptions, the grievance alleges a violation of Articles 4, 11 and 38 of the parties' master agreement (hereinafter referred to as "agreement"). Article 4 is entitled, "Changes in Personnel Policies, Practices, and Conditions of Employment"; Article 11 is entitled, "Union Rights and Responsibilities"; and Article 38 is entitled, "Disciplinary Action." The grievant claimed, among other things, that "a pattern of persecution, intimidation, and violation of the Master Agreement" had occurred subsequent to the acting district director's arrival and that the grievant's reprimand was an example of this pattern. In addition, the grievant claimed that she had been retaliated against as a result of her active participation in a Union-management meeting; that she had been detailed in March and reassigned in May, 1996, without adequate notice to her supervisor; and that, as to one of the details, her lack of experience or knowledge would affect her performance and career-ladder promotion. The grievant also discussed the events surrounding the use of her parking space by an Agency vehicle and complained about the manner in which the incident was handled. As a remedy, the grievant requested that the letter of reprimand be taken off her records, and that she be returned to the division from where she was transferred.

      Among the facts found by the Arbitrator were: (1) the Agency did not conduct an interview of the grievant concerning the parking incident of April 12, 1996; (2) the grievant was not given an opportunity to respond to the Agency's disciplinary action, as provided for in Article 38, Section 4 of the parties' agreement; and, (3) had the Agency acted consistent with past disciplinary actions, the grievant's conduct would have merited only an oral admonishment.

      In the body of the award, the Arbitrator stated that the grievant's detail on March 12, 1996 was "based on Articles 4 and 34 of the Master Agreement[,]" and cited to an exhibit before him as authority for this statement. Award at 17. Particularly, the Arbitrator found that the March 12, 1996 reassignment "was to a position [the grievant] had no knowledge of and which her then Supervisors had no part in the decision to reassign." Id. at 24. Further, the Arbitrator stated that "there were former employees in the office who had knowledge to perform the work[.]" Id. With regard to the May reassignment, the Arbitrator determined it was "again an action which was not previously discussed or negotiated." Id. The Arbitrator then held that "[t]hese reassignments interdicted [the grievant's] progression track in advancement and ability to produce for the Agency and appear to be bias based." Id.

      Based upon the evidence and testimony of witnesses, the Arbitrator concluded that the acting district director "had an agenda regarding" the grievant. Id. The Arbitrator concluded that the disciplinary action imposed on the grievant was "based on personal bias which was unwarranted and unjust." Id. The Arbitrator directed the following remedy:

That [the grievant] be made whole in every respect, including removal of the discipline from the personnel file with appropriate notification. That all reasonable costs and expenses generated in processing the grievance against the discipline imposed be reimbursed. That [the grievant] be placed in a position which will use her capabilities and commensurably [sic] appropriate subject to the [Agency's] need.

Id.  [n3] 

III. The portion of the award granting costs and expenses to the Union must be set aside, in part, and modified, in part

A. Positions of the Parties

1. Agency's Exception

      The Agency takes issue with the portion of the award requiring costs and expenses to be paid by the Agency. The Agency acknowledges that the award does not specifically address attorney's fees. However, the Agency claims that if the award contemplates such fees, the award is without legal basis because no specific statutory fee authorization exists. In this regard, the Agency points out that the parties' agreement provides only for such fees as are authorized by the Civil Service Reform Act (Act). The Agency argues that no provision of that Act, or any other authority, applies in this case. In support, the Agency cites American Federation of Government Employees, Local 2419 and U.S. Department of Health and Human Services, National Institutes of Health, Division of Engineering Services, Maintenance Engineering Branch, 50 FLRA 128 (1995) (AFGE Local 2419) (the payment of attorney fees can only be made pursuant to specific statutory authorization; a collective bargaining agreement cannot serve as a basis for an award of attorney fees in the absence of stat- [ v55 p181 ] utory authority). The Agency further argues that the Back Pay Act does not provide a basis for a fee award in this case because back pay was not awarded.

      The Agency also contends that the Arbitrator's award of costs and expenses fails to draw its essence from Article 41, Section 4 of the parties' agreement. [n4]  In this regard, the Agency argues that the language of the agreement requires that costs be borne equally and that the Arbitrator's "taxation of all costs" to the Agency is not a plausible interpretation of the agreement. Exceptions at 3. In addition, the Agency claims that since the Arbitrator did not cite the parties' agreement as authority for his award, the award manifests a disregard of the agreement.

2. Union's Opposition

      The Union asserts that attorney's fees are justified in this case, where the grievant was the victim of an "unwarranted and unjustified" action. Opposition at 6-7. The Union contends that the award is in accordance with the parties' agreement, which recognizes the Arbitrator's authority to grant attorney's fees as provided by the Act. In particular, the Union cites section 7701(g)(1) of the Act, which sets forth the requirements for fee awards. The Union further argues that an arbitrator's authority to award attorney's fees "is incidental to and necessarily implied from the authority of the arbitrator to determine fully the maters [sic] in controversy." Id. at 7. In support, the Union cites Associated General Contractors, 58 LA 162, 163 (Jenkins, 1972).

      As to the order to the Agency to pay all costs, the Union maintains that the award of costs does not manifest a disregard of the agreement.

B. Analysis and Conclusions

      We note that the Arbitrator's award does not itself specify the payment of attorney's fees. Because the Union interprets the award as including attorney's fees, we will address the Agency's exception regarding the legality of such an award.

      The Agency's exception regarding attorney's fees involves the consistency of the Arbitrator's award with law. Thus, the Authority will review the questions of law raised by the Agency's exceptions and the Arbitrator's award de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995).

      The expenditure of funds by a Federal agency to pay attorney's fees must be pursuant to specific statutory authorization. See Laborers' International Union of North America, Local 1376 and U.S. Department of Health and Human Services, Public Health Service, Navajo Area Indian Health Service, 54 FLRA 700, 704 (1998). See also U.S. Department of the Army Missile Range, White Sands, New Mexico and National Federation of Federal Employees, Local 2049, 38 FLRA 258, 261 (1990), citing Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975). As for the availability of attorney's fees under the Back Pay Act, 5 U.S.C. § 5596, it is well established that an arbitrator may not award attorney's fees under 5 U.S.C. § 7701, which is incorporated therein, independent of the terms of the Back Pay Act. See AFGE Local 2419, 50 FLRA at 130. The Back Pay Act provides for the recovery of attorney's fees where, as a threshold requirement, there is a finding that the grievant was affected by an unjustified or unwarranted personnel action that resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials. Alabama Association of Civilian Technicians and U.S. Department of Defense, Alabama State Military Department, Alabama National Guard, 54 FLRA 229, 232 (1998).

      This case did not involve a reduction of the grievant's pay, allowances or differentials. Therefore, this case does not meet the threshold requirement for an award of attorney's fees under the Back Pay Act.

      The Arbitrator made no finding as to the existence of any other statutory authorization for an award of fees. The Union's reliance on Associated General Contractors, to support its claim that the Arbitrator had implied power to award fees in this case, is misplaced. Associated General Contractors did not involve an award of fees to be paid by the Government. As noted, the expenditure of funds by a Federal agency to pay attorney's fees must be pursuant to specific statutory authorization. There is no such authority here. Accordingly, an order of attorney's fees in this case is contrary to law, and to the extent the award covers attorney's fees, it is set aside.

      With respect to the Agency's claim that the award of costs failed to draw its essence from the collective bargaining agreement, it must demonstrate that the [ v55 p182 ] award: (1) is so unfounded in reason and fact, and so unconnected with the wording and purposes of the collective bargaining agreement, as to manifest an infidelity to the obligation of the arbitrator; (2) does not represent a plausible interpretation of the agreement; (3) cannot in any rational way be derived from the agreement; or (4) evidences a manifest disregard of the agreement. See, e.g., United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76 (1990).

      Article 41, Section 4 of the agreement explicitly states that the arbitrator's fees and expenses "shall be borne equally" by the parties. The Arbitrator ordered the Agency to reimburse the Union for "all reasonable costs and expenses generated in processing the grievance." The Agency argues that, by ordering it to pay all costs and expenses, the award does not represent a plausible interpretation of the agreement.

      The agreement clearly provides for an equal sharing of various costs. Nothing in the agreement specifies that one party may be ordered to pay more of the costs than the other party, and the Arbitrator provided no interpretation of the agreement that would support a conclusion that the agreement should be read differently. We find, therefore, that this portion of the award is deficient because it fails to draw its essence from the agreement. See, e.g., U.S. Department of Justice, Federal Bureau of Prisons, United States Penitentiary, Leavenworth, Kansas and American Federation of Government Employees, Council of Prisons, Local 919, 53 FLRA 29, 33 (1997) (award deficient because arbitrator's assertion of jurisdiction over the grievance was not compatible with a plausible interpretation of the parties' collective bargaining agreement); See also U.S. Department of the Air Force, Oklahoma City Air Logistics Command, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 48 FLRA 342, 348 (1993) (award deficient because arbitrator's interpretation of agreement was incompatible with its plain wording).

      Accordingly, we modify the award to comport with the language of the agreement, so that costs are borne equally by the parties. See, e.g., U.S. Department of Health and Human Services, Social Security Administration, Kansas City, Missouri and American Federation of Government Employees Local 1336, 51 FLRA 725, 732 (1996) (award that failed to draw its essence from collective bargaining agreement was modified to comport with the language of the agreement).

IV. The portion of the award ordering the grievant's placement is not moot

A. Positions of the Parties

1. Agency's Exception

      The Agency argues that the portion of the award directing the Agency to place the grievant in an appropriate position is moot, because the grievant is no longer employed by the Agency.

      Exhibits attached to the Agency's exceptions reveal the following facts. [n5]  At the time of the arbitration hearing, and several months prior thereto, the grievant had not been reporting to work. The grievant's absence was due, at least in part, to a claim that she sustained a work-related injury on December 24, 1996. The grievant filed a claim with the Department of Labor seeking compensation benefits. On February 26, 1997, the Department of Labor disallowed the claim. On April 25, 1997, the Agency ordered the grievant to return to her position by April 30, 1997. The grievant did not return to her position and, on May 9, 1997, the Agency issued a notice of proposed removal. The Agency concluded that the grievant was physically unable to perform the duties of her officially assigned position. By letter dated June 5, 1997, the Agency removed the grievant from her position, effective June 14, 1997.

      The Agency points out that its decision to remove the grievant occurred after the arbitration hearing, which was held in April 1997. The Agency asserts that the removal was not at issue before the Arbitrator and that "[a]ny decision purporting to modify that later unrelated action would be invalid for exceeding the Arbitrator's authority." Exceptions at 5-6. The Agency submits that its decision to remove the grievant was based on her inability to perform, and was not in any way related to the reprimand. The Agency also points out that the Department of Labor ruled that the grievant's absence from work was not caused by the Agency. Therefore, the Agency states that "no remand is appropriate under any circumstances as the issue of causation is res judicata." Id. at 7. [ v55 p183 ]

2. Union's Opposition

      The Union asserts that the Agency's exception is based upon documents concerning the grievant's dismissal that are improperly submitted and post-date the arbitration hearing. With regard to the grievant's dismissal, the Union states that the grievant filed a discrimination charge against the Agency which is "pending investigation." [n6]  Opposition at 9. The Union argues that the issue of whether the award is moot is not properly before the Authority; rather, the Authority's duty is to decide whether the award is valid.

B. Analysis and Conclusions

      A dispute becomes moot when the parties no longer have a legally cognizable interest in the outcome. Department of Justice v. FLRA, 991 F.2d 285, 289 (5th Cir. 1993) (citing Powell v. McCormack, 395 U.S. 486, 496 (1969)) (although employee no longer worked for agency, case was not moot because FLRA still had an interest in controversy and Statute still provided available remedies). The Supreme Court has held that the burden of demonstrating mootness "is a heavy one." See United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953). The party urging mootness meets its burden of demonstrating that neither party has a legally cognizable interest in the final determination of the underlying questions of fact and law, upon satisfaction of two conditions: (1) that "`there is no reasonable expectation' . . . that the alleged violation will recur," and (2) "interim relief or events have completely [or] irrevocably eradicated the effects of the alleged violation." County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (internal quotations and citations omitted).

      In this case, the Agency has not established that the Union no longer has a legally cognizable interest in the grievant's placement. In National Labor Relations Board and National Labor Relations Board Professional Association, 50 FLRA 88 (1995), the Authority recognized that a portion of an arbitrator's remedy, requiring an agency to take an action regarding an employee who had resigned, can be rendered moot by the resignation. Here, both parties have stated that the grievant was removed from employment. The Union stated in its pleadings, however, that the grievant "had requested a reasonable accommodation pursuant to federal statute, but the Agency declined said request[,] which is still another violation of a federal statute which will eventually be determined." Opposition at 10 n.8. The Union's assertion that issues related to the removal "will eventually be determined" id., is not disputed. Thus, although the award in this case does not require reinstatement, the portion of the award which requires a change of position from one that the grievant encumbered when she was removed could have viability in the event the grievant were reinstated as a result of another proceeding. In these circumstances, the Agency has not shown that the award is rendered moot because of the grievant's removal from employment. We deny the exception.

V. The portion of the award addressing the grievant's reassignment did not exceed the arbitrator's authority

A. Positions of the Parties

1. Agency's Exception

      The Agency asserts that the grievant's March 12, 1996 detail was not grieved. In this regard, the Agency argues that the Arbitrator exceeded his authority in addressing the detail as an issue.

2. Union's Opposition

      The Union points out that the grievant's temporary and permanent details were specifically included in the grievance.

B. Analysis and Conclusions

      Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority, or award relief to persons who are not encompassed within the grievance. U.S. Department of the Navy, Navy Public Works Center, Norfolk, Virginia and Tidewater Virginia Federal Employees Metal Trades Council, 54 FLRA 338 (1998).

      The March 12, 1996 detail was included in the grievance. In the absence of submission of a stipulated issue or the Arbitrator's framing of the issue so as to exclude the detail, it was proper for the Arbitrator to address the matter. See U.S. Department of the Army, Corps of Engineers, Memphis District, Memphis, Tennessee and National Federation of Federal Employees, Local 259, 52 FLRA 920, 924 (1997) (Authority held that arbitrator did not exceed authority in addressing the contested issue when it was included in the grievance). Therefore, the Agency has not demonstrated that the [ v55 p184 ] Arbitrator exceeded his authority in addressing the March 12, 1996 detail. See American Federation of Government Employees, Local 1151 and U.S. Department of Veterans Affairs, 54 FLRA 20, 23-24 (1998) (agency did not establish any of the grounds for showing the arbitrator exceeded his authority).We deny the exception.

VI. The portion of the award ordering the grievant's placement is remanded for clarification of the basis of the award

A. Positions of the Parties

1. Agency's Exception

      The Agency contends that the portion of the award ordering the grievant's placement is contrary to law by violating management's rights to assign employees and to assign work under sections 7106(a)(2)(A) and (B) of the Statute. The Agency also argues that the award fails to comply with the two-prong test set forth in U.S. Department of the Treasury, Bureau of Engraving and Printing and National Treasury Employees Union Chapter 201, 53 FLRA 146 (1997) (BEP). As to the first prong, the Agency asserts that the arbitrator did not cite to any applicable law that was violated and did not state or allude to a nexus between the remedy and the violation for which relief was granted. As to the second prong, the Agency argues that the award does not satisfy BEP because the award contains no "reconstruction" of how management should have acted. Exceptions at 9.

2. Union's Opposition

      The Union states that the grievance clearly refers to "violations of the Master Agreement." Opposition at 11. The Union also contends that a nexus exists between the remedy and the violation because the Arbitrator found that the grievant's temporary and permanent reassignments resulted from the Agency's "campaign of persecution and harassment." Id. The Union further states that the Arbitrator issued a proper remedy because the grievant would have continued working in a position where she was capable of performing had she not been reassigned.

B. Analysis and Conclusions

      The Agency's exception involves the consistency of the Arbitrator's award with law. Thus, the Authority will review the exception and the award de novo.

      The Authority's framework for resolving exceptions alleging that an award violates management's rights under section 7106 of the Statute is set forth in BEP, 53 FLRA at 151-54. Upon finding that an award affects a management right under section 7106(a), the Authority applies a two-prong test. Under prong I of this framework, the Authority examines whether the award provides a remedy for a violation of either applicable law, within the meaning of section 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to section 7106(b) of the Statute. Id. at 153. If the award provides such a remedy, the Authority will find that the award satisfies prong I of the framework and will then address prong II. Under prong II of BEP, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if management had not violated the law or contractual provision at issue. Id. at 154. If the arbitrator's remedy reflects such a reconstruction, the Authority will find that the award satisfies prong II.

      We will first determine whether the award affects a management right. Management's right to assign employees under section 7106(a)(2)(A) encompasses permanent as well as temporary assignments, including details. See, e.g., U.S. Department of the Navy, Philadelphia Naval Shipyard, Philadelphia, Pennsylvania and Planners, Estimators, Progressmen and Schedulers Union, Local 2, 51 FLRA 1777, 1782 (1996). Here, the Arbitrator ordered the agency to place the grievant in a new position. Accordingly, we find that the award affects management's right to assign employees. See Id.

      In order to apply prong I of the BEP test, it is essential to identify the contract provision that the arbitrator determined was violated. [n7]  Here, the Arbitrator identified contract provisions relevant to the case, but it is not apparent upon which contract provision(s) he relied in forming a remedy. At the outset of the award, the Arbitrator stated that the grievant claimed a violation of the agreement. For this proposition, the Arbitrator cited to the grievance itself, which was included as an exhibit before the Arbitrator. One portion of the grievance states that the May reassignment was an action "not previously discussed or negotiated with the Union and is in clear violation of the Master Agreement." The Arbitrator cited as "Pertinent Contract Clauses" various provisions of Article 4, Article 11, and Article 38. These provisions essentially track the contract provisions set forth in the grievance that were alleged to be violated. Also, the Arbitrator stated that the grievant's detail on March 12, 1996 was "based on Articles 4 and 34 of the Master Agreement[,]" and cited [ v55 p185 ] to an exhibit before him as authority for this statement. Award at 17.

      Any one or more of the provisions quoted and/or referenced by the Arbitrator could have had some bearing on the Agency's reassignment of the grievant. The Arbitrator, however, did not sufficiently link the reassignment to any agreement provision(s) he had cited. Therefore, a remand is appropriate to enable the Arbitrator to clarify the basis of his award. In remanding the award, we request that the arbitrator address all the requirements of BEP.

      A remand in this case is consistent with the approach taken by the Authority in U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Depot, Norfolk, Virginia and International Association of Machinists and Aerospace Workers, Local Lodge 97, 54 FLRA 180 (1998) (DOD Norfolk) (Member Wasserman dissenting). [n8]  In that case, the arbitrator reversed a disciplinary action based on an application of criteria set forth in a private sector just cause case. Although the arbitrator found that the grievant was not suspended for just cause, the arbitrator did not identify the just cause provision of the parties' agreement in making that determination. In this regard, the Authority stated that, in order to apply BEP, it is necessary to identify the law or contract provision that an arbitrator determined was violated. DOD Norfolk, 54 FLRA at 184. Because there was a "possible" connection to the parties' agreement, the Authority remanded the award for clarification of the basis of the award. Id. [n9] 

VII. The portion of the award ordering the grievant's placement is not based on nonfact

A. Positions of the Parties

1. Agency's Exception

      The Agency submits that, after the grievant was reassigned to her new position, she performed well enough to be promoted and receive a performance award. Consequently, the Agency argues that the Arbitrator's conclusion that the grievant's reassignment "interdicted [her] progression track in advancement and ability to produce for the agency[,]" is "simply not true and is a nonfact." Exceptions at 10. The Agency therefore contends that at the time of the award the Agency was already in compliance with the Arbitrator's direction that it place the grievant in a "position which [used] her capabilities and commensurably [sic] appropriate subject to the [Agency's] need." Id. On this basis, the Agency argues that this portion of the award should "be rescinded[.]" Id. at 11.

2. Union's Opposition

      With regard to whether the portion of the award ordering the grievant's placement should be sustained, the Union points out that "the grievance clearly refers to a pattern of persecution, intimidation and violations of the Master Agreement[,]" that "[t]he temporary and permanent details . . . [were] specifically included in the grievance[,]" and that the grievant "specifically requested that [she] be returned to the Division from where she was transferred." Opposition at 11.

B. Analysis and Conclusions

      We construe the Agency's exception as a contention that the Arbitrator's award is based on nonfact. To establish that an award is based on a nonfact, the appealing party must show that the central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993). However, the Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties had disputed at arbitration. Id. at 594 (citing Mailhandlers v. U.S. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)).

      The Union's case included the contention that the Grievant was detailed to positions for which she had no experience or knowledge, and that the details would have an adverse effect on her performance and promo- [ v55 p186 ] tion opportunities. See Grievance at 2, attached to Agency's Exceptions as Exhibit B. With respect those claims, the Arbitrator concluded that the manager responsible for the details had "an agenda regarding" the Grievant. Award at 24. In addition, after citing a joint exhibit and finding that there were other employees who had the knowledge to perform the work the Grievant was assigned to do, the Arbitrator determined that "[t]hese reassignments interdicted Ms. Alvorado's progression track in advancement and ability to produce. . . ." Id. Accordingly, these factual matters were disputed before the Arbitrator, and we deny the Agency's non-fact exception.

VII. Decision

      We hereby: (1) grant the Agency's exception with regard to attorney's fees; (2) modify the award to reflect the language of the agreement with respect to equal payment of costs; (3) deny the Agency's exception with regard to mootness; (4) deny the Agency's exception which contended that the Arbitrator exceeded his authority; (5) remand the portion of the award ordering the grievant's placement for settlement or for resubmission to the Arbitrator for clarification; and (6) deny the Agency's exception on grounds that the award is not based on a nonfact.






Footnote # 1 for 55 FLRA No. 31

   The Union requested that the Authority order the Agency to submit a full record of the Arbitration proceedings, because the Agency's exceptions do not include information favorable to the grievant which had been admitted into evidence before the Arbitrator. We deny the request because the Agency's exceptions comply with section 2425.2 of our Regulations. See U.S. Department of Transportation, Federal Aviation Administration, Burlington, Massachusetts and National Air Traffic Controllers Association, 48 FLRA 1112, n.1 (1993).


Footnote # 2 for 55 FLRA No. 31

   There is a discrepancy in the award as to whether the reassignment occurred on May 12 or May 14. For purposes of our analysis, we will refer to the event as the "May reassignment."


Footnote # 3 for 55 FLRA No. 31

   The Agency does not except to the portion of the award requiring the Agency to remove the letter of reprimand from the grievant's personnel file. Therefore, this matter will not enter into the Authority's analysis of the exceptions.


Footnote # 4 for 55 FLRA No. 31

   Article 41, Section 4 of the parties' agreement addresses grievances referred to arbitration. Section 4 is set forth as follows:

Section 4. Cost. The arbitrator's fees and expenses shall be borne equally by the parties to the arbitration. The cost of transcripts shall be borne by the party requesting the transcript, and a copy will be provided to the other party free of charge.

See Exceptions, Exhibit C at 93.


Footnote # 5 for 55 FLRA No. 31

   We reject the Union's contention that we should not consider these exhibits. Parties are required to submit copies of "other pertinent documents" in support of their exceptions. 5 C.F.R. 2425.2(d). If an exception is properly before us, supporting documents may be considered. A mootness claim can form the basis of an exception, and in this case does so. See infra.


Footnote # 6 for 55 FLRA No. 31

   The Union references violations of both the Americans With Disability Act and the Family Medical Leave Act. The Union does not provide much elaboration because, in its view, these matters relate to the grievant's removal, which was not an issue before the Arbitrator. Therefore, the record does not disclose whether, and in what forum, a charge of discrimination was filed. The Agency does not dispute the Union's statement that a claim is pending.


Footnote # 7 for 55 FLRA No. 31

   Because the Arbitrator addressed only claimed violations of the agreement, we do not address whether the award provides a remedy for a violation of applicable law.


Footnote # 8 for 55 FLRA No. 31

   Member Wasserman would distinguish DOD Norfolk insofar as he discerned a clear link between the remedy and a contract provision in that case, while he sees no sufficient link here.


Footnote # 9 for 55 FLRA No. 31

   Compare with U.S. Department of Vet