United States Department of Veterans Affairs, Northern Arizona Veterans Administration Health Care System, Prescott, Arizona (Agency) and American Federation of Government Employees, Local 2401 (Union)

[ v57 p922 ]

57 FLRA No. 193

UNITED STATES DEPARTMENT OF VETERANS
AFFAIRS, NORTHERN ARIZONA VETERANS
ADMINISTRATION HEALTH CARE SYSTEM
PRESCOTT, ARIZONA
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2401
(Union)

0-AR-3498

_____

DECISION

July 5, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This case is before the Authority on exceptions to an award of Arbitrator Harold C. White filed by the Agency under § 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. [n*] 

      The Arbitrator found that the Agency improperly disciplined the grievant and issued a remedial order.

      For the reasons set forth below, we find that, in issuing a portion of his remedial order, the Arbitrator exceeded his authority and we modify the Arbitrator's award accordingly.

II.     Background and Arbitrator's Award

      The grievant was a GS-11 Operating Accountant with the Agency. During a period of approximately a year, the grievant received an admonishment and a 5 day suspension from her supervisor because, according to her supervisor, she failed to complete assignments on time, spent considerably less than 8 hours a day working on her assignments, took too long to complete her work or did not do it, and failed to work efficiently. The grievant filed a grievance concerning the suspension and grieved the admonishment as well.

      The grievant served the suspension during the time that the related grievance was being processed. At the same time, her supervisor instituted a "pre-performance improvement plan" (pre-PIP) for the grievant. The plan included meetings between the supervisor and the grievant and regular supervisory review of the grievant's work. Because the supervisor concluded that the grievant's work had improved, she was removed from the pre-PIP and, in her subsequent performance appraisal, was rated "Successful" in all elements.

      Further, during the period of these events, the Agency offered retirement and a $25,000 buyout to qualified employees. Sometime after she received her performance appraisal, and before the arbitration of her grievance, the grievant accepted the buyout and retired.

      The Arbitrator framed the issue as follows:

Was Admonishment of the Grievant appropriate? If not, what is the appropriate remedy?

Award at first unnumbered page.

      The Agency claimed that the grievance concerned the grievant's conduct and the Union argued that it involved the grievant's performance. Noting several references by the supervisor to the grievant's performance, the Arbitrator concluded that the dispute was over the grievant's performance of her assigned work.

      The Arbitrator concluded that the grievant was improperly disciplined. As a remedy, the Arbitrator decided that the grievant should be made whole for the period of the 5 day suspension and that the suspension should be removed from her permanent file. Noting that the grievant had previously requested that the Agency allow her to return to full-time employment with the Agency, although not at her previous workplace, and that she be allowed to retain the $25,000 buyout, the Arbitrator also decided that the grievant should be allowed one of two options: (1) continue her retirement for the five year period necessary to retain the buyout; [ v57 p923 ] or (2) return the buyout and resume active service with the Agency as a GS-11 Accountant.

III.     Agency's Exception

      The Agency excepts to the portion of the award that concerns reinstatement of the grievant and her options as to the buyout on the ground that it exceeds the Arbitrator's authority. In this regard, the Agency contends that "the issue of the [grievant's] voluntary acceptance of a buyout and early retirement were not stipulated for resolution by the Arbitrator." Exception at 1. According to the Agency, the issues presented by the grievance concerned the admonishment and suspension of the grievant and the remedy requested by the Union in connection with those matters did not include "reversal of the alleged coerced retirement" because it "had not occurred at the time the grievances were filed." Id. Rather, the Agency states, the grievant appealed the alleged coerced retirement to the Merit Systems Protection Board (MSPB), which denied her appeal. See the AJ's Decision in Gadd v. Dep't of Veterans Affairs, Docket No. DE-0752-02-0035-I-1 (Dec. 28, 2001), Attachment 5 to the Agency's Exceptions. The Agency "requests that the portions of the award that address the retirement and buyout be deleted from the award." Exceptions at 2.

IV.     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 those not encompassed within the grievance. See AFGE, Local 1617, 51 FLRA 1645, 1647 (1996). In this regard, "the Authority has consistently held that arbitrators must confine their decisions and possible remedies to those issues submitted to arbitration for resolution and `must not dispense their own brand of industrial justice.'" United States Dep't of the Navy, Naval Sea Logistics Center, Detachment Atlantic, Indian Head, Md., 57 FLRA 687, 688 (2002) (NSLC) (quoting Veterans Admin., 24 FLRA 447, 450 (1986) (VA) (citations omitted)). Specifically, in VA, the Authority held that the arbitrator in that case "exceeded his authority by failing to confine his decision and any possible remedy to the issues submitted as he unambiguously framed them." NSLC, 57 FLRA at 388.

      In this case, the Arbitrator framed the issue in terms of the appropriateness of the Agency's admonishment of the grievant, and the Agency concedes that the grievance also encompassed the five-day suspension issue. There is no evidence in the record, however, that the grievances relating to those matters were ever amended to include the grievant's retirement or acceptance of the buyout. Consequently, we construe the only issues placed before the Arbitrator to be the admonishment and the five-day suspension.

      Moreover, while the Arbitrator noted as a matter of fact that the grievant had accepted the buyout and retired, he did not address in any manner the appropriateness of those actions. Nevertheless, in discussing the appropriate remedy for the Agency's improper disciplinary action against the grievant, the Arbitrator discussed the reinstatement of the grievant and allowable options with respect to the buyout.

      In ordering that the grievant be made whole for the period of the suspension, and that evidence of the discipline be removed from her permanent record, the Arbitrator confined his remedy to the issues as he had framed them. The Agency does not except to that portion of the award. The portion of the award that concerns reinstatement of the grievant and her options as to the buyout are not confined to those matters properly before the Arbitrator. Consequently, to that extent, the Arbitrator exceeded his authority. See VA, 24 at 451. That portion of the award will be deleted from the award. Id.

V.     Decision

      The award is modified to delete the portion of the award that concerns reinstatement of the grievant and her options as to the buyout.



Footnote # * for 57 FLRA No. 193

   The Union's opposition was timely filed, but was procedurally deficient. The Authority ordered the Union to cure the deficiencies, but the cure was untimely filed. Although the Union did not request a waiver