United States, Environmental Protection Agency, Chicago, Illinois (Agency) and American Federation of Government Employees, Local 704 (Union)

[ v58 p495 ]

58 FLRA No. 122

UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
CHICAGO, ILLINOIS
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 704
(Union)

0-AR-3522

_____

DECISION

April 25, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Cyrus A. Alexander 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. [n2] 

      The Arbitrator concluded that the Agency did not provide an employee selected to fill a vacant position with preferential treatment. However, he further found that the Agency violated its policy by not conducting interviews for that vacancy. The Arbitrator allowed the Agency's selection for the position to stand and awarded the Union $10,000 to remedy the policy violation. For the reasons set forth below, we grant the Agency's exceptions and set aside the award.

II.     Background and Arbitrator's Award

      After considering nine applicants for a supervisory position, the Agency filled the position without conducting interviews. The Union then filed a grievance over the selection. After the parties could not resolve the matter, they submitted the following issue to arbitration: "Whether the Agency gave preferential treatment to the selectee . . . in violation of applicable law and/or the Master Collective Bargaining Agreement, which includes whether or not the process of selection was proper. If so, what is the remedy?" Award at 3.

      The Arbitrator found there was no evidence that the selection was tainted or that the selectee received preferential treatment. The Arbitrator then concluded that the Agency had violated its Diversity Action Plan (DAP) by failing to interview qualified candidates for the position. [n3]  Based on these findings, the Arbitrator allowed the Agency's selection for the position to stand and awarded the Union $10,000 to remedy the Agency's violation of the DAP.

III.     Agency's Exceptions

      The Agency first claims that the remedy of $10,000 to the Union is contrary to law because there is no express waiver of sovereign immunity authorizing the award. In support of this argument, the Agency asserts that the award is improper under the Back Pay Act and that the Arbitrator made no connection between the monetary relief and the violation found. In the Agency's view, the award of $10,000 to the Union is an unlawful award of punitive damages.

      The Agency also asserts that the Arbitrator exceeded his authority: (1) by resolving an issue not before him when he found a violation of the DAP; and (2) by awarding "punitive damages" to the Union. Exceptions at 4.

IV.     Analysis and Conclusions

      An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. See AFGE, Local 1617, 51 FLRA 1645, 1647 (1996).

      Here, we find that the Arbitrator exceeded his authority when, after finding that there was "no evidence that the appointment of [the selectee] was tainted" and "no credible evidence that shows [the selectee] received preferential treatment[,]" he nonetheless went on to find that the Agency violated the DAP requirement to conduct interviews. Award at 14. [ v58 p496 ]

      The stipulated merits issue was: "Whether the Agency gave preferential treatment to the selectee . . . in violation of applicable law and/or the Master Collective Bargaining Agreement, which includes whether or not the process of selection was proper. . . ." Id. at 3. The stipulation's reference to the process of selection was part of the issue of whether the selectee received preferential treatment; it was not a separate, independent issue. The Arbitrator could have found, but did not, that the Agency gave preferential treatment to the selectee because the process of selection was improper. However, once he explicitly found that there was no preferential treatment, he had no authority to resolve a selection process issue that did not involve preferential treatment.

      In this regard, this case is similar to United States Dep't of the Navy, Naval Sea Logistics Ctr., Detachment Atlantic, Indian Head, Md., 57 FLRA 687 (2002). There, although the arbitrator found that the agency did not discriminate against the grievant when it denied the grievant a temporary promotion, the arbitrator nevertheless ordered the agency to review its affirmative action obligations. The Authority set aside this portion of the award on the ground that the arbitrator exceeded his authority. The same reasoning applies here.

      Thus, we find that the Arbitrator was without authority to consider any potential violations of the DAP. Accordingly, the portion of the award addressing the DAP, including the remedy imposed for the violations of that policy, is set aside. [n4] 

V.      Decision

      The award is set aside.


File 1: Authority's Decision in 58 FLRA No. 122
File 2: Member Pope's Opinion


Footnote # 1 for 58 FLRA No. 122 - Authority's Decision

   The dissenting opinion of Member Pope is set forth at the end of this decision.


Footnote # 2 for 58 FLRA No. 122 - Authority's Decision

   The Union's opposition to the Agency's exceptions was untimely filed under § 2425.1(c) of the Authority's Regulations and, therefore, we have not considered it.


Footnote # 3 for 58 FLRA No. 122 - Authority's Decision

   The DAP is an internal affirmative action plan that requires the Agency to use an interview panel when filling certain supervisory positions. See Award at 9.


Footnote # 4 for 58 FLRA No. 122 - Authority's Decision

   In light of this finding, we need not determine whether the award of $10,000 is contrary to law. However, we note that if we were to consider this issue, we woul