[ v59 p614 ]
59 FLRA No. 112
SOCIAL SECURITY ADMINISTRATION
REGION 1
BOSTON, MASSACHUSETTS
(Agency)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1164
(Union)
0-AR-3677
_____
DECISION
January 30, 2004
_____
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 John Van Dorr III 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.
The Arbitrator ordered the grievant's 2-day suspension converted to a written warning. Subsequently, upon request of the Union, the Arbitrator issued a "Remedy Clarification" that substituted an official reprimand for the written warning. We find that the Arbitrator was not authorized to clarify the award and that the original award is deficient.
II. Background and Arbitrator's Award
The Agency suspended the grievant for 2 days for unauthorized access to the Agency's data base and for using government property for personal reasons. A grievance was filed disputing the suspension and was submitted to arbitration on the stipulated issue of whether the Agency had just cause to discipline the grievant.
The Arbitrator noted that Article 23 of the parties' collective bargaining agreement [n2] requires that there be just cause for the imposition of discipline. He explained that reviewing discipline under Article 23 presents questions of whether the grievant's conduct warranted discipline and, if so, whether the penalty assessed was appropriate. The Arbitrator ruled that the grievant's conduct warranted discipline, but that there was not just cause to impose a 2-day suspension. Accordingly, in an award dated March 12, 2003, the Arbitrator ordered as a remedy that "[t]he suspension shall be reduced to a written warning." Original award at 9.
The Union requested clarification. The Union requested that the Arbitrator clarify "whether the mitigation of a two-day suspension to a `written warning' was intended to direct the Agency to issue a `written reprimand.'" Clarification award at 2. In its request, the Union noted the Authority's decision in Soc. Sec. Admin., Lansing, Mich., 58 FLRA 93 (2002) (Member Pope dissenting) (SSA, Lansing), reconsideration denied, 58 FLRA 181 (2002), and how the Authority had interpreted written warnings under Article 23 of the parties' agreement.
The Agency objected to the Union's request. The Agency contended that the order was clear and unambiguous and that there was nothing in the award that required clarification.
The Arbitrator denied the Agency's objection and determined that he had jurisdiction to clarify his award. He agreed with the Agency that as to the merits of the case, he was clearly functus officio. However, citing Authority case precedent, he noted that "an ambiguous remedy order may be clarified, and certain clerical and arithmetical errors may be rectified, at the request of one party and over the objection of the other so long as the underlying basis of that remedy order is not reconsidered." Id. at 3. He ruled that "[i]n the context of the presentations made in this case, my remedy order contained an ambiguity or clerical error that should be explained if the parties are unable between themselves to clarify it." Id. at 4.
He explained that the Union requested that the suspension be reduced to an official reprimand, but that his award did not address why the terminology of his remedy order differed from that requested by the Union and used in the parties' agreement. The Arbitrator maintained that his "term `written warning' normally fully encompasses the concept of the `official reprimand' [ v59 p615 ] contained and defined in the parties' Agreement." Id. However, he noted that the Authority in SSA, Lansing had distinguished the term "official reprimand" as used in the parties' agreement from the term "written warning." The Arbitrator conceded that it was not clear from the remedy order whether he intended to use "written warning" as synonymous with "official reprimand." But in his view, "[f]or th[is] reason alone, a clarification request can be granted." Id.
In clarifying his award, the Arbitrator ruled that "[t]he term recited in my Awards' [sic] remedy order, the `written warning,' was intended to mean, involves, and contemplates, precisely the concept defined in Article 23, § 4 as an `official reprimand.'" Id. Accordingly, on April 4, 2003, in a clarification award, he ordered that "the wording of my remedy order in the Award of March 12, 2003 shall be modified by the substitution of the words `official reprimand' for the words `written warning,' and `reprimand' for `warning' as appropriate therein." Id. at 5.
III. Position of the Parties
A. The Agency
1. Clarification Award
The Agency contends that the clarification award is deficient because the Arbitrator did not have jurisdiction to modify the original award. The Agency argues that the Arbitrator modified the award rather than clarified or corrected the award. The Agency maintains that as the Authority found in SSA, Lansing, if the Arbitrator had wanted to issue a reprimand, he could have clearly and explicitly done so in the original award. The Agency asserts that the Arbitrator was functus officio and had no authority to modify a substantive part of the award without the approval of both parties.
2. Original Award
The Agency contends that the original award fails to draw its essence from the agreement and is contrary to management's right to take disciplinary action under § 7106(a)(2)(A) of the Statute.
The Agency asserts on the basis of SSA, Lansing, that the award fails to draw its essence from the agreement by finding just cause for discipline, but ordering a warning that does not constitute discipline under Article 23 of the agreement. The Agency asserts that the award is also contrary to management's right to take disciplinary action by finding just cause for discipline, but ordering a warning that does not constitute discipline.
In addition, the Agency requests that the Authority reinstate the two-day suspension. The Agency maintains that the Agency's table of penalties set forth the applicable discipline in this case.
B. The Union
1. Clarification Award
The Union contends that the Arbitrator was empowered to issue the remedy clarification. The Union maintains that the Arbitrator merely clarified his intent as to the term "written warning." The Union argues that the Arbitrator intended a remedy that had the same force, function, and effect of the "official reprimand" found in Article 23 and that the clarification did not substantively affect the award because the Arbitrator attributed the same meaning to both "written warning" and "official reprimand." The Union asserts that therefore, in accordance with Authority precedent, the Arbitrator substituted the words "official reprimand" for the words "written warning." In support, the Union cites Corps of Engineers, United States Army Engineer Dist., New Orleans, La., 17 FLRA 315 (1985) (Corps of Engineers) (Authority ruled that the arbitrator was authorized to clarify that his intent was that the agency issue a letter of reprimand rather than a letter of warning as originally ordered). The Union claims that the clarification does not prejudice the Agency because it conforms to the intent, purpose, and effect of the Arbitrator's original remedy.
2. Original Award
In contending that the Agency's exceptions to the original award should be denied, the Union assumes that the Arbitrator's clarification will be sustained. Accordingly, the Union argues that the award does not fail to draw its essence from the agreement and is not contrary to § 7106(a)(2)(A) because the Arbitrator has ordered the grievant disciplined by ordering an official reprimand.
IV. Analysis and Conclusions
A. The Arbitrator was not authorized to issue the clarification award.
Under the principle of functus officio, once an arbitrator has accomplished the resolution of the matter submitted, the arbitrator is without further authority. See, e.g., United States Dep't of the Army, Corpus Christi Army Depot, Corpus Christi, Tex., 58 FLRA 77, 80 (2002) (Member Pope dissenting in part). Accordingly, unless an arbitrator retains jurisdiction after issuance of the award, the arbitrator has no authority to take any further [ v59 p616 ] action without the joint request of the parties. See id. However, under certain limited circumstances, an arbitrator has authority to clarify or correct an issued award. See, e.g., NFFE Local 11, 53 FLRA 1747, 1749 (1998).
An arbitrator may clarify an ambiguous award, but the clarification must conform to the arbitrator's original findings. See, e.g., United States Dep't of the Army, Army Info. Sys. Command, Savanna Army Depot, 38 FLRA 1464, 1467 (1991). An arbitrator may also correct clerical mistakes or obvious errors in arithmetical computations. See, e.g., Health Care Fin. Admin., Dep't of Health and Human Serv., 35 FLRA 274, 281 (1990). The Arbitrator clearly did not correct a clerical mistake or an obvious computational error. Accordingly, the question is whether the Arbitrator's substitution of a "official reprimand" for a "written warning" clarifies the original award or modifies the terms of the original award. We conclude that the Arbitrator modified the terms of the original award.
As noted by the Agency, in SSA, Lansing, the Authority specifically refused to equate a "written warning" with an "official reprimand" under Article 23 of the parties' collective bargaining agreement. See 58 FLRA at 95. The Authority ruled, as follows:
Had the Arbitrator intended to order the Agency to issue a written reprimand, the Arbitrator could have easily done so in a clear fashion. Instead, the Arbitrator devised his own remedy, which does not, on its face, fall within the confines of the parties' agreement.
See id. In view of the parties' determination in Article 23 of the collective bargaining agreement to distinguish official reprimands from other actions such as written warnings, a distinction explicitly reflected in our precedent and of which the Arbitrator was specifically made aware by the Union, his action in substituting an "official reprimand" for a "written warning" did not merely clarify an ambiguity in the award. Instead, the Arbitrator modified his original award by substituting an "official reprimand," which constitutes discipline under Article 23 of the parties' agreement, for a "written warning," which does not constitute discipline under the parties' agreement. For these same reasons, we reject the Union's reliance on Corps of Engineers. In that case, unlike in this case, there had not been a specific decision by the Authority under the parties' collective bargaining agreement construing the different actions. In Corps of Engineers, the Authority had never ruled that what the arbitrator intended could not be viewed as a letter of reprimand.
In the absence of a joint request from the parties, the Arbitrator had fulfilled his functions and was functus officio after he issued his March 12, 2003 award. He was not authorized to issue the award of April 4, 2003. Accordingly, we set the April 4 award aside.
B. The original award is deficient.
The original award is substantively identical to the awards in SSA, Lansing, and Soc. Sec. Admin., 59 FLRA 257 (2003) (Member Pope dissenting in part) (SSA). In both SSA, Lansing and SSA, the grievants were suspended for 2 days for violating the unauthorized system access policy, and the arbitrators ruled that discipline was warranted, but that the 2-day suspensions were not for just cause. In both cases, the arbitrators modified the suspensions to a written warning. As it has done in this case, the Agency filed exceptions in SSA, Lansing and SSA contending that a written warning did not constitute discipline under Article 23 and that consequently, the remedial portion of the award did not draw its essence from the agreement and was contrary to § 7106 of the Statute.
In both cases, we ruled that the awards were deficient because they failed to draw their essence from the agreement. We concluded that the imposition of a written warning did not constitute discipline as the parties have defined it under Article 23 of the agreement.
Specifically, we noted that Article 23 reflects the parties' agreement concerning the types of discipline that the Agency may impose on employees in the bargaining unit and that the minimum form of discipline is an official reprimand under Article 23. In addition to outlining reprimands and other disciplinary actions that the Agency can impose, the parties also defined actions that the Agency can take in advance of discipline. Those actions consist of counseling and oral warnings that are "informal in nature and are not recorded." [n3]
Nothing in Article 23 includes a provision for a written disciplinary warning. The specific provision on warnings in Article 23 provides for unrecorded oral warnings only and provides that such warnings do not constitute discipline. Accordingly, we conclude, as we did in SSA, Lansing and SSA, that the remedy directed by the Arbitrator does not comport with the disciplinary actions that the parties agreed the Agency could take under Article 23. As in SSA, Lansing and SSA, the Arbitrator, [ v59 p617 ] after finding that discipline was warranted under the just-cause standard of Article 23, in effect imposed no discipline at all within the meaning of the parties' agreement.
Accordingly, we reach the same result as we reached in SSA, Lansing and SSA. We conclude that the remedial portion of the award is deficient because it fails to draw its essence from the parties' collective bargaining agreement. [n4] Because the Arbitrator effectively found that discipline was warranted, his award, by not providing any discipline, does not represent a plausible interpretation of the agreement.
We also take the same action with respect to the award as we took in both SSA, Lansing and SSA; namely, striking the remedial portion of the award and not remanding for further proceedings. As we explained in SSA, the Agency retains the right to discipline the grievant for the misconduct, but has effectively made no decision on the penalty because both the Agency's original choice of penalty as well as the Arbitrator's deficient substitution of a written warning have been found improper. Accordingly, we determined that we needed to do nothing further because there was nothing to remand.
In sum, there is no further role at this point for the arbitral process in this matter, remand or otherwise, unless and until the Agency takes further action and there is a new grievance challenging the Agency's action. For the same reason, we deny the Agency's request to reinstate the 2-day suspension.
V. Decision
The award of April 4, 2003 is set aside. The remedial portion of the award of March 12, 2003, is set aside.
APPENDIX
Article 23, Sections 1-4 of the parties' collective bargaining agreement provide as follows:
Disciplinary and Adverse Actions.
Section 1 - Statement of Purpose and Policy
The parties agree that the objective of discipline is to correct and improve employee behavior so as to promote the efficiency of the service. The parties agree to the concept of progressive discipline which is designed primarily to correct and improve employee behavior. . . Bargaining unit employees will be the subject of disciplinary or adverse action only for just cause.
The parties further agree that normally, discipline should be preceded by counseling and assistance including oral warnings which are informal in nature and not recorded. Counseling and warnings will be conducted privately and in such a manner so as to avoid embarrassment to the employee. Bargaining unit employees will be subject to disciplinary or adverse action only for just cause.
Section 2 - Timeliness of Discipline
If the Agency feels that disciplinary action or adverse action is necessary, such action will be initiated timely after the offense was committed or made known to the Agency.
Section 3 - Definition of "Day"
For the purpose of this Article, the word "day" means calendar day unless otherwise specified.
Section 4 - Reprimand
An official reprimand is a written disciplinary action which specifies the reasons for the action. The reprimand will specify that the employee may be subject to more severe disciplinary action upon any further offense and that a copy of the reprimand will be made a part of both the SF-7B Extension File and the Official Personnel Folder for up to 1 year.
If a discussion is to be held when a reprimand is given, the supervisor will advise the employee of his/her right to Union representation prior to the start of the discussion. The letter of reprimand will inform the employee that he/she has the right to file a grievance on the reprimand under the negotiated grievance procedure, and the right to Union representation.
The remaining sections of Article 23 are entitled Short-Term Suspensions (Section 5); Removal, Suspension for More Than 14 Days, Reduction-in-Grade, Reduction-in-Pay, and Furlough of 30 Days or Less (Section 6); Request for Information (Section 7); Requests for Time Extensions on Proposals (Section 8); and Notice to Union (Section 9).
File 1: Authority's Decision in 59 FLRA No.
112
File 2: Opinion of Member Pope
Footnote # 1 for 59 FLRA No. 112 - Authority's Decision
The dissenting opinion of Member Pope is set forth at the end of this decision.
Footnote # 2 for 59 FLRA No. 112 - Authority's Decision
The pertinent provisions of Article 23 are set forth in an appendix to this decision.
Footnote # 3 for 59 FLRA No. 112 - Authority's Decision
In the parties' current collective bargaining agreement, this language is set forth in Article 23, Section 1. In the parties' prior collective bargaining agreement, applicable in SSA, Lansing and SSA, this language was set forth in Article 23, Section 3.
Footnote # 4 for 59 FLRA No. 112 - Authority's Decision
In view of this decision, we do not address whether the award is contrary to § 7106.