United States, Department of Health and Human Services, Food and Drug Administration, New Jersey District (Agency) and National Treasury Employees Union, Chapter 290 (Union)

[ v61 p533 ]

61 FLRA No. 99

UNITED STATES
DEPARTMENT OF HEALTH
AND HUMAN SERVICES
FOOD AND DRUG ADMINISTRATION
NEW JERSEY DISTRICT
(Agency)

and

NATIONAL TREASURY
EMPLOYEES UNION
CHAPTER 290
(Union)

0-AR-3990

_____

DECISION

February 16, 2006

_____

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 Raymond M. Spratt filed by the Agency under § 7122 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 found that the Agency did not violate the grievant's rights to fair and equitable treatment or discriminate against her based on her age or gender. The Arbitrator also found that the Agency did not retaliate against the grievant by not selecting her for training. However, the Arbitrator concluded that the Agency violated the Equal Employment Opportunity Commission's (EEOC) Regulations and the parties' agreement when the grievant's supervisor sent other management officials an email that was critical of the grievant. To remedy the violation, the Arbitrator directed the Agency to provide EEO training to the grievant's supervisor. For the following reasons, we conclude that the award is deficient, and we set it aside.

II.     Background and Arbitrator's Award

      The grievant filed a grievance (the first grievance) alleging discrimination based on gender, age, and hostile work environment. The next day, the grievant's supervisor sent an email to "all supervisors in the District informing them that the Union had filed an EEO grievance on behalf of the grievant . . . ." Award at 36. The supervisor also stated in the email that the grievant was his "LEAST valuable employee" and that there "must be a lesson there." Id. at 35.

      After the first grievance was filed, the grievant requested particular training (hereinafter "the requested training"). One of the managers who received the supervisor's email denied the grievant's request. The grievant then filed a second grievance alleging that she was denied fair and equitable treatment and was discriminated against in connection with her training request in violation of applicable laws, rules, regulations, and the parties' agreement.

      As relevant here, the second grievance was unresolved and was submitted to arbitration. [n2] The parties agreed that the Arbitrator could frame the issues "after hearing the testimony and reviewing the records." Id. at 18. Accordingly, the Arbitrator framed the following issues:

Whether the grievant's rights to fair and equitable treatment in the selection of employee[]s for [the requested training] was [sic] violated as a result of management's failure to comply with Agency, Regional or District training policies? If so, what shall be the remedy?
Whether the Agency discriminated against the grievant based on age and/or gender in the selection of candidates for the [requested training] in violation of law, rule, regulation, or the Agreement? If so, what shall be the remedy?
Whether the [A]gency retaliated against the grievant for the filing of an earlier EEO grievance by non-selecting the grievant for the [requested training] in violation of EEO law, rule or regulation and the [a]greement? If so, what shall be the remedy?"

Id. at 18-19. [ v61 p534 ]

      As relevant here, the Arbitrator found that the record did not establish that the Agency failed to comply with training policy or engaged in age and/or gender discrimination in denying the requested training. The Arbitrator also found that the grievant was engaged in protected activity when she filed the first grievance and that she subsequently was not selected for the requested training. However, the Arbitrator found that the Agency "presented legitimate, non-discriminatory reasons for the non-selection of the grievant." Id. at 32. Consequently, the Arbitrator found that "[t] he Agency did not retaliate against [the] grievant for filing an earlier EEO grievance by failing to select her for the" requested training. Id. at 33.

      After addressing and resolving the three issues he found to be before him, the Arbitrator went on to state that there was "an issue of interference with the EEO process." Id. at 34. Relying on several EEOC decisions, the Arbitrator explained that "interference with the EEO process constitutes a per se violation of the [EEOC's] anti-retaliation regulation under 29 CFR 1614.101." [n3]  Id. According to the Arbitrator, the supervisor's email comments either "result in discouraging the grievant from exercising her right to file an EEO grievance or, at the very least[,] have a potentially chilling effect on the grievant's utilization of the grievance and/or EEO process." Id. at 35. Consequently, the Arbitrator found that the Agency committed a per se violation of the EEOC's anti-retaliation regulations, in violation of Article 48 of the parties' agreement. [n4]  As a remedy, the Arbitrator directed the Agency to provide training to the grievant's supervisor, and he retained jurisdiction to resolve disputes over the remedy and requests for attorney fees.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency claims that the Arbitrator exceeded his authority by resolving an issue that was not before him. In this regard, the Agency asserts that the Arbitrator "clearly framed the issue" as whether the Agency retaliated against the grievant "by not-selecting" her for the requested training. Exceptions at 7 (emphasis omitted). According to the Agency, the Arbitrator resolved this issue when he found that the Agency did not retaliate against the grievant by not selecting her for the training, and asserts that the issue of whether there was interference with the EEO process was not included in the framed issue or addressed by the parties.

      Alternatively, the Agency argues that it was denied a fair hearing because it was not given the opportunity to address the interference issue. According to the Agency, that issue was resolved based solely on the supervisor's email, which the Union submitted to support its hostile work environment claim. Id. at 9. In this regard, the Agency asserts that the Union's retaliation claim was raised for the first time in its post-hearing brief, which was submitted to the Arbitrator the day the record closed, after the Agency submitted its brief.

B.      Union's Opposition

      The Union disputes that the Arbitrator exceeded his authority and asserts that the Arbitrator had "wide latitude" to frame the issues in the absence of a stipulation. Opposition at 8. The Union asserts that, although the interference issue was not grouped with the other issues, the Arbitrator specifically defined that issue. See id. at 7-8. In addition, the Union asserts that the interference issue was "sufficiently linked" to the alleged retaliation. Id. at 9. In this connection, the Union asserts that the Arbitrator interpreted Article 48 of the parties' agreement to include per se violations and found such a violation based on the supervisor's email, which was entered in evidence as proof of retaliation.

      The Union also disputes that the Agency was denied a fair hearing. In this regard, the Union asserts that "the Arbitrator placed no restriction on the Agency's ability to develop the record regarding the e-mail." Id. at 11. According to the Union, it "argued that the supervisor's e-mail was proof of retaliatory intent" in its post-hearing brief, and the Arbitrator's finding of a per se violation was consistent with the evidence and arguments before him in this regard. Id. at 13. In any event, the Union asserts that "the Agency did not indicate what evidence it would have introduced nor what arguments it would have made had it known that the Arbitrator would interpret the e-mail evidence as proof of per se interference." Id. at 15. Additionally, the Union asserts that the Agency could have, but did not "request a re-opening of the record" on the "per se interference issue." Id. at 16. Even if the Agency was denied the opportunity to present evidence on the issue of a per se violation, the Union argues, the proper remedy would be to remand the matter to the Arbitrator to reopen the record for further evidence. Id. at 18. [ v61 p535 ]

IV.     Analysis and Conclusions

      Arbitrators exceed their authority by failing to resolve an issue submitted to arbitration, resolving an issue not submitted to arbitration, disregarding specific limitations on their authority, or awarding relief to persons who are not encompassed by the grievance. See United States Dep't of Defense, Army & Air Force Exch. Serv., 51 FLRA 1371, 1378 (1996). When the parties fail to stipulate the issue, as in this case, the arbitrator may formulate the issue on the basis of the subject matter of the grievance. See United States Dep't of Defense, Educ. Activity, Arlington, Va., 56 FLRA 887, 891 (2000). However, "although the arbitrator is free to formulate the issue, once the arbitrator has resolved that issue, or any additional matters that are necessary to the resolution of the issue as formulated, the arbitrator has fulfilled his or her obligation to the parties. If the arbitrator proceeds to address other issues, the arbitrator exceeds his or her authority." United States Dep't of Transp., FAA, 60 FLRA 584, 587 (2005) (Member Pope dissenting) (DOT) (citing United States Dep't of Transp., FAA, 59 FLRA 776, 777-78 (2004) (FAA) and United States Envtl. Prot. Agency, Chi., Ill., 58 FLRA 495, 495-96 (2003)).

      As relevant here, the Arbitrator framed three issues regarding the Agency's failure to select the grievant for the requested training. He expressly resolved all three issues by finding that the record did not establish that, in failing to select the grievant: (1) the Agency failed to follow training policy; (2) engaged in age and/or gender discrimination; and/or (2) retaliated against the grievant. Nevertheless, the Arbitrator went on to resolve a different issue, one that was not included in the issues he framed. Specifically, the Arbitrator found that the Agency committed a per se violation of the EEOC's regulations when the supervisor sent an email to other management officials.

      The Agency asserts, and the Union acknowledges, that neither party raised the issue of per se interference before the Arbitrator. See Opposition at 15. Moreover, we reject the Union's claim that the per se interference issue was "sufficiently linked" to the issues that the Arbitrator framed. Id. at 9. In particular, given the Arbitrator's clear and unambiguous formulation of the issues before him, we find that the issue of a per se violation based on the email was not before the Arbitrator for resolution. This result is consistent with our decision in DOT where the parties also did not stipulate the issues. In that case, we found that the arbitrator had exceeded his authority even though, like here, the arbitrator framed the issues to be decided. And, as noted in the Authority's FAA decision, once an arbitrator addressed and denied the claims/issues the arbitrator defined to be before him or her, "the arbitration process should have ended." FAA, 59 FLRA at 777. Because the Arbitrator decided the per se interference issue, which was neither expressly or implicitly included in the issues he framed, we conclude that the Arbitrator exceeded his authority. As such, the award is deficient and we set it aside. [n5] 

V.     Decision

      The award is set aside.


Appendix

29 C.F.R. provides in relevant part:

§ 1614.101(b)

No person shall be subject to retaliation for opposing any practice made unlawful by title VII of the Civil Rights Act (title VII) (42 U.S.C. 2000e et seq.), the Age Discrimination in Employment Act (ADEA) (29 U.S.C. 621 et seq.) the Equal Pay Act (29 U.S.C. 206(d)) or the Rehabilitation Act (29 U.S.C. 791 et seq.) or for participating in any stage of administrative or judicial proceedings under those statutes.

§ 1614.102(a)(5)

Each agency shall maintain a continuing affirmative program to promote equal opportunity and to identify and eliminate discriminatory practices and policies. In support of this program, the agency shall . . . [r]eview, evaluate and control managerial and supervisory performance in such a manner as to insure a continuing affirmative application and vigorous enforcement of the policy of equal opportunity, and provide orientation, training and advice to managers and supervisors to assure their understanding and implementation of the equal employment opportunity policy and program[.]

§ 1614.103(a)

Individual and class complaints of employment discrimination and retaliation prohibited by title VII (discrimination on the basis of race, color, religion, sex and national origin), the ADEA (discrimination on the basis of age when the aggrieved individual is at least 40 years of age), the Rehabilitation Act (discrimination on the basis of handicap) or the Equal Pay Act (sex-based wage discrimination) shall be processed in accordance with this part. Complaints alleging retaliation prohibited by these statutes are considered to be complaints of discrimination for purposes of this part. [ v61 p536 ]

Member Carol Waller Pope, dissenting:

      Consistent with my dissent in United States Dep't of Transp., FAA, 60 FLRA 584 (2005), I disagree with the majority that the Arbitrator exceeded his authority.

      Given the substantial deference arbitrators have in interpreting the issues to be decided in arbitration -- especially when, as here, the parties have not stipulated the issue -- I see no basis to find that the Arbitrator exceeded his authority by finding a per se violation of the EEOC's anti-retaliation regulations. The law is clear in this regard that, in formulating and resolving the issues before them, arbitrators may rely on the arguments raised before them by the parties. See, e.g., United States Dep't of Health and Human Serv., SSA, Office of Hearings and Appeals, 48 FLRA 833, 838 (1993) (according deference to arbitrator's interpretation of stipulated issue based on parties' arguments and concluding that arbitrator did not exceed his authority).

      Here, the Arbitrator specifically framed "an issue of interference with the EEO process" as one of the issues to be resolved. Award at 34. In doing so, the Arbitrator relied on the Union's argument that the Supervisor's email was evidence of unlawful retaliation. See Union's Post Hearing Brief at 49. The Arbitrator evaluated the supervisor's email and found that the supervisor's action in sending the email constituted a per se violation of the EEOC's anti-retaliation regulations. As such, the Arbitrator resolved the precise issue that he expressly framed, based on the Union's argument. Even assuming the Arbitrator was not permitted to formulate the issue of interference with the EEO process, I would find that the claim of such interference arises from the issue of retaliation that, all concede, was properly framed. Granting the "substantial deference" that is due the Arbitrator's formulation of issues, I find that the Arbitrator did not exceed his authority by resolving the issue of interference with the EEO process.

      While emphasizing that the Arbitrator framed three issues regarding the denial of the requested training, the majority ignores the fact that the Arbitrator expressly framed an additional "issue" of interference with the EEO process. Award at 34. In doing so, the majority suggests that the Arbitrator was required to set forth all issues to be resolved on the same page of the award. However, the majority has provided no legal support for such a requirement. Indeed, the Authority has denied an exceeded authority exception where an arbitrator did not expressly set forth any issues to be resolved. See United States Dep't of the Navy, Navy Public Works Ctr., Norfolk, Va., 54 FLRA 338, 341-42 (1998) (arbitrator did not exceed authority by not setting forth the issue, as the issue resolved was clear from the award as a whole). Consistent with this decision, the fact that the Arbitrator set forth issues in separate parts of the award cannot establish that the Arbitrator exceeded his authority.

      In addition, there is no basis to conclude that the Arbitrator failed to conduct a fair hearing. The Authority will find an award deficient on this ground when it is demonstrated that the arbitrator refused to hear or consider pertinent or material evidence, or that other actions in conducting the proceeding so prejudiced a party as to affect the fairness of the proceeding as a whole. See, e.g., AFGE, Local 1668, 50 FLRA 124, 126 (1995). While the Agency claims it was denied a fair hearing because it was not given the opportunity to address the issue of interference with the EEO process, the Arbitrator properly framed and resolved that issue based on the record developed at the arbitration hearing. Even assuming that, as the Agency asserts, the Union asserted for the first time in its post-hearing brief that the Agency improperly interfered with the EEO process, the Agency could have, but did not, request to file a response to that argument. As such, the Agency has not shown that it was denied a fair hearing.

      Accordingly, I dissent.



Footnote # 1 for 61 FLRA No. 99 - Authority's Decision

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


Footnote # 2 for 61 FLRA No. 99 - Authority's Decision

   The first and second grievances were not consolidated; separate awards were issued regarding the two grievances. The award resolving the first grievance is not at issue in this case.


Footnote # 3 for 61 FLRA No. 99 - Authority's Decision

   Relevant provisions of EEOC regulations are set forth in the Appendix.


Footnote # 4 for 61 FLRA No. 99 - Authority's Decision

   Article 48, Section 1 of the parties' agreement provides that: "The Parties agree that discrimination against any employee on the basis of race, color, national origin, age, sex, disabling condition, sexual orientation, or religion is prohibited.&