United States, Department of the Treasury, Internal Revenue Service, Small Business/Self, Employed Business Division, Compliance Area 6 (Agency) and National Treasury Employees Union, Chapter 74 (Union)

[ v61 p757 ]

61 FLRA No. 153

UNITED STATES
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
SMALL BUSINESS/SELF
EMPLOYED BUSINESS DIVISION
COMPLIANCE AREA 6
(Agency)

and

NATIONAL TREASURY
EMPLOYEES UNION
CHAPTER 74
(Union)

0-AR-3963

_____

DECISION

September 11, 2006

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope, Member [n1] 

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Morris G. Shanker 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 sustained a grievance alleging that the Agency violated the parties' collective bargaining agreement (CBA) by failing to grant the grievant's hardship transfer application for an Internal Revenue Agent (RA) position in Tampa, Florida.

      For the following reasons, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

A.     Initial Award

      The grievant applied for a hardship transfer for an RA position in Tampa, Florida. The Agency subsequently filled eight full-time RA positions in Tampa but denied the grievant's application, stating:

the [g]rievant's hardship transfer application requested part-time employment. The Employer was not notified in writing of the [g]rievant's willingness to accept a full-time position until April 10, 2003, which was after the closing date of the Revenue Agents positions in Florida.

Award at 2-3.

      The grievant filed a grievance over the denial of her application. The Agency denied the grievance and the matter was submitted to arbitration.

      The Arbitrator framed the issue as:

Did the Agency violate Article 15 of the [CBA] when it did not consider (and then grant) the [g]rievant's hardship transfer application for the position of [RA] . . . . If so, what is the remedy?

Id. at 2.

      On September 15, 2004, the Arbitrator issued his initial award finding that the Agency violated the CBA when it failed to consider the grievant for a full-time RA position. The Arbitrator concluded that the Agency "would have given the full-time Tampa [RA] position to the [g]rievant if it had not made the error of assuming that she was seeking only a part-time position." Id. at 6.

      The Arbitrator also found that the "literal language of Article 15, Section 5(A), can easily be read as requiring this offer to be made to any hardship applicant who, in fact, qualifies for the hardship and who, in fact, is qualified for the available position." [n2]  Id. at 7. The Arbitrator stated that the relevant language states that "the [Agency] will [not `may'] change the work assignment of an employee demonstrating a significant hardship that can be relieved by a relocation . . . ." Id. (emphasis added in award). Accordingly, the Arbitrator concluded that the grievant should be awarded the RA position in Tampa, effective as of October 19, 2003.

      Additionally, the Arbitrator noted that at the hearing the Agency "raised a new issue which had not been raised or discussed in the . . . grievance steps." Id. According to the Arbitrator, the Agency argued that the grievant's hardship application should and would have been denied by Agency officers in charge of the Florida area because it did not respond to the actual hardship [ v61 p758 ] stated in her application--the transfer of her husband from Oberlin, Ohio to Miami, Florida. The Agency claimed that the distance between Miami and Tampa was far beyond the geographical area surrounding Tampa from which employees would be hired, and for this reason, the denial of a position was fully justified.

      The Arbitrator stated that "without holding that [receipt of the evidence] would permit the Agency . . . to raise this new issue, [his] ruling would be that it would not be helpful to the Agency[,]" because the grievant's hardship application made clear that her family had decided to reside in an area well within the region from which Tampa employees are hired. Id. at 8.

      The Arbitrator concluded that the Agency committed an "administrative error" when it failed to consider the grievant's application for hardship transfer to a full-time RA position in Tampa and then failing to offer her the job.

      Concerning the remedy, the Arbitrator rejected the Agency's argument that, consistent with Article 13, the grievant should be limited to priority consideration for an appropriate vacancy, finding that unlike Article 13, which allows management discretion to determine whether a particular employee should be selected for a position, "Article 15, Section 5(A) is written in mandatory terms." Id. at 11. The Arbitrator stated that the "only limitations on the hardship employee's right to the new work assignment is that "`there is a vacant position which the employer intends to fill in the employee's current job series and the employee meets the position and skill requirement.'" Id. The Arbitrator found that the Agency never asserted that the grievant did not meet such requirements, and that the evidence demonstrated conclusively that there was a vacant position in Tampa that the Agency intended to fill in the employee's current job series.

      The Arbitrator further stated that the "only other basis" in Article 15, Section 5(A) for denying a hardship transfer is where the Agency demonstrates just cause not to do so. Id. The Arbitrator found that the Agency had introduced no evidence to demonstrate that there was just cause for denying the transfer. Accordingly, the Arbitrator ordered that the grievant be given the RA job in Tampa, effective October 19, 2003. The Arbitrator stated that this remedied the violation of Article 15, Section 5(A) and reflected a reconstruction of what management would have done if it had not violated the provision. The Arbitrator granted the grievant reinstatement of leave lost due to the Agency's administrative error, but left it to the parties to determine the amount of leave to be restored, and further retained jurisdiction to resolve this issue if the parties could not do so.

B.      Supplemental Award

      Pursuant to his retention of jurisdiction, the Arbitrator issued a Supplemental Award (SA) dated March 30, 2005. In this award, the Arbitrator noted that the "Agency indicated that its records reflect the [g]rievant took one hundred fifty-six (156) hours of leave for the relevant period, and the [g]rievant . . . stated she would have taken thirty (30) hours of leave regardless of any transfer." Exceptions, Attachment B, SA. Therefore, the Arbitrator ordered that one hundred and twenty-six (126) hours of leave be reinstated to the grievant's leave account.

      In the cover letter to the SA, the Arbitrator stated that he issued this order "[a]t the joint request and concurrence of both parties," and referenced e-mails from the parties indicating their concurrence. Exceptions, Attach. B (cover letter). See also, attached e-mails.

III.     Preliminary Issue

A.      Position of the Parties

1.      Union

      The Union asserts that the Arbitrator's Initial Award resolved all matters submitted to the Arbitrator. The Union contends that the Agency's assertion that the Initial Award was not final because the Arbitrator retained jurisdiction in the event the parties were unable to agree concerning leave restoration is without merit. The Union asserts that the Initial Award is not an interim award because the award "did not split resolution of [i]ssues, and . . . did not retain jurisdiction to rule on the remedy." Opposition at 13. The Union states that the Arbitrator clearly ruled in the Initial Award that the grievant was to be awarded the RA position and was entitled to restoration of leave, which was all the grievant sought.

      The Union contends that the Arbitrator did not return the case to the parties for purposes of holding open the remedy. Rather, according to the Union, the parties were "merely to agree on the amount of leave to be restored." Id. The Union asserts that the Arbitrator's retention of jurisdiction in no way alters the Initial Award that was "final and complete" and thus the Agency was required to file its exceptions 30 days from the date it was served such award. Id. at 14. In support of its contention that the Initial Award was not interlocutory, the Union cites AFGE, Council 215, 60 FLRA 461 (2004). [ v61 p759 ]

2.      Agency

      The Agency asserts that in the Initial Award the Arbitrator ordered the Agency to: (1) give the grievant the RA position in Tampa; and (2) restore leave that the grievant lost due to the Agency's administrative error. With respect to item two, the Agency contends that the Arbitrator retained jurisdiction to resolve the issue of the amount of leave to be restored to the grievant, if the parties could not agree on the amount. The Agency asserts that the Arbitrator in the SA required the Agency to restore 126 hours to the grievant's leave account. The Agency contends that this award was served on the Agency by mail on March 30, 2005.

      The Agency asserts that in the Initial Award the Arbitrator did not resolve the "amount of leave to be restored" and, thus the decision "did not constitute a final decision to which exceptions could be filed." Exceptions at 3. The Agency contends that the March 30 SA determined the amount of leave to be reinstated to the grievant and, therefore, "constituted a complete resolution of all issues submitted to arbitration." Id. The Agency asserts that as the award was served by mail, the Agency had 30 days, beginning on March 30, 2005, plus an additional 5 days, to respond. Therefore, the Agency contends that it had until May 3, 2005 to file its exceptions and that, as the exceptions were filed on May 3, the exceptions were timely filed.

B.      Analysis and Conclusions

      Section 2429.11 of the Authority's Regulations provides: "[T]he Authority . . . ordinarily will not consider interlocutory appeals." In arbitration cases, this means that ordinarily, the Authority will not resolve exceptions filed to an arbitration award unless the award constitutes a complete resolution of all of the issues submitted to arbitration. See, e.g., United States Dep't of Veterans Affairs, Western New York Healthcare Sys., Buffalo, N.Y., 61 FLRA 173, 174 (2005) and the cases cited therein.

      Consequently, an arbitration award that postpones the determination of an issue submitted does not constitute a final award subject to review. See United States Dep't of HHS, Navajo Area Indian Health Serv., 58 FLRA 356, 357 (2003) (HHS, Navajo Area). Exceptions are considered interlocutory when the arbitrator has declined to make a final disposition as to a remedy. See id. at 357; United States Dep't of HHS, Ctrs. for Medicare & Medicaid Servs., 57 FLRA 924, 926 (2002). Consistent with this principle, the Authority has repeatedly held that where an arbitrator declines to issue a remedy, directing instead that the parties attempt to develop an appropriate remedy on their own, the award does not constitute a final decision to which exceptions can be filed. See HHS, Navajo Area, 58 FLRA at 357; United States Dep't of the Interior, Bur. of Indian Affairs, Wapato Irrigation Project, Wapato, Wash., 55 FLRA 1230, 1231-32 (2000) (Wapato).

      In this case, the Arbitrator framed the issues to be resolved as including the alleged violation of the parties' CBA as well as the appropriate remedy. See Award at 2. The Arbitrator found that the Agency violated the parties' CBA and ordered that the grievant be granted a RA position in Tampa and that her leave be restored. However, the Arbitrator declined to issue a remedy regarding the amount of leave, and instead directed the parties to negotiate an appropriate amount, and retained jurisdiction for the purpose of determining a remedy if the parties were unable to agree. Consistent with the Authority's HHS, Navajo Area and Wapato precedent, the Initial Award did not resolve all the issues before the Arbitrator and, therefore, the award was not final until the Arbitrator issued the March 30 SA. As the Agency's exceptions were filed within the prescribed time limit of the March 30 SA, the exceptions are timely.

IV.     Merits

A.      Positions of the Parties

1.      Agency's Exceptions

      The Agency asserts that the award fails to draw its essence from the parties' CBA because the Arbitrator evidenced a manifest disregard for, and rendered an implausible interpretation of, the CBA when he unjustifiably ignored the language "absent just cause" contained in Article 15, Section 5(A). The Agency contends that although the Arbitrator noted the phase "absent just cause," he gave "little or no weight" to the Agency's reasons for only approving hardship transfer requests within the commuting area of the location where the hardship actually exists. Exceptions at 16.

      The Agency contends that the remedy of retroactive restoration of leave also does not draw its essence from the CBA because there is nothing in Article 15 that suggests the parties ever bargained or contemplated it.

      The Agency asserts that the award is contrary to law because it affects management's right to select under § 7106(a)(2)(C) of the Statute. The Agency cites United States Dep't of the Treasury, Bureau of Engraving & Printing, Wash. D.C., 53 FLRA 146 (1997) (BEP), and asserts that it is not "except[ing] under prong I" of the BEP test. Exceptions at 10. Rather, the [ v61 p760 ] Agency contends that the Arbitrator's determination that the Agency "would have selected the [g]rievant for a full-time position if it had considered her under her hardship transfer application" does not satisfy prong II of the BEP test. Id. According to the Agency, the record shows that "even if the selecting official . . . had received the [g]rievant's . . . application at the time he was selecting the revenue agents . . ., he would not have selected the [g]rievant based on her hardship transfer request[]" because Tampa was not within the commuting area of Miami, where her husband was employed. Id.

      The Agency contends that the Arbitrator "substituted his judgment for that of the receiving office" in finding that the grievant had good reasons for choosing Tampa and that her reasons constituted a valid hardship, despite the fact that her husband was transferred to Miami. Id. at 12. Referring to Article 15, Section 5(O)(5) of the CBA, the Agency asserts that under the Arbitrator's hardship finding, the Agency would not be able to dispute an employee's hardship rationale, regardless of how tenuous the connection is between the request and a spouse's transfer. [n3]  Also, the Agency refers to certain of the Arbitrator's findings concerning the location of the grievant's immediate family and her in-laws in the Tampa area, and disputes that these considerations support a hardship finding.

      The Agency also contends that the award is contrary to the Back Pay Act. The Agency asserts that the Arbitrator ordered it to restore leave the grievant had used in commuting between her assigned post-of-duty (POD) in Ohio and Tampa. According to the Agency, as argued above, the denial of the grievant's hardship request was neither unjustified nor unwarranted. However, according to the Agency, "even if the Agency erred" in denying such transfer, it was not this personnel action that directly caused the grievant to use her leave. Id. at 14. The Agency asserts that the direct cause of such use was that the grievant had moved to Tampa before ensuring that her hardship transfer request would be approved, and she did not commute every week to her assigned POD. The Agency also contends that if she had made the commute every week, she would not have used any additional leave, especially since she was a part-time employee and only needed to be in Ohio 40 hours each pay period.

      The Agency asserts that the Arbitrator exceeded his authority by retaining jurisdiction and allowing the admission of additional evidence on the amount of leave to be reinstated. According to the Agency, except for an emergency situation which did not occur in this case, Article 43, Section 4(A)(5) of the CBA, "expressly prohibits an arbitrator from holding the record open in order to hear testimony of additional witnesses[.]" [n4]  Id. at 18.

      The Agency contends that the Arbitrator's finding that it should pay 75% of the arbitration fees and expenses should be reversed if the Authority finds that either of the remedies is deficient and, in that event, both parties should be required to pay one-half of the fees.

2.      Union's Opposition

      The Union asserts that the award is not contrary to law. As to the Agency's prong II argument, the Union contends that this argument "ignores" the Arbitrator's finding that the transfer policy in Article 15, is "non-discretionary." Opposition at 19. The Union asserts that the Agency does not dispute the qualifications of the grievant, or the existence of a vacancy at the time of her hardship request.

      The Union asserts that the Arbitrator's finding that the Agency violated Article 15 of the CBA satisfies the first prong of the Back Pay Act test. Furthermore, the Union argues that the Arbitrator's award of a retroactive promotion remedies the contract violation and demonstrates the requisite causal connection.

      The Union contends that the Agency's essence arguments are without merit. The Union asserts that the Arbitrator's rejection of the Agency's argument concerning just cause does not provide a basis for finding the award fails to draw its essence from the CBA because the Arbitrator's finding is a "permissible exercise of his arbitral discretion as it relates to weighing evidence and witness testimony and reaching final determinations." Id. at 24. The Union disputes the Agency's claim that the Arbitrator is powerless to correct a violation of Article 15 because the provision is silent on the issue of remedy.

      The Union claims that the Agency's assertions that the Arbitrator improperly retained jurisdiction and exceeded his authority is without merit. The Union disputes the Agency's contention that the Arbitrator exceeded his authority because instead of determining the remedy based on the evidence before him and the [ v61 p761 ] arguments made in the briefs, he ordered the parties to work out a remedy from the Agency's records. The Union asserts that the Agency mischaracterizes the facts. According to the Union, the Arbitrator has the ability to fashion a remedy and did do so by ordering restoration of the grievant's leave and that she be retroactively placed in a RA position. The Union asserts that the evidence shows that the grievant testified to a loss of 80 or 90 hours of leave as a result of commuting from Tampa to Akron, which the Agency acknowledges, and that in fairness to the Agency the Arbitrator decided that the parties could best determine the exact amount of leave to be restored.

B.      Analysis and Conclusions

1.      The Award Does Not Fail to Draw its Essence from the CBA

      In order for an award to be found deficient because it does not draw its essence from the collective bargaining agreement, a party must show that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575-6 (1990). The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.

      In this case, contrary to the Agency's assertions, the Arbitrator did not ignore the language "absent just cause" contained in Article 15, Section 5(A) of the CBA. The Arbitrator specifically noted that a "basis . . . for denying a hardship transfer is where the Agency demonstrates `just cause' not to do so." Award at 11. The Arbitrator's findings show that he examined the Agency's arguments for denying the grievant's request for a transfer to Tampa, specifically the contentions as to the completeness of the grievant's application and her family situation. Interpreting Article 15 of the CBA, the Arbitrator found, based on the evidence, that the Agency did not demonstrate "just cause" for denying the grievant's request. The Agency's exception does not show that the Arbitrator's interpretation and application of Article 15 is unfounded in reason and fact, does not represent a plausible interpretation of the CBA, cannot be derived from the CBA, or evidences a manifest disregard of the CBA.

      Also, we construe the Agency's contrary to law assertion, to the extent that the Agency relies on Article 15, Section 5(O)(5) to argue that the Arbitrator substituted his judgment for that of Agency officials in finding that the grievant had good reasons for choosing Tampa and that her reasons constituted a valid hardship, as an essence argument. Article 15, Section 5 (O)(5) addresses "[e]mployment-related situations that constitute a hardship situation . . . ." Exceptions, Attach. K at 59. The Arbitrator's award demonstrates that the Arbitrator considered whether the grievant had established a case for hardship under the CBA and that, after evaluating the evidence the Arbitrator found that the grievant had done so. Although the Agency maintains that the Arbitrator substituted his judgment for that of the Agency in determining what constitutes a valid hardship, the Arbitrator's findings are based on his interpretation and application of the CBA. Again, the Agency has not demonstrated that the Arbitrator's interpretation and application of the CBA is unfounded in reason and fact, does not represent a plausible interpretation of the CBA, cannot be derived from the CBA, or evidences a manifest disregard of the CBA.

      Therefore, the Agency has not shown that the award fails to draw its essence from the parties' CBA. Further, to the extent that the Agency claims that the restoration of leave remedy does not draw its essence from the CBA, this claim is construed as an exceeded authority argument and is addressed below.

2.      The Award Is Not Contrary to Law

     (a)     Section 7106(a)(2)(C) of the Statute

      The Agency contends that the award is contrary to law because it affects management's right to select under § 7106(a)(2)(C) of the Statute.

      As the Agency's exception concerns the award's consistency with law, the Authority reviews the questions of law raised by the award and the Agency's exception de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      The Authority's framework for resolving exceptions alleging that an award violates management's rights under § 7106 of the Statute is set forth in BEP, 53 FLRA 146. Upon finding that an award affects a [ v61 p762 ] management right under § 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 § 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to § 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, 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. An award that fails to satisfy either prong I or prong II will be set aside, modified, or remanded as appropriate to the parties. See Nat'l Labor Relations Bd., Wash., D.C., 61 FLRA 154, 161 (2005) (Member Armendariz dissenting) (citing BEP, 53 FLRA at 154).

      An award requiring an agency to make a selection for an appointment affects management's right to select under § 7106(a)(2)(C) of the Statute. See, e.g., United States Dep't of Health & Human Servs., Ctrs. for Medicare & Medicaid Servs., 60 FLRA 437, 440 (2004) (HHS) and the cases cited therein. Here, the award orders the Agency to place the grievant in a RA position. Award at 12. As such, the award affects the Agency's right to select.

      Applying the BEP test, the Agency does not dispute that prong I of the test is satisfied. Rather, the Agency claims that the award does not satisfy prong II. As to prong II, the Arbitrator determined that the Agency would have offered the grievant a transfer to the RA position in Tampa, Florida if it had properly applied the hardship reassignment provision of the CBA.

      In this regard, noting that the Agency did not dispute that the grievant was fully qualified for the RA position, the Arbitrator found that the grievant was fully qualified for the position. Award at 6. The Arbitrator found that Article 15, Section 5(A) is a mandatory requirement that required the Agency, absent just cause (which the Arbitrator did not find), to offer the hardship transfer to the grievant who, the Arbitrator's factual findings show, was qualified for the hardship status and the available position. Thus, the award constitutes a proper reconstruction of what the Agency would have done had it not violated the CBA.

     (b)     The Back Pay Act

      The Agency argues that the award is contrary to the Back Pay Act. The Authority has long held that under the Back Pay Act, an award of back pay is authorized only when an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action has resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials. See United States Dep't of Health & Human Servs., 54 FLRA 1210, 1218-19 (1998) (DHHS).

      With regard to the first requirement, a breach of the parties' agreement constitutes an unjustified and unwarranted personnel action. GSA, 55 FLRA 493, 496 (1999). Based on the Arbitrator's finding that the Agency breached the CBA by not granting the grievant the subject hardship transfer, the first requirement under the Back Pay Act is satisfied. Id.

      Under the second requirement of the Back Pay Act, an arbitrator must find that the unwarranted and unjustified personnel action resulted in a loss of pay, allowance or differential. DHHS, 54 FLRA at 1218-19. In this case, the Arbitrator found that the Agency violated Article 15 and that this violation resulted in the grievant's loss of the full-time RA position in Tampa, Florida, as well as leave expended to make the commuting arrangements from Akron to Tampa more feasible. The award thus shows a causal connection between the Agency's violation of the CBA and the grievant's loss of leave. The Agency's assertions that the evidence does not establish such a connection provide no basis for finding the award deficient. See eg. United States Small Bus. Admin., Charlotte Dist. Office, Charlotte, N.C., 49 FLRA 1656, 1661 (1994) (assertion that arbitrator failed to properly evaluate the evidence constituted nothing more than disagreement with the arbitrator's findings of fact and his evaluation of the evidence). Therefore, the award satisfies the second requirement of the Back Pay Act.

3.      The Arbitrator Did Not Exceed His Authority

      The Agency asserts that the Arbitrator exceeded his authority by retaining jurisdiction and allowing the admission of additional evidence on the amount of leave to be reinstated, as well as ordering the restoration of leave.

      An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed by the grievance. See United States Dep't of Def., Army & Air Force Exch. Serv., 51 FLRA 1371, 1378 (1996). [ v61 p763 ] The Authority has uniformly upheld as being within an arbitrator's authority the retention of jurisdiction for the purpose of resolving disputes over implementation of an award. See, e.g., United States Dep't of Veterans Affairs, Denver Reg'l Office, Denver, Colo., 60 FLRA 235, 238 (2004) (Chairman Cabaniss dissenting) (citing United States Dep't of Health & Human Servs., Food & Drug Admin., Kan. City Dist., 53 FLRA 422, 424 (1997) (HHS)). Also, arbitrators have great latitude to fashion remedies. See, e.g., Nat'l Labor Relations Bd., 50 FLRA 88, 94 (1995) (citing AFGE, Local 2076, 47 FLRA 1379, 1383 (1993)).

      The Agency has not demonstrated that the Arbitrator's retention of jurisdiction in this case was improper. In particular, contrary to the Agency's claim, nothing in the award indicates that the Arbitrator retained jurisdiction in a manner inconsistent with his authority. In this regard, the issue before the Arbitrator concerned whether the Agency violated Article 15 of the CBA when it did not consider and grant the grievant's subject hardship transfer and, if so, what is the appropriate "remedy." Award at 2. In the Initial Award, the Arbitrator sustained the grievance and ordered reinstatement of leave that the grievant lost due to the CBA violation. As to the specific amount of leave to be restored, the Arbitrator directed the parties to negotiate an appropriate amount and retained jurisdiction to resolve this issue if the parties were unable to do so. In short, the Arbitrator retained jurisdiction for the purpose of resolving the parties' dispute concerning the implementation of the award. Such retention is not a basis for finding that the Arbitrator exceeded his authority. See HHS, 53 FLRA at 424 (arbitrator's retention of jurisdiction was not deficient where such retention was to resolve disputes over implementation of an award).

      The Agency argues that the Arbitrator exceeded the authority provided under Article 43, section 4(A)(5) "when he retained jurisdiction following the close of the hearing to take additional evidence of remedy[,]" and subsequently, "order[ed] the parties to work out a remedy [concerning the grievant's leave] from the Agency records." Exceptions at 18. Article 43, section 4(A)(5) limits the Arbitrator's ability to "hear testimony of additional witnesses[,]" to the "day of the hearing[,]"except in emergency situations. Exceptions, Attach. L. Here the Arbitrator left it to the parties to determine the amount of leave to be restored, which they accomplished. This does not establish that the Arbitrator "hear[d the] testimony of additional witnesses" after the hearing in violation of Article 43, section 4(A)(5). Moreover, to the extent that the Agency's assertion concerns the interpretation of Article 43, section 4(A)(5) and thus raises an essence claim, the Agency has not shown that the award fails to draw its essence from Article 43. In that regard, the Agency's assertion does not demonstrate that the award cannot in any rational way be derived from this provision; is so unfounded in reason and fact and so unconnected to the wording and purpose of the provision as to manifest an infidelity to the obligation of the arbitrator; does not represent a plausible interpretation of the provision; or evidences a manifest disregard of it. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      The Agency further argues that the Arbitrator exceeded his authority by awarding grievant reinstatement of leave. As noted above, the issue before the Arbitrator was whether the Agency violated Article 15 of the CBA when it did not consider and grant the grievant's subject hardship transfer and, if so what is the "appropriate remedy." The Arbitrator found that the Agency committed an administrative error and violated Article 15 of the CBA when it denied the grievant's hardship transfer. The record reveals that the grievant used "annual leave" to commute to work after the Agency's denial of her hardship request and that the Arbitrator determined that the grievant was entitled to "reinstatement of leave time which [she had] lost due to the Agency's administrative error." See Transcript at 41, Exceptions at 18, and Award at 12-13. The Arbitrator's remedy ordering reinstatement of leave was responsive to the issue that was before him and based on his evaluation of the record evidence. As such, the Agency has not demonstrated that the Arbitrator exceeded his authority by ordering such remedy.

V.     Decision

      The Agency's exceptions are denied. [n5] 


APPENDIX

      Article 15, "Reassignments/Realignments and Voluntary Relocations" provides, in relevant part:

Section 5
Hardship Reassignments
A.
Absent just cause, the Employer will change the work assignment of an employee demonstrating [ v61 p764 ] a significant hardship that can be relieved by a relocation (including change of POD) provided that there is a vacant position which the Employer intends to fill in the employee's current job series and the employee meets the position and skill requirements.
. . . .
O.
Examples of hardship situations or circumstances are listed below. This list is not intended to be all inclusive. There may be other situations when the totality of circumstances constitutes a hardship situation. The Employer reserves the right to exercise its judgment in those circumstances.
. . . .
5.     Employment-related situations that constitute a hardship situation include any spouse, fiancé, or life partner being offered the choice of relocation or unemployment, receiving a promotion opportunity in another location, losing a job and receiving a job offer in another location, or receiving military orders to relocate.
Exceptions, Attach. K at 57-58 and 59.
Article 43, entitled "Arbitration," provides in relevant part as follows:
Section 4
A.
The following procedures apply to all arbitrations:
     . . . .
     5.       Except in emergency situations, the arbitrator will not have the authority to keep the record open in order to hear testimony of additional witnesses. Each party has the responsibility and obligation to produce its witnesses on the day of the hearing. For purposes of this article, emergency has the same definition it has in 5 [U.S.C.] § 7106.
Exceptions, Attach. L at 123.

Separate Opinion of Member Pope:

      Ordinarily, I would find that the Agency's exceptions were untimely filed. In this regard, the Arbitrator's initial award resolved both the merits and the remedy, and the only issue remaining for the parties was the exact calculation of the amount of leave to be restored to the grievant. In my view, clear Authority precedent establishes that the initial award was final and binding for the purpose of filing exceptions. See, e.g., Soc. Sec. Admin., Balt., Md., 60 FLRA 32, 33-34 (2004) (award final and binding for purpose of filing exceptions where arbitrator resolved merits and remedy, but ordered parties to "attempt to reach agreement on appropriate monetary compensation"). Moreover, the Agency's exceptions dispute issues resolved in the initial award. See NAGE, Local R4-45, 55 FLRA 789, 793 (1999) (exception untimely where deficiency alleged in exception concerned matters resolved in the original award, not the amended award). Therefore, I would find, pursuant to 5 C.F.R. § 2425.1(b), that the Agency's exceptions were due to be filed with the Authority within 30 days of the initial award. As the exceptions were not filed until after issuance of the supplemental award, I would find that the Agency's exceptions were untimely filed and dismiss them on that ground.

      Nevertheless, for the sole purpose of avoiding an impasse in the Authority's disposition of this case, I will agree that the Authority has jurisdiction to resolve the Agency's exceptions. I take this extraordinary action, as I and other Members have done in the past, only because I agree that the Agency's exceptions should be denied on the merits. See United States Dep't of Labor, Wash., D.C., 61 FLRA 603, 607 (2006) (Member Pope agreeing to avoid impasse); Dep't of Homeland Sec., Bureau of Immigration & Customs Enforcement, 60 FLRA 131, 138 (2004) (Member Armendariz agreeing to avoid impasse); Fort Bragg Ass'n of Educators, NEA, 30 FLRA 508, 552 (1987) (Chairman Calhoun agreeing to avoid impasse). Thus, the result here is effectively the same, whether or not the Authority asserts jurisdiction. In such circumstances, I see no reason to delay disposition of the exceptions.



Footnote # 1 for 61 FLRA No. 153 - Authority's Decision

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


Footnote # 2 for 61 FLRA No. 153 - Authority's Decision

   The text of Article 15, Section 5(A) is set forth in the Appendix to this decision.