American Federation of Government Employees, Local 2145 (Union) and United States Department of Veterans Affairs Medical Center, Richmond, Virginia (Agency)

[ v63 p78 ]

63 FLRA No. 27

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2145
(Union)

and

UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS
MEDICAL CENTER
RICHMOND, VIRGINIA
(Agency)

0-AR-4163

_____

DECISION

January 26, 2009

_____

Before the Authority: Thomas Beck, Chairman and
Carol Waller Pope, Member

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Marvin E. Johnson filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency did not file an opposition to the Union's exceptions.

      The grievance concerned whether the grievant was entitled to additional remedies beyond the rescission of her seven-day suspension. The Arbitrator concluded that the grievant was not entitled to any additional remedies. For the reasons that follow, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      The Agency issued the grievant, the local Union president, a seven-day suspension for disruptive behavior in the workplace. The Union filed a grievance alleging that the suspension was in retaliation for the grievant's participation in Equal Employment Opportunity (EEO) and Union activities, and requested "reversal of the suspension, the removal of documents related to the suspension from her official personnel folder, injunctive relief (cease and desist), retroactive backpay, a posting, and compensatory damages." Award at 2.

      The Agency did not deliver its third-step grievance decision to the Union within the fourteen-day time limit prescribed by the parties' agreement. As such, the Union informed the Agency that, under Article 42, § 9 of the parties' agreement, the Agency was required to resolve the grievance in the Union's favor. [n1]  See id. at 2-3. The Union also stated that it was invoking arbitration on the "matter of damages." Id. at 3. The Agency acknowledged that it had not timely responded to the third-step grievance and rescinded the grievant's seven-day suspension. The Agency further indicated that "there [would] be no record of the discipline in the [g]rievant's official personnel folder [(OPF)]." Id. The Agency did not provide any of the other remedies requested in the grievance.

      The Union submitted the grievance to arbitration "over the appropriate remedy." Id. The Arbitrator framed the issues as follows: "Is the [g]rievant entitled to additional remedies where management failed to comply with the time frame in the grievance procedure and, thereafter, rescinded its proposed disciplinary action and removed associated documentation from the [g]rievant's official personnel folder? If so, what are the appropriate remedies?" Id. at 4.

      The Arbitrator stated that the "sole purpose" of the arbitration was to determine whether the grievant was entitled to her requested remedies "under the circumstances of the subject grievance." Id. at 7. Based on the Agency's failure to timely respond to the Union's third-step grievance, the Arbitrator found that the "procedural violation" of Article 42, § 9 "disposes of the grievance without a hearing on the merits." Id. at 8. Further, the Arbitrator found that there was "insufficient evidence to suggest that the Agency's disciplinary action was frivolous or completely unsubstantiated." Id. Noting that the grievant had a five-day suspension pending arbitration at the time of the instant seven-day suspension, the Arbitrator found that the Agency was "not without reason for proposing the seven-day suspension[.]" Id. at 9.

      The Arbitrator found that in order for the grievance to be resolved in favor of the grievant, under Article 42, § 9, the grievant's requested remedies must be "legal and reasonable under the circumstances of the grievance." [ v63 p79 ] Id. at 8. In this regard, the Arbitrator concluded that the remedies of injunctive and declaratory relief requested by the grievant were "not reasonable" because the Agency "was not without reason for proposing the seven-day suspension," and, as such, the Agency did not violate the "[g]rievant's contractual or statutory representational rights." Id. at 9. The Arbitrator further determined that the grievant was not entitled to compensatory damages because "there [was] no evidence that the Agency retaliated against the grievant because of her contractual or statutory representational duties." Id. The Arbitrator also found that the Union failed to provide sufficient medical evidence to establish that the grievant's mental and emotional states were the direct result of the proposed seven-day suspension. See id. at 9-10.

      Based on the foregoing, the Arbitrator concluded that the Agency fulfilled its obligation under Article 42, § 9 to resolve the grievance in favor of the Union when it rescinded the grievant's suspension and removed all associated documents from her OPF. Consequently, the Arbitrator concluded that the grievant was not entitled to any additional remedies. [n2] 

III.     Positions of the Parties

A.     Union's Exceptions [n3] 

      The Union alleges that the award fails to draw its essence from the parties' agreement because the "award . . . ignores the language of the [n]egotiated [a]greement" and requires that the Union's requested remedy not only be legal, "but also [be] based on [A]gency actions that were `frivolous or completely unsubstantiated.'" Exceptions at 5 (quoting Award at 8).

      The Union also contends that the award is contrary to law because the "Arbitrator refuse[d] to award or even analyze [the grievant's] entitlement to the statutorily required remedies[,]" such as declaratory relief, injunctive relief, and compensatory damages. Id. at 9. In this regard, the Union claims that the parties' agreement "permits a [g]rievant to pursue discrimination matters through the grievance procedure[,]" and, as such, the grievant is entitled to recover the same remedies that would be available if the case had been pursued through the EEO process. Id.

IV.     Analysis and Conclusions

A.     The award does not fail to draw its essence from the parties' agreement.

      In order for an award to be deficient as failing to draw its essence from the parties' collective bargaining agreement, it must be established 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 purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Def., Def. Contract Audit Agency, Cent. Region, Irving, Tex., 60 FLRA 28, 30 (2004). The Authority defers to the arbitrator in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. (quoting United States Dep't of Labor (OSHA), 34 FLRA 573, 576 (1990) (OSHA)).

      Article 42, § 9 of the parties' agreement provides that the Agency's failure to comply with the time limit of the parties' negotiated grievance procedure will result in the grievance being resolved in favor of the grievant, "provided that . . . the remedy requested by the grievant is legal and reasonable under the circumstances of the grievance." Award at 5. Although the Arbitrator found that the Agency failed to timely respond to the grievance, the Arbitrator did not award the remedies requested by the Union because he found that, "under the circumstances of the subject grievance[,]" the requested remedies were "not reasonable." Id. at 7, 9. The Arbitrator found that the Agency's decision to rescind the suspension and remove all related documents without awarding additional remedies sufficiently "resolve[d] the grievance in accordance with . . . the parties' [a]greement." Id. at 10.

      As set forth above, the Authority defers to the Arbitrator's interpretation of the agreement "because it is the [A]rbitrator's construction of the agreement for which the parties have bargained." OSHA, 34 FLRA at 576. In this regard, the Union has not demonstrated that the Arbitrator's interpretation of Article 42, § 9 is irrational, implausible, or otherwise deficient. Consequently, the award does not fail to draw its essence from [ v63 p80 ] the parties' agreement. See AFGE, Local 2145, 61 FLRA 571, 576 (2006) (applying Article 42, § 9, Authority found that, where Agency did not timely deliver grievance response, arbitrator's award denying additional remedies did not fail to draw its essence from the parties' agreement); AFGE, Local 507, 61 FLRA 88, 91 (2005) (same). Accordingly, we deny the Union's exception.

B.     The Arbitrator did not exceed his authority.

      The Union asserts that the award is contrary to law because the "Arbitrator refuse[d] to award or even analyze [the grievant's] entitlement to the statutorily required remedies" under the parties' agreement and "discrimination laws." Exceptions at 9. We construe the Union's argument as a claim that the Arbitrator exceeded his authority by failing to resolve an issue submitted to arbitration. See, e.g., AFGE, Council Local 2128, 59 FLRA 406, 408 (2003) (construing union's argument that award was contrary to law because the arbitrator "refused to consider, completely ignored and overlooked" the agency's obligations under the parties' agreement and the Work Schedules Act as a claim that the arbitrator exceeded his authority by failing to resolve an issue submitted to arbitration). As relevant here, arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration. See AFGE, Local 1617, 51 FLRA 1645, 1647 (1996). In the absence of a stipulated issue, the arbitrator's formulation of the issue is accorded substantial deference. See United States Dep't of the Navy, Naval Sea Logistics Ctr., Detachment Atlantic, Indian Head, Md., 57 FLRA 687, 688 (2002).

      Here, the parties failed to stipulate to an issue. The Arbitrator framed the relevant issue as whether the grievant was "entitled to additional remedies[.]" Award at 4. The Arbitrator found that the grievant was not entitled to declaratory relief, injunctive relief, or compensatory damages because the evidence was insufficient to demonstrate that the Agency's disciplinary action was "frivolous or completely unsubstantiated." Id. at 8. As such, under the circumstances of this case, the Arbitrator found that additional remedies were "not reasonable" within the meaning of Article 42, § 9 of the parties' agreement. Id. at 9. The Arbitrator's findings are directly responsive to the issue that he framed. Consequently, the Union has failed to demonstrate that the Arbitrator exceeded his authority by not resolving an issue submitted to arbitration. See United States Dep't of the Air Force, 61 FLRA 797, 801 (2006) (arbitrator did not exceed his authority when his findings were directly responsive to the issue he framed); see also United States Dep't of the Army, Corps of Engr's, Huntington Dist., Huntington, W. Va., 59 FLRA 793, 798-799 (2004) (as arbitrators have broad discretion to fashi