United States Department of the Treasury, Internal Revenue Service, Ogden Service Center, Ogden, Utah (Agency) and National Treasury Employees Union, Chapter 67 (Union)

[ v63 p195 ]

63 FLRA No. 77

UNITED STATES
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
OGDEN SERVICE CENTER
OGDEN, UTAH
(Agency)

and

NATIONAL TREASURY
EMPLOYEES UNION
CHAPTER 67
(Union)

0-AR-4131

_____

DECISION

April 7, 2009

_____

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

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Kenneth Cloke 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.

      As relevant here, the Arbitrator concluded that the Agency did not violate the Statute and the parties' collective bargaining agreement when the grievant's request for Union representation was denied by an officer of the Federal Protection Service (FPS) during an investigatory interview. Nevertheless, the Arbitrator provided a remedy requiring the Agency to take certain actions.

      For the following reasons, we find that the portion of the award granting a remedy is deficient and set aside that portion of the award.

II.     Background and Arbitrator's Award

      The FPS is a part of the Department of Homeland Security (DHS) and, under 40 U.S.C. § 1315(b)(1), has law enforcement authority over Federal properties, including the right to investigate incidents that take place on Agency premises, to arrest Federal employees, and generally to enforce Federal Regulations that govern conduct on Federal property. [n1]  Award at 10. The Treasury Inspector General for Tax Administration (TIGTA) and Agency security guards "also have jurisdiction over enforcement in several of these areas." Id. Neither the Agency nor the Department of the Treasury has authority or control over the FPS or the DHS. Id. at 15.

      The grievant is employed by the Agency as a Tax Examiner. An FPS officer was assigned to conduct an investigatory interview with the grievant in response to an employee's report that she had been verbally threatened by the grievant. Id. at 17. The FPS officer interviewed the grievant, and management did not participate in that interview. Id. at 17, 18. The grievant was not advised of his right to union representation, his right to counsel, or his right to remain silent. Id. at 11. The grievant specifically requested Union representation, and was denied this request by the FPS officer. Id. at 17. Although the FPS officer wrote a report about the interview, he neither submitted it to the Agency, nor discussed the results of the interview with the Agency representatives. Id. The Agency ultimately counseled the grievant, but it did not rely on information gathered by the interview conducted by the FPS. Id. at 18, 31 and 36.

      The Union filed a grievance alleging that the grievant's interview by the FPS without either being informed of his rights, or permitted to have a Union representative present, violated both the Statute and the parties' collective bargaining agreement. The Agency denied the grievance. An institutional grievance was then filed on the same basis and denied. When the two grievances were not resolved, they were consolidated and submitted to arbitration.

      The parties could not agree on the issues and stipulated that the Arbitrator would frame the issues to be resolved. The Arbitrator framed the issues as follows:

1.      Does the Arbitrator have authority under the collective bargaining agreement to decide whether Agency employees have a right to Union representation in investigations conducted in the workplace that concern conduct in the workplace by a federal agency which is not subject to Agency control and is not a party to the collective bargaining agreement? [ v63 p196 ]
2.      Did the Agency violate Article 5, Section 4 of the parties' agreement, 5 USC [§] 7114 (a)(2)(B), [and/or] 5 USC [§] 7116(a)(8) when [the grievant's] request for union representation was denied during an August 4, 2004 investigatory meeting with an officer of the [FPS]?
3.      If so, what is the appropriate remedy?
4.      Did the Agency violate Article 5, Section 4 of the parties' agreement, 5 USC [§] 7114 (a)(2)(B), 5 USC [§] 7116(a)(1) and/or 5 USC [§] 7116(a)(8) when employee requests for union representation [were] denied during investigatory meetings with officers of the [FPS]?
5.      If so, what is the appropriate remedy?

Id. at 4-5. The Arbitrator determined that the issues also concerned, among other matters, "whether the information obtained through investigatory interviews where employees have been denied the right to union representation can be relied on in any way by the Agency in disciplinary proceedings against those or other employees." Id. at 10.

      The Arbitrator concluded that the portion of the grievances concerning whether Agency employees have a right to Union representation in interviews conducted by the FPS is not arbitrable, but that the portion of the grievances concerning whether information gathered by interviews conducted by the FPS can be relied on by the Agency in disciplinary proceedings is arbitrable. Id. at 32-34. On the merits, the Arbitrator concluded that the Agency did not violate the parties' agreement or law. In this regard the Arbitrator stated:

Certainly if there were any indication in the evidence in this case that the Agency had actively participated in investigatory interviews other than as a witness, or had intervened in the FPS Officer's procedures or decisions, or had chosen to call FPS in order to bypass the provisions of the collective bargaining agreement, or had sought to deny targeted employees the right to Union representation, or had received reports directly from FPS, or had reached a decision concerning employee discipline in reliance on facts that had been unfairly gathered during an FPS investigation due to the absence of Union representation, it would be possible to find an actionable violation of both law and the collective bargaining agreement. None of these facts were proven here.

Id. at 31.

      Despite the foregoing, the Arbitrator found that the Agency was obligated to advise employees that the FPS is not a representative of the Agency. Id. at 39. In this regard, the Arbitrator directed the Agency: (1) not to use information gathered by the FPS in any subsequent disciplinary proceeding against the grievant; (2) to instruct the TIGTA, Agency security, and management to not participate in interviews conducted by the FPS and notify the FPS of this instruction; (3) to post a notice that advises employees that the FPS is not a representative of the Agency and that outlines procedures the Agency must follow with respect to the FPS interviews of employees; and (4) to meet and confer with the Union to create a set of criteria for deciding which incidents it will refer to the FPS and which it will refer to the TIGTA. Id. at 40-41.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency contends that the Arbitrator exceeded his authority by granting a remedy in the absence of finding that the Agency had engaged in wrongful conduct. Exceptions at 15-16. The Agency also contends that the Arbitrator exceeded his authority by failing to confine his decision to the issues "presented." Id. at 8, 13, 14. According to the Agency, the Arbitrator exceeded his authority in addressing employee rights other than employee representational rights, and by granting remedies to all employees, even though the grievance was limited to one employee. Id. at 14, 21.

      In addition, the Agency contends that the Award fails to draw its essence from the collective bargaining agreement. The Agency argues that the Arbitrator applied the standards of "fundamental fairness" and "just cause," which are not contained in the parties' agreement. Id. at 23.

B.     Union's Opposition

      The Union contends that the Arbitrator did not exceed his authority. According to the Union, the Authority grants arbitrators deference in fashioning an appropriate remedy. The Union argues that the issues framed by the Arbitrator included "whether the information obtained through investigatory interviews where employees have been denied the right to union representation can be relied on in any way by the Agency in disciplinary proceedings against those or other employees." Opposition at 6-7, (citing Award at 10). Therefore, the Union contends that the Authority should find that the Arbitrator was permitted to extend his award to issues that "necessarily arise" from the issue as formulated. Id. at 6. In addition, the Union contends [ v63 p197 ] that the Agency did not establish that the award fails to draw its essence from the collective bargaining agreement. Id. at 10.

IV.     Analysis and Conclusions

      Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority, or award relief to those not encompassed within the grievance. 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. United States Dep't of the Army, Corps of Eng'rs, Memphis Dist., Memphis, Tenn., 52 FLRA 920, 924 (1997). In addition, the Authority has held that when an arbitrator decides the merits of issues by finding no violation of law or contract, the arbitrator has no authority to provide a remedy. See NLRB, Tampa, Fla.., 57 FLRA 880, 881 (2002) (NLRB); United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Cor. Inst., Marianna, Fla., 56 FLRA 467, 472 (2000) (BOP, Marianna), citing to Veterans Admin., 24 FLRA 447, 451 (1986). Thus, the Authority has found that an arbitrator exceeded her authority when she concluded that an agency did not violate the parties' agreement as alleged, but, nevertheless, provided a remedy. NLRB, 57 FLRA at 881; see United States Dep't of the Navy, Naval Sea Logistics Ctr., Detachment Atl., Indian Head, Md., 57 FLRA 687, 688-89 (2002).

      Applying the foregoing Authority precedent, we find that the Arbitrator exceeded his authority. In this regard, having set forth the issues and resolved arbitrability issues, the Arbitrator concluded that the Agency did not violate the Statute and the parties' agreement. Award at 31. In particular, as quoted above, the Arbitrator found that none of the facts necessary to establish a violation of law or contract "were proven." Id. These findings resolved the merits of the issues as framed by the Arbitrator. NLRB, 57 FLRA at 881. However, notwithstanding the foregoing findings and conclusions that the Agency did not violate law or contract, the Arbitrator directed, as a remedy, that the Agency take various actions. Award at 40-41.

      We reject the Union's argument that the Arbitrator was permitted to extend his award to issues that "necessarily arise" from the issue as formulated. Opposition at 6. The Arbitrator clearly and unambiguously concluded on the merits that the facts did not establish a violation of law or the pa