19:0164(15)AR - VA and AFGE Local 3692 -- 1985 FLRAdec AR

 19 FLRA No. 15
 
 VETERANS ADMINISTRATION
 Agency
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 3692
 Union
 
                                            Case No. O-AR-951
 
                                 DECISION
 
    This matter is before the Authority on an exception to the award of
 Arbitrator Jack D. Tillem filed by the Agency under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.
 
    The issue submitted to arbitration questioned in relevant part
 whether the two-week suspension of Grievant Karaban was for just cause.
 The Arbitrator initially noted that the grievant was charged with two
 offenses which the Arbitrator quoted in his award as follows:
 
          I.  On November 16, 1984 at approximately 3:00 p.m. in the
       "Committal Trailer" of Calverton National Cemetery, you aided and
       supported fellow employee Carl Hegquist when he verbally and
       physically abused, and threatened the life of Steven Setek,
       another employee.
 
          II.  On November 19, 1984 at approximately 1:15 p.m. in the
       administration building of Calverton National Cemetery, you made
       false statements in response to a proper inquiry conducted by the
       Assistant Cemetery Director when you denied taking part in the
       incident described in Reason I.
 
 As to charge I the Arbitrator determined:
 
          (T)here is absolutely no evidence from either side that Karaban
       did anything at all.  He was in the room, period.
 
 Consequently, the Arbitrator ruled as to charge I that the grievant was
 innocent.  As to charge II the Arbitrator determined:
 
          While I think (the grievant) was not telling the truth when he
       said he saw nothing, the charge requires the VA to specifically
       prove that he lied when the " . . . denied taking part in the
       incident." Since he did not, he should be absolved of this charge
       as well.
 
 Accordingly, as his award with respect to Grievant Karaban the
 Arbitrator sustained the grievance and rescinded the suspension.
 
    In its exception, the Agency contends that the Arbitrator's award is
 based on a "nonfact" because the Arbitrator erroneously failed to
 consider the entire charge II against the grievant and that therefore
 the award is deficient.  In support of this exception, the Agency
 submits the notice to the grievant of proposed disciplinary action
 stating charge II as follows:
 
          II.  On November 19, 1984 at approximately 11:45 a.m. in the
       administration building of Calverton National Cemetery you made
       false statements in response to a proper inquiry conducted by the
       Assistant Cemetery Director when you denied being present or
       taking part in the incident described in Reason I.
 
    Under section 7122(a)(2) of the Statute, the Authority has found an
 arbitration award deficient when it was demonstrated that the central
 fact underlying the award was concededly erroneous and in effect was a
 gross mistake of fact but for which a different result would have been
 reached.  E.g., Headquarters, San Antonio Air Logistics Center, Kelly
 Air Force Base, Texas and American Federation of Government Employees,
 Local 1617, AFL-CIO, San Antonio, Texas, 6 FLRA 292 (1981).  In Norfolk
 Naval Shipyard, Portsmouth, Virginia and Tidewater Virginia Federal
 Employees Metal Trades Council, 9 FLRA 538 (1982), the union filed an
 exception claiming that the award was deficient in this respect because
 the arbitrator in sustaining a suspension erroneously concluded that the
 incident for which the grievant was suspended was his second
 disciplinary offense.  On the basis of the record before the Authority
 in that case, the Authority concluded that the arbitrator had
 misapprehended that the incident involved was only the grievant's first
 offense for disciplinary purposes.  However, the Authority could not
 ascertain from the award whether the arbitrator would have reached a
 different result.  Thus, the Authority remanded the award to the parties
 to have them obtain a clarification and interpretation of the award from
 the arbitrator.
 
    In terms of this case, and similar to Norfolk Naval Shipyard, the
 Authority finds on the basis of the record submitted that the Arbitrator
 has misapprehended the full basis of charge II against the grievant.
 However, the Authority cannot ascertain whether the Arbitrator would
 have reached a different result if he had not misapprehended the full
 basis of charge II.  Because of this uncertainty, the Administrator's
 award must be remanded to the parties to have them obtain a
 clarification and interpretation of the award from the Arbitrator.
 
    Accordingly pursuant to section 2425.4 of the Authority's Rules and
 Regulation, the Arbitrator's award is remanded to the parties with the
 direction that they resubmit the award to the Arbitrator to obtain a
 clarification and interpretation.  The resubmission to the Arbitrator is
 for the limited purpose of having the Arbitrator clarify and interpret
 his award in view of the full basis of charge II to specify whether the
 two-week suspension of Grievant Karaban for the offenses for which he
 was charged was for just cause.  /1/ See id. at 540.  Issued,
 Washington, D.C., July 16, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Following clarification of the award by the Arbitrator, either
 party may file exceptions with the Authority to the award as clarified.