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37:1054(86)AR - - Veterans Affairs, Medical Center, Asheville, NC and AFGE Local 446 - - 1990 FLRAdec AR - - v37 p1054

[ v37 p1054 ]
The decision of the Authority follows:

37 FLRA No. 86













October 18, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Dorothy Cowser Yancy. A grievance was filed disputing a disciplinary action which had been taken against the grievant. The Arbitrator sustained the grievance, ruling that the grievant should be made whole for 14 days of suspension without pay. The Arbitrator also held that the grievant should be reassigned to the position which the grievant occupied prior to the disciplinary action.

The Agency filed an exception to the award under section 7122(a) of the Federal Labor-Management Relations Statute (Statute) and part 2425 of the Authority's Rules and Regulations. The Union did not file an opposition to the Agency's exceptions.

For the reasons which follow, we conclude that the portion of the Arbitrator's award directing the Agency to reassign the grievant to his former position is deficient under section 7122(a)(2) of the Statute because the Arbitrator exceeded her authority. Accordingly, we will modify the award.

II. Background and Arbitrator's Award

The Arbitrator found that the grievant, a GS-6 Nursing Assistant Float, "was accused of committing patient abuse." Award at 6. The Arbitrator also found that, in attempting to subdue a patient who had recently assaulted and injured three nurses, the grievant threatened to strike the patient and allegedly "swatted [the patient] in the face" with a leather restraining strap. Id. Before the Arbitrator, the Union conceded that the grievant threatened to strike the patient, but the Union maintained that the grievant did not intend to carry out the threat. Id. at 8. Notwithstanding eyewitness accounts to the contrary, the Union also argued "that the leather strap brushed the patient's face accidentally . . . ." Id.

The Arbitrator found that an Administrative Investigative Board reviewed the incident and determined that the grievant was guilty of patient abuse. Id. at 6. The Agency's regulations state that "[e]mployees may not . . . abuse veterans or their families in any way, whether or not provoked." Id. at 3. The regulations also provide that "[a]n employee may not abuse a patient by teasing or ridiculing him [or] speaking harshly or rudely to him[.]" Id.

The Arbitrator found that, as a result of management's loss "of faith in the grievant's ability to work alone[,]" the grievant was reassigned and not allowed to continue serving as a Nursing Assistant Float--a position which "requires . . . an employee [who is] able to function independently." Id. at 11. The Medical Center Director also proposed to demote the grievant to the GS-5 level.

The proposed demotion was subsequently changed to a suspension without pay for 14 days. However, when the resultant grievance remained unresolved, the matter was submitted to arbitration on the following issue:

Whether or not the grievant was disciplined in accordance with the Agreement and VA Regulations, and[,] if not, what shall the remedy be?

Id. at 6.

The Arbitrator concluded "that the grievant committed patient abuse." Id. at 10. However, the Arbitrator determined that the grievant should not have been reassigned from the position of Nursing Assistant Float. Id. at 11. The Arbitrator also concluded that "the grievant should have received the minimum penalty of a written reprimand for his first offense." Id. at 12. Finally, as part of her award, the Arbitrator stated that the grievant should "be restored to his position of [Nursing Assistant Float] and made whole for the 14 days of suspension." Id.

III. The Agency's Exceptions

The Agency excepts only to the portion of the award requiring it to reassign the grievant to his former position. The Agency asserts that, in rescinding the grievant's reassignment, the award interferes with management's right to assign employees under 5 U.S.C. § 7106(a)(2)(A). Exception at 3. The Agency also asserts that the "Arbitrator made no finding that the reassignment violated a specific provision of the parties' [collective bargaining] agreement[.]" Exception at 2. The Agency contends that the provisions of the parties' agreement and Agency regulations cited by the Arbitrator "in no manner purport to restrict the Agency's reassignment of its employees." Id. at 5-6.

IV. Analysis and Conclusions

We conclude that the award is deficient, to the extent that it requires the Agency to reassign the grievant to his former position, because the Arbitrator exceeded her authority.

We note that the Arbitrator's mitigation of the grievant's discipline from a 14-day suspension to a written reprimand, based on the Arbitrator's enforcement of Article 12 of the parties' agreement, has not been excepted to in this case. Further, it is well established that an arbitrator may (1) determine that all or part of a disciplinary penalty is not for just and sufficient cause and (2) set aside or reduce the penalty. See, for example, Department of Justice, Federal Prisons Systems, El Reno Federal Correctional Institution, El Reno, Oklahoma and American Federation of Government Employees, Council of Prisons Locals, Local No. 171, 35 FLRA 329, 337 (1990).

We note also that arbitrators have great latitude in fashioning grievance remedies. See, for example, U.S. Department of Housing and Urban Development, Los Angeles Area Office, Region IX, Los Angeles, California and American Federation of Government Employees, Local 2403, AFL-CIO, 35 FLRA 1224, 1229 (1990). An arbitrator exceeds his or her authority, however, when he or she issues an affirmative order that exceeds the scope of the matter submitted to arbitration. See, for example, General Services Administration, Region VII, Fort Worth, Texas and American Federation of Government Employees, Council 236, 35 FLRA 1259, 1265-66 (1990) (GSA, Region VII).

There is no indication in the award, or in the record of this case, that the matter of the grievant's reassignment was part of the grievant's discipline or was otherwise encompassed within the grievance. The Arbitrator's recitation of the factual background of the case indicates that the Medical Center Director first proposed that the grievant be demoted and, subsequently, changed the proposed demotion to the proposed 14-day suspension. According to the Arbitrator, "[t]his suspension was appealed to arbitration . . . ." Award at 6. In fact, the parties agreed that the issue before the Arbitrator was whether the grievant properly was "disciplined . . . ." Id.

As there is no basis on which to conclude that the grievant's reassignment was part of the discipline which was grieved or was, in any other way, encompassed within the grievance, we conclude that the Arbitrator exceeded her authority in directing the Agency to reassign the grievant to his former position. See GSA, Region VII, 35 FLRA at 1265-66.

Because the Arbitrator exceeded her authority in directing the Agency to reassign the grievant to his former position, the award, to that extent, is deficient under section 7122(a)(2) of the Statute. It is not necessary, therefore, to determine whether the award also is deficient under section 7122(a)(1) of the Statute because it impermissibly interferes with the Agency's right to assign employees under section 7106(a)(2)(A).

V. Decision

The Arbitrator's award is modified to strike that portion of the remedy pertaining to the grievant's reassignment.

(If blank, the decision does not have footnotes.)