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37:1092(92)AR - - Veterans Affairs, Medical Center, St. Albans, NY and AFGE Local 1988 - - 1990 FLRAdec AR - - v37 p1092

[ v37 p1092 ]
The decision of the Authority follows:

37 FLRA No.92









LOCAL 1988




October 22, 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 David M. Kaplan. A grievance was filed disputing 3 hours of AWOL charged to the grievants. The Arbitrator rescinded the AWOL charges but held that letters of admonishment should be issued to the grievants.

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

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

II. Background and Arbitrator's Award

The Arbitrator found that both grievants were charged with 3 hours of AWOL because of their failure to return to work at the conclusion of a Merit Systems Protection Board (MSPB) hearing. Although the hearing ended at approximately 11 a.m., the Union contended that Grievant Vaughn (the appellant before the MSPB) and Grievant Charles (the Chief Steward, who was serving as the appellant's MSPB technical advisor) discussed "strategy" with the Union's National Representative until about 3 p.m. Award at 3.

A grievance was filed with respect to the AWOL charges. The Agency subsequently offered to convert the 3 hours of AWOL into 3 hours of annual leave; however, the Union declined the offer. The matter was submitted to arbitration on the following issue: "Were the grievants properly charged with three (3) hours of AWOL for failing to return to [work] upon [the] conclusion of [the] MSPB hearing . . . ? If not, what shall the remedy be?" Id. at 2.

Before the Arbitrator, the Union contended that the Agency should not be able to interfere with the "representational" activities which occurred upon the conclusion of the MSPB hearing. Id. at 6. The Union also maintained that Grievant Vaughn called his supervisor following the hearing and that Grievant Charles was not instructed to call her supervisor at such time.

The Agency contended before the Arbitrator that "[t]he 8 hours of administrative leave [were] specifically authorized for an MSPB hearing, and not for 'representational activities' following the conclusion of such hearing[.]" Id. at 9. The Agency further maintained that "once that hearing ended, the grievants were directed by their supervis[ors] to return to work, or [to] obtain approval for an extension of time beyond the [conclusion] of [the] . . . hearing at 11:00 a.m." Id.

Based upon his interpretation and application of the local supplemental collective bargaining agreement, the Arbitrator found "that the grant of 'official time' for these grievants . . . [was] not a grant of 'discretionary time' to be used 'as needed.'" Id. at 17. Rather, the Arbitrator concluded that administrative leave was approved for the express purpose of "allow[ing] the grievants to appear at a hearing before the MSPB[]" and "that the grievants should have called their respective supervisors . . . [at] the conclusion of the . . . hearing." Id. at 17-18.

As his award, the Arbitrator stated that the AWOL charges should be rescinded and, "instead, that a WARNING letter be issued to each grievant on the subject of complying with supervisory instructions, and [on] communicat[ing] with supervis[ors] upon the completion of the purpose for which . . . official/administrative leave was granted." Id. at 19. The Arbitrator also stated that the grievants should be "restored to full pay and other legal and conctractual [sic] benefits." Id. at 20.

The parties subsequently asked the Arbitrator to clarify his award. In response to that request, the Arbitrator stated "since a 'warning' is the same as an 'admonishment' under the standard dictionary definition, then a 'warning letter' is a 'disciplinary action' within the meaning of Article 12, Section 2A. of the [parties'] agreement." Award Clarification at 1. Article 12, Section 2A. of the parties' master collective bargaining agreement defines "a disciplinary action . . . as admonishment, reprimand, or suspension of 14 calendar days or less." Id.

III. The Union's Exceptions

The Union excepts only to the portion of the award directing the Agency to issue letters of admonishment to the grievants. The Union asserts that, by doing so, the Arbitrator exceeded his authority because he "required the [A]gency to take specific disciplinary action." Exceptions at 2. The Union maintains that after the AWOL charges were rescinded the grievants were "in an approved leave status" and that the collective bargaining agreement provides that "no approved absence will be a basis for disciplinary action." Id. In addition, the Union contends that the parties' agreement requires that counseling be used, rather than "warning letters[,]" to notify employees when "infractions" have been committed. Id.

IV. Analysis and Conclusions

We conclude that the award is deficient, to the extent that it requires the Agency to issue letters of admonishment to the grievants, because the Arbitrator has exceeded his authority.

Arbitrators have great latitude in fashioning 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). Nevertheless, an arbitrator exceeds his authority when he 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).

The record of this case indicates that the matter of the grievants' letters of admonishment first arose in the award and was not otherwise encompassed within the grievance. In fact, the issue before the Arbitrator was whether "the grievants [were] properly charged with . . . AWOL . . . ." Award at 2.

As the issue before the Arbitrator encompassed the grievants' AWOL charges, the Arbitrator did not exceed his authority in rescinding the AWOL charges and restoring pay and benefits lost as a consequence of such charges. However, as there is no indication that the matter of disciplining the grievants was encompassed within the grievance or was, in any other way, raised to the Arbitrator, we conclude that the Arbitrator exceeded his authority in directing the Agency to admonish the grievants. See GSA, Region VII, 35 FLRA at 1265-66. We note, in this regard, the Union's uncontroverted assertion that Article 17, Section 6 of the master collective bargaining agreement prohibits the imposition of discipline based on approved leave. Accordingly, as the Arbitrator rescinded the AWOL charges, there appears to be no basis on which the grievants may be disciplined.

Because the Arbitrator exceeded his authority in directing the Agency to issue letters of admonishment to the grievants, the award, to that extent, is deficient under section 7122(a)(2) of the Statute. In addition, having found that the Arbitrator exceeded his authority in the manner described above, we find it unnecessary to address the Union's other contentions.

V. Decision

The Arbitrator's award is modified to strike that portion of the remedy pertaining to the issuance of letters of admonishment to the grievants.

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