38:0600(55)AR - - AFGE Local 3258 and HUD, Boston, MA - - 1990 FLRAdec AR - - v38 p600



[ v38 p600 ]
38:0600(55)AR
The decision of the Authority follows:


38 FLRA No. 55

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3258

(Union)

AND

U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

BOSTON, MASSACHUSETTS

(Activity)

0-AR-1840

DECISION

November 30, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator Theodore Role filed by the Activity under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Activity's exception.

Two unit employees filed grievances alleging that the Activity violated the parties' collective bargaining agreement when an Activity official refused to meet with the two grievants to discuss a memorandum he had written that contained derogatory statements about them. The Arbitrator found that the grievance was arbitrable and sustained the grievance on the merits. The Arbitrator ordered that the memorandum be removed from all files and destroyed, and that a copy of his opinion be placed in the grievants' personnel files. The Activity contends that the Arbitrator exceeded his authority under the terms of the parties' agreement.

For the reasons stated below, we deny the Activity's exception.

II. Background and Arbitrator's Award

The grievants are GS-12 Loan Management Specialists (Senior Loan Servicers) in the Activity's Loan Management and Property Disposition (LMPD) branch in Manchester, New Hampshire. They are the only Senior Loan Servicers in the Manchester branch.

On February 2, 1989, the grievants' second-line supervisor, the Manager of the Manchester branch, issued a memorandum to the grievants' immediate supervisor, the Branch Chief. The memorandum stated, among other things, that "I am appraising [sic] you of my chagrin over the inept and unresponsive attitude of your Senior Loan Servicers . . . ." Award at 1. The memorandum criticized the handling of a specific project and further stated that "[t]he purpose of the memorandum is to convey my disappointment to you relative to the performance of your Loan Servicing Staff." Id. at 2.

The Branch Chief gave the grievants copies of the memorandum. On February 3 and 6, 1989, respectively, each of the grievants wrote to the Manager and requested a meeting with him and a Union representative to discuss his memorandum. On February 6 and 7, the Manager denied the requests, stating that "[s]ince the subject of your request concerns a memorandum from me to the Branch Chief, I see no reason for arranging such a meeting." Id. at 4.

The grievants grieved the Manager's refusal to meet to discuss his memorandum. The grievances stated that the Branch Chief had informed the grievants that the Manager wanted them to see the memorandum and that the Manager's refusal to meet to discuss the memorandum violated the parties' collective bargaining agreement. The grievances were consolidated and subsequently submitted to arbitration.

The Arbitrator stated that the parties agreed that the issue to be decided by the Arbitrator was: "Did the Employer/Management violate Sections 4.04, 4.13, or 22.10 of the Agreement when it issued the [m]emorandum . . . on February 2, 1989? If so, what shall be the remedy?" Id. at 1.(1) The Arbitrator also stated that the Activity had requested him to address the following issue: "Was the Memorandum . . . prohibited by the Collective Bargaining Agreement?" Id.

The Arbitrator first addressed the Activity's contention that the grievants had "no standing under the Agreement to challenge intra-management communications." Id. at 12. The Arbitrator determined that the memorandum "per se was not prohibited by the Collective Bargaining Agreement any more than any intra-management communication would be prohibited[.]" Id. at 15-16. Further, the Arbitrator determined that the memorandum "did not rise to the level of a formal reprimand" as provided for in Article 20, section 20.01(2)(b) of the parties' agreement. Id. at 16.(2)

However, the Arbitrator found that "because of its content, [t]he [m]emorandum became recorded/written Oral Admonishments as contemplated by the parties in Article 20-Discipline, Section 20.02(2) . . . . the moment their supervisor . . . presented them to [the grievants]." Id. (emphasis in original). The Arbitrator ruled that Section 20.02(2) "clearly provides employees access to the [parties' grievance procedures] 'if the employee is dissatisfied with such written admonishment . . .,' even if, at the time of presentation, Management does not contemplate relying on it in any subsequent disciplinary or adverse action." Id. (quoting Article 20, Section 20.02(2)).

The Arbitrator stated that whether the Manager instructed the Branch Chief to present the grievants with copies of the memorandum "bears little, if any, relevance to the instant issues." Id. He found that it was clear that, because the grievants "constitute[d] the entire loan servicers staff" referenced in the memorandum and copies of the memorandum were given to the grievants by a management person, "the 'recorded oral admonishments' were explicitly intended for none other but them." Id. Accordingly, the Arbitrator found that the grievants "had fully appropriate standing" under the agreement to grieve the memorandum. Id.

The Arbitrator next stated that the issues before him concerned: (1) the propriety of the memorandum's criticism of the grievants' performance during the January 26 through 31 period; (2) the Manager's February 6 and 7, 1989 refusals of the grievants' requests for meetings to discuss the allegation in the memorandum; and (3) whether these management actions violated Sections 4.04, 4.13 or 22.10 of the parties' Agreement. Id. at 17.

The Arbitrator found the Manager's reference in the memorandum to the performance of one grievant to be "inaccurate and totally inappropriate" and, therefore, ruled that the memorandum violated "the spirit" of Article 4, Section 4.13. Id. The Arbitrator further found "no justification whatsoever from the record" for the Manager's charge in the memorandum of "inept and unresponsive attitude." Id. at 18. He concluded that the memorandum was not intended to be a "confidential criticism" of the Branch Chief, as argued by the Activity, but rather clearly states that "'[t]he purpose [. . .] is to convey my disappointment to you relative to the performance of your Loan Servicing Staff.'" Id. (quoting memorandum) (emphasis supplied by Arbitrator).

The Arbitrator stated that he did not believe that the grievants acted inappropriately in directing their requests for meetings to discuss "their perceived injustices" in the memorandum to the Manager, rather than to their immediate supervisor as required by Article 22, Section 22.10. Id. The Arbitrator noted that in the Manager's refusals to meet with the grievants, the Manager "neither indicated nor suggested they should have approached [the Branch Chief] first." Id. The Arbitrator further noted that at the time that the Manager wrote the memorandum and the events discussed in the memorandum took place, the Manager was the grievants' "immediate supervisor" because the Branch Chief was absent, due to hospitalization. Id.

The Arbitrator rejected the Activity's contention that the Manager's "willingness to meet with the [g]rievants subsequent to his formal denial of their [g]rievances negate[d] his February 6 and 7, 1989 refusals of their requests for pre-grievance filing meetings." Id. at 19. The Arbitrator ruled that the Manager's refusal to meet with the grievants to discuss the memorandum was "arbitrary and capricious" and violated "the spirit" of Article 4, Section 4.13 and "the letter" of Article 22, Section 22.10. Id. at 18 (emphasis in original).

The Arbitrator concluded that the grievants "were not treated fairly and equitably as mandated in Article 4, Section 4.04" and found that the Manager violated Section 4.04. Id. at 19 (emphasis in original). Further, he ruled that the Manager's "inaccurate, inappropriate, arbitrary and capricious conduct in this matter and its significantly adverse effects on the [g]rievants['] morale did constitute a violation of the spirit of Section 4.13." Id.

As his award, the Arbitrator stated in relevant part:

The Employer/Management violated Section 4.04, the spirit of Section 4.13, and Section 22.10 of the Agreement, when it issued [t]he [m]emorandum . . . on February 2, 1989 and on February 6 and 7, 1989 refus[ed] to meet with [the grievants].

Remedy--The [m]emorandum . . . shall be removed from the chronological file and everywhere else it might be located and destroyed. In addition, a copy of this Opinion and Award shall be placed in the personnel files of [the grievants] in the event a copy of [t]he [m]emorandum should surface at any time in the future.

. . . .

Id. at 20.

III. Positions of the Parties

A. Activity's Exception

The only issue raised by the Activity is "whether the [A]rbitrator exceeded his authority, as limited by Sections 23.10(1) and (2) of the Agreement, when he found that the memorandum was an admonishment under Section 20.02(2) of the Agreement." Exceptions at 3-4. Section 23.10, "Authority of the Arbitrator," provides in relevant part:

(1) The Parties agree that the jurisdiction and authority of the arbitrator will be confined to the issue(s) presented in the grievance.

(2) The arbitrator shall not have authority to add to, subtract from, or modify any of the terms of this Agreement, or any supplement thereto. . . . .

Id. at Exhibit A.

The Activity argues that the Arbitrator "lacked authority to find that the memorandum constituted an admonishment under Section 20.02(2) of the Agreement, because the issue was never presented in the grievances as to whether the memorandum constituted such an admonishment." Id. at 4. The Activity states that "[s]ince Section 23.10(1) . . . limited the [A]rbitrator's authority to issues presented in the grievances, the [A]rbitrator had no authority to find that the memorandum constituted a Section 20.02(2) admonishment." Id. The Activity contends that the grievances characterized the Manager's memorandum as a "reprimand, but did not allege the applicability of Section 20.01(2)(b) . . . which defines that term." Id. Further, the Activity states that the grievances did not allege that the memorandum was a Section 20.02(2) admonishment. Accordingly, the Activity asserts that the Arbitrator's finding that "the memorandum was a Section 20.02(2) admonishment . . . went beyond the scope of his authority[.]" Id. at 4-5.

The Activity contends that the Arbitrator's "Section 20.02(2) admonishment finding" was also prohibited by Section 23.10(2), because "it effectively modified the grievance procedure set forth in Article 22 of the Agreement." Id. at 5. The Activity states that Section 22.13(2) requires employees to file their grievances against the official whose action resulted in the grievance. The Activity claims that because, in the Arbitrator's view, the memorandum did not become a grievable offense until it was given to the grievants by their immediate supervisor and was "transformed" into a Section 20.02(2) admonishment, the grievance could only been filed appropriately against the grievants' immediate supervisor. Id.

The Activity asserts that, because the Arbitrator disregarded the "plain and specific limitation" imposed on him by Section 23.10(2) of the parties' agreement and modified its terms by "eliminating the requirement that a grievant file against the management official which action resulted in the grievance[,]" he exceeded his authority. Id. at 7. The Activity concludes that the Arbitrator's "decision should be reversed and judgment entered for the [Activity] on the ground that the memorandum . . . was an intra-management communication and thus not arbitrable under the Agreement." Id. at 8.

B. Union's Opposition

The Union asserts that the Arbitrator's award draws its essence from the parties' agreement and that the Activity is "merely disagreeing with the [A]rbitrator's interpretation and application of the Agreement." Opposition at 6. The Union contends that the Activity misconstrues the purpose of the Arbitrator's findings when it argues that the Arbitrator "lacked authority to find the subject memorandum was a recorded oral admonishment because the grievants failed to raise the issue." Id. at 2. According to the Union, "[w]hen presented with an issue of arbitrability by the Activity, the [A]rbitrator found a narrow basis for arbitrability within the four corners of the Agreement." Id. at 6. The Union contends that the Arbitrator "neither modified, subtracted from nor added to the Agreement." Id. The Union claims that the award is not contrary to any law, rule, or regulation and is based on the parties' agreement.

IV. Analysis and Conclusions

We conclude that the Activity fails to establish that the Arbitrator exceeded his authority. An arbitrator exceeds his or her authority when the arbitrator resolves an issue not submitted, or awards relief to persons who are not encompassed within the grievance. See U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Ti