38:1447(114)AR - - Veterans Affairs, Medical Center, St. Albans, NY and AFGE Local 1988 - - 1991 FLRAdec AR - - v38 p1447
[ v38 p1447 ]
The decision of the Authority follows:
38 FLRA No. 114
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF VETERANS AFFAIRS
ST. ALBANS, NEW YORK
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
(37 FLRA 1092)
ORDER DENYING REQUEST FOR RECONSIDERATION
January 14, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on the Agency's request for reconsideration of the Authority's decision in U.S. Department of Veterans Affairs, Medical Center, St. Albans, New York and American Federation of Government Employees, Local 1988, 37 FLRA 1092 (1990). The Union did not file an opposition to the request. Because the Agency fails to establish that extraordinary circumstances exist which warrant reconsideration of our decision, we will deny the request.
II. The Decision in 37 FLRA 1092
In 37 FLRA 1092, we upheld the Arbitrator's award, which sustained a grievance requesting that AWOL charges against two grievants be rescinded and full pay and benefits be restored. We modified the award, however, because we found that the Arbitrator exceeded his authority in directing the Agency to issue letters of admonishment to the grievants. We held that the issue before the Arbitrator was not discipline; rather, it was whether the grievants were properly charged with AWOL. We concluded that the Arbitrator exceeded his authority by issuing an affirmative disciplinary order that exceeded the scope of the matter submitted to arbitration. We also noted that, as the Arbitrator rescinded the AWOL charges, there appeared to be no basis on which to discipline the grievants because the parties' collective bargaining agreement prohibited imposing discipline based on approved leave.
III. The Agency's Request for Reconsideration
The Agency claims that the Authority should have remanded the award to the Arbitrator to fashion an appropriate remedy. Request for reconsideration at 1. The Agency maintains that the Authority's decision to "remove the penalty (admonishment) portion" of the award leaves an award that finds that "the grievants were not guilty of any misconduct[,]" a result contrary to the Arbitrator's findings. Id.
In support of its request, the Agency attaches, and cites, a letter from the Arbitrator to the Authority requesting reconsideration of the Authority's decision.
IV. Preliminary Matter
On November 2, 1990, the Authority received a letter from the Arbitrator, requesting guidance in understanding an "arbitrator's authority" in view of our decision in 37 FLRA 1092. The Arbitrator questioned the Authority's decision to strike his substituted disciplinary order from the award. The Arbitrator reasoned that because the issue "[w]hat shall the remedy be?" had been stipulated by the parties, he had the "recognized power to fashion a substitute penalty[.]" Letter from Arbitrator Kaplan to the Authority (Oct. 29, 1990) at 1, 4.
On November 9, 1990, the Authority notified the Arbitrator that as he was not a "party" to the arbitration proceeding, the Authority could not accept or consider his request. See 5 C.F.R. §§ 2421.11, 2425.1(a). See also Department of the Air Force, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 33 FLRA 757 (1988) (Authority stated that the arbitrator had "no standing to argue the merits of his award before the Authority because he did not participate as a party in [the] proceeding."). Through administrative oversight, the Authority's letter was not served on the parties.
Although we regret the error in failing properly to serve the parties with the Authority's letter to the Arbitrator, there is no indication that the error prejudiced the parties' rights in this matter. Moreover, as an attachment to this Order, we have served the parties with a copy of the letter.
Consistent with the regulatory provisions cited above, we have not considered the Arbitrator's arguments concerning his award and the Authority's decision in 37 FLRA 1092.
V. Analysis and Conclusion
Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish the existence of "extraordinary circumstances" to request reconsideration of a decision of the Authority. We conclude that the Agency has not established extraordinary circumstances within the meaning of section 2429.17 to warrant reconsideration of our decision of 37 FLRA 1092.
The Agency's request for reconsideration is premised on its argument that placing an employee in AWOL status constitutes discipline and that, therefore, the Arbitrator had the authority to substitute a lesser disciplinary penalty for the assignment of the AWOL. The Federal Personnel Manual (FPM) states, however, that "[r]ecording an absence as AWOL is not a disciplinary action." FPM Letter 630-29; see U.S. Department of Health and Human Services, Social Security Administration, Kansas City, Missouri District and American Federation of Government Employees, Local 1336, 37 FLRA 924, 927 (1990). Accordingly, in 37 FLRA 1092 we held that the Arbitrator exceeded his authority when he ordered the Agency to discipline the grievants by issuing letters of admonishment. We noted, in this regard, that disciplining the grievants was not "encompassed within the grievance or was, in any other way, raised to the Arbitrator[.]" 37 FLRA at 1095. We, therefore, modified the Arbitrator's award to strike that portion of the remedy ordering the Agency to take a disciplinary action against the grievants.
The Agency's request for reconsideration is premised on the erroneous argument that the issue before the Arbitrator concerned a disciplinary matter. As such, the Agency fails to establish extraordinary circumstances warranting reconsideration of the Authority's decision and we will deny the requ