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57 FLRA No. 138
UNITED STATES DEPARTMENT OF THE NAVY
NAVAL SEA LOGISTICS CENTER
INDIAN HEAD, MARYLAND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1923
January 31, 2002
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Laurence M. Evans filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union did not file an opposition to the Agency's exceptions.
The Arbitrator found that the Agency did not discriminate against the grievant based on race when it denied the grievant a temporary promotion. The Arbitrator, nevertheless, ordered the Agency to review its affirmative action obligations. For the reasons that follow, we find that the portion of the award ordering the Agency to review its affirmative action obligations is deficient and set aside that portion of the award.
II. Background and Arbitration Award
The grievant, a GS-12 Computer Specialist, filed a grievance alleging that she was denied a temporary promotion to GS-13 because of her race. When the grievance was not resolved, the matter was submitted to arbitration. The parties could not agree to a stipulated issue, so the Arbitrator framed the following issue, as relevant here: "did the Activity violate any provision of the parties' Master Agreement by failing to temporarily promote the [g]rievant to a GS-13 computer specialist position?" Award at 4. The Arbitrator noted that this issue encompassed the question of "whether the [g]rievant [ v57 p688 ] was denied a temporary promotion . . . on the basis of race . . . under Article 38 of the [parties'] [a]greement." [n1] Id. at n.3.
Although the Arbitrator determined that the Union's claim of discrimination was arbitrable, he found that there was "no direct evidence in the record that the [g]rievant herself ha[d] been the victim of racial discrimination." Id. at 6-7. Therefore, the Arbitrator concluded that the Union had not established that the Agency discriminated against the grievant based on her race.
Based on the foregoing, the Arbitrator determined that the Agency did not violate the parties' agreement as alleged. Nevertheless, the Arbitrator concluded that "the absence of African-Americans at the GS-13 computer specialist level potentially suggests the kind of systemic problems which Article 38 of the parties['] Master Agreement was obviously designed to address and resolve." Id. at 7 (emphasis in original). Based on this finding, the Arbitrator ordered the Agency to "undertake a review of its affirmative action obligations to determine whether or not there is a `manifest imbalance or conspicuous absence' of African-Americans." Id. at 8.
III. Agency's Exceptions
The Agency argues that the Arbitrator exceeded his authority by ordering a review of its affirmative action obligations. According to the Agency, when the Arbitrator resolved the discrimination issue concerning the grievant in favor of the Agency, the Arbitrator had decided the merits of the issue before him. Therefore, the Agency argues, by awarding a remedy concerning an issue not before him, and by awarding a remedy where no violation was found, the Arbitrator exceeded his authority. [n2]
IV. Analysis and Conclusions
Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority, or award relief to those not encompassed within the grievance. See AFGE, Local 1617, 51 FLRA 1645, 1647 (1996). In the absence of a stipulated issue, the arbitrator's formulation of the issue is accorded substantial deference. See United States Dep't of the Army, Corps of Engineers, Memphis Dist., Memphis, Tenn., 52 FLRA 920, 924 (1997). The Authority has consistently held that arbitrators must confine their decisions and possible remedies to those issues submitted to arbitration for resolution and "must not dispense their own brand of industrial justice." Veterans Admin., 24 FLRA 447, 450 (1986) (VA) (citations omitted).
The Authority has previously held that an arbitrator exceeded his authority when he concluded that an agency did not violate the parties' agreement as alleged, but nevertheless, provided a remedy to the grievant. Specifically, in VA, the arbitrator framed the issue as whether the grievant's termination violated the parties' agreement. The arbitrator concluded that the agency did not violate the parties' agreement when it terminated the grievant. Notwithstanding this finding, the arbitrator ordered that the grievant be informed of, and allowed to apply for, agency vacancies. See id. at 448-49. The Authority held that the arbitrator exceeded his authority by failing to confine his decision and any possible remedy to the issues submitted as he unambiguously framed them.
Similarly, in the absence of a stipulated issue, the Arbitrator in this case framed the issue as whether the Agency violated the parties' agreement by not promoting the grievant. The Arbitrator noted that the issue before him encompassed the question of whether the grievant was denied a promotion based on her race. The Arbitrator concluded that the Agency did not violate the parties' agreement as alleged and that the Union had not established that the Agency discriminated against the grievant based on her race. These conclusions resolved the merits of the issue, which the Arbitrator unambiguously framed, in favor of the Agency, and therefore, a remedy was not warranted in this case.
We note that while the Agency's obligations under its affirmative action plan may be related to the question of whether the Agency violated the parties' agreement by not promoting the grievant, the Agency's compliance with those obligations, as a general concern, was not an issue presented to the Arbitrator for resolution. Consequently, [ v57 p689 ] when the Arbitrator concluded that the Agency did not violate the parties' agreement as alleged, there was no basis for him to order the Agency to review its obligations under its affirmative action plan. See United States Dep't of Health and Human Serv., FDA, New Orleans, La., 54 FLRA 90 (1998) (setting aside award, in part, where arbitrator found no violation concerning the issue he framed, but awarded a remedy for a different violation).
Based on the foregoing, we conclude that the Arbitrator exceeded his authority by deciding, and awarding a remedy concerning, an issue not submitted to arbitration. Accordingly, the portion of the award ordering the Agency to review its affirmative action obligations is set aside.
The portion of the award ordering the Agency to review its affirmative action obligations is set aside.
Footnote # 1 for 57 FLRA No. 138
In relevant part, Article 38 of the parties' agreement provides that "[t]he [e]mployer and the Union affirm their commitment to the policy of providing equal employment opportunities to all employees and to prohibit discrimination because of race . . . . The [e]mployer will have a positive, continuing, and results-oriented program of affirmative action." Award at 3.
Footnote # 2 for 57 FLRA No. 138
The Agency also asserts that the portion of the award ordering the Agency to review its affirmative action obligations is inconsistent with EEOC regulations and directives. However, because we find that portion of the award deficient and set it aside, it is not necessary to consider the Agency's argument in this regard.