National Labor Relations Board, Tampa, Florida (Agency) and National Labor Relations Board Union (Union)

[ v57 p880 ]

57 FLRA No. 186







June 20, 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 Frances Bairstow filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. § 7101 et seq., and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

      The Arbitrator found that the Agency, through the actions of its Assistant Regional Director (ARD), did not engage in harassment and discrimination of the grievant because of his union activity. However, the Arbitrator directed that the Regional Director assign the supervision of the grievant's work to a different supervisor in the future. For the reasons that follow, we set aside that portion of the award because it exceeds the Arbitrator's authority.

II.     Background and Arbitrator's Award

      The grievant was a field attorney with the Agency. According to the record, he has been employed there since 1990 and was a highly rated and valued staff member. The grievant was also an active Union member and officer of the Union both on the local and national levels.

      The grievant alleged that he experienced extraordinary difficulties in his professional work. Specifically, he contended that the ARD had been hostile in her personal treatment of him as well as being unreasonable in her criticisms of his work. [n1]  The grievant attributed the ARD's treatment of him to anti-union bias.

      The parties could not resolve the grievance and the matter was submitted to arbitration. Because the parties did not agree on the framing of the issues, the Arbitrator framed the issues as:

Did the Agency engage through the actions of its Assistant Regional Director in harrassment [sic] and discrimination of the grievant because of his union activity?
Was the Agency in violation of the Collective Agreement because of its alleged harrassment [sic] of the grievant?

Award at 2.

      The Arbitrator determined that

[t]his case is primarily concerned with the day-to-day relations between two people, the [manager and the grievant.] For various reasons, they appear to have lost respect for one another and their contacts with one another have poisoned the work environment, not only affecting these two people but involving others in their workplace as well.

Award at 19. The Arbitrator found that the grievant was supervised by either of two individuals who had regular contact with the grievant and reviewed his work. The supervisors in turn reported to the ARD. The Arbitrator determined that the grievant's work was regarded as highly satisfactory and he had not received any disciplinary actions or poor performance evaluations. The Arbitrator also found that the ARD had no responsibility for the grievant's performance appraisal and no formal input in evaluations.

      The Arbitrator found that the only evidence which could be substantiated was evidence of incompatibility, not evidence of discrimination. In particular, the Arbitrator found that the manager may have been intemperate in her remarks to the grievant. The Arbitrator also found that the grievant had a "`low boiling point'" and took personal offense quickly; tended to attribute a remark about his work or his theories to a personal attack or insult; and had a "fragile ego." Award at 20.

      The Arbitrator determined that "the grievant's allegations of anti-union discrimination do not meet the threshold standard to determine whether the grievant has met the burden of proof of anti-union treatment." Award at 21. According to the Arbitrator, the standard test for proof of anti-union bias was some evidence of reprisal. The Arbitrator emphasized that there had been no evidence here of suspensions, discharge, decrease in salary, unpleasant work assignments, reprimands, [ v57 p881 ] threats, or derogatory comments in appraisals levied against the grievant. The Arbitrator concluded that there had been no violation of the parties' agreement and that the personality conflict between the grievant and the manager could not legitimately be elevated to anti-union animus.

      The Arbitrator denied the grievance. However, the Arbitrator directed the Regional Director to either take over the management of the grievant personally or assign another manager to oversee the grievant's work in the future.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency argues that the Arbitrator exceeded her authority by resolving an issue and awarding a remedy not submitted to arbitration. The Agency contends that the Arbitrator failed to confine her decision and any possible remedy to the issues submitted as she unambiguously framed them. The Agency asserts that the Arbitrator's authority ended when she determined the issues properly before her, and that the Arbitrator had no generalized authority to issue a remedy designed to address problems of Agency efficiency that were not part of her charge. Accordingly, the Agency requests that the portion of the award requiring the Agency to have a different manager decide the resolution of the grievant's cases be stricken.

B.     Union's Opposition

      The Union argues that because the parties did not frame the issues that would govern the Arbitrator's award, or limit the Arbitrator's authority to consideration of specified factors, the Arbitrator's remedy should not be viewed as exceeding her authority. According to the Union, the Authority allows arbitrators deference in fashioning a remedy. The Union maintains that the Arbitrator's direction that contact between the grievant and the manager should b