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59 FLRA No. 126
DEPARTMENT OF THE NAVY
NAVY INVENTORY CONTROL POINT
OF GOVERNMENT EMPLOYEES
February 26, 2004
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 Thomas J. DiLauro 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 Agency filed a motion to stay the Arbitrator's award pending resolution by the Authority of the Agency's exceptions. [n1]
The Arbitrator upheld the grievant's one-day suspension but ordered the disciplinary action expunged from the grievant's official personnel record if his record remained clear of any further disciplinary action for six months from the date of the award. For the reasons set forth below, we deny the Agency's exceptions in part, and remand the award to the parties for resubmission to the Arbitrator, absent settlement, for clarification.
II. Background and Arbitrator's Award
The grievant accessed a computerized slide show presentation and made unauthorized changes to it. The changes were discovered during a commander's presentation of the slide show to representatives of a potential customer. Following an investigation, the grievant received a five-day suspension, which was later reduced to a one-day suspension. The suspension was grieved and submitted to arbitration, where the Arbitrator framed the issue as: "Whether the grievant's one-day suspension was for just cause? If not, what should be the remedy?" Award at 3.
The Arbitrator began his analysis of the grievance by citing general principles regarding just cause. He stated that, "[i]n cases of just cause, the burden of proof is upon the employer to substantiate its actions[,]" and that to establish just cause, "an employer must first show that the employee committed the act(s) for which discipline was imposed and, second, the employer must show that the level of discipline imposed was appropriate. Award at 20.
The Arbitrator found that the grievant was "credible in his statement that his actions were not malicious or intentional" and that the Agency had "not refuted that the grievant's personal computer malfunctioned on occasion, causing him to access files which he would not ordinarily work in." Id. at 21. The Arbitrator found it "commendable" that the grievant asked to apologize to the individual who made the presentation. Id. However, the Arbitrator found that the grievant neglected to report the computer malfunction to his supervisor, concluding that this "oversight, as unfortunate as it may have been, caused him to be held accountable for his actions." Id.
As his award, the Arbitrator denied the grievance in part and sustained it in part. The Arbitrator upheld the one-day suspension, and ordered the disciplinary action expunged from the grievant's record if his record remained clear of any further disciplinary action for six months from the date of the award.
III. Agency's Exceptions
The Agency argues that the Arbitrator's order to expunge the suspension exceeded the scope of the framed issue since the issue made no reference to whether it was unreasonable for the suspension to be a permanent part of the grievant's official personnel file. Exceptions at 2. [ v59 p699 ]
The Agency further argues that two parts of the award are contradictory in light of the Back Pay Act. Specifically, the Agency claims that the first part of the award renders the grievant ineligible for backpay because the suspension was found to be warranted, while the second part of the award, expunging the suspension, entitles the grievant to backpay. In the latter connection, the Agency asserts that under Office of Personnel Management ("OPM") guidelines, cancelling a suspension requires backpay. Id.
In addition, the Agency contends that the Arbitrator's order to expunge a proper suspension conflicts with management's statutory right to suspend employees under 5 U.S.C. § 7106(a)(2)(A). Exceptions at 3. The Agency further contends that the order to expunge is contrary to Article 34, Section 6(b) of the parties' agreement, [n2] and violates Article 38, Section 7. [n3]
IV. Analysis and Conclusions
A. The Arbitrator did not exceed his authority.
An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his authority or awards relief to those not encompassed within the grievance. See AFGE, Local 1617, 51 FLRA 1645, 1647 (1996). In the absence of a stipulation by the parties, arbitrators are accorded substantial deference in the formulation of the issue to be resolved in a grievance. See United States Dep't of Transp., Fed. Aviation Admin., Wash., D.C., 55 FLRA 322, 325 (1999). Moreover, the Authority grants the arbitrator broad discretion to fashion a remedy that the arbitrator considers to be appropriate. Id.
In this case, the Arbitrator framed the issue as whether there was just cause for the suspension and, if not, what should be the appropriate remedy. See Exceptions at 1. The Arbitrator stated that, in establishing just cause for disciplinary action, the Agency must show that the employee committed the acts for which discipline was imposed and that the level of discipline imposed was appropriate. See Award at 20.
As his award, the Arbitrator denied the grievance in part and sustained it in part, upholding the suspension but ordering the disciplinary action expunged from the grievant's official personnel file if the grievant's record was clear of any further disciplinary action for six months from the date of the award. As discussed below, it is unclear what exactly the Arbitrator intended by this particular remedy. Nevertheless, the Arbitrator's formulation of a remedy is directly responsive to the issue as the Arbitrator framed it. As such, the Agency has not established that the Arbitrator exceeded his authority. Accordingly, we deny the exception.
B. A Remand Is Necessary To Resolve The Remaining Exceptions
The Arbitrator did not identify the applicable law or contract provision he found was violated, giving rise to his award. As such, we are unable to apply the Authority's two-prong test set forth in United Stated Dep't of the Treasury, Bureau of Engraving & Printing, Wash., D.C., 53 FLRA 146 (1997), to determine whether the award violates the Agency's right to suspend employees. See United States Dep't of Def., Def. Logistics Agency, Def. Distrib. Depot, Norfolk, Va., 54 FLRA 180, 184 (1998).
In addition, regarding the order to expunge the disciplinary action, we are unable to ascertain whether the Arbitrator's intention was to: (1) reverse the suspension six months after the award; (2) sustain the suspension but expunge the suspension from the grievant's record so as to prohibit the Agency from relying on the suspension in the future; or (3) sustain the suspension and expunge the suspension from the grievant's record but not prohibit the Agency from relying on the suspension in the future. As such, we are unable to determine whether the award is deficient as contradictory or failing to draw its essence from the parties' agreement.
In these circumstances, it is necessary to remand the award to the parties. On remand, the parties are encouraged to resolve the dispute. If the dispute is not resolved, the award must be resubmitted to the Arbitrator for clarification consistent with this decision.
The Agency's exception that the Arbitrator exceeded his authority is denied. The award is remanded for clarification, absent settlement, consistent with this decision.
Footnote # 1 for 59 FLRA No. 126 - Authority's Decision
The Authority denied the motion on the ground that the Authority's Regulations do not authorize stays of awards during pendency of exceptions. Order dated November 6, 2003. Subsequently, the Union filed a motion requesting the Authority to direct the Agency to take the action required by the Arbitrator's award. As noted in the order denying the motion to stay, the Authority's regulations "require an agency to take actions required by an arbitrator's award only after the award has become final and binding." United States Dep't of the Treasury, Internal Revenue Serv., Wash., D.C., 59 FLRA 282, 287-88 (2003).
Footnote # 2 for 59 FLRA No. 126 - Authority's Decision
Article 34, Section 6(b) states, in pertinent part, that "[a]ny past or prior disciplinary suspension may form the basis for proposing a remedy greater than the minimum . . . for a subsequent offense. . . . The length between past or prior offenses and/or the dissimilarity of past or prior offenses shall be considered as a mitigating factor when proposing a remedy from the next higher range of remedies for a subsequent offense." Exceptions, Attachment G.
Footnote # 3 for 59 FLRA No. 126 - Authority's Decision