United States, Department of the Army, Army Corps of Engineers, Norfolk District (Agency) and National Federation of Federal Employees, Local 1028 (Union)

[ v60 p247 ]

60 FLRA No. 54



LOCAL 1028




September 15, 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 Robert T. Moore 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 filed an opposition to the Agency's exceptions.

      The Arbitrator sustained the grievance, finding that the grievant's 14-day suspension was not for just cause. The Arbitrator remanded the case to the parties for resolution of the Union's request for back pay and attorney fees and retained jurisdiction to resolve any claims which the parties were unable to resolve.

      For the reasons that follow, we find that the Agency's exceptions are interlocutory and that no extraordinary circumstances have been presented warranting review of the exceptions at this time. Accordingly, we dismiss the Agency's exceptions without prejudice.

II.     Background and Arbitrator's Award

      The grievant, the local Union president, received 5- and 14-day suspensions for various alleged infractions and was ultimately removed from her position. [n1]  Only the 14-day suspension is before the Authority in this case. After the Notice of Decision to Suspend was issued, the Agency and the grievant agreed to hold in abeyance the grievant's actual serving of the 14-day suspension until the parties resolved the dispute over that penalty. See Award at 48. The grievant was terminated later following another disciplinary action. See id.

      The grievant filed a grievance over the 14-day suspension and the matter proceeded to arbitration. Based on the parties' arguments, the Arbitrator set forth the issues as follows:

Was there just cause for the 14-day suspension imposed on the grievant and, if not, what should be the remedy?

Id. at 1. [n2] 

      The Arbitrator concluded that the 14-day suspension was not for just cause based on the separate grounds of "the denial of procedural due process" under the parties' agreement and the Agency's regulations, and of a "failure[] of proof". Id. at 16, 49. Therefore, the Arbitrator sustained the grievance.

      To remedy the violation of the parties' agreement and the Agency's regulations, the Arbitrator directed the Agency to rescind the 14-day suspension in its entirety.

      Furthermore, the Arbitrator noted the Union's request for "an award to the grievant for back pay, with interest, and the recovery of her attorney fees." Id. at 47. Relying on the Back Pay Act, the Arbitrator concluded that the grievant had been affected by an unjustified or unwarranted personnel action. Next, the Arbitrator considered the question of whether the unjustified or unwarranted personnel action "resulted in the withdrawal or reduction of all or part of the pay . . . [to which the grievant] is entitled, on correction of the personnel action, to receive for the period the personnel action was in effect?" Id. at 48. In this regard, the Arbitrator stated:

The record to date does not answer that question. It indicates that after the 14-day suspension was imposed, there was an agreement between the Agency and the grievant to hold in abeyance her serving the suspension until her challenge to the penalty was resolved. However, the grievant testified that she later was terminated as a result [ v60 p248 ] of another disciplinary action and since then has been unemployed.

Id. at 48.

      Consequently, the Arbitrator remanded the grievance to the parties to address the issue of whether the Arbitrator should or should not find that:

The apparent agreed-to abeyance in the serving of both suspensions ended with the grievant's subsequent removal from federal service, and that the first five work days following that removal constituted the serving of the 5-day suspension imposed by [the Agency] on June 25, 2002, and the next 14 calender days following her removal constituted the serving by her of the 14-suspension imposed by [the Agency] on July 29, 2002.
Should the Union wish to advance a different basis for why its prayer can be considered, it should do so at the time it responds to the proposition advanced by the arbitrator.

Id. In this connection, the Arbitrator stated that after "receipt of the parties' arguments and copies of all authorities which they rely, a determination will be made as to whether the grievant can proceed under the Back Pay Act or on any other basis." Id. at 48-49.

      Accordingly, the Arbitrator retained jurisdiction for purposes of:

1. Providing any clarification of this Decision and Award as may be appropriate, needed, and consistent with the arbitrator's authority and responsibilities.
2. Considering to a point of proper exhaustion, the grievant's prayer for an award of back pay, with interest, and recovery of her attorney fees.

Id. at 49.

III.     Positions of the Parties

      The Agency contends that the award does not draw its essence from the parties' agreement, is contrary to law and evidence and is based on nonfacts. In addition, the Agency claims that the Arbitrator was biased and that the award is contrary to law. The Union opposes the Agency's exceptions.

IV.     Analysis and Conclusions

      Although neither party raised the interlocut