[ v24 p447 ]
24:0447(48)AR
The decision of the Authority follows:
24 FLRA No. 48
VETERANS ADMINISTRATION
Agency
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, Local 2798
Union
Case No. 0-AR-1021
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on exceptions to the award of
Arbitrator Malcolm L. Pritzker filed by the Agency under section 7122(a)
of the Federal Service Labor-Management Relations Statute and part 2425
of the Authority's Rules and Regulations. The Union filed an
opposition. /1/
II. BACKGROUND AND ARBITRATOR'S AWARD
The grievance in this case concerns the termination of the grievant's
appointment on November 30, 1984. The grievant was selected as an
outreach specialist on an appointment that was not to exceed September
30, 1982. Subsequently, his appointment was extended with the last
extension not to exceed November 30, 1984. After he was terminated, the
grievant filed a grievance challenging the decision not to further
extend his appointment. The grievance was submitted to arbitration
where the parties were unable to agree on the issues. Accordingly,
Arbitrator framed the issues submitted as follows:
1. Is the agency's termination (of the grievant) arbitrable? 2.
If arbitrable, was the termination (of the grievant) in compliance
with the collective bargaining agreement and applicable laws and
regulations? If not, what is the appropriate remedy?
In resolution of these issues, the Arbitrator concluded as follows:
1. The decision not to renew (the grievant's) appointment is
grievable and arbitrable. 2. The decision not to renew (the
grievant's) appointment is not in violation of the collective
bargaining agreement and applicable laws and regulations.
After reaching these conclusions, the Arbitrator expressed concern over
the conflict between testimony of an agency regional manager and a
suggestion of an agency auditor. The Arbitrator stated that he
understood the manager's testimony to be that he would not consider the
grievant for any excepted service positions at GS-9 and below while the
auditor had recommended that the grievant be reassigned rather than
terminated. In order to apply the auditor's recommendation and avoid an
inference of disparate treatment, the Arbitrator consequently ruled in
addition that the grievant be informed of agency vacancies and be
allowed to apply for those vacancies. Accordingly, the Arbitrator
awarded as follows:
1. The decision not to renew (the grievant's appointment is
grievable and arbitrable. 2. The decision not to renew (the
grievant's) appointment is not in violation of the collective
bargaining agreement and applicable law and regulations. 3. For a
period of twelve months from the date the decision is received the
agency should communicate all openings in the VA at the GS-9 level
or below to (the grievant) either by mail or by making the
announcement of the openings available at an office location to be
selected by the agency which location should be communicated to
(the grievant). (The grievant) may apply for openings for which
he believes he is qualified. The agency will apply its usual
selection criteria to applications made by (the grievant).
III. EXCEPTIONS
As one of its exceptions, the Agency contends that the Arbitrator
exceeded his authority in paragraph 3 of the award. Specifically, the
Agency maintains that as framed by the Arbitrator, the issue submitted
to arbitration on the merits was whether the grievant's termination
violated the collective bargaining agreement or applicable law and
regulation and, if so, what remedy was appropriate. Thus, the Agency
argues that once the Arbitrator resolved this issue by finding no
violation, he had no authority to fashion a remedy and no authority to
apply a recommendation of an agency auditor.
In opposition the Union contends that the Arbitrator did not exceed
his authority. The Union contends that the Arbitrator did not exceed
his authority. The Union argues that paragraph 3 constitutes an
appropriate mitigation by the Arbitrator of the penalty of the
termination of the grievant's employment.
IV. ANALYSIS AND CONCLUSIONS
We agree with the Agency that the Arbitrator exceeded his authority
in paragraph 3 of the award. The Authority has specifically held that
an arbitrator's award will be found deficient as in excess of the
arbitrator's authority when the arbitrator resolves an issue not
submitted to arbitration. National Center for Toxicological Research,
Jefferson, Arkansas and American Federation of Government Employees,
Local 3393, NCTR, Jefferson, Arkansas, 20 FLRA No. 81 (1985); Federal
Aviation Science and Technological Association, Local No. 291, Fort
Worth, Texas and Federal Aviation Administration, For Worth Air Route
Traffic Control Center, Airway Facilities Sector, Southwest Region, Fort
Worth, Texas, 3 FLRA 544 (1980).
The Authority, like the Federal courts, will accord an arbitrator's
interpretation of a submission agreement and an arbitrator's formulation
of the issues submitted in the absence of a stipulation the same
substantial deference accorded an arbitrator's interpretation and
application of the collective bargaining agreement. For example, Mobil
Oil Corp. v. Independent Oil Workers Union, 679 F.2d 299 (3d Cir. 1982).
Similarly, both the Authority and Federal courts have consistently
emphasized the broad discretion to be accorded arbitrators in the
fashioning of appropriate remedies. For example, U.S. Department of
Justice, Bureau of Prisons, Federal Correctional Institution, Lexington,
Kentucky and American Federation of Government Employees, Local 817, 21
FLRA No. 108 (1986); IAM District 776 v. Texas Steel Co., 639 F.2d 279
(5th Cir. 1981).
Nevertheless, both the Authority and Federal courts in private sector
cases have indicated that in determining whether arbitrators have
exceeded their authority, it is a fundamental principle that arbitrators
must confine their decisions and possible remedies to those issues
submitted to arbitration for resolution. See National Center for
Toxicological Research; Texas Steel Co., 639 F.2d 279; IAM District
776 v. Texas Steel Co., 538 F.2d 1116 (5th Cir. 1976), cert. denied, 429
U.S. 1095 (1977). Arbitrators must not dispense their own brand of
industrial justice. Steelworkers v. Enterprise Wheel & Car Corp., 363
U.S. 593, 597 (1960); see Naval Undersea Warfar Engineering Station,
Keyport, Washington and International Association of Machinists and
Aerospace Workers, Local 282, 22 FLRA No. 96 (1986).
Applying these principles to this case, we conclude that the
Arbitrator exceeded his authority when he failed to confine his decision
and any possible remedy to the issues submitted as he unambiguously
framed them. The Arbitrator clearly specified the issue on the merits
to be whether the grievant's termination was in violation of the
collective bargaining agreement or applicable law and regulation and, if
so, what remedy appropriate. When the Arbitrator answered precisely
that issue by concluding that the grievant's termination did not violate
the agreement or any applicable law and regulation, the Arbitrator had
decided the merits of the issue submitted to him. By further ruling
that the grievant be informed of and be allowed to apply for agency
vacancies and directing the remedial relief set forth in paragraph 3 of
the award, the Arbitrator exceeded his authority by deciding, and
awarding a remedy concerning an issue not submitted to arbitration.
Furthermore, nothing in the Arbitrator's framing of the issue or the
record before the Authority indicates that the evidence and testimony
referred to by the Arbitrator in awarding the relief set forth in
paragraph 3 were elicited for other than the purpose of resolving the
precise issue submitted to the Arbitrator of whether the grievant's
termination was improper. Arbitrators may legitimately bring their
judgment to bear in reaching a fair resolution of a dispute as submitted
to or formulated by them, but they may not decide matters which are not
before them. By awarding the grievant remedial relief beyond the scope
of the matter submitted, the Arbitrator exceeded his authority and the
award must be modified accordingly.
Although we conclude that the award must be modified because the
Arbitrator exceeded his authority, we are constrained to note that the
portion of the award which we modify is quite reasonable. All the
Agency was asked to do was to notify the grievant of job openings for
which he might apply. The grievant had worked for the Agency for nearly
five years at the time his appointment was terminated, and was found to
be a "valuable" employee by the Agency's own representative. That
representative also found that the grievant's problems in clinical
situations dealing with stress at the Vet Center were due to the
"significant stress" he continued to suffer. Implementation of the
Arbitrator's award would have taken only minimal effort on the part of
the Agency and, indeeed, would have demonstrated the Agency's concern
and commitment to its mission.
V. DECISION
For the reasons stated above, we find that the award is deficient and
modify the award by striking paragraph 3. /2/
Issued, Washington, D.C. December 15, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS DEPARTMENT
--------------- FOOTNOTES$ ---------------
(1) In its opposition the Union argues that the award relates to a
matter described in section 7121(f) of the Statute and that therefore
the exceptions should be dismissed for lack of jurisdiction under
section 7122(a). Specifically, the Union argues that the award relates
to the removal of the grievant under 5 U.S.C. Section 4303 or Section
7512 which are matters described in section 7121(f). As is clearly
stated by the Arbitrator, this matter concerns the termination of the
grievant's appointment on the expiration date specified in the 1983
extension of his appointment. Regulations specifically exclude from the
coverage of the actions set forth in section 4303 and 7512 the
termination of an appointment on an expiration date if the date was
specified as a condition of employment at the time the appointment was
made. 5 CFR Sections 432.201(c)(3)(xii), 752.401(c)(6). Consequently,
we find that the award does not relate to a matter described in section
7121(f) and that no basis is provided for dismissing the exceptions
under section 7122(a).
(2) In view of this decision, it is not necessary to address the
Agency's other exception to the award. Also in view of this decision
and under established precedent of the Authority, no basis is provided
for awarding the Union and the grievant attorney fees under the Equal
Access to Justice Act and the Union's request for attorney fees is
therefore denied. See United States Customs Service and National
Treasury Employees Union, 22 FLRA No. 68 (1986).