United States Army Academy of Health Sciences, Fort Sam Houston, Texas and National Federation of Federal Employees, Local 28 (Authority decision, January 26, 1990)

Final FLRA decision. The Authority modifies an arbitration award by removing a remedy that reached employees outside the grievance. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award is generally excluded from judicial review unless it involves an unfair labor practice under 5 U.S.C. § 7116. This decision does not decide an unfair labor practice.

Plain-English summary

An Army health sciences employee grieved the denial of her request to continue a flexitime schedule. An arbitrator granted her the schedule and also ordered the Army to rescind a workplace notice abolishing flexitime for other employees. The Army challenged only the broader rescission. The Authority held that the stipulated grievance concerned the individual employee, so the arbitrator could not grant relief affecting others. It removed the rescission order while leaving the employee's schedule remedy in place.

Decision snapshot

• Authority: Arbitration exceptions under 5 U.S.C. § 7122(a).
• Outcome: Award modified to delete rescission of the workplace notice; individual schedule remedy left intact.
• Key point: An arbitrator's remedy must stay within the issue and employees covered by the grievance.

Full text (FLRA public release)

[ v34 p598 ]
34:0598(102)AR

The decision of the Authority follows:

34 FLRA No. 102

FEDERAL LABOR RELATIONS
AUTHORITY

WASHINGTON, D.C.

UNITED STATES ARMY

ACADEMY OF HEALTH
SCIENCES

FORT SAM HOUSTON,
TEXAS

and

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES

LOCAL NO. 28

0-AR-1704

DECISION

January 26, 1990

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This case is before the Authority on an exception to the award of Arbitrator I. B. Helburn. The Arbitrator awarded the grievant the flexitime work schedule that management had denied her. In addition, the Arbitrator ordered the United States Army, Academy of Health Sciences, Fort Sam Houston, Texas (the Agency) to rescind a Disposition Form which abolished flexitime work schedules. The Agency filed an exception to the award under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The National Federation of Federal Employees, Local No. 28 (the Union) did not file an opposition to the exception.

For the reasons discussed below, we set aside the portion of the Arbitrator's award which rescinds the Agency's Disposition Form abolishing flexitime schedules.

II. Background and Arbitrator's Award

In 1983, the parties negotiated an agreement allowing employees to request and receive flexitime work schedules.

From 1983 until 1988, employees were not required to justify their requests for flexitime. In February 1988, the grievant received approval for a flexitime work schedule without justifying the request.

On April 12, 1988, the Agency issued a document entitled "Disposition Form" which informed employees that flexitime would be abolished as of June 1, 1988. Award at 4. During bargaining on the impact and implementation of abolishing flexitime, the parties agreed that employees would submit requests for flexitime schedules with justification prior to June 1, and the Agency would respond to the requests. The grievant submitted a request, with justification, to remain on flexitime. Her supervisor denied her request. After the grievant's request for a flexitime schedule was denied, a grievance was filed and the dispute was submitted to arbitration.

The stipulated issue before the Arbitrator was "[d]id the Agency violate the intent and spirit of the collective bargaining agreement when it denied [the grievant's] May 27, 1988 request for a shift change? If so, what is the appropriate remedy?" Id. at 6-7. The Arbitrator determined that because the Agency had exercised its option under section 7106(b)(1) to negotiate over tours of duty, it was required to follow the terms of the parties' agreement. Id. at 12-13. The Arbitrator also found that the parties' 1983 agreement required the Agency, in the absence of unusual circumstances, to routinely approve flexitime requests made without justification. Id. at 12, 15.

The Arbitrator concluded that "[t]he Agency violated the intent and spirit of the collective bargaining agreement when it denied [the grievant's] May 27, 1988 request for a shift change." Id. at 16. The Arbitrator remedied the violation by awarding the grievant the tour of duty she was working prior to June 1. Additionally, the Arbitrator stated that "[t]he April 12, 1988 [Disposition Form] is to be rescinded." Id.

III. Agency's Exception

The Agency excepts only to that portion of the award ordering the Agency to rescind the Disposition Form. The Agency asserts that the stipulated issue at arbitration pertained only to the grievant and did not involve other employees. The Agency argues that rescinding the Disposition Form affects employees who were not a part of the grievance. Therefore, the Agency asserts that the Arbitrator exceeded his authority by awarding a remedy which affects employees other than the grievant. The Agency asserts that the portion of the award which rescinds the Disposition Form must be deleted from the award.

IV. Analysis and Conclusion

The Authority has found that an arbitrator exceeds his or her authority when he or she issues an affirmative order that goes beyond the scope of the matter submitted to arbitration. See National Labor Relations Board and National Labor Relations Board Union, 27 FLRA 435, 438 (1987). The Authority has also determined that an arbitrator exceeds his or her authority when he or she awards relief to employees who did not grieve or who did not have the union file grievances for them. See American Federation of Government Employees, AFL-CIO, National Immigration and Naturalization Service Council and U.S. Immigration and Naturalization Service, 15 FLRA 355, 356 (1984).

We conclude that the Arbitrator exceeded his authority by rescinding the Disposition Form. The stipulated issue before the Arbitrator concerned only the grievant's flexitime work schedule and did not involve other employees or the Disposition Form. Therefore, the Arbitrator was required to confine his remedy to the issue that was before him. See U.S. Department of Housing and Urban Development and American Federation of Government Employees, Local No. 3412, 24 FLRA 442, 445 (1986) (arbitrator exceeded his authority by failing to confine his remedy to bargaining unit employees); U.S. Department of Justice, Federal Prison System, Federal Correctional Facility, Fort Worth, Texas and American Federation of Government Employees, Local 1298, AFL-CIO, 17 FLRA 278, 279-80 (1985) (arbitrator exceeded his authority and the scope of the grievance, which pertained only to the suspension of a particular union official, by issuing an affirmative remedy affecting other union officials).

Here, the Arbitrator exceeded his authority by issuing an affirmative order which rescinded the Disposition Form and affected employees who were not involved in the grievance. Accordingly, the portion of the award rescinding the Disposition Form must be set aside.

V. Decision

The Arbitrator's award is modified to delete the sentence: "[T]he April 12, 1988 DF is to be rescinded."

FOOTNOTES:
(If blank, the decision does not
have footnotes.)