United States, Department of the Treasury, United States Mint, Denver, Colorado (Agency) and American Federation of Government Employees, Local 695 (Union) (Authority decision, March 28, 2005)

Final FLRA decision. The Authority sets aside an arbitration award. 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 resolves a contract grievance and does not decide an unfair labor practice claim.

Plain-English summary

A Denver Mint police officer complained that a commander grabbed his arm while addressing a uniform rule. An arbitrator found no violation of the workplace violence provision concerning that incident or the police chief's investigation. The arbitrator nevertheless found that the chief breached a separate mediation program by leaving a session after his opening statement, and ordered an apology and a message to employees. The Authority set the award aside because the parties had submitted only the workplace violence issue, which the arbitrator had resolved. Member Pope dissented, reading the stipulated issue as broad enough to include the chief's mediation conduct.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a).
• Outcome: Mediation conduct violation and apology remedy set aside.
• Key point: The majority held that the arbitrator exceeded the parties' submitted issue after finding no workplace violence agreement violation.

Full text (FLRA public release)

[ v60
p777 ]

60 FLRA No. 147

UNITED STATES

DEPARTMENT OF THE

TREASURY, UNITED STATES MINT

DENVER, COLORADO

(Agency)

and

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES

LOCAL 695

(Union)

0-AR-3872

_____

DECISION

March 28, 2005

_____

Before the Authority: Dale Cabaniss, Chairman, and

Carol Waller Pope and Tony Armendariz, Members [n1]

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator John F. Sass 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 Arbitrator found that the Agency's action in the underlying incident that gave rise to this proceeding did not violate the parties' agreement. However, he further found that the manner in which an Agency manager participated in a mediation session that was invoked to resolve the allegation about the underlying incident violated the parties' collective bargaining agreement. As a remedy, he directed the manager to apologize to the grievant and to communicate to all employees that management will make a good faith effort in the future to resolve all disputes that are submitted to mediation.

For the reasons that follow, we set aside the award.

II. Background and Arbitrator's Award

The grievant, an Agency police officer, reported for roll call for a midnight shift wearing a long sleeve uniform shirt without a turtleneck or tie. Agency regulations require officers to wear either a tie or turtleneck with a long sleeve shirt. See Award at 1-2.

The shift commander noticed at roll call that the grievant was not in proper uniform, and told him that he needed to wear either a tie or a turtleneck with his long sleeve shirt. The commander did not require him to wear the proper uniform right away because she did not want him to miss the pre-shift briefing for police officers. See id. However, she expected him to do so after he attended the briefing. See id. at 2.

After the briefing, the grievant did not correct his uniform deficiency and performed the duties of his first and second posts. Then, while walking down a hallway, the grievant noticed the commander, who was coming towards him. As the grievant walked past the commander, she put her hand on his arm, stopped him, and said, "Tie or turtleneck?" Id. He said that he did not have a tie or turtleneck. The commander told him that she would get him a tie. The grievant responded that he would change his shirt, and did so.

Later, the grievant went to see the commander in her office and told her that grabbing his arm was unacceptable. The commander said that she did not grab him, but that she had touched the grievant's arm to stop him because he had not acknowledged her or complied with her instructions. See id. The grievant insisted that she had grabbed him. The commander said she would document the incident since there was a disagreement over what happened. The grievant said that the commander did not have to document the incident.

The commander prepared a document of her account of the incident for the grievant's personnel file. See id. at 3. Several days later, the grievant reviewed his personnel file and felt that the commander's account was inaccurate. See id. Subsequently, the Union Vice President met the Police Chief (Chief) to discuss the incident and told him that the commander had "grabbed" the grievant. Id. at 4. The Union Vice President asked for a meeting to include the commander and the grievant in order to address the incident and to obtain an apology from the commander.

The Chief also met with the commander to discuss the incident. After talking with the commander, the Chief believed her version of the incident and that she had done nothing wrong. See id. He advised the Union Vice President that he saw no need for a meeting that included the commander and the grievant; that he had talked with the commander and that there was no need [ v60 p778 ] for her to offer an apology; and that he would direct his Assistant Chief to tell supervisors not to touch officers.

The grievant was not satisfied with the Chief's response to his complaint about the incident, and filed an "Individual ADR election request" under the Agency's ADR program. Id. at 4-5. In the ADR election request, the grievant alleged that the commander had engaged in violence in the workplace and that management had not taken his complaint about violence in the workplace seriously in accordance with Agency policy. See id. at 5. After the grievant filed the ADR request, the Chief investigated the incident further.

Under the Agency's ADR program, the Chief and the grievant attended a mediation session. The Chief made the first opening statement at the start of the mediation session. As the grievant began making his opening statement, the Chief walked out without staying to hear what the grievant or the mediator had to say. The Chief was in the mediation session for approximately ten minutes before he left.

The dispute was then submitted to arbitration. [n2] The parties stipulated the following issues for resolution by the arbitrator:

In the case before the Arbitrator, did management violate the terms of Appendix F (Violence in the Workplace) of the 6th National Agreement between United States Mint and the Mint Council American Federation of Government Employees (AFL-CIO) and, if so, what is the appropriate remedy?

Id. at 1. [n3]

The Arbitrator examined the facts of the original incident and concluded that the commander did not engage in any violent actions towards the grievant and did not violate Appendix F of the parties' agreement. The Arbitrator next examined whether management (the Chief) did not take the grievant's allegation against the commander "seriously and did not deal with it appropriately." Award at 8. After examining the Chief's actions the Arbitrator found that the Chief did not violate Appendix F. See id. at 9-10.

The Arbitrator then determined that the issue of whether the Chief had fulfilled his obligation at the mediation session, per the requirements set out in a different part of the parties' agreement (Appendix A), was also properly before him. After noting that the parties had stipulated that the issue was whether the Agency had violated Appendix F of the parties' agreement, the Arbitrator stated that Appendix F "requires management to take complaints of violence in the workplace seriously and to deal appropriately with them[,]" the Arbitrator concluded that the Chief's conduct at the mediation session "arguably" involved the issue of whether he had violated Appendix F. Id. at 10.

The Arbitrator concluded that the Chief violated the ADR program in Appendix A by walking out of the mediation session after having made his opening statement. The Arbitrator found that Appendix A obligated the Chief to take a variety of actions as part of a good faith effort under the ADR program to resolve the dispute, such as listening to the grievant and the mediator at the mediation session, considering any proposals they might make. [n4] See id. at 11-12. The Arbitrator concluded by finding that "[b]y not doing that [i.e., making a good faith effort to resolve the dispute as he was obligated to do by the ADR program in Appendix A], he [the Chief] violated not only the terms of the Agency's ADR program, but also the terms of Appendix F of the Union contract since he did not `deal appropriately' [ v60 p779 ] with Lindsay's complaint during the mediation process." Id. at 12-13.

In addition, the Arbitrator found that his consideration of whether the Chief made a good faith effort to resolve the dispute under the ADR program did not breach the "confidentiality of the process." Id. at 12. In this regard, the Arbitrator explained that he did not "consider[] the substance of anything that was said during the mediation process." Id.

As a remedy, the Arbitrator directed the Chief to: (1) apologize to the grievant for not participating in good faith in the mediation session in an attempt to resolve this dispute at that step of the process; and (2) communicate to all employees, either orally or in writing, that management will make a good faith effort in the future to resolve all disputes that are submitted to mediation under the Agency's ADR program. See id. at 14.

III. Agency's Exceptions

The Agency contends that the Arbitrator exceeded his authority by addressing an issue and providing a remedy that was not part of the stipulated issue. The Agency also contends that the award fails to draw its essence from the collective bargaining agreement and that it affects a management right.

The Agency contends that the Arbitrator exceeded his authority and that the award fails to draw its essence from the agreement because the Arbitrator disregarded specific limitations on his authority. See Exceptions at 3. The Agency argues that the Arbitrator exceeded his authority in two ways: (1) by addressing the conduct of management during the mediation session; and (2) by ordering the Chief to apologize to the grievant for his conduct during the mediation session. See id. The Agency asserts that the conduct of management during the mediation session was not an issue that was before the Arbitrator. See id. Rather, the Agency asserts that the issue before the Arbitrator was whether, under Appendix F, "management is required to take action to prevent violence in the workplace, take seriously all reports of such activity and deal with them appropriately." Id.

The Agency asserts that the Arbitrator's determinations regarding the conduct of management during the mediation session resolved an issue not submitted to arbitration. See id. at 4. The Agency notes that, during the arbitration hearing, it submitted a motion to exclude from that proceeding the disclosure of information on the "actual conduct of the participants during the mediation session." Id. The Agency states that it sought to exclude such information under the privacy provisions of the ADR program and "to protect the integrity" of the ADR process. Id. The Agency further notes that the Arbitrator denied its motion and decided to admit into evidence information on management's conduct during the mediation session. See id. The Agency asserts that, as it had argued before the Arbitrator, "actions during the mediation sessions should not be disclosed, nor relied upon for actionable findings of violations." Id.

The Agency further claims that, by finding that management's conduct during the mediation session violated the parties' agreement, the Arbitrator imposed "his own subjective opinion of what amount of time engaged in mediation constitutes proper efforts to resolve the issue." Id. The Agency argues that "[t]he [A]rbitrator was not tasked with making such a finding, nor was that the issue jointly submitted by the parties." Id. Instead, the Agency argues that the Arbitrator was asked to make a finding of fact as to whether a workplace violence incident had actually occurred and to apply the agreement to determine whether management's response to the incident was appropriate. See id. at 5.

Finally, the Agency contends that, by ordering an apology by a management official for his conduct during the mediation session, the award affects management's right to discipline under § 7106(a)(2)(A) of the Statute.

IV. Analysis and Conclusions

The award is deficient because the Arbitrator exceeded his authority

Arbitrators exceed their authority when they resolve an issue not submitted to arbitration. See United States Dep't of the Interior, Nat'l Park Service, Golden Gate Nat'l Recreation Area, S.F., Cal., 55 FLRA 193, 194 (1999). In this regard, "the Authority has consistently held that arbitrators must confine their decisions and possible remedies to those issues submitted to arbitration for resolution and `must not dispense their own brand of industrial justice.'" United States Dep't of the Navy, Naval Sea Logistics Center, Detachment Atlantic, Indian Head, Md., 57 FLRA 687, 688 (2002) (NSLC) (quoting Veterans Admin., 24 FLRA 447, 450 (1986) (VA) (citations omitted)). Arbitrators do not exceed their authority by addressing any issue that is necessary to decide a stipulated issue, see NATCA, MEBA/NMU, 51 FLRA 993, 996 (1996), or by addressing any issue that necessarily arises from issues specifically included in a stipulation. See Air Force Space Div., L.A. Air Force Station, Cal., 24 FLRA 516, 519 (1986).

The Agency argues that the Arbitrator exceeded his authority in two ways: (1) by addressing the conduct [ v60 p780 ] of management during the mediation session; and (2) by ordering the Chief to apologize to the grievant for his conduct during the mediation session.

In this case, the parties stipulated that the issue before the Arbitrator was whether the Agency violated Appendix F of the parties' agreement. The Arbitrator stated that Appendix F "requires management to take complaints of violence in the workplace seriously and to deal appropriately with them." Award at 10. In resolving this issue, the Arbitrator concluded that the Chief's determination that the commander did not engage in any violent action towards the grievant did not violate Appendix F of the parties' agreement, and that the Chief's investigation of the grievant's complaint did not violate Appendix F. See id. at 9-10.

When the Arbitrator made these determinations, he decided the merits of the issue submitted to him, at which time the arbitration process should have ended. However, the Arbitrator went on to further rule that the Chief violated the requirements of the ADR program, separate and apart from Appendix F, in addition to Appendix F by not participating in good faith in the mediation session. In doing so, the Arbitrator exceeded his authority by deciding an issue that was not submitted to arbitration. 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. See NLRB, Tampa, Fla, 57 FLRA 880, 881 (2002) (NLRB); United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Cor. Inst., Marianna, Fla., 56 FLRA 467, 472 (2000) (BOP, Marianna) (citing VA).

The Arbitrator did not conclude that the Chief's conduct at the mediation session was part of the stipulated issue, which references Appendix F only, and not Appendix A; rather, he found only that the Chief's conduct at the mediation session "arguably" involved the issue of whether he violated Appendix F. Award at 10. However, the record is clear that the issue of the Chief's conduct at the mediation session was not an issue that was before the Arbitrator for resolution. Rather, the issue presented to the Arbitrator by the parties concerned whether management violated the terms of Appendix F of the parties' agreement. That issue clearly referred to the alleged grabbing of the grievant and the Chief's investigation of that incident. The Arbitrator addressed those matters and found that the Agency did not violate the parties' agreement as to those matters. Once the Arbitrator resolved those matters by finding that there was no violation, his job was done. See NLRB, 57 FLRA at 881; NSLC, 57 FLRA at 688-89; BOP, Marianna, 56 FLRA at 472.

Moreover, the Arbitrator expressly found violations of the ADR program requirements, which are separate and distinct from the workplace violence program under Appendix F of the parties' agreement, to justify his finding of a violation of Appendix F. As the ADR requirements are separate and distinct from the workplace violence program under Appendix F, the Arbitrator exceeded his authority by fashioning a remedy for a violation of the ADR requirements, even though he couched it in the context of a violation of the workplace violence program under Appendix F.

Based on the foregoing, we conclude that the Arbitrator exceeded his authority by deciding and awarding a remedy concerning an issue that was not submitted to arbitration. See United States Dep't of Transportation, Federal Aviation Administration, 60 FLRA 584 (2005) (Member Pope dissenting) (the arbitrator exceeded his authority by deciding and ordering a remedy concerning issues that were not submitted to arbitration); United States Dep't of Transportation, Federal Aviation Administration, 59 FLRA 776 (2004) (Member Pope dissenting) (the arbitrator exceeded his authority by deciding and ordering a remedy concerning issues that were not submitted to arbitration).

Accordingly, the Arbitrator's award is set aside.

V. Decision

The award is set aside. [n5]

File 1: Authority's Decision in 60
FLRA No.
147

File 2: Opinion of Member Pope

Footnote # 1 for
60
FLRA No. 147

• Authority's Decision

Member Pope's dissenting opinion is set forth at the end of this decision.

Footnote # 2 for
60
FLRA No. 147

• Authority's Decision

Under the Agency's ADR program, when mediation does not resolve a complaint, arbitration will be offered when the claimant's case is based on issues that are appealable through, for example, the grievance procedure. See Mint Directive, 7D, February 2003 (Agency's Attachments).

Footnote # 3 for
60
FLRA No. 147

• Authority's Decision

Appendix F of the Negotiated Agreement provides:

VIOLENCE IN THE WORKPLACE

It is the United States Mint's policy to promote a safe environment for its employees. The Mint is committed to maintaining a work environment free from violence, threats of violence, harassment, intimidation, and other disruptive behavior. While this kind of conduct is not pervasive at our agency, we recognize that no agency is immune and that every agency will be affected by disruptive behavior at one time or another.

Violence, threats, harassment, intimidation, and other disruptive behavior in our workplace will not be tolerated; all reports and incidents will be taken seriously and will be dealt with appropriately. Such behavior can include oral or written statements, gestures, or expressions that communicate a direct or indirect threat of physical harm. Individuals who commit such acts may be removed from the premises and may be subject to disciplinary action, criminal penalties, or both.

Award at 6-7.

Footnote # 4 for
60
FLRA No. 147

• Authority's Decision

The Agency's ADR program, in Appendix A, provides that:

a. General Provisions

. . . .

(11) All participants in an ADR process are expected to participate in good faith. As such, parties to the process should participate openly and in earnest with the intention to fully resolve the matter at hand.

Award at 10.

Footnote # 5 for
60
FLRA No. 147

• Authority's Decision

In light of this decision, we have not addressed the Agency's remaining arguments.

Separate opinion of Member Pope (official HTML attachment)

[ v60
p781 ]

Dissenting Opinion of Member Pope:

I would find that the Arbitrator did not exceed his authority by concluding that the Chief's conduct at the mediation session violated Appendix F. I would also deny the Agency's remaining exceptions. Therefore, I dissent.

Under longstanding precedent, the Authority accords an arbitrator's interpretation of a stipulated issue the same substantial deference accorded an arbitrator's interpretation of a collective bargaining agreement. See SSA, Balt., Md., 57 FLRA 181, 183 (2001) (SSA, Balt.). In pertinent part, the stipulated issue before the Arbitrator was: "did management violate the terms of Appendix F . . . and, if so, what is the appropriate remedy?" Award at 1. The Arbitrator expressly interpreted the stipulated issue as involving the Chief's conduct at the mediation session:

The issue of whether [the] Chief . . . fulfilled his obligations at the mediation session . . . is also properly before the Arbitrator. There is no need for a separate formal complaint to be filed regarding that issue. What happened at the mediation occurred after the ADR request was filed, but it clearly relates to how that ADR request was processed . . . . Thus, it can be properly considered to be part of the same complaint. In addition, the issue of
[the] Chief['s] . . . conduct at the mediation session at least arguably involves the question of whether management violated Appendix F . . . which requires management to take complaints of violence in the workplace seriously and to deal appropriately with them. And, whether management violated Appendix F in this case is precisely the issue that the parties stipulated was properly before the Arbitrator.

Id. at 10.

In resolving the stipulated issue on the merits, the Arbitrator found, as relevant here, that the Chief violated Appendix F "by not participating in good faith in the mediation session involving this case." See id. at 14. On its face, the award is directly responsive to the stipulated issue, both as plainly worded and as specifically interpreted by the Arbitrator. As such, Authority precedent is clear that the Arbitrator did not exceed his authority. See, e.g., SSA, Balt., 57 FLRA at 183.

The majority finds that the Arbitrator exceeded his authority because, according to the majority: (1) the Arbitrator "did not conclude that the Chief's conduct at the mediation session was part of the stipulated issue"; (2) the stipulated issue "clearly referred to the alleged grabbing of the grievant and the Chief's investigation of that incident"; and (3) the Arbitrator "found violations of the ADR programs requirements . . . to justify his finding of a violation of Appendix F." Majority Opinion at 9. For the reasons that follow, the majority is wrong on all three counts.

First, as quoted above, the Arbitrator did find that the Chief's actions at the mediation session were part of the stipulated issue. In fact, it is difficult to imagine how the Arbitrator could have been any clearer. [n1] I note, in this regard, that the Agency expressly concedes that one of the grievant's claims before the Arbitrator concerned the Chief's actions in the mediation session. See Exceptions at 1.

Second, also as quoted above, the stipulated issue does not refer in any way to the alleged grabbing of the grievant and/or the investigation of that incident. The stipulated issue asks only whether "management violate[d] the terms of Appendix F . . . ." Award at 1. It does not refer to any particular actions that allegedly violated Appendix F.

Third, the Arbitrator found that the Chief violated "not only" the ADR requirements "but also . . . Appendix F[.]" Award at 12-13. The Arbitrator did not state that the violation of Appendix F was based on the violation of the ADR requirements. Even if he had, it would be beside the point because the finding that the Chief violated Appendix F is directly responsive to the stipulated issue. [n2]

Based on the foregoing, I would find that the Arbitrator did not exceed his authority and, as the Agency's essence exception is based on the same claims, I would deny it as well. See United States Dep't of the Treasury, IRS, 60 FLRA 506, 508 (2004); United States Dep't of Labor, Wash., D.C., 57 FLRA 701, 703 (2002). I would also deny the Agency's remaining exceptions. In this regard, Authority precedent holds that arbitrators do not exceed their authority in ordering that apologies be issued to grievants. See United States Dep't of the Treasury, IRS, Midwest Region, Chicago, Ill., 42 FLRA 1098, 1103-1104 (1991); United States Dep't of Justice, United States Fed. Bureau of Prisons, United States Penitentiary, Lewisburg, Pa., 39 FLRA 1288, 1295-97 (1991). In addition, the award does not affect the Agency's right to discipline under § 7106(a)(2)(A) of the Statute because that right concerns only "employees," which term, as defined in § 7103(a)(2), excludes supervisors. See United States Dep't of the Air Force, Air Force Flight Test Ctr., Edwards AFB, Cal., 48 FLRA 74, 87 (1993).

In sum, I would deny the Agency's exceptions in their entirety.

File 1: Authority's Decision in 60 FLRA No. 147

File 2: Opinion of Member Pope

Footnote # 1 for
60
FLRA No. 147

• Opinion of Member Pope

The majority states that the Arbitrator "found only that the Chief's conduct at the mediation session `arguably' involved" Appendix F. Majority Opinion at 9 (citing Award at 10). This takes one sentence of the award out of context. In fact, the Arbitrator found that the Chief's conduct "at least arguably" involved Appendix F, which is a stronger statement than the majority's selective quotation. It also ignores the full award, which leaves no doubt that the Arbitrator found the conduct at the mediation session properly before him.

Footnote # 2 for
60
FLRA No. 147

• Opinion of Member Pope

There is no basis to find that the Arbitrator based his remedy on the violations of the ADR requirements and merely "couched" the remedy in terms of Appendix F. Majority Opinion at 10. The majority's statement to the contrary is groundless.