Veterans Administration and AFGE Local 3692 (Authority decision, July 16, 1985)

FLRA remand decision. The Authority returned the award to the arbitrator for clarification of whether the two-week suspension was for just cause in light of the full disciplinary charge. The suspension dispute was not finally resolved, and the parties could file exceptions to the clarified award. Under 5 U.S.C. § 7123(a)(1), orders involving arbitral awards are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116. This decision does not state that it involves one.

Plain-English summary

An arbitrator reviewed a two week suspension of a VA employee. The Authority found that the arbitrator misunderstood the full basis of one disciplinary charge and could not tell whether that error changed the result. It returned the award for the arbitrator to clarify whether the suspension was for just cause in light of the full charge.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a).
• Outcome: Award remanded for clarification.
• Key point: The arbitrator must address the full charge before the suspension result can be assessed.

Full text (FLRA public release)

[ v19 p164 ]

19:0164(15)AR

The decision of the Authority follows:

19 FLRA No. 15

VETERANS ADMINISTRATION
Agency

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3692
Union

Case No. O-AR-951

DECISION

This matter is before the Authority on an exception to the award of Arbitrator Jack D. Tillem 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 issue submitted to arbitration questioned in relevant part whether the two-week suspension of Grievant Karaban was for just cause. The Arbitrator initially noted that the grievant was charged with two offenses which the Arbitrator quoted in his award as follows:

I. On November 16, 1984 at approximately 3:00 p.m. in the "Committal Trailer" of Calverton National Cemetery, you aided and supported fellow employee Carl Hegquist when he verbally and physically abused, and threatened the life of Steven Setek, another employee.

II. On November 19, 1984 at approximately 1:15 p.m. in the administration building of Calverton National Cemetery, you made false statements in response to a proper inquiry conducted by the Assistant Cemetery Director when you denied taking part in the incident described in Reason I.

As to charge I the Arbitrator determined:

(T)here is absolutely no evidence from either side that Karaban did anything at all. He was in the room, period.

Consequently, the Arbitrator ruled as to charge I that the grievant was innocent. As to charge II the Arbitrator determined:

While I think (the grievant) was not telling the truth when he said he saw nothing, the charge requires the VA to specifically prove that he lied when the " . . . denied taking part in the incident." Since he did not, he should be absolved of this charge as well.

Accordingly, as his award with respect to Grievant Karaban the Arbitrator sustained the grievance and rescinded the suspension.

In its exception, the Agency contends that the Arbitrator's award is based on a "nonfact" because the Arbitrator erroneously failed to consider the entire charge II against the grievant and that therefore the award is deficient. In support of this exception, the Agency submits the notice to the grievant of proposed disciplinary action stating charge II as follows:

II. On November 19, 1984 at approximately 11:45 a.m. in the administration building of Calverton National Cemetery you made false statements in response to a proper inquiry conducted by the Assistant Cemetery Director when you denied being present or taking part in the incident described in Reason I.

Under section 7122(a)(2) of the Statute, the Authority has found an arbitration award deficient when it was demonstrated that the central fact underlying the award was concededly erroneous and in effect was a gross mistake of fact but for which a different result would have been reached. E.g., Headquarters, San Antonio Air Logistics Center, Kelly Air Force Base, Texas and American Federation of Government Employees, Local 1617, AFL-CIO, San Antonio, Texas, 6 FLRA 292 (1981). In Norfolk Naval Shipyard, Portsmouth, Virginia and Tidewater Virginia Federal Employees Metal Trades Council, 9 FLRA 538 (1982), the union filed an exception claiming that the award was deficient in this respect because the arbitrator in sustaining a suspension erroneously concluded that the incident for which the grievant was suspended was his second disciplinary offense. On the basis of the record before the Authority in that case, the Authority concluded that the arbitrator had misapprehended that the incident involved was only the grievant's first offense for disciplinary purposes. However, the Authority could not ascertain from the award whether the arbitrator would have reached a different result. Thus, the Authority remanded the award to the parties to have them obtain a clarification and interpretation of the award from the arbitrator.

In terms of this case, and similar to Norfolk Naval Shipyard, the Authority finds on the basis of the record submitted that the Arbitrator has misapprehended the full basis of charge II against the grievant. However, the Authority cannot ascertain whether the Arbitrator would have reached a different result if he had not misapprehended the full basis of charge II. Because of this uncertainty, the Administrator's award must be remanded to the parties to have them obtain a clarification and interpretation of the award from the Arbitrator.

Accordingly pursuant to section 2425.4 of the Authority's Rules and Regulation, the Arbitrator's award is remanded to the parties with the direction that they resubmit the award to the Arbitrator to obtain a clarification and interpretation. The resubmission to the Arbitrator is for the limited purpose of having the Arbitrator clarify and interpret his award in view of the full basis of charge II to specify whether the two-week suspension of Grievant Karaban for the offenses for which he was charged was for just cause. /1/ See id. at 540. Issued, Washington, D.C., July 16, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY

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/1/ Following clarification of the award by the Arbitrator, either party may file exceptions with the Authority to the award as clarified.