[ v59 p272 ]
Opinion of Member Armendariz, dissenting in part:
I agree that the remedy of a retroactive promotion with backpay is deficient because it is contrary to the Back Pay Act and must be set aside. However, I disagree with the decision to remand the issue of an appropriate remedy to the parties for resubmission to the Arbitrator, absent settlement.
In United States Dep't of Veterans Affairs, Cleveland Reg'l Office, Cleveland, Ohio, 59 FLRA No. 38 (Sept. 29, 2003) (Member Pope dissenting), issued yesterday, the Authority expressed the view that when the Authority finds an arbitrator's remedy deficient, it is generally appropriate to leave any further action concerning such an award in the hands of the parties. The Authority ruled that the "necessary" action, which § 7122(a) of the Statute directs the Authority to take upon finding an award deficient, is an individualized judgment to be determined on the facts and circumstances of each case. The Authority advised that in determining the necessary and appropriate action, it would be guided by whether an action, under the facts and circumstances presented, would promote the purposes and policies of the Statute.
In making this determination, I will place primary emphasis on the specific remedial relief that was sought before the arbitrator by the party invoking arbitration. A party invoking arbitration can request from the arbitrator whatever relief it believes is appropriate and legally supportable in any given case. If the only remedy sought by a party before an arbitrator is granted by the arbitrator, and the Authority finds that this remedy is deficient, the purposes and policies of the Statute would not be furthered by remanding the matter to the parties for additional proceedings before the arbitrator for the possible imposition of a remedy that was never requested in the first place. A remand in these circumstances would be unwarranted and "could result in endless relitigation and lessen the finality that the arbitration process is designed to ensure." United States Dep't of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 37 FLRA 692, 695 (1991) (for these reasons, the Authority refused to allow a party to unilaterally resubmit the same grievance to arbitration). On the other hand, if a party initially sought additional remedies before an arbitrator and the arbitrator did not rule on whether those remedies should be granted, [*] I will examine the relationship of those additional requested remedies to the violations found and take appropriate action, which may include remanding the matter to the parties for further arbitral proceedings.
In the instant case, I find no facts or circumstances warranting a remand. Before the Arbitrator, the Union asserted that "[t]he only appropriate remedy" for the violations which it claimed was a retroactive promotion with backpay to the date of the grievance. Award at 7. The Arbitrator granted this requested remedy. However, as my colleagues and I all agree, this remedy is deficient because it is contrary to the Back Pay Act. In my view, it does not serve the purposes and policies of the Statute to order further proceedings before the Arbitrator for the possible imposition of a remedy that the Union never requested. Accordingly, I would not remand this matter.
File 1: Authority's Decision in 59 FLRA No. 41
File 2: Opinion of Member Armendariz
Footnote * for 59 FLRA No. 41 - Opinion of Member Armendariz
Of course, if the arbitrator did rule whether those additional requested remedies should be granted, such a ruling would be subject to the filing of exceptions by either party.