Social Security Administration, Region 1, Boston, Massachusetts and American Federation of Government Employees, 0-AR-3677, January 30, 2004, 59 FLRA No. 112.

Although the arbitrator concluded that discipline was warranted for the grievant's unauthorized access to the agency's data base, he reduced a 2-day suspension to a written warning. He then granted the union's request for a clarification and changed the written warning (which isn't a disciplinary action under the contract) to a reprimand (which is). The agency filed exceptions and FLRA set aside the clarification award on the ground that the arbitrator was functus officio after issuing the original award. FLRA then proceeded to also set aside the original award on the ground that it failed to draw its essence from the agreement. "Because the Arbitrator effectively found that discipline was warranted, his [original] award [of a written warning], by not providing any discipline, does not represent a plausible interpretation of the agreement."

The agency suspended the grievant for 2 days for unauthorized access to the agency's data base and for using Government property for personal reasons. The decision was grieved and referred to arbitration where the arbitrator ruled that the grievant's conduct warranted discipline, but there wasn't just cause to impose a 2-day suspension. He ordered that the suspension be reduced to a written warning.

The union then asked for a clarification of the award, asking "whether the mitigation of a two-day suspension to a 'written warning' was intended to direct the Agency to issue a 'written reprimand.'" The union noted that the Authority, in SSA, Lansing, Mich., 58 FLRA No. 18, found that a written warning, as defined Article 23 of the collective bargaining agreement, does not constitute discipline. Although the agency objected to the union's request for clarification, the arbitrator ordered that "the wording of my remedy order in the Award of March 12, 2003 shall be modified by the substitution of the words 'official reprimand' for the words 'written warning' and 'reprimand' for 'warning' as appropriate therein."

When the agency filed exceptions, the Authority held that the arbitrator wasn't authorized to issue the clarification award. In its view, the arbitrator didn't clarify, but instead modified, his original award. "In the absence of a joint request from the parties, the Arbitrator had fulfilled his functions and was functus officio after he issued his March 12, 2003 award."

FLRA then turned to the original award. "We conclude that the remedial portion of the award is deficient because it fails to draw its essence from the parties' collective bargaining agreement. Because the Arbitrator effectively found that discipline was warranted, his award, by not providing discipline, does not represent a plausible interpretation of the agreement."