[00:00:00] Speaker 02:
Our next case is Tracy Goebel versus the Department of Veterans Affairs, 2023, 2066.

[00:00:08] Speaker 02:
Mr. Watts.

[00:00:14] Speaker 04:
Good morning.

[00:00:14] Speaker 04:
May it please the court, Gregory Watts on behalf of Petitioner.

[00:00:18] Speaker 04:
The Arbitration Award

[00:00:20] Speaker 04:
it resulted in improper time-served suspension, lacking articulated reasoned analysis for the actual length of the suspension.

[00:00:29] Speaker 03:
So she could have been reinstated if she'd just finished her work with a program, a rehab program, right?

[00:00:42] Speaker 04:
No, that's incorrect.

[00:00:43] Speaker 04:
There were several issues regarding reinstatement and

[00:00:49] Speaker 04:
Two of them were this ordered and mandated random continuous drug testing and along with the... But she wasn't denied compensation for that.

[00:01:00] Speaker 03:
The reason she was denied compensation is that the arbitrator's award said up to the date of the arbitrator's decision, you say it should have been a later date when she was actually reinstated, correct?

[00:01:14] Speaker 04:
correct it should be the date of reinstatement it shouldn't be dependent on administrative wins or how long the process.

[00:01:21] Speaker 03:
And the government's argument in response to that is that she should have finished her rehab program and she would have been reinstated so it was entirely in her control as to whether she was reinstated and she didn't do what she needed to do.

[00:01:38] Speaker 03:
Right?

[00:01:38] Speaker 03:
I mean, that's what they're saying, isn't it?

[00:01:41] Speaker 04:
I'll let the government speak for themselves.

[00:01:44] Speaker 04:
If Your Honor is referring to the employee assistance program, the EAP, she was enrolled in a program.

[00:01:51] Speaker 04:
And I believe one of the other terms of the arbitration award not at issue in this petition was to provide certificate of completion.

[00:01:59] Speaker 03:
OK, but she didn't do that, apparently, right?

[00:02:02] Speaker 04:
As of right now, I don't know if she has submitted that.

[00:02:04] Speaker 04:
I know it.

[00:02:05] Speaker 03:
But it was within her control to finish the rehab program, and she would have been reinstated.

[00:02:10] Speaker 04:
It was in her control to finish a rehab program, correct.

[00:02:14] Speaker 04:
But it's not in her control whether counsel asks for extensions to brief, whether the arbitrator got his award out to the parties a month earlier or later.

[00:02:25] Speaker 04:
And this squares with the court's holdings in cases such as Green Street and Sahota and Borza, which is non-precedential, that suspension links can't be tied to these arbitrary

[00:02:38] Speaker 04:
administrative events, or how long it takes the arbitration process to proceed.

[00:02:46] Speaker 04:
And there's clearly no analysis, a reasoned analysis, to support what would be the actual suspension length here.

[00:02:54] Speaker 01:
I guess, let me take a crack at it.

[00:02:57] Speaker 01:
I guess the question is, let's assume after the arbitration decision was issued, I think in 2023, Ms.

[00:03:06] Speaker 01:
Gribble took all actions to get reinstated.

[00:03:12] Speaker 01:
How long would that reinstatement process take?

[00:03:16] Speaker 01:
I need to provide evidence that I completed a rehab program.

[00:03:20] Speaker 01:
I need to provide some updated certifications.

[00:03:24] Speaker 01:
I need to provide some other paperwork.

[00:03:27] Speaker 01:
I assume the reinstatement wouldn't have taken six months or something like that.

[00:03:33] Speaker 04:
I think your honor has identified a core problem with this, that there's no way of knowing.

[00:03:37] Speaker 01:
It could take six... Well, I'm just asking you, do you know?

[00:03:40] Speaker 04:
I don't.

[00:03:42] Speaker 01:
And the problem with allowing this type of time-served suspension to stand is that... Let's not call it time-served suspension, because that's already making the conclusion, because I think it's debatable whether it's a time-served suspension.

[00:03:56] Speaker 01:
Well, allow...

[00:03:57] Speaker 01:
Leaving the question of reinstatement being kind of open-ended in terms of how much time it takes, I think that's your concern.

[00:04:06] Speaker 04:
Well, when the arbitrator reduced the back pay and tied it to the date of the award, that reduces or removes the incentive for the government to swiftly reinstate

[00:04:22] Speaker 04:
petitioner, because they're not accruing any back pay, whether it's the government's fault in extending the reinstatement or petitioners.

[00:04:33] Speaker 03:
Well, suppose it's petitioners' fault.

[00:04:34] Speaker 03:
Suppose she delays for a year in completing her rehab program.

[00:04:39] Speaker 03:
So you're saying that because of that delay, she's entitled to additional back pay up to the date of reinstatement, even though the delay in reinstatement is entirely her fault.

[00:04:50] Speaker 04:
What I'm saying is that... No, no, answer.

[00:04:51] Speaker 03:
Is that correct?

[00:04:54] Speaker 04:
No, the... No?

[00:04:56] Speaker 03:
Why not?

[00:04:57] Speaker 04:
Because the time of the suspension should not be dependent on these administrative actions.

[00:05:03] Speaker 03:
It's a question of her action.

[00:05:05] Speaker 03:
In my hypothetical, I'm saying she waits a year to complete the rehab program and says, I'm entitled to back pay for that year where the delay was entirely caused by my actions and not completing my rehab program.

[00:05:19] Speaker 03:
And you're saying under those circumstances, she would still get back pay after the date of reinstatement, correct?

[00:05:25] Speaker 04:
She should, yes.

[00:05:27] Speaker 04:
And perhaps if the court were to remand that, perhaps that would be something for the arbitrator to consider.

[00:05:33] Speaker 04:
But the court's been clear that it has to be a reasoned analysis for the actual length of the suspension.

[00:05:38] Speaker 04:
And that's not in this decision.

[00:05:40] Speaker 01:
Did she, in fact, complete a rehab program?

[00:05:44] Speaker 04:
I don't know the exact.

[00:05:44] Speaker 01:
I don't think there's any evidence in the record to that.

[00:05:47] Speaker 04:
That's correct.

[00:05:48] Speaker 04:
And this was part of the discussions to attempt to implement the award post award.

[00:05:57] Speaker 04:
you know, what we had to provide.

[00:05:59] Speaker 04:
We did have medical documentation to provide the agency.

[00:06:04] Speaker 04:
Of course, there were the other two issues regarding the drug testing and the forced waiver of medical issues that were also preventing reinstatement.

[00:06:13] Speaker 01:
I'm wondering why hasn't there been any certificate of completion of a rehab program that got submitted?

[00:06:21] Speaker 04:
the parties were attempting to resolve all total issues regarding the arbitration award.

[00:06:28] Speaker 04:
Implementation and reinstatement would have been possible even with that certificate in this case, because there would have been these issues with the waiver of medical information.

[00:06:38] Speaker 01:
Is there any statute or regulation or binding precedent that says that an arbitrator's decision when

[00:06:50] Speaker 01:
The arbitrator is granting back pay.

[00:06:53] Speaker 01:
It has to be from the period of end of suspension up and through the time of reinstatement as opposed to ending at the time of the arbitrator's decision issuing.

[00:07:06] Speaker 04:
I'm not aware of any statutory authority for that specific point, but I would say that this court's decisions in cases such as Green Street and Cejota, or even going back to the Court of Claims decision in QIFO, would be instructive.

[00:07:23] Speaker 01:
problem, right?

[00:07:24] Speaker 04:
Yes.

[00:07:25] Speaker 04:
And our position is that when the arbitrator created this reduction of back pay, and so this court found that a reduction in back pay has to be supported by a reasoned analysis if it's part of the penalty.

[00:07:39] Speaker 01:
I guess what I'm wondering is, on the day the arbitrator's decision came out, if

[00:07:47] Speaker 01:
Ms.

[00:07:48] Speaker 01:
Gribble had put in all the paperwork to get reinstated, then there really wouldn't be a cutoff in terms of the amount of back pay.

[00:07:55] Speaker 01:
She would get reinstated virtually the same day as the date of the arbitration decision, right?

[00:08:04] Speaker 04:
If I understand your hypothetical, you're saying the same day the arbitration award was issued that she was reinstated?

[00:08:11] Speaker 01:
Well, she turns in all the paperwork that the arbitrator required.

[00:08:16] Speaker 01:
OK.

[00:08:17] Speaker 04:
That would still not cure the issue because she would remain unpaid, effectively on suspension, if she weren't reinstated.

[00:08:28] Speaker 04:
She could take her actions, but she can't guarantee that the agency takes the appropriate actions to effect reinstatement as well.

[00:08:36] Speaker 01:
Is there an opportunity to request reconsideration or request clarification of an arbitration decision?

[00:08:42] Speaker 04:
That would be a possibility, but from the start, it was clear to both parties that the back pay was mitigated as a form of the penalty.

[00:08:52] Speaker 04:
There was never clarification on the actual substance of the award.

[00:08:56] Speaker 04:
It was more of a disagreement.

[00:08:58] Speaker 04:
And the parties did discuss or attempted to discuss resolving those issues, but unfortunately, were not able to reach an agreement.

[00:09:07] Speaker 03:
I'm confused as to what

[00:09:09] Speaker 03:
if any, relationship there is between these other provisions of the award that you find objectionable and the back pay.

[00:09:16] Speaker 03:
In other words, the documentation and the random drug testing.

[00:09:24] Speaker 03:
What does that have to do with the back pay?

[00:09:26] Speaker 03:
I mean, I understand you say those provisions should not be in the award.

[00:09:31] Speaker 03:
We should set them aside.

[00:09:32] Speaker 03:
I understand that.

[00:09:34] Speaker 03:
But what's the relationship between those issues and the back pay, if any?

[00:09:39] Speaker 04:
There's not a direct relation to back pay, but to the extent they prevented implementation of the award, that would increase the length of the suspension.

[00:09:51] Speaker 03:
Your theory is that she could rely on these conditions of the award is delaying her back pay somehow?

[00:10:04] Speaker 03:
I'm not following.

[00:10:05] Speaker 04:
Not specifically delaying her back pay, but these

[00:10:09] Speaker 04:
we view this as improper illegal provisions that should not be implemented.

[00:10:15] Speaker 04:
And once implemented, especially the nature of this perspective on limited random drug testing and the private medical information that could be obtained, especially if we're waiting to get to what your honor may be saying, is if implementation occurred and then

[00:10:37] Speaker 04:
whether going to the arbitrator before this court to try to resolve those issues.

[00:10:41] Speaker 04:
Again, that would be additional time of harm for petitioner here.

[00:10:50] Speaker 04:
For the two, the medical information and continuing random drug testing, those are essentially changing the terms and conditions of employment for petitioner.

[00:11:00] Speaker 04:
That's improper.

[00:11:01] Speaker 04:
And again, the party's attempted to resolve it.

[00:11:05] Speaker 03:
Why is it improper?

[00:11:06] Speaker 03:
Since what the arbitrator seems to be doing is mitigating the penalty that the government requested by saying, well, I'm not going to affirm termination.

[00:11:18] Speaker 03:
I'm going to impose conditions that are short of termination that will help resolve this problem in the future.

[00:11:26] Speaker 03:
What's the matter with that?

[00:11:28] Speaker 04:
Well, mitigating the back pay is the first issue with that.

[00:11:33] Speaker 03:
No, no.

[00:11:33] Speaker 03:
But I'm not talking about the back pay.

[00:11:35] Speaker 03:
I'm talking about the other conditions.

[00:11:37] Speaker 04:
In terms of the random drug testing and the documentation.

[00:11:43] Speaker 03:
I mean, yes, the government didn't argue those things to the arbitrator.

[00:11:47] Speaker 03:
But why doesn't the arbitrator have authority to come up with a penalty, if you will, or a requirement that's short of termination?

[00:11:58] Speaker 03:
to resolve the matter.

[00:12:00] Speaker 04:
The arbitrator does have the authority to mitigate.

[00:12:02] Speaker 04:
However, the drug testing and medical information aspects are beyond the scope of authority.

[00:12:10] Speaker 04:
Why?

[00:12:10] Speaker 04:
Because those are not the issues presented to the arbitrator.

[00:12:13] Speaker 04:
It's not an appropriate remedial.

[00:12:15] Speaker 01:
I guess the concern is that the issue that was given to the arbitrator is, what is the proper remedy?

[00:12:23] Speaker 01:
And remedy

[00:12:24] Speaker 01:
I think has a broader meaning than just confining the arbitrator to decide on whether there should be a termination or just a suspension or a reprimand.

[00:12:36] Speaker 01:
It can be something broader than that and can also include certain kinds of conditions.

[00:12:42] Speaker 02:
And these other items you're objecting to are within the memorandum of the VA, which provides for drug testing and sharing of information.

[00:12:54] Speaker 04:
Those are, your honor is correct, there is latitude providing remedies, and your honor is also correct, but if referring to, for instance, the employee assistance program, that's voluntary.

[00:13:07] Speaker 04:
It's voluntary to sign up for that, and I believe that- She did sign up for it, right?

[00:13:12] Speaker 01:
You're correct.

[00:13:13] Speaker 04:
She did sign- She signed the EAP, and that would subject her to a year of random drug testing, and medical information would only be accessible to

[00:13:23] Speaker 04:
those with a need to know, and it would only say that she was in the program and not released confidential.

[00:13:29] Speaker 04:
of medical information none of those guardrails are present in the arbitrator's award and uh... it's not what what may happen five ten years in the future i hope this doesn't have to reinstatement should you have a similar issue that uh... the government uh... you know prying eyes of uh... of you know hostile manager could then seek that information which would have nothing to do to this acute event that happened in this disciplinary arbitration this was a disciplinary arbitration

[00:13:56] Speaker 04:
the content of the drug policy or any other medical information not presented as a mitigating factor was not at issue.

[00:14:04] Speaker 04:
And it would have a chilling effect on federal employees when they're faced with discipline and they have medical information that could be mitigating.

[00:14:13] Speaker 04:
They may not want to present that for fear that it turns their future medical history into an open book for management.

[00:14:19] Speaker 02:
Do you want to save some rebuttal time?

[00:14:20] Speaker 02:
Yes, I would like to.

[00:14:21] Speaker 02:
Thank you.

[00:14:22] Speaker 02:
I'll give you three minutes.

[00:14:25] Speaker 02:
Ms.

[00:14:25] Speaker 02:
Fleming.

[00:14:27] Speaker 00:
Good morning, Your Honor.

[00:14:28] Speaker 00:
May it please the court?

[00:14:31] Speaker 00:
Ms.

[00:14:31] Speaker 00:
Crible is asking the court today to remand because the arbitrator declined to craft some novel prospective award of back pay extended into the indefinite future instead of making a decision based upon the facts.

[00:14:43] Speaker 01:
Do you know if it's standard practice for arbitrator decisions when they award back pay for the back pay to end at the time of reinstatement versus the time of the arbitrator's decision?

[00:14:57] Speaker 00:
I'm not aware of any observation by a court that that is standard practice, and the petitioner's not offered that kind of evidence.

[00:15:04] Speaker 00:
Right.

[00:15:04] Speaker 01:
Now I'm asking you, though.

[00:15:06] Speaker 00:
And I'm not aware of any such default position.

[00:15:10] Speaker 00:
And certainly, it isn't in the cases that were discussed in the briefing.

[00:15:14] Speaker 00:
What I can say first is that the plaintiff's or the petitioner's argument on suspension

[00:15:20] Speaker 00:
is misplaced because, of course, this is not a time-served suspension.

[00:15:25] Speaker 00:
It is a definite period of 90 days.

[00:15:27] Speaker 00:
The arbitrator extensively discussed the facts supporting its decision to mitigate removal to suspension, and the 90 days was within the penalty period provided for this offense for the agency.

[00:15:40] Speaker 01:
But by limiting back pay to

[00:15:43] Speaker 01:
when the arbitrator's decision ends as opposed to until the time of reinstatement, it does negatively impact the incentive for the person to appeal the arbitrator's decision, right?

[00:15:59] Speaker 00:
I would disagree, Your Honor.

[00:16:00] Speaker 00:
First, because I would say the arbitrator's opinion awarded all of the back pay that the facts before him supported.

[00:16:08] Speaker 00:
That is, as the court has pointed out, it is unclear at the time of the arbitrator's award how long it would take for the conditions to be complied with.

[00:16:16] Speaker 00:
And it was worthwhile to suggest that should she be entitled for additional back pay after the award and before her reinstatement, she could always go back to the arbitrator.

[00:16:25] Speaker 00:
And then the arbitrator could decide, was it in fact Ms.

[00:16:29] Speaker 00:
Gribble who delayed her reinstatement?

[00:16:31] Speaker 00:
Should she be entitled for back pay for the period of time in which she delayed the reinstatement?

[00:16:36] Speaker 00:
Those are questions that the arbitrator could not have answered at the time of award.

[00:16:40] Speaker 00:
So I wouldn't say that this is a penalty or provide some sort of chilling effect on appeal.

[00:16:44] Speaker 00:
It simply delayed the resolution of whatever additional back pay might have been awarded once the conditions for reinstatement were satisfied.

[00:16:53] Speaker 03:
Should she get back pay if, let's say, she completed the rehab program, submitted the paperwork, and the agency delayed for two months in reinstating her?

[00:17:03] Speaker 03:
Should she get back pay for that two-month period?

[00:17:06] Speaker 00:
While that would certainly be something the arbitrator would have to consider, if it were up to me, Your Honor, I would say she should get back pay for that two-month period.

[00:17:15] Speaker 00:
In addition, the plaintiff has argued, excuse me, the petitioner has argued that

[00:17:21] Speaker 00:
that reinstatement is somehow not a cure.

[00:17:24] Speaker 00:
And instead, reinstatement could have been a cure.

[00:17:27] Speaker 00:
As the court pointed out in its questioning, Ms.

[00:17:30] Speaker 00:
Gribble could have complied with all the conditions on the day of the arbitrator's award, which would have eliminated any necessity of returning back to the arbitrator to complete an additional back pay award.

[00:17:40] Speaker 00:
She testified before the arbitrator that she had begun a program of drug rehabilitation back in 2014, in January of 2014.

[00:17:50] Speaker 00:
So it certainly is within the realms of possibility that she could have completed in the year and a half between that beginning of that program and the time the arbitrator made its decision in 2023, she could have submitted that paperwork immediately.

[00:18:05] Speaker 00:
Likewise, she could have submitted paperwork on her licensing, on the medical release that was required and allowed under the EAP program, and that would have allowed her to return.

[00:18:17] Speaker 00:
And the agency was prepared to engage in that immediately after the arbitrator's award.

[00:18:22] Speaker 03:
So there's this paragraph six of the award, which seems to be awfully broad in terms of accessing information relating to our health situation.

[00:18:37] Speaker 03:
Maybe the part requiring information pertaining to our substance abuse treatment

[00:18:44] Speaker 03:
is understandable, but anything having to do with depression and anxiety-related care, it seems to be perhaps overly broad.

[00:18:54] Speaker 00:
I can understand why you would come to that conclusion, Judge Dyck.

[00:18:57] Speaker 00:
But in this case, Ms.

[00:18:59] Speaker 00:
Gribble expressly argued, both before the agency and before the arbitrator, that the reason why she had engaged in drug use, at least on this one occasion, is that she had for 10 years suffered from anxiety and depression.

[00:19:12] Speaker 00:
And that condition directly affected how she interacted with her colleagues and patients in the workplace.

[00:19:18] Speaker 00:
So there was already evidence on the record that this was part of the offense that she was committing.

[00:19:24] Speaker 00:
And it was connected to the duties that she had before the agency.

[00:19:28] Speaker 00:
And so in that case, it makes sense.

[00:19:30] Speaker 00:
Also, the EAP program, which, again, she had agreed to comply with, allows not only

[00:19:37] Speaker 00:
this waiver, or requires, rather, a waiver for drug treatment services be submitted.

[00:19:45] Speaker 00:
But you can also, under the EAP program, require what's called psychobehavioral social records, medical records.

[00:19:54] Speaker 00:
So in other words, her anxiety and depression records could have been required under an EAP program as well.

[00:20:00] Speaker 00:
So the arbitrator didn't simply

[00:20:03] Speaker 00:
arbitrarily impose that condition, but rather looking closely at the EAP program authorized the release specifically because this was a condition that she argued was affecting her work and that the EAP program allowed the agency to get access to those records.

[00:20:20] Speaker 01:
In terms of the scope of number six, do you think it covers just

[00:20:26] Speaker 01:
A current day request for medical information related to her depression and anxiety related care, or do you think this is future looking as well?

[00:20:36] Speaker 01:
In 2030, the VA could request, OK, give me more updates on your medical care in 2035 and 2040, et cetera.

[00:20:48] Speaker 01:
What's the right way to read number six?

[00:20:50] Speaker 00:
I think it is limited to current or former caregivers.

[00:20:54] Speaker 00:
It's not clear in the terms that that means no future treatment records could be released.

[00:21:00] Speaker 00:
But I think if you look at the context within which this condition was imposed, which is how the EAP program requires the release of medical records, there's actually a form that you have to submit.

[00:21:11] Speaker 00:
The form doesn't authorize future medical releases forever.

[00:21:15] Speaker 00:
It's a limited waiver of confidentiality.

[00:21:18] Speaker 00:
And it goes only to specific people within the agency.

[00:21:21] Speaker 00:
There are a lot of protections for the employee.

[00:21:23] Speaker 00:
That's health form 10-5345.

[00:21:25] Speaker 00:
You can see that on the record at page 430.

[00:21:29] Speaker 00:
So it's actually a much narrower release than the language might suggest and consistent with what the AAP program requires.

[00:21:35] Speaker 01:
It does seem clear that what the arbitrator was trying to do was provide some creative, holistic solution inspired by

[00:21:45] Speaker 01:
employee assistance program to try to bring Mr. Riggle back into the office, but at the same time improve the overall workplace environment for her and for others.

[00:22:01] Speaker 01:
But thinking about

[00:22:03] Speaker 01:
The random drug testing, the EAP says when someone is going through EAP for drug use, the random drug testing ends after one year.

[00:22:16] Speaker 01:
Here, it seems to be an unlimited period of time.

[00:22:19] Speaker 01:
And so the question is, why did the arbitrator choose to go with this unlimited period of time?

[00:22:32] Speaker 00:
Well, the issue with the EAP program is that it does only authorize that random drug testing for one year, I would agree.

[00:22:40] Speaker 00:
It doesn't say it's limited to one year.

[00:22:42] Speaker 00:
So I think there's an option even under EAP to extend that, though not expressly authorized in the rules.

[00:22:48] Speaker 00:
However, even in this case, there are reasons discussed by the arbitrator in his decision

[00:22:56] Speaker 00:
warrant something longer than simply the one-year period that EAP requires.

[00:23:01] Speaker 00:
And that is that Ms.

[00:23:02] Speaker 00:
Gribble expressly told the arbitrator in the hearing that she had been suffering from this problem for 10 years.

[00:23:09] Speaker 00:
So was it?

[00:23:09] Speaker 01:
It's the depression, not the drug use.

[00:23:11] Speaker 00:
It's the depression, not the drug use.

[00:23:13] Speaker 00:
Correct.

[00:23:14] Speaker 00:
She didn't admit more than one instance of drug use.

[00:23:16] Speaker 00:
But she said the drug use was used to treat her anxiety and depression.

[00:23:21] Speaker 00:
So I do think you can reasonably infer that perhaps

[00:23:25] Speaker 00:
Perhaps it was not the only instance.

[00:23:27] Speaker 00:
But regardless, the best way to bridge the gap between the agency's desire for removal and insurance that this problem that she's confessed to is not going to continue to affect her work is to perhaps provide a longer period of drug testing than EAP's default setting.

[00:23:45] Speaker 00:
And that's what happened here.

[00:23:50] Speaker 00:
Now, Ms.

[00:23:51] Speaker 00:
Scribble has relied on several cases.

[00:23:53] Speaker 00:
And just briefly, the easiest way to put those cases in context is to understand that in each such case, and here I'm talking about Green Street, Corza, and Cajota, the time served or arbitrary part of the penalty was in fact something that had already been cited by the arbitrator at the time of his decision.

[00:24:20] Speaker 00:
In Siota, for instance, the arbitrator had decided to exclude from back pay the three-year period in which the union was waiting to seek a date for the arbitration.

[00:24:33] Speaker 00:
That had already occurred.

[00:24:34] Speaker 00:
This wasn't a future-looking back pay situation.

[00:24:37] Speaker 00:
Likewise, in Green Street, the time served suspension was effectively because of the way that they worded

[00:24:49] Speaker 00:
the suspension timeline to allow it to continue through the date of the award.

[00:24:54] Speaker 00:
Here, the back pay is actually set to the time of the award.

[00:24:58] Speaker 00:
It's definite.

[00:24:59] Speaker 00:
The suspension is 90 days.

[00:25:01] Speaker 00:
That's undisputed that there was a 90-day suspension.

[00:25:04] Speaker 00:
And so any additional back pay that they might seek would have to similarly be decided by an arbitrator in the future.

[00:25:12] Speaker 00:
But the award as captured in this case is clearly different from the

[00:25:18] Speaker 00:
much less definite penalties in those cases.

[00:25:22] Speaker 01:
I guess the underlying issue in this case is really, the fundamental question is, what is the scope of the arbitrator's authority to fashion a remedy?

[00:25:34] Speaker 01:
I mean, yes, in one sense, it was a broadly defined issue.

[00:25:39] Speaker 01:
What is an appropriate remedy?

[00:25:41] Speaker 01:
But at the same time, we could all imagine

[00:25:44] Speaker 01:
certain solutions that are just too onerous or far afield that they make no sense.

[00:25:53] Speaker 01:
And we would have to intervene.

[00:25:57] Speaker 01:
And I guess this wasn't really briefed at all or well briefed.

[00:26:03] Speaker 01:
But how would you understand the definition of what is the scope of what an arbitrator can do under these circumstances?

[00:26:13] Speaker 00:
Well, I think the scope of the Arbitrated Authority is similar to that of the MSPB, certainly.

[00:26:19] Speaker 00:
The MSPB, for instance, in other cases where there was a single drug offense had authorized removal, so clearly

[00:26:26] Speaker 00:
the suspension 90 days is within that period.

[00:26:29] Speaker 01:
But I don't think the board could have the authority to replace a removal with all of these EAP-inspired conditions, right?

[00:26:42] Speaker 01:
I think the board would have to remand that back.

[00:26:46] Speaker 01:
I think that there... Nobody asked for it, right?

[00:26:51] Speaker 01:
Your side certainly didn't, and nor did Ms.

[00:26:53] Speaker 01:
Gribble's side.

[00:26:55] Speaker 00:
Well, I would agree that Ms.

[00:26:56] Speaker 00:
Gribble has not briefed any objection.

[00:26:59] Speaker 00:
And in fact, for two of the conditions that were included.

[00:27:03] Speaker 01:
I guess my point is you're not trying to suggest that the arbitrator's scope of authority to fashion a remedy is limited to what the MSPB could do under similar circumstances if it was brought to the board.

[00:27:16] Speaker 00:
No, Your Honor, I think it's limited by the Collective Bargaining Agreement and the Collective Bargaining Agreement required an issue and the scope be defined by the parties and they did that and they didn't choose to make it more narrow than it was and it was quite broad.

[00:27:28] Speaker 00:
So in this case the arbitrator did have, I think,

[00:27:31] Speaker 00:
the authority to be creative and find a way for Ms.

[00:27:34] Speaker 00:
Gribble to be reinstated, which is what she wanted.

[00:27:36] Speaker 01:
But what if the arbitrator had said, you know, I really think the way to solve depression is through exercise.

[00:27:43] Speaker 01:
And so now she has to document that she exercises 45 minutes every single day of the week.

[00:27:50] Speaker 01:
And we need a certification of that, a signed witness document to that effect.

[00:27:57] Speaker 01:
I don't think you would expect us to affirm that.

[00:28:01] Speaker 00:
I wouldn't, Your Honor.

[00:28:02] Speaker 00:
And one of the reasons is there's nothing in the record linking exercise to depression.

[00:28:08] Speaker 00:
That's quite different here, where there's clearly a foundation in the record for the EAP program that the arbitrator has tried to draw from into his conditions.

[00:28:16] Speaker 00:
So this is something that, looking at all the facts before the arbitrator, is reasonable.

[00:28:23] Speaker 00:
And I think that's the lens through which you should view what he required them to do.

[00:28:34] Speaker 00:
The Court has no other questions.

[00:28:35] Speaker 00:
Thank you for your time.

[00:28:36] Speaker 02:
Thank you, Counselor.

[00:28:39] Speaker 02:
Mr. Watts, you have up to three minutes if you need them.

[00:28:48] Speaker 04:
Thank you, Your Honor.

[00:28:50] Speaker 04:
To address a few issues, speaking of paragraph 6 of the award,

[00:29:00] Speaker 04:
relating, well, actually six and seven, any medical information or any drug test that was germane to the arbitrator making a reasoned analysis, whether termination was appropriate, was already in the record.

[00:29:12] Speaker 04:
There's no need for this perspective, future-looking, or even past-looking

[00:29:19] Speaker 04:
remedy.

[00:29:19] Speaker 04:
It's beyond the issue presented to the arbitrator.

[00:29:22] Speaker 04:
The mere mention or reference, but piece of evidence or mitigating factor does not then open the door to having an employee's future medical records be available for management personnel or human resources personnel or whomever.

[00:29:39] Speaker 04:
There's no limitations in the arbitrator's award.

[00:29:43] Speaker 04:
We can't assume that the release that would be signed would be this form agency references.

[00:29:48] Speaker 04:
There's no mention of any form in the arbitrator's award.

[00:29:51] Speaker 04:
This is a serious issue, and it's a bridge too far.

[00:29:54] Speaker 04:
And when your honor is looking for where do we draw the line on what an arbitrator can remedy, here's where we draw the line.

[00:30:03] Speaker 04:
The drug policy, their content or application of the EAP or the drug policy or the Privacy Act or any other of these things to protect medical information, those were not issues for the arbitrator.

[00:30:15] Speaker 04:
This is a disciplinary case at its core, and the remedy must address that discipline.

[00:30:22] Speaker 04:
Looking to five, 10, 20 years after reinstatement,

[00:30:28] Speaker 04:
her current or former caregivers could still be providing care for different issues then.

[00:30:33] Speaker 04:
And under this award, the agency would have authority to look at that information.

[00:30:40] Speaker 04:
And there's no limit on who can look at it and what kind of information.

[00:30:44] Speaker 04:
Presumably, they could receive a whole medical file on these issues.

[00:30:47] Speaker 04:
And that's simply an untenable position.

[00:30:51] Speaker 04:
And regarding the issue of the 90 days and what was appropriate, the court must focus on not just a label that the arbitrator put, but what was actually done in the award.

[00:31:03] Speaker 04:
Similar to Cejota, the arbitrator did say a 10-day suspension and then reduce the back pay because the union employee didn't

[00:31:10] Speaker 04:
pursue this grievance timely, even if, for sake of argument here, it was the union or petitioner who didn't pursue her case or reinstatement timely, that's still not enough to satisfy an articulated reasoned analysis for the actual length of the suspension, which keeps growing.

[00:31:29] Speaker 04:
And if there's no further questions, that's all.

[00:31:31] Speaker 04:
Thank you.

[00:31:31] Speaker 02:
Thank you, Council.

[00:31:32] Speaker 02:
The case is submitted.