32:0410(62)AR - - Overseas Federation of Teachers, AFT and DODDS, Mediterranean Region - - 1988 FLRAdec AR - - v32 p410
[ v32 p410 ]
The decision of the Authority follows:
32 FLRA No. 62
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OVERSEAS FEDERATION OF TEACHERS
DEPARTMENT OF DEFENSE DEPENDENTS
SCHOOLS, MEDITERRANEAN REGION
Case No. 0-AR-1463
I. Statement of the Case
This matter is before the Authority on exceptions to the November 9, 1987 award of Arbitrator Jerome H. Ross filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.
On July 30, 1987, the Arbitrator denied a Union grievance alleging that the Agency violated a provision of the parties' collective bargaining agreement. On September 9, 1987, the Union filed exceptions to that award with the Authority. On September 29, 1987, the Union's exceptions were dismissed because they had been untimely filed. Overseas Federation of Teachers, AFT, AFL-CIO and Department of Defense Dependents Schools, Mediterranean Region, 29 FLRA 230 (1987), request for reconsideration denied (June 16, 1988).
On October 2, 1987, the Union filed a motion with the Arbitrator requesting him to reopen the July 30, 1987 award for the purpose of correcting his allegedly erroneous interpretation and application of Authority precedent. The Agency opposed the motion on the ground that the Arbitrator lacked jurisdiction to reopen the matter.
On November 9, 1987, the Arbitrator: (1) found that he had jurisdiction to reopen the matter; and (2) reversed his July 30, 1987 award denying the grievance.
We conclude that the Arbitrator was without authority to issue the award dated November 9, 1987, and, therefore, the award must be set aside.
II. Background and Arbitrator's Award
On January 13, 1987, the Union filed a grievance alleging that the Agency violated a provision of the parties' collective bargaining agreement. The provision, entitled "Requirement for Transportation Agreement," concerns the procedures for transfers requested by employees. The Agency denied the grievance at step 3 of the grievance procedure and the matter was referred to arbitration.
On July 30, 1987, the Arbitrator issued an award denying the grievance. The Arbitrator found that the grievance was barred by section 7116(d) of the Statute, which provides that issues which can be raised under a negotiated grievance procedure may be raised under that procedure or as an unfair labor practice, but not under both procedures. The Arbitrator found that the issue raised by the grievance was also the subject of an unfair labor practice charge which previously had been filed by the Union, and that the Statute, therefore, barred the Union from raising the issue as a grievance.
On September 9, 1987, the Union filed exceptions to the Arbitrator's award, alleging that the Arbitrator misapplied the Authority's precedent construing section 7116(d) of the Statute. The Union's exceptions were untimely filed and were dismissed on September 29, 1987. Department of Defense Dependents Schools, Mediterranean Region, 29 FLRA 230 (1987), request for reconsideration denied (June 16, 1988).
On October 2, 1987, the Union filed a motion requesting the Arbitrator to: (1) reopen his previous award of July 30, 1987; (2) hold that section 7116(d) does not bar the grievance; and (3) fashion a remedy for the Agency's breach of the parties' agreement. The Arbitrator requested the Agency to respond to the motion. The Agency stated that it considered the July 30, 1987 award to be final and binding under section 7122 of the Statute and that the Arbitrator was without authority to reopen the award. The Agency also contended that the Arbitrator correctly applied the law with respect to section 7116(d) of the Statute.
On November 9, 1987, the Arbitrator issued an award reversing his prior award and sustaining the Union's grievance. As to the question of his jurisdiction, the Arbitrator found that in the initial arbitration proceeding, both parties had failed to submit an accurate statement of the law to him and that "where the record is incomplete due to the failure of both parties to cite applicable law as in the instant case, I find that my jurisdiction under the Statute encompasses correction of the Award to bring it into conformance with FLRA precedent." Arbitrator's Award of November 9, 1987 at 6.
III. Positions of the Parties
A. The Agency
The Agency contends that the award of November 9, 1987 is contrary to section 7122 of the Statute and must be set aside. The Agency argues that the July 30, 1987 award became final and binding when the Union failed to file timely exceptions to the award, and that the Arbitrator violated section 7122(b) of the Statute when he reopened and reversed that final and binding award. The Agency also asserts that the Arbitrator did not retain jurisdiction over the July 30, 1987 award and nothing in the parties' agreement allows an arbitrator to reassert jurisdiction over a grievance which he has already decided. According to the Agency, to allow an arbitrator to reopen and reverse an award in these circumstances would be inconsistent with the principle of finality in arbitration and with the intent expressed by Congress in section 7122.
Finally, the Agency contends that the Arbitrator exceeded his authority when he issued his November 9, 1987 award because he was functus officio.(*) The Agency contends that unlike cases where arbitrators are allowed to make minor corrections or clarifications to ambiguous awards, this case involves the Arbitrator's substantive reversal of an unambiguous award after the Authority had dismissed untimely exceptions on the same matter. The Agency asserts that the
Arbitrator in effect rendered a decision on the Union's exceptions to his original award, a function which under the Statute is reserved to the Authority.
B. The Union
The Union contends that the November 9, 1987 award does not violate section 7122 of the Statute because section 7122 does not prohibit the correction or clarification of an award by an arbitrator. The Union asserts that the Arbitrator had authority to correct his award to bring it into compliance with established Authority case law. The Union cites Corps of Engineers, U.S. Army Engineer District, New Orleans, Louisiana and National Federation of Federal Employees, Local 1124, 17 FLRA 315 (1985), for the principle that "[n]either section 7121 nor 7122 prohibits the correction or clarification of an award by an arbitrator subsequent to its issuance." Id. at 316.
The Union also contends that the doctrine of functus officio does not preclude the Arbitrator from reopening his award for the purpose of correcting an error of law. The Union asserts that "the parties should be permitted to ask an arbitrator to correct his award when the arbitrator has misapplied the law. This procedure should cut down on the unnecessary filing of exceptions with the Authority as errors of law will be corrected by the [a]rbitrator himself." Union's Opposition at 7.
A. The Arbitrator's July 30, 1987 Award is Final and Binding
In section 7122 of the Statute, Congress authorized parties to file exceptions to awards and empowered the Authority to resolve timely filed exceptions to determine whether an arbitrator's award is consistent with law. The appropriate mechanism for a party to challenge the propriety of an arbitration award is the filing of timely exceptions to that award under section 7122(a) of the Statute. Military Sealift Command (Atlantic), 21 FLRA 941 (1986). If a party fails to file timely exceptions to an arbitration award, the award becomes final and binding and the parties must take the actions required by the award. Department of the Air Force, Headquarters 832D Combat Support Group, DPCE, Luke Air Force Base, Arizona, 24 FLRA 1021, 1024-25 (1986). See also United States Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 15 FLRA 151 (1984), aff'd sub nom. Department of the Air Force v. FLRA, 775 F.2d 727 (6th Cir. 1985). As the court explained in Department of the Air Force:
Since an award becomes final and must be implemented if the parties fail to file an exception within the required period, the necessary implication is that a party can no longer challenge the award by any means. It has become final for all purposes.
Id. at 735.
In this case, the Arbitrator's July 30, 1987 award became final and binding when no exceptions were filed with the Authority within the time period established by section 7122(b) of the Statute. The parties were bound by the terms of the award and were obligated under section 7122(b) to implement the award. See Luke Air Force Base, Arizona, 24 FLRA 1021, 1024-25 (1986). Since the Union did not file timely exceptions to the award, the award was not subject to challenge by other means, including a request by the Union to the Arbitrator to reverse his decision. Because Congress gave the Authority the function of determining whether an award is consistent with law, we reject the Union's contention that an arbitrator should be permitted to change his or her award upon the request of a party when the arbitrator has misapplied the law.
The Union's request that the Authority reconsider its dismissal of the Union's untimely exceptions in DODDS, Mediterranean Region, 29 FLRA 230 (1987), did not affect the finality of the July 30, 1987 award. Section 2429.17 of the Authority's Rules and Regulations provides that "[t]he filing and pendency of a motion [for reconsideration] under this provision shall not operate to stay the effectiveness of the action of the Authority, unless so ordered by the Authority." The Authority did not stay the order dismissing the exceptions as untimely. Thus, the request for reconsideration had no effect on the finality of the award under section 7122(b).
B. The Arbitrator did not have Authority to Issue the November 9, 1987 Award
The authority of an arbitrator to clarify or correct an award after it is issued permits an arbitrator to correct clerical mistakes or obvious errors in arithmetical computation, but does not empower an arbitrator to reopen and reverse an award which has become final. See, for example, McClatchy Newspapers v. Central Valley Typographical Union No. 46, International Typographical Union, 686 F.2d 731, 734 n.1 (9th Cir.), cert. denied, 459 U.S. 1071 (1982); La Vale Plaza, Inc. v. R.S. Noonan, Inc., 378 F.2d 569, 573 (3d Cir. 1967); F. Elkouri and E. Elkouri, How Arbitration Works 283-85 (4th Ed. 1985). The Authority's decision in Corps of Engineers, 17 FLRA 315, merely recognized that under limited circumstances, an arbitrator may clarify or correct an award after it has been issued. The decision does not suggest that an arbitrator is empowered to reconsider an award in a situation like that in the instant case. As the U.S. Court of Appeals for the District of Columbia Circuit stated in Devine v. White, 697 F.2d 421 (D.C. Cir. 1983):
[N]othing in the legislative history of the [Civil Service Reform Act] suggests that Congress intended to alter the common law concerning arbitrators' authority to reconsider their decisions. "The cases are unanimous in supporting [the] principle" that "[w]hen the final award has been rendered . . . all power of the arbitrators is exhausted, and any further action that they take will be utterly void unless the parties confer new authority upon them." . . . [A] request for reconsideration by only one of the parties has no effect[.]
Id. at 433 (citations and footnotes omitted).
In this case, the Arbitrator issued a final award on July 30, 1987. The Union filed exceptions to the award with the Authority, and the exceptions were dismissed as untimely. The Union's subsequent motion to the Arbitrator, which was opposed by the Agency, did not provide the Arbitrator with authority to reconsider his award or to issue a new decision. In the absence of a joint request by the parties, the Arbitrator fulfilled the function of his office and was functus officio when he issued the July 30, 1987 award. See United Mine Workers of America, District 28 v. Island Creek Coal Company, 630 F. Supp. 1278 (W.D. Va. 1986) and cases cited therein.
Finally, we reject the Arbitrator's position that a failure by both parties to an arbitration proceeding to cite applicable law provides a basis for an arbitrator to assert jurisdiction to correct an award in order to bring it into conformance with precedent. The responsibility to identify applicable law is one which is jointly shared by the arbitrator and the parties to an arbitration proceeding. The failure of the parties to identify applic