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,