34:0740(128)AR - - Panama Canal Commission and International Organization of Masters, Mates and Pilots Marine Division ILA, Panama Canal Pilots Branch - - 1990 FLRAdec AR - - v34 p740
[ v34 p740 ]
The decision of the Authority follows:
34 FLRA No. 128
FEDERAL LABOR RELATIONS AUTHORITY
PANAMA CANAL COMMISSION
INTERNATIONAL ORGANIZATION OF MASTERS, MATES
AND PILOTS MARINE DIVISION ILA, AFL-CIO
PANAMA CANAL PILOTS BRANCH
(33 FLRA 15)
CLARIFICATION OF AUTHORITY DECISION
February 9, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on a request filed by the International Organization of Masters, Mates and Pilots Marine Division ILA, AFL-CIO, Panama Canal Pilots Branch (the Union) for clarification of the Authority's decision in Panama Canal Commission and International Organization of Masters, Mates and Pilots Marine Division ILA, AFL-CIO, Panama Canal Pilots Branch, 33 FLRA 15 (1988) (Panama Canal Commission). The Panama Canal Commission (the Agency) filed a response to the Union's motion for clarification.
We grant the Union's request. We now clarify our decision in Panama Canal Commission to specify that the Authority remanded the grievance at issue to the parties for submission to an arbitrator of their choice.
This case arose when the Agency proposed to suspend the grievant, a Panama Canal pilot, for 10 days. The Agency charged the grievant with violations of the Employee Code of
Conduct following the grievant's speech over a Commission radio channel during a period of civil unrest in Panama. In his speech, the grievant stated that he would stop the vessel he was piloting for 30 minutes and urged Panamanians working in the Canal to join this "protest of solidarity." Panama Canal Commission, 33 FLRA at 16. In its notice of proposed suspension, the Agency noted that the grievant did stop his vessel. Id., citing the Agency's Exceptions at 4. The proposed suspension was grieved. When it was not resolved, the grievance was submitted to arbitration.
The Arbitrator stated that the issue was whether the grievant was disciplined for just cause under the parties' agreement, and if not, what the remedy should be. However, the Arbitrator did not reach the just cause issue. Citing the Supreme Court's decision in Rankin v. McPherson, 483 U.S. 378 (1987) (Rankin), he found that the grievant's statement was a matter of public concern and, therefore, protected free speech under the U.S. Constitution. Thus, the Arbitrator sustained the grievance and ordered the 10-day suspension deleted from the grievant's record.
In its decision of October 11, 1988, the Authority concluded that the Arbitrator's award was contrary to law. The Authority found that the Arbitrator misapplied the Supreme Court's balancing test in Rankin and incorrectly concluded that the grievant's speech was protected by the Constitution. The Authority noted that it was unable to determine whether the Arbitrator would have found that the Agency had just cause to discipline the grievant if the Arbitrator had not incorrectly applied Supreme Court precedent. Additionally, the Authority noted that it was not clear whether the Arbitrator considered the grievant's action of stopping his vessel for 30 minutes. Thus, the Authority stated, "we remand the Arbitrator's award to the parties with the direction that they resubmit the award to arbitration for further proceedings consistent with this decision." Panama Canal Commission, 33 FLRA at 27.
III. The Union's Request
The Union asserts that in Panama Canal Commission the Authority intended that the parties resubmit the award to its author for further proceedings rather than to a new arbitrator. Union's Motion for Clarification at 1. Further, the Union states that the Agency disagrees with its interpretation and will seek a new arbitrator. Id. at 2.
In support of its argument, the Union analyzes the Authority's language "we remand the Arbitrator's award to
the parties with the direction that they resubmit the award to arbitration[.]" Panama Canal Commission, 33 FLRA at 27. Initially, the Union points out that the Authority directed the parties to reinstate the authority of an arbitrator over the matter or grievance in recognition of the doctrine of functus officio.(*) The Union argues that use of the phrase "resubmit the award" means that it is the "award" which is to be submitted and not the matter or grievance resulting in the award. In addition, the Union finds that the term "resubmit" means to submit again or submit back. Thus, the Union concludes that "a directive to resubmit can only mean that it is to be to the author of the award." Union's Motion for Clarification at 3.
Additionally, the Union argues that another factor to be considered is the relative time and expense involved in selecting a new arbitrator compared to resubmitting the arbitration award to the Arbitrator. According to the Union, resubmitting the award to its author would involve nothing more than "possibly permitting the parties to submit additional Memoranda or Briefs." Id. On the other hand, the Union contends that selection of a new arbitrator would mean the expenditure of additional time and money to hold a hearing, obtain a transcript, and prepare briefs. Finally, the Union notes that such additional delay and expenditure is unwarranted where there is no allegation that the award was procured on any grounds which would disqualify the Arbitrator.
IV. The Agency's Response to the Motion for Clarification
The Agency states that it considers the Authority's decision "sufficiently broad to enable the parties, consistent with the decision, to determine the next course of action." Agency's Response at 1. In the absence of specific language in the decision requiring the parties to submit the matter to the same arbitrator or to take specific action, the Agency states that it believes the matter should be presented to a new arbitrator consistent with the requirements of the parties' collective bargaining agreement.
The Agency also asserts that the Union's arguments concerning delay and expense are neither persuasive nor determinative. The Agency contends that because the focus of the prior arbitration was on the constitutional issues, an additional hearing would provide an opportunity to address the issues identified in the Authority's decision. Additionally, the Agency notes that the same arbitrator may not be interested or available. Id. at 2.
V. Analysis and Conclusion
In response to the Union's request for clarification of Panama Canal Commission, we remand the grievance at issue to the parties for submission to an arbitrator of their choice. The parties are not required to resubmit the grievance to the author of the award, nor are they precluded from doing so if they so choose.
There is no statute or regulation which requires that an arbitration award be resubmitted to its author. In most cases, the Authority remands an arbitration award to the parties for resubmission to its author because a particular aspect of an award requires clarification or interpretation. See, for example, Marine Corps Logistics Base, Barstow, California and American Federation of Government Employees, Local 1482, 32 FLRA 638, 641 (1988) (remand to determine grievant's exemption status under FLSA and its effect on his entitlement to overtime which arbitrator awarded); Allen Park Veterans Administration Medical Center, Allen Park, Michigan and American Federation of Government Employees, Local 933, 28 FLRA 1166, 1170-71 (1987) (remand for clarification of what consideration arbitrator gave to quantitative level of asbestos exposure necessary for entitlement to environmental differential pay).
In this case, however, the remand is not for the purpose of clarification or interpretation of the award. The award was confined solely to a discussion of the constitutional aspects of the dispute. Therefore, a remand in this case is necessary to permit initial consideration of the issue originally submitted to arbitration--whether there is just cause under the parties' agreement for the proposed suspension. There is no indication whatsoever in the record that the Arbitrator considered this issue. Furthermore, as the Authority noted in its decision, it is unclear whether the Arbitrator considered the grievant's action of stopping his vessel for 30 minutes.
Inasmuch as the issues discussed above were not addressed by the Arbitrator, it is unnecessary to limit the parties' choice of an arbitrator on remand. Electronics Corp. v. International Union of Electrical, Radio and Machine Workers, Local 272, 492 F.2d 1255, 1257 (lst Cir. 1974) (where sole articulated basis for arbitrator's award was in error, award cannot stand and parties may choose to proceed with a different arbitrator when resubmitting issues to arbitration).
We are not unsympathetic to the Union's contention that a de novo proceeding probably would involve an additional expenditure of time and money that would not be required if the award were resubmitted to its author. We recognize that a goal of arbitration is to enable unions and management to resolve disputes speedily and economically. Nonetheless, we do not believe that it is the Authority's proper role to select arbitrators for parties unless the circumstances so dictate. As explained above, we do not find that the circumstances of this case require us to direct the parties to return to a specific arbitrator. Of course, nothing in this clarification precludes the parties from choosing to proceed in this matter with the Arbitrator who authored the initial award.
In conclusion, we remand the grievance at issue in Panama Canal Commission to the parties for submission to an arbitrator of their choice for further proceedings consistent with the Authority's decision of October 11, 1988. Pursuant to our remand, the parties may choose the Arbitrator who issued an award in the grievance at issue on February 3, 1988, or they may select a different arbitrator under the procedures in their collective bargaining agreement.
(If blank, the decision does not have footnotes.)
*/ The concept of functus officio is that once an official has fulfilled the function, or accomplished the designated purpose of his or her office, the official has no further authority. Overseas Federation of Teachers AFT, AFL-CIO and Department of Defense Dependents Schools, Mediterranean Region, 32 FLRA 410, 412 (1988).