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 ]
34:0740(128)AR
The decision of the Authority follows:


34 FLRA No. 128

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

PANAMA CANAL COMMISSION

and

INTERNATIONAL ORGANIZATION OF MASTERS, MATES

AND PILOTS MARINE DIVISION ILA, AFL-CIO

PANAMA CANAL PILOTS BRANCH

0-AR-1516

(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.

II. Background

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. Fina