34:0866(144)AR - - SSA and AFGE Local 2369 - - 1990 FLRAdec AR - - v34 p866



[ v34 p866 ]
34:0866(144)AR
The decision of the Authority follows:


34 FLRA No. 144

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

SOCIAL SECURITY ADMINISTRATION

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2369

0-AR-1616

DECISION

February 15, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the supplemental award of Arbitrator Irving T. Bergman.

In his original award, the Arbitrator sustained the denial of the grievant's within-grade increase, but ordered that the grievant be provided a 60-day period in which to demonstrate improved performance. Because management had reassigned the grievant from a position of claims representative to one of teleservice center representative, the American Federation of Government Employees (the Union) requested a clarification of the award. In his supplemental award, the Arbitrator modified his original award to order that the 60-day period be provided in the position of claims representative.

The Social Security Administration (the Agency) filed exceptions to the supplemental award 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 exceptions.

For the reasons stated below, we conclude that the award is deficient because the Arbitrator exceeded his authority.

II. Background

The grievant, a claims representative trainee, was rated as minimally satisfactory in one of his job elements in his annual performance appraisal for the period ending September 30, 1987. On the basis of this rating, management determined that the grievant was not performing at an acceptable level of competence and on October 11, 1987, denied the grievant's within-grade increase from GS-7, step 2 to GS-7, step 3. The grievant requested reconsideration of the determination that he was not performing at an acceptable level of competence. On December 17, 1987, the Agency sustained the determination.

The grievant filed a grievance over his annual performance appraisal. The grievant filed a second, separate grievance over the denial of his within-grade increase. Both of the grievances were denied by the Agency. On February 8, 1988, the Union invoked arbitration over the two grievances, which were consolidated for hearing.

Shortly thereafter, the grievant was notified of his reassignment, effective February 26, 1988, from a GS-7 claims representative trainee position to a GS-7 teleservice center representative (TSR) position. On February 25, 1988, the grievant filed a separate grievance over the reassignment. The Union has invoked arbitration over the reassignment grievance.

On April 18, 1988, the two consolidated grievances over the grievant's performance appraisal and denial of his within-grade increase were heard by Arbitrator Bergman. On May 5, 1988, after the Agency determined that the grievant was performing at an acceptable level of competence in the TSR position, the Agency granted the grievant a within-grade increase in the TSR position from GS-7, step 2 to GS-7, step 3. On May 13, 1988, a second day of hearings was held before Arbitrator Bergman on the consolidated grievances. No evidence was presented to the Arbitrator as to the grievant's reassignment or the grievant's receipt of a within-grade increase in the TSR position.

III. The Arbitrator's Original Award

On June 15, 1988, the Arbitrator denied the grievances over the grievant's performance appraisal and the denial of the grievant's within-grade increase in the claims representative trainee position. However, the Arbitrator determined that management had failed to provide the grievant with a 60-day period in which to demonstrate an acceptable level of competence. Accordingly, the Arbitrator ordered management to: (1) provide the grievant with a 60-day period in which to demonstrate improved performance for the purpose of being granted a within-grade increase and (2) determine after completion of the period whether the grievant was performing at an acceptable level of competence that would entitle him to a within-grade increase.

IV. The Union's Request to the Arbitrator

By letter dated July 1, 1988, the Union requested clarification by the Arbitrator of the ordered remedy. The Union informed the Arbitrator that the grievant had been reassigned from his claims representative trainee position to a teleservice center representative position. The Union also informed the Arbitrator that the TSR position is a GS-7 with no career ladder or promotion potential while the claims representative position has a career ladder to GS-10. The Union stated that the "only fair implementation" of the original award would be to permit the grievant to demonstrate improvement as a claims representative.

In response to the Union's request, the Agency maintained that no clarification was necessary and that the Union was seeking to have the Arbitrator modify his award. The Agency claimed that the Union's view that the grievant should be given an opportunity to demonstrate improvement as a claims representative was an attempt to resolve the separate grievance over the grievant's reassignment. The Agency also asserted that no further action was necessary by the Arbitrator because the grievant had received a within- grade increase in the TSR position.

V. The Arbitrator's Supplemental Award

As a result of the Union's request, an additional hearing was held before the Arbitrator on August 3, 1988. On August 15, 1988, the Arbitrator issued a Supplemental Award. In the Supplemental Award, the Arbitrator noted that at the proceedings leading to the original award, no evidence had been introduced concerning the grievant's reassignment and receipt of a within-grade increase. The Arbitrator also noted, as follows:

By reason of this additional evidence, the parties agreed to reopen the hearing for the receipt of such evidence and to determine a remedy based upon all of this information.

At the hearing the parties agreed that no determination was to be made or remedy provided regarding the grievance of the reassignment that was pending as a separate arbitration.

Arbitrator's Supplemental Award at 2.

The Arbitrator stated that he intended his original award to provide the grievant with an opportunity to improve as a claims representative. Accordingly, the Arbitrator modified his award as follows:

It is directed that by whatever means are available to the Agency, the grievant shall be afforded an opportunity to demonstrate whether or not he has improved during a sixty day period as a Claims Representative. In addition, it is directed that this opportunity be afforded in an office other than the Irvington office and, further, that in whatever office the grievant may be assigned, he shall have a period of two weeks prior to the beginning of the sixty day period within which to orient himself in the office to which he shall be assigned.

Id. at 5.

VI. First Exception

A. Positions of the Parties

The Agency contends that the Arbitrator was "functus officio when he 'reopened' the hearing on this case--except for the possible 'clarification' of his award of June 15." Agency's Exceptions at 14. The Agency argues that "[m]anagement's acquiescence to the Arbitrator's need for a 'hearing' was to share with the Arbitrator, at his request, the information about the WIGI [within-grade increase] the grievant had received as a TSR. It was never meant to be a reopening of the award in the sense that it would give the Arbitrator additional authority or jurisdiction over an issue not before him." Id. at 17. The Agency maintains as follows:

There is no evidence that there was a meeting of the minds in agreeing to grant the Arbitrator additional authority in this case. Management did eventually agree to meet on the WIGI issue clarification, but there was never mutual agreement that the Arbitrator's authority was extended to cover any additional issues and/or retain jurisdiction. Absent such agreement, the award should not have been modified.

Id. at 18.

The Union asserts that on or about July 22, 1988, the Agency representative informed the Union that the Agency agreed to reopen the hearing. The Union maintains that on the day of the reopened hearing, it was clear to all the parties that the hearing was to be reopened. The Union also notes that at the hearing, the Agency submitted seven new exhibits for consideration by the Arbitrator.

B. Analysis and Conclusions

We conclude that the Agency fails to establish that the Arbitrator was functus officio.

The principle of functus officio is that once an official has fulfilled the function or accomplished the designated purpose of his or her office, that official has no further authority. Overseas Federation of Teachers, AFT, AFL-CIO and Department of Defense Dependents Schools, Mediterranean Region, 32 FLRA 410, 412 n. (1988). This principle applies to preclude an arbitrator from reopening an award which has become final unless the parties agree to confer such authority on the arbitrator. 32 FLRA at 414-15.

The Arbitrator states that "the parties agreed to reopen the hearing for the receipt of such evidence and to determine a remedy based upon all of this information." Arbitrator's Supplemental Award at 2. The Union contends that "the Agency agreed to reopen the arbitration hearing." Union's Opposition at 1. The Agency concedes that it "acquiesce[d] to the Arbitrator's need for a 'hearing'" and that it "agree[d] to meet on the WIGI issue clarification[.]" Agency's Exceptions at 17-18.

Based on the Arbitrator's and the Union's statements that the parties agreed to reopen the hearing and the Agency's acknowledgment that it agreed to meet on the clarification of the within-grade increase issue, we find that the parties conferred authority on the Arbitrator to reopen the award for the receipt of evidence concerning the grievant's receipt of a within-grade increase and reassignment. Therefore, we reject the Agency's exception that the award is deficient because the Arbitrator "was functus officio when he 'reopened' the hearing on this case[.]" Id. at 14.

VII. Second Exception

A. Positions of the Parties

The Agency contends that the award is deficient because the Arbitrator exceeded the scope of his authority. The Agency notes that the Arbitrator stated that no determination was to be made or remedy provided concerning the grievant's reassignment. The Agency claims that by modifying his award to require that the grievant be placed in a claims representative position, the Arbitrator provided a remedy concerning the reassignment and exceeded his authority. The Agency also claims that the Arbitrator's modification is deficient because the grievance and the Arbitrator's original award are moot. The Agency maintains that an employee may receive only one within-grade increase in any one performance year. Therefore, the Agency asserts that the Arbitrator's original award was mooted by the grievant's receipt of a within-grade increase.

The Union contends that the issue in this case was the performance of the grievant as a claims representative. The Union maintains that, consequently, the Arbitrator properly ruled on this issue and ordered an appropriate remedy.

B. Analysis and Conclusions

We conclude that the Arbitrator exceeded his authority by modifying his original award to provide a remedy for the grievance over the denial of the within-grade increase. Once the Arbitrator was presented with evidence that the grievant had been granted a within-grade increase from GS-7, step 2 to GS-7, step 3, the Arbitrator lacked authority to modify his original award. The Arbitrator lacked authority to further remedy the denial of the within-grade increase because that grievance had become moot.

Although the parties authorized the Arbitrator to reopen the hearing for the receipt of additional evidence, once the Arbitrator was presented with evidence that the grievant had been granted a within-grade increase from GS-7, step 2 to GS-7, step 3, the Arbitrator was not authorized to modify his award. Under 5 U.S.C. º 5335(a) and 5 C.F.R. º 531.404(c), an employee who receives a within-grade increase is not eligible for another within-grade increase until the employee has completed the required waiting period for advancement to the next step. The required waiting period for advancement to steps 2, 3, and 4 of a General Schedule grade is 52 weeks. 5 C.F.R. º 531.405(a)(1)(i). Because the grievant was granted a within-grade increase to GS-7, step 3 in May 1988, there was no longer any need for, or basis upon which to allow the grievant, an opportunity to demonstrate improvement in order to obtain the increase. The sole purpose of the 60-day period directed by the Arbitrator in his original award was to provide the grievant with an opportunity to demonstrate performance at an acceptable level of competence that would then entitle the grievant to a within-grade increase to GS-7, step 3. The grievant's receipt of a within-grade increase to GS-7, step 3 left no issue for arbitration. Consequently, the Arbitrator was not authorized to modify his award to provide a remedy for the grievance over the denial of a within-grade increase. This matter had become moot and could not be the basis of a supplemental award by the Arbitrator. See O. Fairweather, Practice and Procedure in Labor Arbitration 121 (2d ed. 1983); see also Department of the Air Force, Civilian Personnel Branch, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 5 FLRA 40 (1981).

Because the g