35:0093(12)AR - - Navy Public Works Center, Norfolk, Virginia and Tidewater Virginia FEMTC - - 1990 FLRAdec AR - - v35 p93



[ v35 p93 ]
35:0093(12)AR
The decision of the Authority follows:


35 FLRA No. 12

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NAVY PUBLIC WORKS CENTER

NORFOLK, VIRGINIA

(Agency)

and

TIDEWATER VIRGINIA

FEDERAL EMPLOYEES METAL TRADES COUNCIL

(Union)

0-AR-1722

DECISION

March 9, 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 J. Ross Hunter, Jr. The Agency filed exceptions 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 did not file an opposition to the exceptions.

For the reasons that follow, we conclude that the Arbitrator had the authority to reopen and consider his original award of backpay and to issue a supplemental award on March 13, 1989. Accordingly, we deny the Agency's exceptions.

II. Background and Arbitrator's Supplemental Decision

On March 10, 1988, the Arbitrator issued his original award in this case. The Arbitrator awarded backpay to the grievant after finding that the Agency failed to distribute overtime equitably, as required by the parties' agreement. The Agency filed exceptions to the original award asserting that (1) the Arbitrator exceeded his authority when he decided the issue before him and (2) the award was contrary to the Back Pay Act, 5 U.S.C. § 5596(b).

On October 28, 1988, the Authority issued its decision in Navy Public Works Center, Norfolk, Virginia and Tidewater Virginia Federal Employees Metal Trades Council, 33 FLRA 592 (1988) (Navy Public Works Center). The Authority held that although the Arbitrator did not exceed his authority, the award of backpay was contrary to the Back Pay Act. Therefore, the Authority set aside the award.

In a letter dated November 3, 1988, the Arbitrator informed the parties that:

In view of the decision of the Federal Labor Relations Authority dated October 28, 1988 in [Navy Public Works Center], it is the opinion of the undersigned that the above-referenced arbitration case is still pending before the undersigned as Arbitrator for further developments as to what an appropriate remedy should be for the violation of the collective bargaining agreement by the Navy Public Works Center, Norfolk, Virginia which would not be contrary to the Back Pay Act.

Accordingly please treat this letter as notification that the undersigned Arbitrator desires your respective suggestions how the further developments in this arbitration case should be effectuated - such as another hearing or additional briefs.

Enclosure (2)(k) to the Agency's Exceptions.

In a joint letter to the Arbitrator, dated November 15, 1988, the parties replied:

We have discussed your letter of November 3, 1988, and we agree that you retain jurisdiction in this matter. We do not, however, desire another hearing. We would appreciate your setting forth for us the procedure you wish us to follow in filing additional briefs[.]

Enclosure (2)(j) to the Agency's Exceptions.

On November 21, 1988, the Arbitrator requested additional briefs from the parties. In a letter dated December 5, 1988, the Agency informed the Arbitrator that the Authority had set aside his award and his jurisdiction had accordingly expired. Enclosure (2)(h) to the Agency's Exceptions. The Union filed an additional brief on December 6, 1988. The Agency did not file any additional documents.

On March 13, 1989, the Arbitrator issued the supplemental award which is now in dispute. In his supplemental award, the Arbitrator found that during the latter part of 1986 and the entire year of 1987 the grievant "suffered an unjustified or unwarranted personnel action on each particular instance of the failure of the Agency to assign him overtime[.]" Arbitrator's Supplemental Decision at 3. The Arbitrator further found that "[h]ad the Agency not failed . . . to assign overtime to [the grievant] . . . in light of his recognized record of having consistently accepted overtime assignments, . . . the equitable assumption must be that [the grievant] would have performed specific overtime assignments and received overtime pay, had they been assigned to him." Id. at 3-4. The Arbitrator concluded that "the monetary award set forth in the original decision of this Arbitrator dated March 10, 1988 is hereby ratified, confirmed and declared enforceable[.]" Id. at 4.

III.Agency's Exceptions

The Agency argues that because the Authority's decision in Navy Public Works Center is final and binding, the Arbitrator exceeded his authority when he issued a supplemental award. Agency's Exceptions at 3-4. The Agency cites Griffith v. Federal Labor Relations Authority, 842 F.2d 487 (D.C. Cir. 1988) to support its argument that "all decisions of the Authority concerning arbitral awards not involving unfair labor practices are final and conclusive." Id. at 3. The Agency states that "[t]he Authority did not err as a matter of law when it set aside the [A]rbitrator's award and the [A]rbitrator, accordingly, exceeded his authority in reopening the matter and issuing a supplemental decision." Id. at 4-5.

The Agency also argues that the Arbitrator was functus officio when he issued the supplemental award of March 13, 1989, and, therefore, that the supplemental award is "void and unenforceable." Id. at 6.(1) Citing Overseas Federation of Teachers, AFT, AFL-CIO and Department of Defense Dependents Schools, Mediterranean Region, 32 FLRA 410 (1988) (Overseas Federation of Teachers), the Agency asserts that "an arbitrator is not empowered to reopen and reverse an award which has become final unless the parties confer new authority upon him or her." Id. at 5. The Agency admits that it agreed initially that the Arbitrator retained jurisdiction. However, the Agency asserts that it later notified the Arbitrator that "after researching the law and precedential decisions, . . . it was the agency's position that his authority or jurisdiction had expired[.]" Id. at 3. The Agency asserts that the Arbitrator ignored the Agency's statement of its position, which it reiterated on two subsequent occasions, that "its earlier acquiesence [sic] in the [A]rbitrator's reassertion of jurisdiction was erroneous." Id. at 5. Additionally, the Agency notes that "the [A]rbitrator's reassertion of jurisdiction was not in accordance with the procedure prescribed in the parties' collective bargaining agreement." Id. at 5-6.

IV.Analysis and Conclusion

The issue in this case is whether the Arbitrator had the authority to reopen and consider his backpay award in Navy Public Works Center.(2) For the following reasons, we conclude that the Arbitrator had the authority to issue a supplemental award in this matter.

An arbitrator is precluded from reopening and clarifying an award which the Authority has set aside unless both parties request the arbitrator to do so. See Social Security Administration and American Federation of Government Employees, AFL-CIO, 32 FLRA 806, 808 (1988) (arbitrator was not authorized to clarify his award solely on the unilateral request of the union); Overseas Federation of Teachers, 32 FLRA 410 (1988) (in the absence of a joint request by the parties, arbitrator was functus officio when he issued his award). See also General Services Administration and American Federation of Government Employees, Local 2600, 34 FLRA No. 171 (1990) (arbitrator lacked authority to reopen his original award and issue a supplemental award concerning fee allocation where parties stipulated that they intended to place the award before another arbitrator).

In this case, the Authority set aside the Arbitrator's March 10, 1988, award in Navy Public Works Center. In a letter dated November 3, 1988, the Arbitrator informed the parties that in view of the Authority's decision, it was his opinion that the case was still pending before him for "further developments as to what an appropriate remedy should be for the violation of the collective bargaining agreement by the [Agency] which would not be contrary to the Back Pay Act." Enclosure (2)(k) to the Agency's Exception's. The parties did not dispute the Arbitrator's authority to request their views on this matter. Rather, the parties agreed that the Arbitrator retained jurisdiction in the matter in a joint letter, dated November 15, 1988, which they addressed to the Arbitrator.

The Agency asserts that it "mistakenly agreed that the arbitrator retained jurisdiction." Agency's Exceptions at 5. The Agency does not, however, assert that the agreement was improper in any way. In our view, the Agency's "mistake" constitutes nothing more than a change of mind. Thus, as the Agency had agreed in writing with the Union that the Arbitrator retained jurisdiction in the matter, we find that the Arbitrator was authorized to issue a supplemental award. Accordingly, we deny the Agency's exceptions. Compare Old Dutch Farms, Inc. v. Milk Drivers & Dairy Employees Union Local 584, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 222 F. Supp. 125, 130 (E.D.N.Y. 1963) (collective bargaining agreement did not permit petitioning union to withdraw once arbitration proceeding commenced as "'[t]o do so would destroy the whole warp and woof of arbitration.'" (quoting Simmons v. New York Herald Tribune, Inc., 15 Misc. 2d 116, 152 N.Y.S.2d 13, 15 (1956), aff'd 3 A.D.2d 900, 163 N.Y.S.2d 400 (1957))).

V.Decision

The Agency's exceptions are denied.