39:0692(56)AR - - Navy, Norfolk Naval Shipyard, Portsmouth, Virginia and NAGE Local R4-19 - - 1991 FLRAdec AR - - v39 p692
[ v39 p692 ]
The decision of the Authority follows:
39 FLRA No. 56
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE NAVY
NORFOLK NAVAL SHIPYARD
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
February 15, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to the amended award of Arbitrator Bruce R. Boals filed by the Agency pursuant to 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 exception.
On March 31, 1990, the Arbitrator issued his original award sustaining the grievance over a 14-day suspension and awarding backpay to the grievant only if the grievant met certain conditions. The Agency filed exceptions to that award with the Authority. The Authority set aside the Arbitrator's award in U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia and National Association of Government Employees, Local R4-19, 36 FLRA 304 (1990) (Norfolk Naval Shipyard).
After the Authority set aside the award, the Union unilaterally requested the Arbitrator to "issue a new decision" in Norfolk Naval Shipyard. Union's Letter of July 16, 1990, to the Arbitrator, attached to Agency's Exception ("Union's Letter"). On July 21, 1990, the Arbitrator issued an amended award that reduced the grievant's suspension to a written warning and awarded backpay.
For the reasons stated below, we find that the Arbitrator exceeded his authority because he had no jurisdiction to amend the award. Therefore, the amended award must be set aside.
II. Preliminary Matter
The Union asserts that the Agency's exception should be dismissed because it was not timely filed. We find that the exception was timely filed. Exceptions to an arbitration award must be filed within 30 days of the date of service of the award. 5 C.F.R. º 2425.1(b). The date of service is the date the arbitration award is deposited in the U.S. mail or is delivered in person. 5 C.F.R. º 2429.27(d). There is no dispute that the award was served by mail on the parties on July 21, 1990. Accordingly, under sections 2429.21 and 2429.22 of the Authority's Rules and Regulations, 5 days are added to the 30-day time period for filing exceptions. Further, the last day of the period so computed is to be included unless it is a Saturday, Sunday, or a Federal legal holiday, in which case the period shall run until the end of the next day which is not a Saturday, Sunday, or a Federal legal holiday. 5 C.F.R. º 2429.21. To be timely, therefore, exceptions had to be either postmarked by the U.S. Postal Service or received at the Authority no later than August 27, 1990. The Agency's exceptions were received by the Authority on August 23, 1990, and as such, are timely.
III. Background and Arbitrator's Amended Award
The grievant, a shipyard police officer, was suspended for 14 days for accidentally discharging his revolver while attempting to apprehend robbery suspects. At the time of the incident, the grievant weighed about 270 pounds. The Arbitrator reasoned that a physically trim and conditioned officer would be less prone to have committed such an offense. On March 31, 1990, the Arbitrator issued his original award affirming the grievance and awarding backpay conditioned on the grievant's participation in a conditioning program and the loss of 10 percent of his weight during a 6-month period. If the conditions of the Arbitrator's award were not met, the Arbitrator would deny the grievance.
The Agency filed exceptions to the original award asserting that the award was: (1) contrary to the Back Pay Act, 5 U.S.C. º 5596(b); (2) inconsistent with the Rehabilitation Act of 1973, 5 U.S.C. º 2302(b)(10); and (3) inconsistent with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. On July 13, 1990, the Authority set aside the Arbitrator's award in Norfolk Naval Shipyard because it was inconsistent with the Back Pay Act, 5 U.S.C. º 5596, and with 5 C.F.R. º 339, a Government-wide regulation.
By letter dated July 16, 1990, the Union unilaterally requested the Arbitrator to "issue a new decision" in Norfolk Naval Shipyard because of the Authority's ruling setting aside the Arbitrator's award. Union's Letter.
On July 21, 1990, the Arbitrator issued the amended award that is now in dispute. The Arbitrator amended his award in Norfolk Naval Shipyard to correct its faults because the award "did not meet and conform with the applicable laws and regulations[.]" Arbitrator's Amended Award. In his amended award, the Arbitrator ordered "[t]he suspension . . . reduced to a written warning with backpay awarded." Id.
IV. Positions of the Parties
A. Agency's Exception
The Agency contends that the "Arbitrator lacked authority to reopen and clarify his award." Exception at 2. The Agency argues that "[a]n arbitrator is precluded from reopening and clarifying an award which the Authority has set aside unless both parties request the arbitrator to do so." Id. The Agency contends that "since [it] had not agreed with the [U]nion that the [A]rbitrator retained jurisdiction in the matter, the [A]rbitrator was not authorized to issue a supplemental award." Id. Therefore, the Agency takes the position that the Authority should set aside the Arbitrator's amended award.
B. Union's Opposition
The Union contends that the Agency cannot challenge the Arbitrator's award by filing an exception because the "exception procedure may not be used by an agency to determine if it must comply with an award." Opposition at 2. The Union asserts that "[a]ward compliance must be addressed by the [unfair labor practice] procedure." Id.
The Union argues that once an arbitrator's award is set aside "a mechanism must exist to return the grievance to arbitration for a decision on the merits." Id. at 3. The Union asserts that parties to an arbitration proceeding should be entitled to a decision if an arbitrator's decision is found defective by the Authority. The Union argues that the Agency's refusal to agree to resubmit the case to arbitration denies it a "right to a decision" on "the merits." Id. at 4. Therefore, the Union argues that "it has the same right it had under the original grievance procedure - to unilaterally invoke arbitration" and "is entitled to a legally binding decision from an arbitrator - win or lose." Id.
V. Analysis and Conclusions
Once the Authority has set aside an arbitrator's award, nothing precludes the parties from jointly requesting the arbitrator to reopen the matter. However, an arbitrator is precluded from reopening and modifying 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). See also Health Care Financing Administration, Department of Health and Human Services and American Federation of Government Employees, Local 1923, 35 FLRA 274, 281-82 (1990) (an arbitrator may not reconsider an award or issue a new decision without a joint request of the parties).
In this case, the Arbitrator issued his original award on March 31, 1990. The Agency filed exceptions to the award with the Authority, and the award was set aside. Pursuant to the Union's subsequent request to the Arbitrator for a new decision, the Arbitrator amended his original award. In the absence of a joint request by the parties to reopen the matter, the Arbitrator was precluded from reopening the matter and issuing his amended award.
In this regard, we reject the Union's argument that it has a right to unilaterally resubmit the same grievance to arbitration. Allowing a party to an arbitration proceeding to unilaterally resubmit the same grievance to arbitration could result in endless relitigation and lessen the finality that the arbitration process is designed to ensure. Finally, with regard to the Union's assertion that parties to an arbitration proceeding should be entit