44:0252(22)AR - - NTEU Chapter 33 and IRS, Phoenix District - - 1992 FLRAdec AR - - v44 p252



[ v44 p252 ]
44:0252(22)AR
The decision of the Authority follows:


44 FLRA No. 22

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL TREASURY EMPLOYEES UNION

NATIONAL TREASURY EMPLOYEES UNION CHAPTER 33

(Union)

and

U.S. INTERNAL REVENUE SERVICE

PHOENIX DISTRICT

(Agency)

0-AR-2055

DECISION

March 10, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on exceptions to awards of Arbitrator Merton C. Bernstein filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. On January 23, 1990, the Arbitrator issued an award finding that the Agency violated the parties' collective bargaining agreement in several respects. As part of the remedy, the Arbitrator ordered the grievant reassigned to the Agency's headquarters office. Neither party filed exceptions to the award. Subsequently, the parties returned to the Arbitrator to have him interpret his January 23 Award and determine whether the Agency violated the Statute by failing to comply with that award. In an award dated December 26, 1990, the Arbitrator interpreted the January 23, 1990, Award and determined that the Agency had failed to comply with the award. Before either party had received the December 26 Award, the Arbitrator withdrew it. On January 3, 1991, the Arbitrator served on the parties a substitute award dated January 2, 1991. On March 28, 1991, the Arbitrator clarified the January 2 Award to correct some errors and ambiguities.

The Agency has filed exceptions to the December 26 Award, or alternatively the January 2 Award, and the March 28 Award. The Union filed oppositions to the Agency's exceptions to the respective awards. We conclude that the Agency's exception disputing the reassignment of the grievant is untimely, and we will dismiss this exception. Otherwise, we conclude that the Agency provides no basis for finding the awards deficient, and we will deny the exceptions.

II. Background and Arbitrator's Awards

On May 4, 1988, the Agency relocated several dozen employees from the Phoenix headquarters office to a newly opened office several miles away in the northwest section of Phoenix. Among the employees relocated were the revenue officers in Group 2400, including the grievant. The Agency did not staff the new office with volunteers, and the grievant was involuntarily assigned to the office instead of other less senior revenue officers. On May 9, 1988, the Union filed a grievance on behalf of the grievant. The Union claimed that the Agency violated Article 15 of the parties' collective bargaining agreement (NORD II (Revised)) by involuntarily reassigning the grievant and by failing to give the grievant 15 working days written notice of the reassignment.

On May 13, 1988, the Agency notified the grievant that his assignment to a special program to seek out drug money laundering operations (TRACE) was terminated. On May 23, the Union filed another grievance on behalf of the grievant claiming that the grievant's termination from the TRACE program violated NORD II (Revised) because it was in reprisal for filing the grievance over his reassignment.

The grievances were not resolved and they were submitted to arbitration.

In an award dated January 23, 1990, the Arbitrator sustained the grievances. The Arbitrator found that the Agency violated NORD II (Revised) by involuntarily reassigning the grievant from the Phoenix headquarters office to the Phoenix northwest office when other less senior revenue officers of equal rank were available. He also found that the Agency had violated NORD II (Revised) by removing the grievant from the TRACE program because the removal was in reprisal for the grievant having participated in the filing of the grievance over his reassignment.

With respect to an appropriate remedy, the Arbitrator stated that "[a]t the minimum, the Grievant is entitled to return to the Headquarters Office from which he was improperly reassigned. Given the limited relief available to him, the Grievant is also entitled to as much redress of the inconvenience and damage he has suffered for over a year and a half as this proceeding can offer." January 23 Award at 34-35. Accordingly, the Arbitrator ordered that "[t]he Agency shall, within thirty (30) calendar days after the Arbitrator's award becomes final, retroactively assign [the grievant] to a Grade 12 Revenue Officer position at the Headquarters Office. In addition, at [the grievant's] election, the Agency shall assign [the grievant] to a Grade 12 Revenue Officer position at the Agency's downtown office when such a position first opens." Id. at 37.

The Arbitrator also ordered that the grievant be granted priority consideration for the first available vacant position in a special emphasis project for which he is qualified, is eligible, and applies. The Arbitrator additionally ordered the posting of a notice summarizing his award on all Agency bulletin boards within the Phoenix district. No exceptions were filed to the Arbitrator's award.

By memorandum dated March 9, 1990, the Agency notified the grievant that his post-of-duty was being moved from the northwest office to the headquarters office effective March 18, but that he would continue to remain in Group 2400 under the supervision of his current manager. On March 27, the Agency's Phoenix District Director distributed a memorandum concerning the award to all employees of the district office.

On April 6, 1990, the Union filed an unfair labor practice charge, alleging that the Agency had violated the Statute by failing and refusing to comply with the Arbitrator's award. The Union claimed that the Agency had "relocat[ed]" the grievant to the headquarters office and maintained his permanent assignment to a position at the northwest office, instead of assigning the grievant to the headquarters office as ordered by the Arbitrator. April 6, 1990, Charge. On July 6, the Regional Director issued a complaint alleging that the Agency had failed to comply with the Arbitrator's award in violation of section 7116(a)(1) and (8) of the Statute. On August 23, the parties entered into an agreement pursuant to which the complaint was held in abeyance while the parties returned to the Arbitrator to have him interpret his January 23 Award and determine whether the Agency violated section 7116(a)(1) and (8) of the Statute by failing or refusing to comply with that award. The parties authorized the Arbitrator to order specific compliance with the January 23 Award and to order the same remedy with respect to the unfair labor practice issue as would the Authority.

In an award dated December 26, 1990, the Arbitrator interpreted the January 23 Award and determined that the Agency had failed to comply with the award in violation of section 7116(a)(1) and (8) of the Statute. The award was served on the parties by mail on December 26. On December 27, before either party had received the December 26 Award, the Arbitrator, by facsimile transmission (FAX) to the parties, withdrew the December 26 Award and advised the parties that a substitute award would be issued and served on them. In the transmission, the Arbitrator explained that the December 26 Award "inadvertently omits [the unfair labor practice case] number and some formal language." On January 3, 1991, the Arbitrator served on the parties a substitute award dated January 2, 1991.(1)

In the January 2 Award, the Arbitrator noted that the Agency did not file exceptions to the January 23 Award and that, consequently, the Agency was obligated to "retroactively assign [the Grievant] to a Grade 12 Revenue Officer position at the Headquarters office" as directed by the award. January 2 Award at 5 (quoting January 23 Award). The Arbitrator explained that the Agency claimed to have fulfilled this obligation by returning the grievant's place of work to the headquarters office while continuing his assignment with Group 2400. The Arbitrator noted that although the Agency's actions required that the grievant perform most of his work at the headquarters office, he remained under the supervision of Group 2400 located over 8 miles away and was required to participate in whatever group activities Group 2400 undertook or was assigned at the northwest office. The Arbitrator further noted that the Agency had physically isolated the grievant at the headquarters office.

In discussing the Agency's implementation of the original award, the Arbitrator noted the testimony of the labor relations officer who played the lead role in implementing the January 23 Award. The officer testified that the Agency's obligation under the original award was to "make [the Grievant] whole" and that the disadvantage to the grievant caused by the improper transfer to the northwest office "must be undone." Id. at 8. The officer further testified that he had concluded that the grievant could have been made whole by placing him with another group at the headquarters office. The officer stated that he rejected that alternative because, in his judgment, that would have conflicted with management's rights under section 7106(a) of the Statute.

The Arbitrator stated that when a contractual violation is found, the award should make whole those who suffered damage by undoing such damage, to the extent possible, and placing those improperly denied their rights as close to their former situation as possible. Quoting the portion of his January 23 Award that the grievant was entitled to as much redress of the inconvenience and damage that he had suffered as possible, the Arbitrator rejected the Agency's position that it had done just as directed in returning the grievant's place of work to the headquarters office. The Arbitrator ruled that under Authority precedent, "the adequacy of compliance with an arbitration award will be determined by whether the [Agency's] construction is reasonable which would depend on whether the construction is consistent with the entire award . . . ." Id. at 9 (quoting United States Department of the Treasury, Internal Revenue Service and United States Department of the Treasury, Internal Revenue Service, Austin Service Center, Austin, Texas, 25 FLRA 71, 72 (1987) (IRS, Austin Service Center) (emphasis omitted)).

Applying this standard, the Arbitrator determined that the Agency's interpretation of the January 23 Award was improper and unreasonable. The Arbitrator ruled that the Agency's "actions failed to remedy its contractual violation; it failed to make the Grievant whole and restore him to a working assignment and conditions disrupted by the contractual violation." Id. at 21. The Arbitrator advised that "[t]o implement the Award, the Agency should have reassigned the Grievant back to the Headquarters office with his work place, equipment, arrangements, routine and responsibilities as close as possible to those that existed before his improper reassignment to the Northwest office. That necessarily meant assigning him to a group other than Group 2400." Id. at 16. In the Arbitrator's view, the Agency did not reassign the grievant to the headquarters office. The Arbitrator found that by continuing the grievant as a member of Group 2400 and requiring him to perform some of his duties at or through the northwest office, the grievant "in effect remained assigned to the Northwest office but with a desk 8 miles away." Id. at 16. The Arbitrator further noted that the grievant's isolation at the headquarters office "appear[ed] punitive and an act of reprisal." Id. at 15. In finding the Agency's interpretation of the original award unreasonable, the Arbitrator stated that "it was a continuation of the Agency's vindictive conduct toward the Grievant which, in part, led to the original [a]ward." Id. at 16.

To remedy the failure to comply with the January 23 Award, the Arbitrator ordered that "the Agency shall assign the Grievant to a revenue officer group at the Phoenix Headquarters office." Id. at 17. The Arbitrator also ordered the Agency to post on all official Agency bulletin boards within the Agency's Phoenix district a notice addressed to all employees concerning the awards. In addition, the Arbitrator ordered the Agency to "provide each employee of the Phoenix district, including employees who are not represented by NTEU and supervisors, with his/her own copy of the Original opinion and Award and this Opinion and Award and the Unfair Labor Practice Decision." Id. at 23. The Arbitrator explained that this order was necessary to counteract the misleading statements of the Agency's Phoenix District Director in his memorandum to all employees dated March 27, 1990. The Arbitrator stated that only by this order "may the effects of the Agency's improper action be dispelled to the extent possible." Id. at 18. He also explained that the order was devised "so that no employee need single him/herself out by requesting a copy." Id.

The Arbitrator decided to "initially . . . leave it to the parties to effectuate the Award as interpreted here." Id. at 17. However, the Arbitrator retained jurisdiction "to decide any dispute that may arise about the implementation of the Award as interpreted here and the decision of the unfair labor practice charges. After 20 work days from the receipt of this Award and Order, either party may seek clarification, on notice to the other." Id.

With respect to the issue of whether the Agency violated the Statute, the Arbitrator determined that the Agency's actions did not comply with the original award and that its failure to do so was not the result of a reasonable interpretation of the award. Accordingly, the Arbitrator found that the Agency's failure to comply with the January 23, 1990, Award violated section 7116(a)(1) and (8) of the Statute. To remedy the violations, the Arbitrator ordered the Agency to:

(1) [cease and desist from] interference, restraint and coercion of any right provided to federal employees under federal law, especially 5 U.S.C. sec. 7116.

(2)(a) . . . comply with the January 23, 1990 order of the Arbitrator issued in Case No. PHX-G-88-05 & 07.

(b) Post at all Phoenix Region Agency offices the attached Appendix A,(2) signed by the District Director . . . and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material.

(c) Pursuant to the Authority's Rules and Regulations, notify the Arbitrator, in writing, within 30 days from the date of receipt of this Order, as to what steps it has taken to comply herewith.

Id. at 24-25 (footnote added).

In accordance with the Arbitrator's retention of jurisdiction, the Union requested clarification of five specific matters in the January 2 Award. The Union noted that the Agency had declined to join in the request. The Union asked for clarification of those portions of the January 2 Award that ordered the Agency to post a notice to all employees and to provide all employees with copies of the Arbitrator's awards. The Union requested that the Arbitrator instruct the Agency concerning the duration of the posting and the date by which the Agency must make the distribution of copies of the awards. The Union also noted that in discussing the March 27, 1990, memorandum to employees, the Arbitrator referred to the "Regional Director." The Union requested that the Arbitrator clarify the award to refer to the Agency's "District Director." The Union further noted that at pages 1 and 22 of the award, the Arbitrator identified the Union's chapter as chapter 13. The Union requested that the Arbitrator clarify the award to refer to chapter 33. The Union additionally noted that in the Arbitrator's Appendix A, the Arbitrator advises interested employees to contact the Authority's Chicago office. The Union requested that the Arbitrator clarify the award to refer to the Authority's Los Angeles Regional Office, which encompasses Phoenix, Arizona.

By FAX to the parties dated February 15, 1991, the Arbitrator "invited" the parties to participate in a conference call on February 20 to discuss their differing positions and requested that the Agency make the arrangements for recording the call. March 28, 1991, Clarification Award at 3. By FAX dated February 19, an attorney with the Agency advised the Arbitrator that the Agency's representative would not be available and inquired whether the Arbitrator was aware that the Agency had filed exceptions to the December 26 and January 2 Awards and, if so, on what basis the Arbitrator was proceeding to entertain the Union's motion for clarification. By FAX and letter dated February 26, 1991, the Arbitrator advised the parties that he was aware of the filing of exceptions and explained the basis for proceeding. The Arbitrator again "invited" a conference call. Id. In a letter dated March 1, the Agency attorney, who had previously advised the Arbitrator that the Agency representative would not be available, advised the Arbitrator that he was "disconcert[ed]" by the Arbitrator's repeated directions to the Agency's representative to initiate conference calls because such calls are not without cost and the Agency had not contractually agreed to incur such costs. March 1, 1991, Letter. The attorney also advised that he was not "impressed" with the Arbitrator's rationale for proceeding. Id. By letter to the parties dated March 3, the Arbitrator stated that he remained available to hear the Agency's position on the Union's motion for clarification. In response to the conference call issue, the Arbitrator stated that he had assumed that such costs are equally shared by the parties. He also explained that he had burdened the Agency's representative with the arrangements because she had previously offered to provide for recording the hearing in lieu of reconvening in Phoenix. As to the other comments in the February 19 FAX, the Arbitrator stated that they "were immoderate and inappropriate and do not constitute a proper part of this record as it does not appear that [the attorney] had any official role on behalf of the Agency other than to inform me of [the] Agency Counsel's absence." Id. at 4. No conference call took place and "[t]he Agency did not see fit to address the request for clarification made by the Union." Id. Accordingly, the Arbitrator brought "the proceeding to a conclusion" by issuing on March 28, 1991, a clarification of his January 2 Award. Id.

The Arbitrator concluded that in view of his retention of jurisdiction and under case precedent of the Authority, it was proper for him to rule on the request for clarification submitted by the Union alone. The Arbitrator explained that the matters that the Union sought to have clarified are only formal aspects of the award and do not involve the merits. The Arbitrator also explained that although an appeal from a court's judgment moves all subsequent proceedings to the appellate tribunal until it acts, such formality is not necessary in arbitration. The Arbitrator noted that the Agency cited no Authority rule, regulation, or case decision precluding formal corrections by an arbitrator of an award as to which exceptions have been filed and are pending at the Authority. Moreover, the Arbitrator emphasized that such clarifications and corrections might facilitate Authority review and that, in any event, it is more efficient for an arbitrator to act when the details are fresh rather than after the appeals process has run its course.

Accordingly, in response to the Union's motion, the Arbitrator made the following clarifications and corrections:

As with the unfair labor practice posting, the posting directed by the Award shall remain in place for 60 consecutive days.

The all-employee distribution shall take place at the same time as the posting directed by the Award commences.

On page 23 of the Opinion, change "Regional Director" to "District Director".

On pages 1 and 23 change "Chapter 13" to "Chapter 33".

On the second page of Appendix A change the following:

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region V, Suite A-1359, 175 West Jackson Boulevard, Chicago, Illinois 60604.

to:

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region 8, 305 S. Figueroa Street, Los Angeles, California, 90071.

Id. at 5-6.

III. Preliminary Matter

As an initial matter, we must resolve whether we are reviewing the December 26 Award or the January 2 Award.

A. Position of the Parties

1. The Agency

In its first exception, the Agency contends that the review must be of the December 26 Award because the Arbitrator was not authorized to issue the January 2 Award. The Agency alleges that the Arbitrator was functus officio following the issuance of the December 26 Award and could not issue a new decision. The Agency claims that contrary to the Arbitrator's indication that he was merely correcting clerical mistakes, the Arbitrator instead made major, substantive revisions to the content of his December 26 Award. The Agency notes, for example, that the posting notice attached as Appendix A to the January 2 Award was not a part of the December 26 Award. The Agency argues that the appendix was "an entirely new creation on the part of the Arbitrator." Agency's Exceptions at 38. The Agency maintains that "[i]t is obvious that by making the revisions he did[,] the Arbitrator, whether on his own or at the instigation of someone else, reviewed his December 26th decision and attempted to remove those portions of the decision possibly subject to reversal by the Authority." Id. Thus, the Agency claims that the January 2 Award constituted a new decision that the Arbitrator did not have the power to issue. Accordingly, the Agency requests that the January 2 Award be nullified by the Authority and that the Authority review the December 26 Award based on its exceptions to that award. However, the Agency states that, in the event the Authority disagrees, the Agency incorporates all its exceptions to the December 26 Award and contends that the January 2 Award is deficient for the same reasons.

2. The Union

The Union contends that the review must be of the January 2 Award because the Arbitrator was authorized to substitute that award for the December 26 Award. The Union claims that, contrary to the contention of the Agency, the Arbitrator was not functus officio at the time he withdrew the December 26 Award and substituted the January 2 Award. The Union argues that "[i]t is axiomatic that an award must actually be issued and become final before it can be governed by the principle of functus officio." Union's Opposition at 13. The Union maintains that under the Authority's Rules and Regulations, an award is treated "as issued on the date that the parties receive the award." Id. at 14 (citing section 2425.1(b) of the Authority's Rules). Thus, the Union alleges that because the Arbitrator unequivocally withdrew the December 26 Award before the parties received it, the award was never issued and the Arbitrator was not barred from substituting the January 2 Award.

In addition, the Union claims that the substitution of the January 2 Award was proper because, contrary to Agency's contention, the Arbitrator did not change or expand his findings. The Union maintains that the only substantive change in the January 2 Award was the substitution of the phrase "a revenue officer group at the Phoenix Headquarters Office" for the specification that the grievant should be assigned to "Group 1100." The Union maintains that the remainder of the changes involved nothing more than separating the remedy language of the clarification and the unfair labor practice decision and adding formal language consistent with the Arbitrator's stated intention in his December 27 FAX.

The Union also disputes the Agency's statement that the Arbitrator's revisions may have been "instigat[ed] [by] someone else." Id. at 15. The Union maintains that the Agency's insinuation that the Union instigated such changes is an "unsubstantiated offensive remark[ ]" that is inappropriate. Id. at 16 n.62.

B. Analysis and Conclusions

We find that the Agency fails to establish that the Arbitrator was precluded from withdrawing his December 26 Award before either party had received it and from substituting the January 2 Award. Accordingly, we will deny this exception, and we will review the January 2 Award based on the exceptions filed by the Agency to the December 26 Award.

We have described the principle of functus officio as meaning that once an official has fulfilled the function or accomplished the designated purpose of his or her office, the official has no further authority. For example, Navy Public Works Center, Norfolk, Virginia and Tidewater Virginia Federal Employees Metal Trades Council, 35 FLRA 93, 96 n.1 (1990). In terms of arbitration, courts have stated that "when arbitrators have executed their award and declared their decision they are functus officio and have no power or authority to proceed further," Mercury Oil Refining Co. v. Oil Workers, 187 F.2d 980, 983 (10th Cir. 1951), and that "once an arbitrator has made and published a final award his authority is exhausted and is functus officio and can do nothing more in regard to the subject matter of the arbitration." Teamsters Local 115 v. Desoto, Inc., 725 F.2d 931, 940 (3d Cir. 1984). The principle has also been explained as follows: "The authority and jurisdiction of arbitrators are entirely terminated by the completion and delivery of an award." Updegraff, Arbitration and Labor Relations 116 (BNA Books 1970).

The Authority has applied the principle to find arbitration awards deficient in a variety of circumstances. For example, General Services Administration and American Federation of Government Employees, Local 2600, 34 FLRA 1123 (1990) (arbitrator had no authority to reopen his award to determine the dispute over allocation of costs of the arbitration proceeding when he did not retain jurisdiction and both parties stipulated and agreed that they intended to place the issue before another arbitrator); Overseas Federation of Teachers, AFT, AFL-CIO and Department of Defense Dependents Schools, Mediterranean Region, 32 FLRA 410 (1988) (arbitrator exceeded his authority by reopening and reconsidering his original award, which had become final and binding when he did not retain jurisdiction over the matter and when there was no joint request by the parties). However, the Authority has never been presented with the question of whether the principle applies when an arbitrator has withdrawn an award before the award is received by the parties, and the arbitrator subsequently substitutes another award for the award originally served on the parties.

In our view, the Arbitrator was not functus officio. We do not find that an arbitrator's purpose or function is fulfilled until the parties are in receipt of the arbitrator's award resolving the matter in dispute. Likewise, we find that there is no executed, declared decision or completed, published, and delivered award until the award is received by one of the parties. Accordingly, we will not bar an arbitrator from withdrawing or rescinding an award before any party has received the award and from then substituting another award.

In this case, in maintaining that the Arbitrator was functus officio, the Agency cites no cases to support its contention, and our research found no cases to support its contention. Moreover, we find that allowing an arbitrator to substitute another award in these circumstances better serves the Statute by preserving the integrity of the arbitral decisional process. In our view, it does not promote the purpose and policy of the Statute of facilitating the settlement of disputes to force the parties and the arbitrator to accept an award that was repudiated by the arbitrator before it was received by any of the parties.

We adopt this approach without regard to any reasons stated by arbitrators for withdrawing their awards; without regard to any differences between the awards; and without regard to any retention of jurisdiction. Accordingly, in concluding that we will review the January 2 Award, rather than the December 26 Award, we have not considered the Arbitrator's statement of reasons for the withdrawal of the December 26 Award, the differences between the awards, and the Arbitrator's retention of jurisdiction in the December 26 Award. In our view, these matters are not relevant to the power of an arbitrator to withdraw an award served on the parties, but not received by the parties. We also view the date of service of the award to be irrelevant: the critical fact is that none of the parties has received the award before it is withdrawn. In concluding that the Arbitrator validly withdrew his December 26 Award, we disagree with the Union's interpretation of our Rules. Contrary to the Union's statement, our Rules do not provide that an award is issued when received. See U.S. Department of Veterans Affairs Medical Center, Waco, Texas and American Federation of Government Employees, Local 1822, 43 FLRA No. 92 (1992) (it is well established that the date of receipt of an award is not controlling in the determination of the 30-day period in which to file exceptions under section 7122(a) of the Statute and part 2425 of the Authority's Rules and Regulations).

Finally, we have specifically recognized that we will find deficient an arbitration award that was procured by corruption, fraud, or undue means. For example, U.S. Department of Health and Human Services, Social Security Administration, Southeastern Program Service Center and American Federation of Government Employees, Local 2206, 38 FLRA 1170, 1177 (1990). We admonish the Agency to challenge directly an award that it believes to have been procured by undue means by filing exceptions with evidence bearing on this issue rather than suggesting that the Union was improperly involved in the Arbitrator's withdrawal of the December 26 Award.

IV. Second and Third Exceptions to the January 2 Award

A. Positions of the Parties

1. The Agency

The Agency contends that the portion of the award in which the Arbitrator assertedly interprets his original award is deficient because the Arbitrator exceeded his authority by modifying rather than interpreting his January 23 Award. The Agency maintains that the parties empowered the Arbitrator to interpret his original award, but conferred no authority on the Arbitrator to revise or modify the original award. The Agency notes that in the original award, the Arbitrator simply ordered a geographic change in duty stations -- the reassignment of the grievant to a revenue officer position at the headquarters office. The Agency asserts that nowhere in his original award did the Arbitrator identify or dictate the group, position, or supervisor to which the grievant should be assigned on his return to the headquarters office. The Agency claims that by specifying in the January 2 Award that the Agency was obligated to change the grievant's group and supervisor, the Arbitrator exceeded his authority by modifying and expanding the remedy that he had granted originally.

The Agency further contends that the January 2 Award is contrary to section 7106(a)(2)(A) of the Statute. The Agency argues that under Authority precedent, it is clear that the award conflicts with management's right to assign employees by directing that the grievant be assigned to another group under the supervision of another manager.

2. The Union

Preliminarily, the Union contends that the Agency's exceptions to the portion of the January 2 Award that interprets the original award should be dismissed as untimely. The Union argues that because the Arbitrator merely clarified his January 23 Award, these exceptions actually relate to the January 23 Award and are untimely. The Union cites the Authority's decisions in American Federation of Government Employees, Local Union 1547 and Department of the Air Force, Luke Air Force Base, Arizona, 15 FLRA 399 (1984) (Luke AFB I) and Department of the Air Force, Headquarters 832D Combat Support Group, DPCE, Luke Air Force Base, Arizona, 24 FLRA 1021 (1986) (Luke AFB II), as support for its position.

On the merits, the Union contends that the Arbitrator did not exceed his authority as claimed by the Agency. The Union asserts that the Arbitrator's January 2 Award merely required the Agency to comply with the intent of the original award and that, therefore, the January 2 Award was directly responsive and properly confined to the issue as stipulated by the parties. The Union maintains that the Agency has failed to establish that the Arbitrator modified his January 23 Award rather than clarifying that award. The Union also contends that the award is not contrary to section 7106(a)(2)(A) of the Statute. The Union asserts that the Arbitrator enforced an appropriate arrangement and did not improperly deny the Agency the authority to exercise its rights under section 7106(a)(2)(A).

B. Analysis and Conclusions

We conclude that the Arbitrator clarified his January 23 Award and did not modify it. Accordingly, we find that the Arbitrator did not exceed his authority as contended by the Agency. Because we conclude that the Arbitrator did not modify his award, we find that the Agency's exception disputing the Arbitrator's order reassigning the grievant is untimely.

By agreement, the parties vested the Arbitrator with full authority to interpret and clarify his January 23 Award. In the January 23 Award, the Arbitrator had ordered the Agency to "retroactively assign [the grievant] to a Grade 12 Revenue Officer position at the Headquarters Office." January 23 Award at 37. In his January 2 Award, the Arbitrator interpreted the intent of the January 23 Award as follows: "To implement the Award, the Agency should have reassigned the Grievant back to the Headquarters office with his work place, equipment, arrangements, routine and responsibilities as close as possible as those that existed before his improper reassignment to the Northwest office. That necessarily meant assigning him to a group other than Group 2400." January 2 Award at 16. The Arbitrator specifically rejected the Agency's action in implementing the award because "[i]n simple fact, the Agency did not reassign the Grievant to the Headquarters office. By continuing him as a member of Group 2400 and requiring him to perform some of his duties at or through the Northwest office, he in effect remained assigned to the Northwest office but with a desk 8 miles away." Id. The Agency argues that the January 2 Award modified the January 23 Award by ordering a reassignment to another group when the January 23 Award did not dictate such a reassignment. We disagree.

In Luke Air Force Base I and Luke Air Force Base II, the arbitrator issued an award finding that the agency had violated the collective bargaining agreement by failing to bargain concerning reassignments and ordering a status quo ante remedy. 24 FLRA at 1022. The arbitrator made no explicit mention of backpay. In implementing the award, the agency provided no backpay, claiming that the arbitrator had not ordered backpay. Pursuant to a request of the union, the arbitrator clarified his award advising that the status quo ante remedy was clearly intended to require the agency to make the grievants whole for the wages they lost as a result of their reassignments. The agency filed exceptions to the award, as clarified. The Authority dismissed the exceptions. The Authority rejected the agency's contention that its exceptions to the modified award were timely filed because the clarification had modified the award. The Authority found that the arbitrator had not modified his award but, rather, that he had essentially advised the parties of the clear intent of the award. Accordingly, the Authority held that the exceptions related to the original award and were, therefore, untimely.

Similarly, in Department of the Air Force, Air Force Logistics Command, Kelly Air Force Base, Texas and American Federation of Government Employees, Local 1617, 15 FLRA 200 (1984) (Kelly AFB), the arbitrator issued an award and a dispute subsequently arose concerning the agency's compliance with a portion of the award. In response to a clarification request, the arbitrator rejected the agency's interpretation of the disputed portion of the award and provided further explanation of the intent of the remedy that he had ordered. The Authority dismissed the agency's exceptions filed to the award, as clarified. The Authority concluded that the arbitrator's clarification did not modify the award because he had merely found that the agency had misinterpreted the award and provided further explanation of the intent of the remedy. Accordingly, the Authority held that the exceptions related to the original award and were, therefore, untimely.

Based on the Authority's decisions in Luke Air Force Base I and Luke Air Force Base II and in Kelly Air Force Base, we conclude in this case that the Arbitrator did not modify his January 23 Award in his January 2 Award. In our view, he was advising the parties of the clear intent of the remedy that he had ordered previously. In concluding that the Arbitrator merely clarified the intent of his previous award, we note that the Agency specifically recognized that the reassignment would undo the disadvantage to the grievant and make him whole, as expressly required by the January 23 Award. As the Arbitrator noted, the labor relations officer who was involved in implementing the award testified that the grievant would have been made whole as required by the award if he had been placed with another group at the headquarters office. It is irrelevant that the officer also believed that such an award would conflict with section 7106(a) of the Statute in view of the fact that the Agency failed to file timely exceptions to the award on that basis. Under the Statute, an agency cannot avoid compliance with an award based on a belief that the arbitrator could not have intended such an award, because in the agency's view the award would conflict with section 7106(a) of the Statute. The procedures of section 7122(a) of the Statute exist specifically to present such issues to the Authority for its dispositive resolution and necessary action. As the Authority advised in Luke Air Force Base II: "Any question which the Respondent had as to the legality of the award should have been raised through timely exceptions filed with the Authority pursuant to section 7122(a) of the Statute." 24 FLRA at 1026-27.

In sum, we find that the Agency fails to establish that the Arbitrator exceeded his authority by modifying, rather than interpreting and clarifying, his January 23 Award, and we will deny this exception. In addition, because the January 2 Award merely clarified the January 23 Award, the January 2 Award did not operate to renew the time period for filing exceptions under section 7122 of the Statute. Luke Air Force Base I, 15 FLRA at 400; Kelly Air Force Base, 15 FLRA at 201. Thus, the Agency's exception contending that the ordered reassignment conflicts with section 7106(a) is untimely. This alleged deficiency arose as a result of the January 23, 1990, Award and not as a result of the January 2, 1991, Award. Therefore, this exception will be dismissed.

V. Fourth Exception to the January 2 Award

A. Position of the Parties

1. The Agency

The Agency contends that the Arbitrator exceeded his authority by finding that the Agency's manner of implementing the award was an act of reprisal. The Agency argues that the issue of reprisal was not submitted to the Arbitrator for resolution and that the Union specifically stipulated that reprisal was not an issue submitted to the Arbitrator as part of the compliance question.

2. The Union

The Union disputes the Agency's contention. The Union asserts that the Arbitrator's award was limited to the stipulated issue of whether the Agency had complied with the award. The Union maintains that the Arbitrator's findings of reprisal were merely part of the Arbitrator's conclusion that the Agency was unreasonable in its interpretation and implementation of the award.

B. Analysis and Conclusions

We conclude that the Agency fails to establish that the Arbitrator exceeded his authority by finding that the Agency's manner of implementing the award was an act of reprisal against the grievant. The parties clearly authorized the Arbitrator to determine whether the Agency's actions had complied with the Arbitrator's January 23 Award. The Arbitrator concluded that "[t]he Agency's interpretation of the original Award was improper and unreasonable." January 2 Award at 16. We find that the Arbitrator's award is directly responsive and properly confined to the issue as stipulated by the parties. We agree with the Union that the Arbitrator's finding of reprisal constitutes part of the Arbitrator's reasoning and conclusions in arriving at his determination that the Agency's implementation of the January 23 Award was improper and unreasonable and that the Agency's exception constitutes nothing more than disagreement with that reasoning and those conclusions. The Authority has consistently held that such disagreement provides no basis for finding an arbitration award deficient. For example, U.S. Department of Justice, Immigration and Naturalization Service, Honolulu District Office, Honolulu, Hawaii and American Federation of Government Employees, Local 2886, National Immigration and Naturalization Council, 41 FLRA 207, 212 (1991) (INS, Honolulu). In INS, Honolulu, we explained that the basis for refusing to find an arbitration award deficient based on an arbitrator's stated reasoning and conclusions is to encourage arbitrators to provide the reasons for their awards. We noted that the U.S. Supreme Court in Steelworkers v. Enterprise Wheel, 363 U.S. 593, 598 (1960), explained that to require arbitrators to write opinions free of ambiguity would lead arbitrators to "play it safe" by not writing any opinions and that this would be undesirable because a well-reasoned opinion engenders confidence in the integrity of the process and aids in clarifying the collective bargaining agreement. 41 FLRA at 212-13. Accordingly, we will deny this exception.

VI. Fifth and Sixth Exceptions to the January 2 Award

A. Positions of the Parties

1. The Agency

The Agency contends that the January 2 Award is deficient because the Arbitrator incorrectly interpreted and applied the Authority's standard of review for cases involving compliance with an arbitration award and relied on nonfacts in determining that the Agency had failed to comply with the award. The Agency notes that in IRS, Austin Service Center, the Authority stated that the adequacy of compliance with an arbitration award is determined by whether the complying party's interpretation of the award is reasonable. The Agency argues that it presented substantial evidence of the reasonableness of its interpretation and that, consequently, the Arbitrator's determination to the contrary is deficient.

The Agency further argues that the Arbitrator's determination was based on erroneous conclusions constituting nonfacts. Specifically, the Agency claims that the Arbitrator relied extensively on his erroneous belief that the implementation method was decided after the period for filing exceptions to the January 23 Award had expired. The Agency further claims that the Arbitrator erroneously concluded that: (1) the Agency's labor relations officer involved in implementing the award had not considered the logistics associated with the grievant's realignment; (2) the grievant was isolated from his coworkers; and (3) the January 23 Award had no precedential value.

In addition, the Agency claims that the award is based on a nonfact because the Arbitrator erroneously implied bad faith on the part of the Agency because, in its answer to the unfair labor practice complaint, the Agency had denied the complaint allegation regarding the Union's representation of the bargaining unit. The Agency asserts that it was simply denying the overly broad and inaccurate description of the unit alleged in the complaint. The Agency also claims that Arbitrator improperly addressed NORD III and erroneously concluded "that the Agency had capitulated on Article 15, Section 1(A) [of NORD III]." Agency's Exceptions at 28.

2. The Union

The Union contends that the Arbitrator correctly stated the Authority's standard for assessing compliance with an arbitration award and correctly concluded that the Agency's failure to properly implement the award resulted from an unreasonable interpretation of the award. The Union asserts that the Agency's claim that the Arbitrator improperly applied the standard constitutes nothing more than disagreement with the Arbitrator's findings of fact and determinations of credibility and provides no basis for finding the award deficient.

The Union further contends that the Agency fails to establish that the central fact underlying the award is clearly erroneous but for which a different result would have been reached. The Union maintains that none of the alleged nonfacts is clearly erroneous, but that, in any event, none of the alleged nonfacts constitute the central fact underlying the award such that, but for the Arbitrator's error, the result would have been different.

B. Analysis and Conclusions

We conclude that the Agency fails to establish that the Arbitrator incorrectly interpreted and applied the Authority's standard for assessing compliance with an arbitration award. We also conclude that the Agency fails to establish that the central fact underlying the January 2 Award is clearly erroneous, but for which the result would have been different.

We find that the Arbitrator appropriately cited IRS, Austin Service Center for the standard to assess compliance with an arbitration award and correctly stated the standard applicable in this case: "[T]he adequacy of compliance with an arbitration award will be determined by whether the Respondent's construction is reasonable which would depend on whether the construction is consistent with the entire award . . . ." January 2 Award at 9 (quoting IRS, Austin Service Center, 25 FLRA at 72; award emphasis omitted). In our view, the Agency's claim that the Arbitrator erroneously interpreted and applied the standard constitutes nothing more than disagreement with the Arbitrator's findings of fact and his evaluation of the evidence and testimony and an attempt to relitigate before the Authority the reasonableness of its compliance. As such, the exception provides no basis for finding the award deficient, and we will deny this exception. See, for example, National Association of Government Employees, Local R5-66 and U.S. Department of Veterans Affairs Medical Center, Memphis, Tennessee, 40 FLRA 504, 509 (1991).

With respect to the Agency's contention that the Arbitrator relied on numerous nonfacts in determining that the Agency had failed to comply with the January 23 Award, we note the Arbitrator's conclusion that "[i]n simple fact, the Agency did not reassign the Grievant to the Headquarters office. By continuing him as a member of Group 2400 and requiring him to perform some of his duties at or through the Northwest office, he in effect remained assigned to the Northwest office but with a desk 8 miles away." January 2 Award at 16. Therefore, the Arbitrator determined that the Agency had failed to comply with the January 23 Award because it had failed to "reassign[] the Grievant back to the Headquarters office with his work place, equipment, arrangements, routine and responsibilities as close as possible as those that existed before his improper reassignment to the Northwest office. That necessarily meant assigning him to a group other than Group 2400." Id.

Thus, the central fact underlying the Arbitrator's award was the failure of the Agency to reassign the grievant to another group at the headquarters office. None of the nonfacts alleged by the Agency relate to the Agency's failure to reassign the grievant to another group at the headquarters office. Accordingly, we find that, even if the Arbitrator erred as asserted by the Agency, a matter that we do not address and need not resolve, none of the asserted errors constituted the central fact underlying the award. Consequently, the Agency fails to establish that but for the asserted errors, the result would have been different, and we will deny this exception. See U.S. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio and American Federation of Government Employees, Council 214 and Local 916, 43 FLRA 765, 775-76 (1991) (Wright-Patterson AFB) (union failed to establish that the assertedly erroneous conclusion of the arbitrator was the central fact underlying the award but for which the arbitrator would have reached a different result).

VII. Seventh Exception to the January 2 Award

A. Positions of the Parties

1. The Agency

The Agency contends that the Arbitrator exceeded his authority because his remedy is not limited to unit employees. The Agency notes that, as part of his remedy, the Arbitrator has ordered distribution of copies of his January 23 Award and his January 2 Award to all district office employees. The Agency asserts that the Authority has held that arbitrators exceed their authority by issuing an affirmative order affecting positions and personnel beyond the scope of the matter submitted. Agency's Exceptions at 33-34 (citing U.S. Department of Housing and Urban Development and American Federation of Government Employees, Local No. 3412, 24 FLRA 442 (1986) (HUD) and Environmental Protection Agency, Region 9 and Engineers and Scientists of California, MEBA, AFL-CIO, 17 FLRA 365 (1985) (EPA)). The Agency argues that because the issues submitted to arbitration in this case were expressly confined to the parties' collective bargaining agreement and the grievant, a unit employee, the award is deficient to the extent it orders distribution beyond the bargaining unit. The Agency also argues that the impropriety of the remedy is further indicated by the fact that the remedy greatly exceeds the remedy requested by the Union and by "the tremendous expense associated with it." Id. at 33. The Agency estimates that the distribution to approximately 1000 district employees will involve approximately 64,000 pages. The Agency states that although the Arbitrator was granted remedial authority consistent with that of the Authority, it could not envision the Authority ordering such a remedy, particularly in view of the Agency's reasonableness in implementing the original award.

2. The Union

The Union contends that the Agency provides no basis for finding the distribution remedy deficient. The Union maintains that, unlike the remedy in HUD, the Arbitrator's distribution remedy is focused on the grievant: the distribution to all district employees is not for the benefit of the employees, but for the benefit of the grievant. The Union asserts that there is no basis for a blanket prohibition against an arbitrator fashioning otherwise legitimate remedies that correct the harm to an aggrieved bargaining unit employee merely because the remedy may affect nonunit employees or because it imposes costs on an agency. The Union claims that the Agency fails to show that the copying costs would be prohibitive. Finally, the Union asserts that the question before the Authority is not whether the Authority would order the same remedy, but whether the Arbitrator was prohibited from ordering that remedy. The Union maintains that the Agency has not established such a prohibition, and that its exception should be denied.

B. Analysis and Conclusions

We conclude that the Agency has failed to establish that the Arbitrator's ordered distribution to all district office employees is deficient.

As explained by the Arbitrator, the Arbitrator directed the distribution to "counteract the misleading statements[,]" January 2 Award at 23, made by the Agency's district director in his "unusual step of sending a memo about the Award to 'all employees[,]'" id. at 18. In the judgment and discretion of the Arbitrator, "[o]nly thus may the effects of the Agency's improper action be dispelled to the extent possible." Id. In addition, the distribution was specifically devised "so that no employee need single him/herself out by requesting a copy." Id. Thus, as recognized by the Union, the focus of this remedy is the grievant and not the district office employees. In view of the "unusual" action by the Agency, the Arbitrator ordered the distribution as compensatory and corrective relief in an attempt to make the grievant whole by, to the extent possible, "dispell[ing]" and counteract[ing]" the effects of the Agency's misleading and inaccurate memorandum to precisely the same group of employees. Id. at 18, 23. Because the distribution is intended as corrective relief to make the grievant whole, we find that the Agency's reliance on HUD and EPA are misplaced.

We view EPA as involving a question of the scope of the matter originally submitted to the arbitrator. In EPA, the Authority found that the scope of the stipulated grievance submitted to arbitration concerned the filling of team leader positions. Consequently, the Authority ruled that the arbitrator exceeded his authority by issuing an order that covered not only team leader positions, but also "professional positions of Grades GS-12 and above . . . ." 17 FLRA at 366 (quoting award). EPA did not involve the issue raised by the Agency in this case, of whether a remedy intended to make a grievant whole is permissible if it also affects non-bargaining unit employees.

In HUD, the issue was the focus of the remedy. The arbitrator had ordered the placement of acoustic screens on all floors occupied by the agency. The Authority found that the arbitrator had exceeded his authority by failing to confine the order to unit employees. The Authority explained that the issue submitted to the arbitrator was expressly confined to the parties' collective bargaining agreement and was necessarily confined to unit employees. In contrast, we find that the remedy in this case is expressly focused on the grievant and the distribution is not a remedy that benefits the district office employees. In our view, distribution to those employees is merely the means by which the misleading and inaccurate statements of the Agency in its original distribution to those same employees can be "dispelled" and "counteract[ed]," so as to undo the harm suffered by the grievant. January 2 Award at 18, 23. Accordingly, the relevant inquiry is that which we undertook in U.S. Department of Justice, U.S. Federal Bureau of Prisons, U.S. Penitentiary, Lewisburg, Pennsylvania and American Federation of Government Employees, Council of Prison Locals, Local 148 C-33, 39 FLRA 1288 (1991) (Bureau of Prisons) petition for review filed sub nom. U.S. Department of Justice, U.S. Federal Bureau of Prisons, U.S. Penitentiary, Lewisburg, Pennsylvania v. FLRA, No. 91-1232 (D.C. Cir. May 21, 1991).

In Bureau of Prisons, the arbitrator found that the agency violated the parties' collective bargaining agreement by requiring the grievant to remain on his post past his shift despite his request to leave in order to attend to a personal medical condition. The arbitrator further found that a supervisor harassed, intimidated, restrained, coerced, threatened, and committed acts of reprisal against the grievant when the grievant continued to make his health concern known. As a remedy, the arbitrator ordered, among other things, that the agency reprimand the supervisor and ensure that the supervisor take a class in sensitivity training. The agency filed exceptions to the award contending, among other things, that the award was inconsistent with the Statute because the Statute precludes remedies that adversely affect nonunit employees.

We rejected the Agency's contention. We acknowledged the great latitude arbitrators have in fashioning remedies under the Statute, and we noted that a matter may concern the conditions of employment of unit employees even though it also affects nonunit employees. We found that the arbitrator's remedy in Bureau of Prisons "was designed to correct the effects of the Agency's violation of the parties' collective bargaining agreement on the grievant's conditions of employment." 39 FLRA at 1299. Accordingly, we held that because the arbitrator found that the grievant was harmed by the agency's violation of the collective bargaining agreement, the arbitrator "properly fashioned a remedy designed to correct the effects of that violation." Id. Therefore, under Bureau of Prisons, when a remedy is designed to correct the harm suffered by a unit employee as the result of improper agency action, that remedy will not be found deficient under the Statute on the basis that the remedy affects nonunit employees. In our view, the distribution remedy fashioned by the Arbitrator in this case is clearly designed to correct the harm suffered by the grievant as a result of the improper actions of the Agency. Accordingly, consistent with our decision in Bureau of Prisons, we refuse to find the remedy deficient because the distribution involves nonunit employees.

We acknowledge that in rejecting the Agency's contention in Bureau of Prisons, we cited American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 33 FLRA 335 (1988), enforced, 905 F.2d 430 (D.C. Cir. 1990), involving the so-called "vitally affects" test. We also recognize that in U.S. Department of the Navy v. FLRA, No. 91-1123 (D.C. Cir. Jan. 14, 1992) (Department of the Navy), the court recently rejected our construction and application of that test. However, we find that the court's rejection does not affect our decision in Bureau of Prisons or our conclusion in this case because Department of the Navy involved the scope of the duty to bargain under the Statute and not the scope of permissible remedies, which is the issue before us in this case. Because the parties specifically authorized the Arbitrator to remedy this matter consistent with our remedial authority, we believe we must review the remedy fashioned by the Arbitrator just as our remedy in an unfair labor practice proceeding would be reviewed. As the D.C. Circuit has advised: "[W]e will uphold the remedial orders of the FLRA 'unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the [Statute].'" NTEU v. FLRA, 910 F.2d 964, 968 (D.C. Cir. 1990) (en banc) (quoting PATCO v. FLRA, 685 F.2d 547, 585 (D.C. Cir. 1982); emphasis omitted). As noted by the court, this "is a heavy burden indeed." 910 F.2d at 968. In our view, that heavy burden has not been met by the Agency either by its argument that the remedy extends to nonunit employees or its argument pertaining to the cost of the distribution. As to cost, the Agency fails to substantiate that the cost is "tremendous" or prohibitive. Indeed, the Agency fails to provide even an estimate of the cost of compliance. Moreover, the Agency includes in the total of pages to be distributed pages that it would distribute to unit employees, whose inclusion in the order the Agency does not contest.

In short, we find that the Agency has not demonstrated that the Arbitrator exceeded his authority in fashioning a remedy. Accordingly, we will deny the exception.

VIII. Exceptions to the Arbitrator's March 28 Award

A. Positions of the Parties

1. The Agency

The Agency contends that the Arbitrator exceeded his authority in the March 28 Award because he modified, rather than clarified, the January 2 Award. Additionally, the Agency argues that the Arbitrator lacked the authority to issue the March 28 Award, assertedly clarifying the January 2 Award, because exceptions were pending before the Authority with respect to the January 2 Award.

The Agency states that it takes exception to the Arbitrator's statement that "the Agency did not see fit to address the request for clarification made by the Union." Agency's Supplemental Exceptions to March 28 Award at 10 (quoting award at 4). The Agency asserts that, to the contrary, an Agency attorney responded to the request, as acknowledged by the Arbitrator. The Agency also takes exception to the Arbitrator's "denounce[ment] and disregard[]" of that correspondence on the pretext that they were not official Agency communications. Id. The Agency asserts that the communications were issued under the authority of the Agency's regional counsel. The Agency further takes exception to the Arbitrator's repeated assertion that he "invited" the Agency to participate in the proceedings. Id. at 11 (quoting the Arbitrator; emphasis by the Agency). The Agency maintains that, to the contrary, the Arbitrator ordered the Agency to participate and, in addition, improperly ordered the Agency to bear responsibility for the conference call arrangements.

2. The Union

Preliminarily, the Union contends that the Agency's exceptions are untimely and should be dismissed. The Union argues that the March 28 Award does not constitute an independent award as to which exceptions may be filed at this time. The Union also contends that the exceptions fail to meet the procedural requirements of section 2425.2 of the Authority's Rules and Regulations and should be dismissed. The Union asserts that the exceptions contain no references to any rulings or evidence as required by the Rules.

On the merits, the Union disputes the Agency's contention that the Arbitrator modified the January 2 Award rather than clarified it. The Union further contends that the Agency fails to establish that the filing of exceptions to an award with the Authority terminates an arbitrator's specifically retained jurisdiction to rule on a request for clarification. The Union also disputes the Agency's exceptions to the Arbitrator's statement about the Agency's failure to participate and to the Arbitrator's asserted disregard of Agency communications. The Union maintains that, in addition to the exceptions being irrelevant to the propriety of the March 28 Award, there is no evidence that the Arbitrator disregarded Agency correspondence, and that the record is clear that the Agency steadfastly refused to respond substantively to the request. The Union also disputes the significance of whether the Arbitrator ordered or invited the Agency's participation. The Union asserts that there is nothing improper in an arbitrator instructing parties to participate in proceedings to clarify an award.

B. Analysis and Conclusions

As a preliminary matter, we will not dismiss the Agency's exceptions. We find that the deficiencies asserted by the Agency arose as the result of the Arbitrator's issuance of the March 28 Award, and that they do not relate to the January 2 Award. Because the Agency's exceptions were timely filed to the March 28 Award, we will not dismiss them as untimely. See National Archives and Records Administration and American Federation of Government Employees, Council 260, Local 2578, 42 FLRA 664, 669 (1991). We also find that the Agency has adequately supported its exceptions as required by section 2425.2 of our Rules, and we will not dismiss them as procedurally defective. See Department of the Army, Buffalo District, Corps of Engineers and American Federation of Government Employees, Local 2930, 34 FLRA 548, 549 (1990).

On the merits, we will deny the Agency's exceptions. In denying the exceptions, we note the substance of the March 28 Award. In that award, the Arbitrator simply corrected three errors and two ambiguities in his January 2 Award. Simply stated, the Agency fails to establish in what manner the award is deficient under the Statute.

We reject the Agency's contention that the Arbitrator exceeded his authority by correcting these matters. The Arbitrator corrected the matters pursuant to a specific retention of jurisdiction for just such a purpose. Moreover, the Authority has repeatedly held that arbitrators may correct such matters even without such a retention of jurisdiction. For example, Health Care Financing Administration, Department of Health and Human Services and American Federation of Government Employees, Local 1923, 35 FLRA 274, 281 (1990).

In addition, the Agency fails to establish that the pendency of exceptions before the Authority to the January 2 Award precluded the Arbitrator from correcting that award. As noted by the Arbitrator, the Agency "cites no FLRA rule, regulation, or decision cutting off the possibility of formal corrections by an arbitrator[,]" and none are apparent to us. March 28 Award at 5. Moreover, the Agency's position is directly contrary to our decision in U.S. Department of the Army, Army Information Systems Command, Savanna Army Depot and National Association of Government Employees, Local R7-36, 38 FLRA 1464 (1991) (Savanna Army Depot). In Savanna Army Depot, as in this case, the arbitrator clarified his award when exceptions to that award were pending before the Authority. We accepted the arbitrator's clarification into the record and considered the clarification in resolving the exceptions to the original award. We found that there was "no regulatory prohibition on our considering the clarification[.]" 38 FLRA at 1468. In view of our decision in Savanna Army Depot, we find that the pendency of exceptions provides no basis for finding the Arbitrator's March 28 Award deficient.

To the extent that the Agency is arguing that the March 28 Award is deficient because of asserted nonfacts, we will deny the exceptions. The Agency fails to establish that the asserted nonfacts constitute the central fact underlying the award and that but for the Arbitrator's asserted errors, the March 28 Award would have been different. See Wright-Patterson AFB, 43 FLRA at 775-76. To the extent that the Agency is arguing that the Arbitrator denied the Agency a fair hearing because he ordered, rather than invited, the Agency's participation and ordered the Agency to arrange the conference call, we will also deny the exceptions. We find that the Agency's contentions constitute nothing more than disagreement with the Arbitrator's conduct of the proceedings and provide no basis for finding the award deficient. See U.S. Department of Health and Human Services, Social Security Administration, Office of Hearing and Appeals and American Federation of Government Employees, Local 3615, 39 FLRA 407, 413 (1991) (arbitrators have considerable latitude in the conduct of hearings and the fact that an arbitrator conducted a hearing in a manner that a party finds objectionable does not, in and of itself, provide a basis for finding an award deficient).

IX. Modification of January 2 Award

Although we will deny the exceptions, we will also direct that the last sentence of the Arbitrator's Appendix A be modified to correspond to the new regional structure of the Authority. In modifying the award, we express no view on what the Regional Director's response could, or should, be. The Notice is being posted as a result of the Arbitrator's award and not as a result of an order of the Authority in an unfair labor practice case. As a result of the parties' agreement on August 23, 1990, the complaint issued on July 6 was to be held in abeyance pending the outcome of further proceedings before the Arbitrator.

X. Decision

The Agency's exception relating to the grievant's reassignment is dismissed as untimely. The other exceptions of the Agency are denied. The last sentence of Appendix A of the Arbitrator's January 2 Award is modified to read as follows:

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, San Francisco Regional Office, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, California 94103, and whose telephone number is: (415) 744-4000.

Appendix

Appendix A to the Arbitrator's January 2, 1991, Award provides as follows:

NOTICE TO ALL EMPLOYEES

PURSUANT TO

AN ARBITRATOR'S DECISION AND ORDER

AND IN ORDER TO EFFECTUATE THE POLICIES OF

CHAPTER 71 OF THE TITLE 5 OF THE

UNITED STATES CODE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

1. WE HAVE improperly not complied with a January 23, 1990 arbitration award by failing and refusing to retroactively assign [the grievant] to a Grade 12 Revenue Officer position in our Headquarters Office with the same conditions of employment as [the grievant] had before we improperly reassigned him to the Northwest Office.

2. WE WILL comply with the January 23, 1990 arbitration award of Merton Bernstein by retroactively assigning [the grievant] to a Grade 12 Revenue Officer position in our Headquarters Office, with the same conditions of employment as [the grievant] had before we improperly reassigned him to the Northwest Office.

a. WE WILL, within thirty (30) calendar days after the date that the Arbitrator's decision and order become final, rescind the improper involuntary reassignment of [the grievant] to the Northwest Office, and

b. WE WILL, within thirty (30) calendar days after the date that the Arbitrator's decision and order become final, retroactively assign [the grievant] to a Grade 12 revenue officer position in a revenue officer group at our Headquarters Office in Phoenix, Arizona. This means that [the grievant] must be returned to terms and conditions of employment that are as close as possible to those under which [the grievant] worked before his improper reassignment to the Northwest Office, including the placement of [the grievant] under the supervision of a Headquarters Office revenue officer group manager.

3. WE WILL NOT interfere with, restrain or coerce [the grievant] or any other employee in the exercise of the rights guaranteed by the NORD III Agreement and the Federal Service Labor-Management Relations Statute.

Phoenix Office - Internal Revenue Service

_________ By, ______________________, District Director
Dated

This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. The two pages of this notice shall be posted side-by-side.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region V, Suite 1359-A, 175 West Jackson Boulevard, Chicago, Illinois 60604.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The Agency has filed an exception to the January 2 Award on the basis that the Arbitrator was not authorized to substitute the January 2 Award for the December 26 Award. We have concluded, for the reasons set forth infra at pp. 12-14, that the Arbitrator's substitution of the January 2 Award for the December 26 Award was not deficient. Accordingly, we will refer to the January 2 Award. The differences between the awards are discussed in the resolution of the Agency's exception.