53:1747(156)AR - - NFFE Local 11 and Air Force, Fairchild AFB, WA - - 1998 FLRAdec AR - - v53 p1747



[ v53 p1747 ]
53:1747(156)AR
The decision of the Authority follows:


53 FLRA No. 156

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 11

(Union)

and

U.S. DEPARTMENT OF THE AIR FORCE

FAIRCHILD AIR FORCE BASE, WASHINGTON

(Agency)

0-AR-2974

_____

DECISION

March 31, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

Decision by Member Cabaniss for the Authority

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Robert L. Burke filed by the Union under section 7122 of the Federal Service Labor-Management Relations Statute ("the Statute") and part 2425 of the Authority's Regulations. The Agency did not file an opposition to the Union's exception.

Although the Arbitrator denied the grievance, the substance of his decision is not at issue. Rather, this case concerns the Union's disagreement with a letter that the Arbitrator sent to the Union after the award had become final and binding. The letter and the accompanying "Revised Statement" attempt to correct an error by the Arbitrator concerning his allocation of fees and expenses associated with the arbitration proceeding.

For the following reasons, we find that the Arbitrator's letter constitutes a supplemental award, and that it is deficient under section 7122(a) of the Statute. Accordingly, we set it aside.

II. Background and Arbitrator's Award

This case arises from an employee's grievance challenging a 3-day suspension imposed as discipline for his having sexually harassed a co-worker. In his award, dated March 20, 1997, the Arbitrator found that "the preponderance of the evidence justifie[d] the action" taken by the Agency in suspending the grievant, and denied the grievance. Award at 8. However, the Arbitrator did not indicate which party was the "losing party" within the meaning of Article VIII, Section 4 of the parties' collective bargaining agreement. That provision reads as follows:

Section 4. The Arbitrator's Fees and Expenses: Fees and expenses shall be borne by the losing party. Accordingly, the arbitrator will be instructed to specify the losing party except if the arbitrator decides there is no losing party. In such event, the arbitrator's fees and expenses will be shared equally by the parties.

Exception, Exhibit 2.

As part of his award, the Arbitrator attached a "Statement," which billed the parties equally for his fees. Exception, Exhibit 4.(*) No exceptions were filed to the award.

On May 13, 1997, the Arbitrator mailed a letter to the Union in which he stated that in the award he had made "an erroneous assumption that all arbitration fees were to be split evenly between the parties[.]" Exception, Exhibit 1. The letter states that, upon re-reading the parties' collective bargaining agreement, the Arbitrator discovered that the agreement held the losing party responsible for the entire fee, and that the Union was the losing party in the case. The Arbitrator also enclosed a "Revised Statement" to the Union, which billed the Union for the entire fee.

In an undated memorandum to the Arbitrator, the Union informed him that it "elects not to recognize the validity of the revised statement dated 13 May 97 and will not pay." Exception, Exhibit 5.

III. Union's Exception

The Union contends that the "Revised Statement" is deficient pursuant to section 7122 of the Statute. The Union argues that "the awarding of fees and expenses is a part of the arbitrator's award and therefore can only be changed if either party files [an] exception or appeal concerning same." Exception at 1. Since neither party had filed an exception, the Union claims that the Arbitrator exceeded his authority when he issued what amounted to a "secondary ruling" reallocating the arbitration fee after the award had become final and binding.

IV. Analysis and Conclusions

A threshold question is whether the Arbitrator's letter constitutes an "award" within the meaning of section 7122 of the Statute.

In one other instance, the Authority has considered an exception to a letter sent to a party by an arbitrator after the initial award had been rendered final. See Philadelphia Metal Trades Council and U.S. Department of Navy, Philadelphia Naval Shipyard, 35 FLRA 251, 252 (1990) (Philadelphia Naval Shipyard) (while questioning whether arbitrator's letter to grievant constituted an "award" within the meaning of the Statute, the Authority denied union's exception on the merits, rather than dismissing it for want of jurisdiction).

In the instant case, the substance of the Arbitrator's letter (i.e., allocation of fees) modifies the terms of the initial award. As such, and noting the lack of any argument that the letter does not constitute an award, the Authority will treat this letter as a supplemental award.

Under certain, limited circumstances, an arbitrator has the authority to clarify or correct an award after it becomes final. Overseas Federation of Teachers, AFT, AFL-CIO and Department of Defense Dependents Schools, Mediterranean Region, 32 FLRA 410, 415 (1988) (DODDS, Mediterranean Region). For example, an arbitrator has the authority to correct "clerical mistakes or obvious errors in arithmetical computation[.]" Id. at 414. However, once the award becomes final, the arbitrator loses jurisdiction over the subject matter and becomes functus officio. National Treasury Employees Union, National Treasury Employees Union Chapter 33 and U.S. Internal Revenue Service, Phoenix District, 44 FLRA 252, 263 (1992).

Without specific retention of jurisdiction by the arbitrator, any further action by the arbitrator may only be taken at the joint request of the parties. Philadelphia Naval Shipyard, 35 FLRA at 252. An arbitrator exceeds his or her authority by reopening an award without the consent of the parties. DODDS, Mediterranean Region, 32 FLRA at 415. More particularly, the Authority has held that an arbitrator did not have the power to reopen the allocation of fees relating to his own award, when the parties had not put that issue before him for resolution. General Services Administration and American Federation of Government Employees, Local 2600, 34 FLRA 1123, 1128 (1990).

The Union argues, with validity, that the Arbitrator's supplemental award is deficient under section 7122 of the Statute because the initial award had already been rendered final and binding. Once 30 days have elapsed since service of the award upon the parties, the award becomes final and binding, unless an aggrieved party files a timely exception to the award. 5 U.S.C. § 7122(b); 5 C.F.R. § 2425.1(c). Here, neither party filed an exception to the initial award. By the time the Arbitrator discovered that he had failed to comply with the collective bargaining agreement's instructions to denote the losing party for purpose