Social Security Administration, Lawrenceburg, Tennessee (Agency) and American Federation of Government Employees, Local 3438 (Union)

[ v60 p336 ]

60 FLRA No. 71

SOCIAL SECURITY ADMINISTRATION
LAWRENCEBURG, TENNESSEE
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 3438
(Union)

0-AR-3813

_____

DECISION

October 19, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator D. L. Howell filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

      The Arbitrator found that the Agency violated the parties' agreement when it refused to pay the travel expenses and per diem "incurred by" the grievant for the final walk through inspection for a relocated SSA (Agency) field office in Lawrenceburg, Tennessee. Initial Award at 25. As a remedy, the Arbitrator directed that the Agency "shall pay for such expenses as required by the Master Agreement." Id. No exceptions were filed to that award. It was later determined that the grievant did not attend the final walk through inspection, although the parties disputed whether that information was presented at the arbitration hearing. Upon a request of the Union, which was opposed by the Agency, the Arbitrator issued a supplemental award finding that if the grievant makes a final walk through inspection on behalf of the Union, he is to be reimbursed through the Agency's issuance of travel orders to the grievant.

      For the reasons that follow, we set aside the supplemental award.

II.     Background and Arbitration Awards

      In 1995, the Agency began relocating and renovating several field offices. The Union designated the grievant to represent the Union in matters concerning relocations and renovations in the Atlanta region.

      In August 2001, the grievant was preparing to attend a final walk through inspection at the Lawrenceburg, Tennessee office. A few days before the inspection, the grievant received an e-mail from the Agency stating that, although he was welcome to attend the inspection at Union expense, the parties' agreements did not require the Agency to pay travel costs for him to attend any walk through inspection of new office space. [n2]  The grievant filed a grievance alleging that the Agency's denial of travel for him to attend the inspection violated the parties' agreements and established past practice. The grievance was denied and was submitted to arbitration.

A.     Initial Award

      The Arbitrator framed the issue as follows:

Did the Social Security Administration (Agency) fail to properly authorize [the grievant] travel expenses for a "final walk through" in the Lawrenceburg, Tennessee Field Office pursuant to the National Agreement, the Atlanta Region Memorandum of Understanding on Field Office Relocation, Renovation and Redesign and/or past practice? If so, what shall the remedy be?

Initial Award (November 18, 2003) at 2. [n3] 

      The Arbitrator resolved this issue by finding that the Agency violated the parties' agreement "when it refused to pay the travel expenses and per diem incurred by [the grievant] for the final walk through inspection for the relocated SSA (Agency) field office in Lawrenceburg, Tennessee." Id. at 25 (emphasis added). As a remedy, the Arbitrator directed that the Agency "shall pay for such expenses as required by the Master Agreement." Id.

B.     Events Following Initial Award

      On January 7, 2004, the Agency sent an e-mail to the Union stating: [ v60 p337 ]

Based on [the Arbitrator's] award, the [A]gency has to pay for [the grievant's] trip to [L]awrenceburg, Tennessee for the final inspection. Please let me know the dates of [the grievant's] travel as well as his estimated costs so I can have the appropriate management official authorize a travel order for him.

Opposition, Attachment 6. On January 21, 2004, the grievant responded that he anticipated that he would travel to Lawrenceburg in March and that three days would cover the trip. Id. The following day, the Agency responded to the Union that "[t]he final walkthrough with the Agency and the landlord has already been completed. All I asked you for [in the January 7 e-mail] was [the grievant's] estimated expenses for that walk-through as I had understood that [the grievant] went notwithstanding the [A]gency not paying. The [A]rbitrator did not require the [A]gency to conduct another walk through. If [the grievant] travels to Lawrenceburg, it will NOT be paid by the [A]gency." Id.

      Subsequently, the Union telephoned the Arbitrator and requested clarification of the award. [n4]  The Arbitrator instructed the Union to put the request in writing. The Union did so in a letter to the Arbitrator dated February 10, 2004. In that letter, the Union stated that during the arbitration hearing, the grievant testified that he did not travel to Lawrenceburg for the final walk through inspection because management had refused to issue a travel order and pay travel expenses. The letter requested that the Arbitrator clarify his award as follows:

Is the intent of the arbitrator to require the Agency to issue travel orders for the [relocated facility] walk through inspection and reimburse [the grievant] after the trip via the vouchering and authorization process? (this process allows use of the government credit card)

Or

Is your intention that the Union to pay [sic] for the expense of travel and per diem to [the relocated facility] for a final inspection then receive reimbursement for those expenses from the Agency?

Exceptions, Attachment 2 at 1. The letter asked for clarification "since the [A]gency has refused to authorize travel for [the grievant] to [the relocated facility] to conduct a walk through." Id.

      In a letter dated February 12, 2004, the Agency opposed the Union's request for clarification on the following five grounds summarized below:

1.     The Agency requested the grievant's expenses for the trip so that the appropriate documents could be
        prepared for his reimbursement, but the Union had not provided any figures. During the hearing, it was the
        Agency's understanding that the grievant had attended the final inspection. If that was not the case, it would
        have changed the Agency's presentation since moot issues are not to be litigated.
2.     final inspection has already been accomplished, and there is no practical way that another "final inspection"
        can be accomplished since the landlord and the General Services Administration (GSA) are completely
        outside the control of the Agency.
3.     The grievant was never told that he could not participate in the final inspection. The Union had the
        opportunity to do so at its own expense and then grieve the issue. The Arbitrator's decision clearly states
        that "The [A]gency shall pay for such expenses as required by the Master Agreement." In this regard, the
        Agency is prepared to do so. If the grievant did not incur any expenses, there is nothing for which to
        reimburse him.
4.     The award did not mandate that the Agency, the landlord, and GSA conduct another "final inspection." To
        now mandate such a remedy would substantively change the award.
5.     The award was rendered on November 18, 2003. It is now February 2004, nearly 3 months later. Why is
        the award so unclear so long after it was rendered? The Agency believes that the Arbitrator is functus
        officio
and that it has completely fulfilled its obligation in this instance.

Exceptions, Attachment 3 at 1-2.

      The Arbitrator responded by letter of February 18, 2004, discussing the concept of functus officio and concluding that he had "no authority to even submit a clarification [ v60 p338 ] at the request of one of the parties." Exceptions, Attachment 4 at 1.

      The Union responded on February 20, 2004, claiming that the Arbitrator had the authority to issue a clarification, citing Article 25, Section 5(G) of the parties' agreement. That section provides: "If the arbitration award is unclear to either party, the award shall be returned to [the] arbitrator for clarification." Opposition, Attachment 4 at 1. The Union also claimed that the grievant testified at the hearing that he did not attend the final walk through inspection and that the Agency knew of this fact. The Union also contended that the grievant could perform a walk through inspection at this time to "note any variance in what was agreed to and what was actually done." Opposition, Attachment 5 at 1.

C.     Supplemental Award

      By letter of March 4, 2004, the Arbitrator issued "the clarification" of the award "as requested by the Union on February 10, 2004." Supplemental Award at 1. The Arbitrator agreed with the Union that he was empowered to issue a clarification under the parties' agreement "limited to that purpose only and not involve any additional ruling." Id. at 2. The Arbitrator stated that the Agency was correct in asserting that the initial award did not mandate that the Agency, the landlord, and the GSA conduct another final inspection. In this regard, the Arbitrator concluded that he did not have the authority to order third parties, specifically GSA, to conduct another walk through inspection.

      The Arbitrator went on to state that "[i]n retrospective, it would have been better for [the grievant] to have made the trip when all parties were involved in the final walk through inspection." Id. In this regard, the Arbitrator found that the Agency "surely knew or should have known at the time of the arbitration hearing whether or not [the grievant] attended the final walk through inspection on August 31, 2001." Id. Further, the Arbitrator found that, in the circumstances of this case, the remedy for the Agency's violation of the parties' agreement is that the Agency "shall pay for such expenses as required by" the parties' agreement to make the Union's final inspection. Id. As such, the Arbitrator found:

Bottom line, if [the grievant] makes a final walk through inspection on behalf of the Union, he is to be reimbursed per the Master Agreement as set forth in the Award. "As required by the Master Agreement" in the Award would mean that the usual procedure in such instances should be used. If the usual procedure in such matters is that the Agency issue travel orders, then that should be done.

Id.

III.      Positions of the Parties

A.     Agency's Exceptions

      According to the Agency, Article 25, Section 5(G) of the parties' agreement does not apply, because consent of both parties is required where the parties seek to modify an award. The Agency claims that here, the Arbitrator issued a modification without the consent of both parties, not a clarification at the request of one party as permitted by the parties' agreement. Citing Social Security Admin., Region 1, Boston, Mass., 59 FLRA 614 (2004) (SSA), the Agency argues that the Arbitrator did not have the authority to issue the supplemental award because he was functus officio. The Agency claims that the Arbitrator substantively modified the original award, without the joint consent of the parties, by "drawing factual conclusions that are not based on the evidence submitted at the hearing or even considered by the Arbitrator in issuing his award." Exceptions at 5-6 (footnote omitted). In this regard, the Agency argues that "the record is devoid of any evidence and the Arbitrator's decision is devoid of any factual finding that 1) the union representative did not attend the walk-through inspection for the Lawrenceburg field office; or that the `Agency knew or should have known whether or not [the union representative] attended the final walk through inspection.'" Id. at 5.

      In addition, the Agency argues that the subsequent award provides for an additional remedy, requiring the Agency to permit the Union representative to conduct a final walk through inspection.

      Finally, the Agency claims that the Union and the Arbitrator engaged in ex parte communications regarding the applicability of Article 25, Section 5(G), and that "[s]uch behavior is inappropriate and deprives the Agency of due process." Id. at 7.

B.     Union's Opposition

      The Union claims that the Arbitrator had the authority to issue the subsequent award, because it merely clarified the Arbitrator's original findings and did not substantively modify the initial award. The Union argues that the Arbitrator ordered that the grievant be reimbursed for travel-related expenses associated with the inspection, and that "[t]he fact that the Agency now claims they were not aware that he had not made the inspection has no bearing on the Arbitrator's ultimate decision and clarification in this case." Opposition at 3.

      The Union also asserts that there were no improper ex parte communications between the Union and the Arbitrator, and that the Agency received a copy of every communication between the Union and the Arbitrator. In this regard, the Union's opposition attaches the Arbitrator's letter of April 19, 2004, rejecting the Agency's [ v60 p339 ] claim that the Arbitrator engaged in improper ex parte communications with the Union.

IV.     Analysis and Conclusions

A.     The Agency has not established that the Arbitrator was biased

      We construe the Agency's argument that the Arbitrator engaged in improper ex parte communications with the Union as a claim that the Arbitrator was biased.

      To establish that an award is deficient because of bias, a party must establish that the award was procured by improper means, that there was partiality or corruption on the part of the arbitrator, or that the arbitrator engaged in misconduct that prejudiced the rights of the party. NAGE, Local R1-109, 58 FLRA 501, 504 (2003). See also United States Dep't of the Navy, Naval Surface Warfare Ctr., Indian Head Div., Indian Head, Md., 57 FLRA 417, 422 (2001) (with respect to a claim of personal bias involving an arbitrator, a party must raise that claim for the first time at the hearing, if it could be raised there, or the Authority will not entertain such claims in the absence of extraordinary circumstances).

      The Agency asserts that the Arbitrator's supplemental award suggests that the Arbitrator and the Union engaged in improper ex parte communications, following the issuance of the initial award, regarding the applicability of Article 25, Section 5(G) of the parties' agreement. However, the Union claims that the Agency was sent a copy of all correspondence that took place between the Union and the Arbitrator, including the letter dated February 20, 2004, and that therefore the Union did not have any communications with the Arbitrator that the Agency was not privy to.

      Even if the Agency did not receive this letter, however, the Agency's allegation provides no basis for finding the award deficient. The Agency had an opportunity in its exceptions to refute the assertions regarding whether the Arbitrator was permitted to issue a clarification at the request of one of the parties under Article 25, Section 5(G). In addition, the Agency did not seek leave under § 2429.26 of the Authority's Regulations to claim that it did not receive a copy of the February 20 letter contained it the Union's opposition. [n5]  Therefore, the Agency has not established that the communications between the Arbitrator and the Union prejudiced the Agency in this case. The Agency has not provided any evidence that the award was procured by improper means, that there was partiality or corruption on the part of the Arbitrator, or that the Arbitrator engaged in misconduct that prejudiced the rights of the either party under the standard set forth above.

      Based on the foregoing, we deny this exception.

B.     The Arbitrator was functus officio

      Under the principle of functus officio, once an arbitrator has accomplished the resolution of the matter submitted, the arbitrator is without further authority. See, e.g., United States Dep't of the Army, Corpus Christi Army Depot, Corpus Christi, Tex., 58 FLRA 77, 80 (2002) (Member Pope dissenting as to other matters). Accordingly, unless an arbitrator retains jurisdiction after issuance of the award, the arbitrator has no authority to take any further action without the joint request of the parties. See id.

      However, the Authority has consistently held that an arbitrator may clarify an ambiguous award if the clarification conforms to the arbitrator's original findings. See, e.g., United States Dep't of the Army, Army Info. Sys. Command, Savanna Army Depot, 38 FLRA 1464, 1467 (1991). An arbitrator may also correct clerical mistakes or obvious errors in arithmetical computations. See, e.g., Health Care Fin. Admin., Dep't of Health and Human Serv., 35 FLRA 274, 281 (1990).

      In the initial award, the issue framed by the Arbitrator was whether the Agency failed to properly authorize the grievant travel expenses for a final walk through in the Lawrenceburg, Tennessee Field Office and, if so, what remedy was appropriate. The Arbitrator resolved this issue by finding that the Agency violated the parties' agreement "when it refused to pay the travel expenses and per diem incurred by [the grievant] for the final walk through inspection for the relocated SSA (Agency) field office in Lawrenceburg, Tennessee." Initial Award at 25 (emphasis added). There is no dispute that the final walk through inspection to which the Arbitrator was referring occurred on August 31, 2001. Thus, by finding that the grievant incurred those expenses for the final walk through inspection on August 31, 2001, the Arbitrator implicitly found that the grievant had attended the final walk through inspection that occurred on August 31, 2001. As a remedy, the Arbitrator directed that the Agency "shall pay for such expenses as required by the Master Agreement." Id.

      However, in the supplemental award, the Arbitrator expressly found that the grievant did not attend the final walk through inspection. In this regard, the Arbitrator found that "it would have been better for [the grievant] to have made the trip when all parties were involved in the final walk through inspection." Supplemental Award at 2 (emphasis omitted). Further, the Arbitrator found that "[t]he Agency surely knew or should have known at the time of the arbitration hearing whether or not [the grievant] attended the final walk through inspection on August 31, 2001." Id. The Arbitrator determined that if the grievant makes a final walk [ v60 p340 ] through inspection on behalf of the Union, he is to be reimbursed per the "usual procedure" as required by the parties' agreement; that is, through the issuance of travel orders. Id.

      The question to be resolved is whether the Arbitrator's supplemental award constitutes a permissible clarification of the initial award or an impermissible modification of the initial award. The supplemental award in this case cannot reasonably be interpreted as correcting a clerical mistake or an obvious error. Moreover, the Arbitrator did not clarify an ambiguous award in a way that conforms to the findings in the initial award. Rather, the Arbitrator made a factual finding in the supplemental award that was inconsistent with the initial award, and effectively ordered a new remedy based on the different factual premise of the supplemental award.

      As noted above, it is undisputed that the final walk through inspection in the Lawrenceburg, Tennessee Field Office occurred on August 31, 2001. The Arbitrator expressly concluded in the initial award that the Agency violated the parties' agreement when it refused to pay the travel expenses and per diem incurred by the grievant for the final walk through inspection in Lawrenceburg, Tennessee. Accordingly, particularly in the absence of any indication in the initial award to the contrary, it is apparent that the Arbitrator's conclusion in the initial award was predicated on an implicit finding that the grievant attended the August 31, 2001, final walk through inspection and incurred expenses and per diem in so doing. Upon receiving the initial award, the Union did not except to, or seek clarification of, the Arbitrator's finding that the Agency violated the parties' agreement when it refused to pay the travel expenses and per diem incurred by the grievant for the final walk through inspection.

      In contrast to the implicit finding in the initial award, the Arbitrator found in his supplemental award that the grievant did not attend the final walk through inspection, and went on to state that if the grievant makes a final walk through inspection, he is to be reimbursed. By doing so, the Arbitrator changed a factual conclusion, substantively modifying the initial award.

      As the Arbitrator impermissibly modified an award without a joint request of the parties, we find that the supplemental award is deficient under the principle of functus officio and must be set aside. [n6] 

V.     Decision

      We deny the bias exception. We find the supplemental award deficient under the principle of functus officio.


Opinion of Member Carol Waller Pope, dissenting in part:

      I agree that the Agency's bias exception should be denied. However, for the following reasons, I disagree with the majority's conclusion that the Arbitrator lacked authority to issue the clarification award.

      The majority relies on the doctrine of functus officio to set aside the clarification of the original award. See Majority Opinion at 10-12. In so doing, the majority errs. In this regard, "the doctrine of functus officio . . . is `merely a default rule, operative if the parties fail to provide otherwise.'" Hotel Greystone Corp. v. N.Y. Hotel & Motel Trades Council, AFL-CIO, 902 F. Supp. 482, 485 (S.D.N.Y. 1995) (quoting Glass, Molders, Pottery, Plastics & Allied Workers Int'l Union, AFL-CIO, CLC, Local 182B v. Excelsior Foundry Co., 56 F.3d 844, 848 (7th Cir. 1995)). Here, the parties have provided otherwise in Article 25, Section 5(G) of their agreement, which states that "[i]f the arbitration award is unclear to either party, the award shall be returned to [the] arbitrator for clarification." Opposition, Attachment 4 at 1. The Agency does not claim that the Union's request was not encompassed by the provision or that the provision is not enforceable. Thus, the parties' agreement expressly permitted the Union to resubmit this matter to the Arbitrator, and the functus officio doctrine does not apply.

      Even if the functus officio doctrine applies, the majority would still be in error. In this connection, the majority relies solely on the Arbitrator's use of one phrase -- "travel expenses and per diem incurred by" the grievant -- to conclude that "the Arbitrator implicitly found that the grievant had attended the final walk through inspection that occurred on August 31, 2001." Majority Opinion at 10-11 (emphasis added by majority). The majority's interpretation of this phrase is not unreasonable. However, there is another, equally reasonable interpretation: that the Agency was required to reimburse the grievant for the pertinent expenses that had been, or would in the future be, "incurred." Because "[t]he Authority [is] authorized to review the award of the arbitrator on very narrow grounds[,]" S. Rep. No. 95-1272, 95th Cong., 2d Sess. 153 (1978), I believe it is appropriate in this situation to interpret the award in a manner that upholds it, rather than relying on an "implicit finding" of the Arbitrator -- not compelled by a reading of the award -- to conclude that the award is deficient. Majority Opinion at 12.

      For the foregoing reasons, I dissent in part.



Footnote # 1 for 60 FLRA No. 71 - Authority's Decision

   The opinion of Member Pope, dissenting in part, is set forth at the end of this decision.


Footnote # 2 for 60 FLRA No. 71 - Authority's Decision

   According to the Union, the grievant was to have traveled from Mobile, Alabama. Intial Award at 1.


Footnote # 3 for 60 FLRA No. 71 - Authority's Decision

   There is no indication in the record to explain the lapse of time between the events in this case (commencing in August 2001) and the arbitration hearing and initial award (September and November 2003, respectively).


Footnote # 4 for 60 FLRA No. 71 - Authority's Decision

   The telephone call is described in a letter from the Arbitrator to the Authority dated April 19, 2004, after the Agency had filed its exceptions in this case. As noted below, the Union also attached a copy of the Arbitrator's letter to its opposition as Attachment 7.


Footnote # 5 for 60 FLRA No. 71 - Authority's Decision

   Section 2429