United States, Department of the Army Corps of Engineers, Northwestern Division and Portland District (Agency) and United Power Trades Organization, Colfax, Washington (Union)

[ v60 p595 ]

60 FLRA No. 119

UNITED STATES
DEPARTMENT OF THE ARMY
CORPS OF ENGINEERS, NORTHWESTERN
DIVISION AND PORTLAND DISTRICT
(Agency)

and

UNITED POWER TRADES ORGANIZATION
COLFAX, WASHINGTON
(Union)

0-AR-3876

_____

DECISION

January 21, 2005

_____

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

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Elinor Nelson 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.

      After issuing an award directing the Agency to fill a particular position, the Arbitrator issued a second award concluding that the position may not be contracted out. For the following reasons, we set aside the challenged portion of the second award.

II.      Background and Arbitrator's Award

      As relevant here, the Union filed a grievance alleging that the Agency violated Clause IV of an agreement concerning a training program (the training agreement) by failing to recruit and hire a North Pacific Regional Educational Director (the disputed position). [n1]  The grievance was unresolved and was submitted to arbitration. In her first award, the Arbitrator framed the issues, in pertinent part, [n2]  as whether the Agency violated the training agreement "when it failed to fill the [disputed] position[,]" and "[i]f so, what is the appropriate remedy?" First Award at 3.

      The Arbitrator found that Clause IV requires the Agency to fill the disputed position and that the Agency violated that Clause by failing to do so. Accordingly, the Arbitrator sustained the grievance and directed the Agency to "fill the position . . . with a professional educator, assigned the responsibilities detailed" in the training agreement. Id. at 14. The Arbitrator stated that, under "Article 6.16 of the Agreement . . . `any dispute over the interpretation or application of the arbitrator's award shall be returned to the arbitrator for settlement including remand of awards.'" Id. at 15 (quoting the agreement).

      The Agency filed exceptions to the first award, alleging that it was contrary to management's rights to determine its organization, make selections, and assign work. The Authority denied the exceptions. See United States Dep't of the Army, Corps of Eng'rs, N.W. Div., Portland Dist., Portland, Or., 59 FLRA 86 (2003) (Corps of Eng'rs) (Member Armendariz dissenting).

      Subsequently, the Union contacted the Arbitrator and claimed that the Agency was proposing to contract out the disputed position, which the Union asserted was contrary to both Clause IV of the training agreement and the first award. The Arbitrator, again citing Article 6.16 of the collective bargaining agreement (CBA), asserted jurisdiction.

      In the award that resulted (the second award), the Arbitrator framed the pertinent issue as: "Does the Agency's proposal to contract out the duties of the [disputed] position rather than fill the position with a governmental employee . . . violate the Arbitrator's Award?" Second Award at 3. The Arbitrator rejected the Agency's request to reconsider the first award, finding that if she were to "change or amend" the first award, then the award "might be construed as lacking finality." Id. On the merits, the Arbitrator found that the parties intended that the disputed position would be filled by a full time Federal employee, not a contractor. Id. at 5. Accordingly, the Arbitrator again directed the Agency to fill the position with "a governmental employee . . . allocated for the position)." Id. at 6. [ v60 p596 ]

III.      Positions of the Parties

A.      Agency Exceptions

      The Agency argues that its exceptions are timely because the second award imposed requirements that were not in the first award, "thereby effecting a new filing period for exceptions that commenced" upon issuance of the second award. Exceptions at 5. In addition, the Agency contends that the Arbitrator was functus officio because, although the Arbitrator was permitted to resolve issues regarding interpretation and application of the first award, she resolved issues regarding the training agreement -- not the award -- by making new findings regarding the agreement.

      Further, the Agency contends that the second award is contrary to management's rights to: make determinations regarding contracting out; assign work; and determine the organization of the Agency. According to the Agency, the Arbitrator was not enforcing a provision negotiated pursuant to § 7106(b) of the Statute, and the award fails to reconstruct what management would have done if it had complied with Clause IV.

B.      Union Opposition

      The Union claims that the exceptions are untimely because the second award merely clarifies the first award. The Union also claims that the Agency's arguments regarding § 7106 merely reiterate its exceptions to the first award.

IV.      Preliminary matter

      The time limit for filing exceptions to an award "is thirty (30) days beginning on the date the award is served on the filing party." 5 C.F.R. § 2425.1(b). However, where an arbitrator modifies an award so as to give rise to the deficiencies alleged in the exceptions, the filing period begins with the modified award. See NAGE, Local R4-45, 55 FLRA 789, 793 (1999) (citations omitted).

      In the first award, the Arbitrator directed the Agency to fill the disputed position. In the second award, the Arbitrator specified that the position must be filled by a government employee, rather than being contracted out. The specification that the position could not be contracted out gave rise to the deficiencies alleged in the Agency's exceptions. Thus, the time period for filing the exceptions began with the second award. It is undisputed that the Agency's exceptions were timely filed after issuance of the second award. Accordingly, we conclude that the Agency's exceptions are timely filed.

V.      Analysis and Conclusions

A.      The Arbitrator was not functus officio.

      Pursuant to the doctrine of functus officio, once an arbitrator has accomplished the resolution of the matter submitted, the arbitrator is without further authority. See United States Dep't of the Army, Corpus Christi Army Depot, Corpus Christi, Tex., 58 FLRA 77, 80 (2002) (citation omitted) (Member Pope dissenting on other grounds). However, an arbitrator may clarify or correct an award to correct clerical mistakes or obvious errors in arithmetical computation, and may clarify an ambiguous award and restate the basis for the award which conforms to the arbitrator's original findings. See AFGE, Local 400, 50 FLRA 525, 526 (1995). Further, where an arbitrator retains jurisdiction to resolve disputes over interpretation or implementation of an award, the arbitrator may issue a supplemental award resolving such disputes without a joint request from the parties. See AFGE, Local 1156, 57 FLRA 602, 603 (2001), recons. denied, 57 FLRA 748 (2002). Moreover, where an agreement permits an arbitrator to conduct further proceedings, the functus officio doctrine does not preclude the arbitrator from issuing a supplemental award. See Hotel Greystone Corp. v. N.Y. Hotel & Motel Trades Council, AFL-CIO, 902 F. Supp. 482, 483-85 (S.D.N.Y. 1995).

      The Agency concedes that the Arbitrator had jurisdiction over interpretation and application of the first award, but claims that the second award is an interpretation of the training agreement, not the first award. Contrary to the Agency's claim, however, the Arbitrator explicitly framed the pertinent issue as whether contracting out the disputed position would "violate the Arbitrator's Award" -- not the training agreement. Second Award at 3. In addition, the Arbitrator expressly rejected the Agency's request that she reconsider the first award and, in so doing, specifically "reaffirm[ed]" the first award. Id. Moreover, the Arbitrator concluded that the Agency's arguments were an attempt to justify its violation of the first award and that the Agency itself "understood that the [first] [a]ward meant filling the [disputed] position" by a government employee. Id. at 5. In these circumstances, we find that the second award constitutes an interpretation and application of the first award. As the Agency concedes that the Arbitrator had jurisdiction over interpretation and application of the first award -- and consistent with the fact that Article 6.16 of the parties' agreement specifically permitted the Arbitrator to exercise such jurisdiction -- we conclude that the Arbitrator was not functus officio, and we deny the exception. [ v60 p597 ]

B.      The challenged portion of the second award is inconsistent with management's right to make determinations with respect to contracting out under § 7106(a)(2)(B) of the Statute.

      The Agency argues that the second award is inconsistent with management's rights under § 7106(a) of the Statute. The Authority reviews questions of law de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

      In resolving whether an arbitrator's award violates management's rights under § 7106 of the Statute, the Authority first determines whether the award affects management's rights. See United States Small Bus. Admin., 55 FLRA 179, 184 (1999). If the award affects management's rights, then the Authority applies the two-prong test established in the Authority's decision in United States Dep't of the Treasury, Bureau of Engraving & Printing, Wash., D.C., 53 FLRA 146 (1997) (BEP). Under prong I of BEP, the Authority examines whether the award provides a remedy for a violation of either an applicable law, within the meaning of § 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to § 7106(b) of the Statute. BEP, 53 FLRA at 153. If it does, then under prong II of BEP, the Authority examines whether the arbitrator's remedy reflects a reconstruction of what management would have done if management had not violated the law or contractual provision at issue. Id. at 154.

      The Authority has held that requiring an agency to delay contracting out decisions affects the right to make determinations with respect to contracting out under § 7106(a)(2)(B) of the Statute. See NAGE, Local R1-203, 55 FLRA 1081, 1086-88 (1999) (Chair Segal concurring). Here, the second award does not merely require a delay in contracting out the disputed position; it precludes management from contracting out that position. Accordingly, the award affects management's right to make determinations with respect to contracting out under § 7106(a)(2)(B) of the Statute.

      With regard to prong I of BEP, the Authority has declined to address whether a contract provision was negotiated pursuant to subsections of § 7106(b) where a union did not raise those subsections. See, e.g., United States DOD, Ala. Air Nat'l Guard, Montgomery, Ala., 58 FLRA 411, 413 n.3 (Authority did not address § 7106(b)(1) or (b)(3) when those subsections were not raised), recons. denied, 58 FLRA 635 (2003). Consistent with this, as the Union does not argue that Clause IV was negotiated pursuant to any subsections of § 7106(b), we find that the award fails to satisfy prong I of BEP[n3]  Accordingly, it is unnecessary to address prong II of BEP, and we set aside the challenged portion of the award.

VI.     Decision

      The challenged portion of the second award is set aside.



Footnote # 1 for 60 FLRA No. 119 - Authority's Decision

   Clause IV of the training agreement provides, in pertinent part: "There should be a North Pacific regional educational director/ trainer for the regional hydropower trainee program. The trainer should be a profe