American Federation of Government Employees, Local 12 (Union) and United States, Department of Labor (Agency)

[ v61 p628 ]

61 FLRA No. 121

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 12
(Union)

and

UNITED STATES
DEPARTMENT OF LABOR
(Agency)

0-AR-3972

_____

DECISION

July 26, 2006

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member

I.     Statement of the Case

      This case is before the Authority on exceptions to an award of Arbitrator Herbert Fishgold filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions. The Authority issued an Order to Show Cause why the Union's exceptions should not be dismissed as untimely, to which the Union and the Agency filed responses.

      The Arbitrator sustained a grievance alleging that the Agency violated a provision of the parties' collective bargaining agreement (CBA), which requires that employees receive equal pay for equal work. As a remedy, the Arbitrator remanded the question of the amount of back pay to the parties and directed, among other things, that the Agency conduct a desk audit to determine if there should be an adjustment in the grievants' grade level and the amount of back pay. In a supplemental award (SA), the Arbitrator determined that an Agency-conducted desk audit report addressed the grade level at which the grievants were performing their duties and that it should be applied retroactively. Subsequently, the Union requested the Arbitrator to reconsider his SA. The Arbitrator denied the Union's request.

      For the following reasons, we find that the Union's exceptions were untimely filed. Accordingly, we dismiss the exceptions.

II.     Background and Arbitrator's Award

A.     Initial Award

      The four grievants began their employment as General Schedule (GS), Clerk-typists, GS-3. At the time of the grievance, three were employed as Technical Information Assistants (TIAs), GS-6 and one was employed as a GS-8 TIA

      The advent of an Agency website resulted in additional training for staff and, subsequently, promotions for the TIAs as their duties changed. This also resulted in the need for more Economists and greater utilization of TIAs who had a similar grade structure as Economists. Later, noting that Article 18, Section 4(a) of the CBA requires "equal pay for substantially equal work[,]" the Union filed a grievance alleging that the grievants have performed the same duties as employees designated as professionals but have never been promoted and have been paid at lesser grade levels. Award at 3. The parties were unable to resolve the grievance and the matter was submitted to arbitration.

      The Arbitrator framed the issue as:

[W]hether the duties assigned to the [g]rievants, irrespective of their positions, are such that they are entitled to equal pay for substantially equal work.

Id. at 4.

      The Arbitrator found that the evidence demonstrated that the grievants' duties have changed since their initial employment. The Arbitrator found that the grievants' performance of a call center function--responding to phone calls and e-mails--is "performed jointly, without any meaningful distinction, by the TIAs and the Economists." Id. at 8. The Arbitrator thus found that the grievants, as GS-6, were not receiving "equal pay for substantially equal work," as required by Article 18, Section 4(a) and that the Agency's failure to comply with this provision constituted a violation. Id.

      The Arbitrator found that back pay was warranted, but was "unable," based on the record, to determine the appropriate pay. Id. As his remedy, the Arbitrator, among other things: (1) remanded the "question of the amount of back pay to be awarded the [g]rievants . . . to the parties[;]" (2) "[i]n conjunction with the back pay issue[], . . . directed [the Agency] to have a desk audit conducted on the [three] GS-6 TIA positions to determine if there should be an adjustment in grade level . . . "; and (3) directed the parties, in the event the desk audit supports a reclassification of the TIA grade level, to also [ v61 p629 ] seek to "resolve any issues as to its retroactive application to the instant grievance." Id. at 9. The Arbitrator retained jurisdiction to address any unresolved issues concerning back pay and the desk audit reclassification.

      Later, pursuant to the remand, desk audits were conducted for the three GS-6 grievants. The desk audits concluded that the positions in question should be classified as GS-0303-7, Information Service Assistant.

B.     Supplemental Award

      The parties were unable to "resolve questions of back pay or retroactive adjustment in the grades," and the matter was returned to the Arbitrator "to provide a specific remedy consistent with the findings and conclusions of the [Initial Award]." Supplemental Award (SA) Id. at 1.

      Subsequently, the Arbitrator issued his SA dated March 29, 2005. The Arbitrator found based on the record evidence, including the desk audits, that the grievants' positions were properly classified as GS-7, Information Services Assistant, and that such classification should be applied retroactively, as of July 2002.

C.     Arbitrator's May 10, 2005 Letter

      After the Arbitrator issued the SA, the Union requested the Arbitrator to reconsider the SA. By letter to the parties dated May 10, 2005, (Arbitrator's May 10 Letter), the Arbitrator responded to the Union's request and the Agency's opposition thereto. The Arbitrator noted that in its request, the Union alleged that the findings in the SA did not comport with the Initial Award and that although the desk audits "were discredited they were nonetheless relied upon to formulate a remedy." Arbitrator's May 10 Letter at 1. The Union also requested that a "final award be issued, with no further retention of jurisdiction." Id. The Agency asserted that there was no merit to the Union's request for reconsideration. However, the Agency did "join in the request that a final decision issue concerning the entire case, including the remedy." Id.

      The Arbitrator determined that as the request for reconsideration of the SA was not a joint request, he had no authority to act. He, therefore, denied the request stating that "absent the consent of both parties, no clarification or interpretation of an award is permissible." Id. at 2. The Arbitrator stated that the "underlying [a]ward and the [SA] are final, and the parties may pursue whatever further relief, if any, is available." Id.

III.     Order to Show Cause and the Parties' Responses

      The Union filed exceptions and, the Agency filed an opposition. Thereafter, the Authority directed the Union to show cause why its exceptions should not be dismissed as untimely filed. The Authority stated:

The record indicates that the Arbitrator issued his original Award on June 18, 2004 and issued a "Supplemental Award: Remedy" on March 29, 2005. The Union requested the Arbitrator to reconsider his supplemental ruling. In a letter dated May 10, 2005, the Arbitrator declined the Union's request. The Union then filed its exceptions on June 8, 2005.

Order to Show Cause (Order) at 1. The Union was informed that under Authority precedent, a party's request for reconsideration or clarification of an award that is final does not operate to extend the time limit for filing exceptions to the award. The Authority further stated that if the SA is considered to be the final award, then the Union's exceptions had to be postmarked by the United States Postal Service or received in person or by commercial delivery at the Authority no later than May 2, 2005 to be timely. The Authority noted that the Union's exceptions were filed with the Authority on June 8, 2005 and thus appeared to be untimely.

      In its response to the Order, the Union asserts that prior to the Arbitrator's May 10 letter, "it [was] clear that the [A]rbitrator had postponed the determination of the appropriate remedy for violations found, and . . . therefore, there was no final award subject to review." Union's Response to Order at 2. The Union states that the Arbitrator's decision "did not become final until May 10, 2005[,]" and thus its exceptions "were timely filed on June 8, 2005." Id. The Union asserts that the Agency "never raised the issue of timeliness . . . because it recognized that the final resolution of the arbitration did not occur until May 10, 2005." Id.

      The Agency filed a response claiming that the exceptions should be dismissed. The Agency asserts that "because the Arbitrator's [SA] constituted a final action on the case the time for filing exceptions to the [a]ward began to run from that date thus the Union's exceptions filed on June 8, 2005, appear to be untimely." Agency's Response to Order at 3-4. The Agency states that while the Union requested further clarification from the Arbitrator in its April 12 letter, the Arbitrator determined that he had no additional authority in the matter and that his decision of March 29 was final. [ v61 p630 ]

IV.     Analysis and Conclusions

      Under § 2425.1(b) of the Authority's Regulations the time limit for filing exceptions to an arbitrator's award begins on the date the award is served on the filing party. It is not uncommon for an arbitrator to retain jurisdiction for a period of time to resolve questions or problems that might arise concerning the award. However, retention for such purposes does not render an award interlocutory or extend the time limit for filing exceptions. Portsmouth Naval Shipyard, 15 FLRA 181, 182 (1984). The Authority has held, however, that where a party seeks clarification of an award from an arbitrator, and the arbitrator in rendering such clarification of the original award actually modifies it, the time limit for filing exceptions to the modified award begins upon service of that award on the excepting party. United States Dep't of Labor, Washington, D.C., 59 FLRA 131, 132 (2003). The arbitrator must modify the award in such a way as to give rise to the deficiencies alleged in the exceptions. United States Customs Service, Region I, Boston, Mass., 15 FLRA 816, 817 (1984).

      In this case, the Union asserts that the award did not become final until May 10, 2005, and thus, the exceptions filed on June 8, 2005 are timely. The Agency requests that the exceptions be "dismissed." Agency Response to Order at 1.

      In the SA, the Arbitrator noted that pursuant to a remand in the Initial Award, the parties were unable to resolve questions of back pay or retroactive adjustment in the grades of the grievants, and the matter was returned to the Arbitrator "to provide a specific remedy consistent with the findings and conclusions of the [Initial Award]." SA at 1. In the SA, the Arbitrator found that: (1) the desk audit report determined that the positions filled by the grievants are properly classified as a GS-7, Information Services Assistant; and (2) that such classification should be applied retroactively to the grievants as of July 2002. The Arbitrator did not compute the amount of back pay stating that in order to do so it was necessary to determine the difference in pay the grievants received as a GS-6, and what they would have received as a GS-7 between July 2002 and the present. The Arbitrator left it to the parties to determine the amount and retained jurisdiction to issue the specific amount if they could not do so. The SA thus resolved the parties' outstanding issues and left nothing to be done except the specific calculation of the amount of grievants' back pay.

      In th