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58 FLRA No. 16
U. S. Dept. of the Army, Corpus Christi Army Depot Corpus Christi, Texas and AFGE, Local 2142 and NFFE, Local 797 and International Association of Machinists and Aerospace Workers, Lodge 2049 (Barnard, Arbitrator), 0-AR-3309 (Decided September 13, 2002)
The Order concerning the remedy was modified after it was found deficient, in part. The Authority noted that the the Arbitrator retained jurisdiction to resolve disputes over interpretation or implementation of the award and that therefore, he was not functus officio.
The Authority explained that the principle of functus officio means that once an arbitrator has accomplished the resolution of the matter submitted, the arbitrator is without further authority. 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. In this case, the Arbitrator did retain jurisdiction. Pursuant to his retained jurisdiction, the Arbitrator continued to order accrual in the Order Concerning Remedy.
However, the Authority concluded that the order was contrary to 5 C.F.R. § 532.511 to the extent that it continued liability for EDP. The order here specifically continued payment of EDP without finding that employees continued to work in areas where asbestos may expose them to potential illness or injury and that protective devices or safety measures had not practically eliminated the potential for such illness or injury. Accordingly, the Authority stroke paragraph 1 of the Order Concerning Remedy.
Regarding the contractual attorney fees, the Authority concluded that paragraphs 4 and 5 of the Order Concerning Remedy were precluded by the Authority's decisions in CCAD, 56 FLRA 1057 and CCAD II, 57 FLRA 290. The Authority noted that under the Authority's decisions in CCAD and CCAD II, once the agency head declined to authorize an allotment for contractual fees, the Arbitrator could no longer order any Agency involvement with the contractual fees or any restrictions on the Agency conditioned on the payment of the contractual fees. Accordingly, the Authority's decisions preclude the Arbitrator from ordering the Agency to physically deliver the backpay checks to Gray & Becker and conditioning delivery of backpay to employees on verification of arrangements to pay contractual fees.
As to the TMDE Employees, the Authority found that the exception was timely filed. The Authority noted that when an arbitrator issues several awards or orders in a matter, the timeliness of an exception is judged from the date of the award or order in which the alleged deficiency arose. The Authority also found that the exception was not barred by § 2429.5. Under § 2429.5 of its Regulations, the Authority will not consider issues that could have been, but were not, presented to the Arbitrator. Here, the Authority concluded that the claims raised by the Agency in its response to the proposed Order Concerning Remedy were sufficiently reiterated in its exception to warrant consideration of the exception.