35:0093(12)AR - - Navy Public Works Center, Norfolk, Virginia and Tidewater Virginia FEMTC - - 1990 FLRAdec AR - - v35 p93

[ v35 p93 ]
The decision of the Authority follows:

35 FLRA No. 12












March 9, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the supplemental award of Arbitrator J. Ross Hunter, Jr. The Agency filed exceptions under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union did not file an opposition to the exceptions.

For the reasons that follow, we conclude that the Arbitrator had the authority to reopen and consider his original award of backpay and to issue a supplemental award on March 13, 1989. Accordingly, we deny the Agency's exceptions.

II. Background and Arbitrator's Supplemental Decision

On March 10, 1988, the Arbitrator issued his original award in this case. The Arbitrator awarded backpay to the grievant after finding that the Agency failed to distribute overtime equitably, as required by the parties' agreement. The Agency filed exceptions to the original award asserting that (1) the Arbitrator exceeded his authority when he decided the issue before him and (2) the award was contrary to the Back Pay Act, 5 U.S.C. § 5596(b).

On October 28, 1988, the Authority issued its decision in Navy Public Works Center, Norfolk, Virginia and Tidewater Virginia Federal Employees Metal Trades Council, 33 FLRA 592 (1988) (Navy Public Works Center). The Authority held that although the Arbitrator did not exceed his authority, the award of backpay was contrary to the Back Pay Act. Therefore, the Authority set aside the award.

In a letter dated November 3, 1988, the Arbitrator informed the parties that:

In view of the decision of the Federal Labor Relations Authority dated October 28, 1988 in [Navy Public Works Center], it is the opinion of the undersigned that the above-referenced arbitration case is still pending before the undersigned as Arbitrator for further developments as to what an appropriate remedy should be for the violation of the collective bargaining agreement by the Navy Public Works Center, Norfolk, Virginia which would not be contrary to the Back Pay Act.

Accordingly please treat this letter as notification that the undersigned Arbitrator desires your respective suggestions how the further developments in this arbitration case should be effectuated - such as another hearing or additional briefs.

Enclosure (2)(k) to the Agency's Exceptions.

In a joint letter to the Arbitrator, dated November 15, 1988, the parties replied:

We have discussed your letter of November 3, 1988, and we agree that you retain jurisdiction in this matter. We do not, however, desire another hearing. We would appreciate your setting forth for us the procedure you wish us to follow in filing additional briefs[.]

Enclosure (2)(j) to the Agency's Exceptions.

On November 21, 1988, the Arbitrator requested additional briefs from the parties. In a letter dated December 5, 1988, the Agency informed the Arbitrator that the Authority had set aside his award and his jurisdiction had accordingly expired. Enclosure (2)(h) to the Agency's Exceptions. The Union filed an additional brief on December 6, 1988. The Agency did not file any additional documents.

On March 13, 1989, the Arbitrator issued the supplemental award which is now in dispute. In his supplemental award, the Arbitrator found that during the latter part of 1986 and the entire year of 1987 the grievant "suffered an unjustified or unwarranted personnel action on each particular instance of the failure of the Agency to assign him overtime[.]" Arbitrator's Supplemental Decision at 3. The Arbitrator further found that "[h]ad the Agency not failed . . . to assign overtime to [the grievant] . . . in light of his recognized record of having consistently accepted overtime assignments, . . . the equitable assumption must be that [the grievant] would have performed specific overtime assignments and received overtime pay, had they been assigned to him." Id. at 3-4. The Arbitrator concluded that "the monetary award set forth in the original decision of this Arbitrator dated March 10, 1988 is hereby ratified, confirmed and declared enforceable[.]" Id. at 4.

III.Agency's Exceptions

The Agency argues that because the Authority's decision in Navy Public Works Center is final and binding, the Arbitrator exceeded his authority when he issued a supplemental award. Agency's Exceptions at 3-4. The Agency cites Griffith v. Federal Labor Relations Authority, 842 F.2d 487 (D.C. Cir. 1988) to support its argument that "all decisions of the Authority concerning arbitral awards not involving unfair labor practices are final and conclusive." Id. at 3. The Agency states that "[t]he Authority did not err as a matter of law when it set aside the [A]rbitrator's award and the [A]rbitrator, accordingly, exceeded his authority in reopening the matter and issuing a supplemental decision." Id. at 4-5.</