49:0120(17)AR - - DOD Dependents Schools and Overseas Education Association - - 1994 FLRAdec AR - - v49 p120

[ v49 p120 ]
The decision of the Authority follows:

49 FLRA No. 17













February 24, 1994


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Paul J. Fasser, Jr. filed by the Union 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 Agency filed an opposition to the Union's exceptions.

For the reasons stated below, we conclude that the disputed award is deficient. We will set aside the award and remand the grievance to the parties for resubmission to the Arbitrator for further proceedings consistent with this decision.

II. Background and Arbitrator's Award

On September 13, 1990, the Arbitrator issued an award (hereinafter the 1990 award) concerning a Union grievance claiming that the Agency had failed to pay certain transportation-related expenses to overseas employees who were transferred under the Agency's Transfer Program. As relevant here, the Arbitrator determined that employees who moved from one geographical area to another were entitled to full payment of transportation-related expenses and that all otherwise eligible employees who transferred under the Transfer Program during the previous 3 years should have the opportunity to have their situation reviewed. However, the Arbitrator also found that the Agency had refused to give the Union information necessary to determine whether transportation-related expenses had been paid inconsistently. Accordingly, the Arbitrator directed the Agency to provide the Union with the relevant information and, thereafter, to meet "in an attempt to explore any complaints and to correct any deficiencies." Exceptions, Attachment 3 at 15. The Arbitrator retained jurisdiction over the case for 60 days and stated that if, at the end of the 60-day period, all outstanding issues were not resolved, "those remaining will be brought to [h]earing." Id.

The Agency filed exceptions to the 1990 award, which were dismissed by the Authority as interlocutory in U.S. Department of Defense, Dependents Schools and Overseas Education Association, 42 FLRA 1166 (1991). On April 8, 1992, the Union filed an unfair labor practice charge alleging that the Agency failed to comply with the portion of the Arbitrator's award directing the Agency to provide the Union with certain information. The Regional Director (RD) refused to issue a complaint on the ground that the Arbitrator's award was not final. The Union did not appeal the RD's decision.

On August 28, 1992, the Union filed a Motion for a Final Decision with the Arbitrator, contending that the Agency's failure to comply with the Arbitrator's 1990 award was evidence that the ordered documents would cause the Union to prevail on its grievance. Although the Arbitrator denied this motion on the ground that his "authority in this case ha[d] long since expired[,]" the Arbitrator subsequently issued the June 23, 1993 award (hereinafter the 1993 award) which is in dispute in this case. Exceptions, Attachment H at 3. As relevant here, the Arbitrator found in his 1993 award that, although the Agency "did not provide the Union with the necessary data[]" required in his previous award, "continuing the fiction of a non-functioning interim [d]ecision would only work against a possible resolution of the problem." 1993 award at 1, 2. Therefore, the Arbitrator denied the grievance.

III. Positions of the Parties

The Union claims that, following the issuance of the 1990 award, it made numerous attempts to meet with Agency representatives and obtain the information ordered by the Arbitrator in that award. In this regard, the Union claims that it made three attempts to contact the Agency within the 60-day period which the Arbitrator prescribed, and that it made another attempt after the Authority dismissed the Agency's exceptions to the 1990 award. In addition, the Union contends that "within the [60-day period] it informed the Arbitrator of [the Agency's] repeated failure to comply with the order to provide the [Union] with the information at issue, and requested the Arbitrator, in accordance with his order, to hold a hearing as soon as possible." Exceptions at 14. In fact, the Union claims that it contacted the Arbitrator five times after the issuance of the 1990 award. The Union contends that the Arbitrator's refusal to enforce his own order is "inequitable and unjust[,]" and has left the Union "without remedy." Id. at 15, 17.

The Union also claims that, because the 1990 award contained some dispositive findings, the Arbitrator's reversal of those findings in the 1993 award violates the principles of functus officio.(1) Further, the Union claims that the award violates law, Agency regulations, and Authority precedent. Finally, the Union requests that the Authority reverse the Arbitrator's refusal to entertain the Union's motion for attorney fees and remand the matter to the Arbitrator for a final decision.

The Agency argues that the Union's exceptions are an attempt to relitigate the case before the Authority and do not demonstrate that the 1993 award is deficient.

IV. Analysis and Conclusions

First, we find that, following the Arbitrator's determination in his 1990 award that certain employees were entitled to full payment of transportation-related expenses, the Arbitrator was functus officio as to that issue. In this regard, the Authority has consistently held that, unless an arbitrator retains jurisdiction after issuance of an award, the arbitrator is without legal authority to take any further action with respect to that award without the joint request of the parties. See, for example, General Service Administration and American Federation of Government Employees, Local 2600, 34 FLRA 1123 (1990).

In this case, after directing the Agency to provide the Union with information necessary to determine whether transportation expenses had been paid inconsistently, the Arbitrator stated in his 1990 award that he would retain jurisdiction so that, among other thin