U.S. Federal Labor Relations Authority

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51:0305(29)AR - - Navy, Naval Base, Norfolk, Virginia and AFGE Local 22 - - 1995 FLRAdec AR - - v51 p305

[ v51 p305 ]
The decision of the Authority follows:

51 FLRA No. 29















September 30, 1995


Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.

I. Statement of the Case

This matter is before the Authority on an exception to a supplemental award of Arbitrator John N. Dorr III, filed by the Agency under section 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 exception.

After the parties were unable to resolve issues related to his initial award, the Arbitrator issued a supplemental award, concluding that he had jurisdiction over the issues before him and that, among other things, the Agency was liable for liquidated damages, and attorney fees and expenses.

For the following reasons, we conclude that the Agency's exception fails to establish that the supplemental award is deficient under section 7122(a) of the Statute. Therefore, we deny the exception.

II. Arbitrator's Award

After the Arbitrator issued an initial award of backpay for the Agency's failure to properly compensate employees,(1) and after the parties failed to resolve all of the remedy issues resulting from that award, the parties filed briefs and reply briefs with the Arbitrator addressing four unresolved issues: (1) whether the Arbitrator's jurisdiction extended beyond individual damages to such issues as liquidated damages and attorney fees; (2) the extent to which the initial award applied to employees who were no longer in the bargaining unit at the time of the award; (3) the amount, if any, of liquidated damages and interest to be awarded; and (4) whether the Union was entitled to an award of attorney fees. The first issue was raised by the Agency; the latter three "were agreed to by the parties." Supplemental Award at 1.

Shortly before the Agency filed its reply brief, the Agency delivered a check to the Union President. Along with the check, the Agency delivered a letter stating that the check represented "full payment by the Department of the Navy, plus interest," and that by the Union President's receipt of the check, the Department of the Navy was "released from all claims raised by the above referenced matter as required by the arbitrator's [initial]. . . award . . . ." Union's Opposition, Attachment B.

At the Agency's request, the Union President signed the letter to acknowledge receipt of the check. In a separate letter to the Agency dated the same day, the Union President confirmed a conversation earlier that day regarding the receipt of the check. The Union President stated in his letter that the Agency had confirmed that receipt of the check and signature indicating receipt did not affect the grievants' entitlement to additional amounts of money for the issues still pending before the Arbitrator. The Union President also stated that his receipt of the check should not be construed as agreement with the accuracy of the Agency's computations of backpay. Id. at Attachment C. The Agency responded to the Union by letter, stating that during the conversation with the Union President, the Agency had advised him that, although there were "issues still pending before the arbitrator, [the Agency] did not grant, and would not grant, further authority and jurisdiction to the arbitrator to decide any of the aforementioned issues which were not included" in the initial award and opinion. Id. at Attachment D.

Subsequently, the Agency filed a reply brief with the Arbitrator, which did not mention the check or any of the related correspondence between the Agency and the Union. After receiving the reply brief, the Arbitrator issued a supplemental award on the remedy issues, concluding that he had jurisdiction over the issues before him, that former employees who were members of the bargaining unit during the period of retroactivity were entitled to backpay, and that the Agency was liable for liquidated damages, attorney fees and expenses.

III. Exception

A. Agency's Contentions

The Agency contends that the Arbitrator exceeded his authority in issuing the supplemental award because the Union's acceptance of the check settled the parties' entire dispute. According to the Agency, the Union President's signature on the letter accompanying the check indicates agreement that the check represented full payment and released the Agency from any further payment. The Agency contends that on the day after it filed its reply brief, it mailed the Arbitrator a copy of that letter, along with a letter stating that the Agency had been released from further liability.

B. Union's Opposition

The Union disputes the Agency's contention that the Agency's payment fully settled the matter. According to the Union, the payment represented only a portion of the amount the Agency owed, and had no effect on the payment of any amounts in the disputes then pending before the Arbitrator. The Union asserts that the parties' correspondence makes clear that they had not agreed to settle the matters pending before the Arbitrator, and that the Agency, in its reply brief, did not assert that the parties had settled the matter. In addition, the Union argues, there is no evidence to support the Agency's claim that it mailed copies of the correspondence to the Arbitrator. The Union contends that, as the Agency failed to raise the settlement issue with the Arbitrator, that issue is not properly before the Authority.

IV. Analysis and Conclusions

The sole exception before us is that the Arbitrator exceeded his authority by deciding the remedy issues after the parties settled the entire dispute. An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. See American Federation of Government Employees, Local 916 and Defense Distribution Depot, Oklahoma City, Oklahoma, 50 FLRA 244, 246-47 (1995); U.S. Department of Defense, Defense Logistics Agency and American Federation of Government Employees, Local 2693, 50 FLRA 212, 217 (1995); Department of the Air Force, McGuire Air Force Base and Local 1778, American Federation of Government Employees, 3 FLRA 253, 255 (1980). The Agency has failed to show that the Arbitrator exceeded his authority.

The parties stipulated to three of the four issues before the Arbitrator, and the Agency itself submitted the fourth issue. The Arbitrator identified and decided these four issues. The Agency has failed to show that an additional issue, relating to the alleged settlement of the parties' dispute, was before the Arbitrator.(2) In particular, the Agency has not established that it served the Arbitrator with the letter constituting the alleged settlement, or that the Arbitrator received it. In addition, the Agency did not mention the settlement claim in its reply brief, and the Arbitrator did not mention the alleged settlement in his decision. Finally, the Agency makes no claim that the Arbitrator disregarded specific limitations on his authority or awarded relief to persons who were not encompassed within the grievance.

The Agency has failed to show that the Arbitrator exceeded his authority. Accordingly, we deny the Agency's exception.(3)

V. Decision

The Agency's exception is denied.

(If blank, the decision does not have footnotes.)

1. The Authority denied the Agency's exceptions to the initial award in American Federation of Government Employees, Local 22 and U.S. Department of the Navy, Naval Base, Norfolk, Virginia, 48 FLRA 708 (1993).

2. Indeed, in its letter responding to the Union noted above, supra p.2, the Agency did not claim that the Union's receipt of the check created a settlement agreement that removed the Arbitrator's authority to decide the remaining claims. Rather, the Agency stated that it had not changed its position that the Arbitrator had no authority to decide those issues because they were not involved in the initial award and opinion.

3. Because we find that the Agency failed to show that the Arbitrator exceeded his authority, it is unnecessary to decide the Union's claim that the settlement issue is not properly before the Authority.