[ v57 p602 ]
57 FLRA No. 116
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1156
LABORERS' INTERNATIONAL UNION
UNITED STATES DEPARTMENT OF THE NAVY
NAVAL INVENTORY CONTROL POINT
DEFENSE LOGISTICS AGENCY
November 30, 2001
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
Decision by Member Pope for the Authority
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Irwin Kaplan filed by the Agencies under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Unions filed an opposition to the Agencies' exceptions.
The Arbitrator issued a supplemental award clarifying that the backpay awarded in his initial award is to be calculated beginning six years prior to the filing of the grievance and ending on the date of the initial award. For the reasons that follow, we find that the Agencies have failed to demonstrate that the supplemental award is deficient, and we deny the Agencies' exceptions.
II. Background and Arbitration Awards
In his initial award, the Arbitrator found that the grievants had been exposed to unacceptable levels of asbestos and awarded retroactive environmental differential pay. The Arbitrator determined that the grievants were entitled to backpay "from February 25, 1992, the date six years . . . prior to the filing of the [g]rievances." Initial Award at 80. The Arbitrator retained jurisdiction to resolve disputes over money payments to the grievants. [n1]
In implementing the initial award, the Agencies insisted that the grievants were entitled to backpay only up to the day the grievance was filed, for a total of six years of backpay. The Unions disagreed and requested that the Arbitrator clarify his initial award. Pursuant to the Unions' request, the Arbitrator issued a supplemental award clarifying that backpay is to be paid "from February 25, 1992, the date six years . . . prior to the filing of the [g]rievances to February 23, 2000, the date of the [initial a]ward." Supplemental Award at 6. The Agencies now excepts to the supplemental award.
III. Positions of the Parties
A. Agencies' Exceptions
According to the Agencies, an arbitrator may issue a clarification of award only to correct clerical mistakes, ambiguities, or obvious arithmetical errors. Otherwise, the Agencies argue, "an arbitrator may not reconsider an award or issue a new decision without a joint request of the parties." Exceptions at 5. The Agencies argue that because the award in this case was final, unambiguous, and without arithmetical errors, the Arbitrator was functus officio - that is, without jurisdiction - to issue the supplemental award.
The Agencies also argue that the supplemental award violates the Back Pay Act because it requires backpay for a total of eight years rather than six years. According to the Agencies, the Back Pay Act "specifically limits the payment of any such differential to six (6) years from the filing of the appeal." Id. at 9 (citing 5 U.S.C. § 5596(b)(4)).
B. Unions' Opposition
The Unions assert that the initial award was ambiguous as to the ending date for the backpay award, and that the Arbitrator was authorized to clarify the ambiguity. The Unions also argue that the Arbitrator was not functus officio because he retained jurisdiction over disagreements about money payments. Finally, the Unions argue that the six-year statute of limitations establishes only the beginning date for the award of backpay and does not prevent the Arbitrator from awarding backpay for compensable exposure suffered after the filing of the grievance. [ v57 p603 ]
IV. Analysis and Conclusions
A. The Arbitrator Was Not Functus Officio
Where an arbitrator expressly retains jurisdiction to resolve disputes over interpretation or implementation of an award, the arbitrator may issue a supplemental award resolving such disputes. See NFFE, Local 11, 53 FLRA 1747, 1749-50 (1998). In his initial award, the Arbitrator specifically retained jurisdiction to resolve disputes over money payments to the grievants. In his supplemental award, the Arbitrator clarified when the grievants' entitlement to backpay would end. As the Arbitrator expressly retained jurisdiction to resolve disputes over money payments, and the supplemental award resolved such a dispute, we find that the Arbitrator was not functus officio.
B. The Award Does Not Violate the Back Pay Act
When an exception involves an award's consistency with law, the Authority reviews any question of law raised by the exception and the award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See United States Dep't of Defense, Dep'ts of the Army and the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In so doing, the Authority defers to the arbitrator's underlying factual findings. See id.
The Agencies' assertion that the award violates the Back Pay Act because it awards relief for more than six years misinterprets the plain wording of § 5596(b)(4). In construing statutes, the Authority starts by looking at the plain wording of the provision at issue. See, e.g., Indian Educators Fed'n, N. M. Fed'n of Teachers, 53 FLRA 696, 708 (1997) (citing United States v. LaBonte, 117 S. Ct. 1673, 1677 (1997)).
Section 5596(b)(4) provides, in relevant part, that "in no case may pay, allowances, or differentials be granted under this section for a period beginning more than 6 years before the date of the filing of a timely appeal." [n2] 5 U.S.C. § 5596(b)(4) (emphasis added). On its face, this provision establishes the earliest date on which a grievant's entitlement to backpay may begin. However, nothing in the plain wording of this provision, or any other provision of the Back Pay Act, establishes when backpay must end. Likewise, relevant legislative history is ambiguous concerning when backpay must end. See H.R. Rep. No. 105-532, at 342 (1998) (stating that § 5596(b)(4) "establish[es] a standard six-year limit" for backpay awards); H.R. Conf. Rep. No. 105-736, at 725 (1998) (stating that awards of backpay shall not exceed six years). However, the House Report, H.R. Rep. No. 105-532 at 342, refers to similar recovery periods that have been interpreted to permit more than six years' recovery. See, e.g., In the Matter of Llewellyn Lieber, 57 Comp. Gen. 856, 859-60 (1978) (awarding nine years' recovery where six-year statute of limitations was applicable similar to 28 U.S.C. § 2401); Matter of: Mary J. Kampe and Martha R. Johnson, No. B-214,245, 1984 WL 46283, at *2 (Comp. Gen., July 23, 1984) (explaining that only portion of claim which accrued prior to six years from date claim was filed was barred under 31 U.S.C. § 3702(b)). See also Miller v. Kansas Power & Light Co., 585 F. Supp. 1509, 1514 (1984) (awarding four years' recovery where two-year statute of limitations was applicable under 29 U.S.C. § 255(a)).
The Arbitrator determined that the grievants' entitlement to backpay continued up to the date of the initial award. Consistent with this finding, the Arbitrator awarded backpay beginning six years prior to the filing of the grievance up to the date of the initial award. As the award of backpay is consistent with § 5596(b)(4), we find that the supplemental award is not contrary to the Back Pay Act.
The Agencies' exceptions are denied.
Footnote # 1 for 57 FLRA No. 116
Footnote # 2 for 57 FLRA No. 116