The history of this case is extensive, and Section II of this decision sets it out in more detail. As relevant here, in one award (Award I),^[1] Arbitrator Kenneth A. Perea found that the Agency violated the Fair Labor Standards Act (FLSA)^[2] and the Federal Employees Pay Act (FEPA)^[3] by failing to pay correctional officers (officers) overtime pay for certain pre-shift and post-shift activities. The Arbitrator directed the Agency to pay affected officers compensation “until the date of” Award I.^[4]   He also “remanded [the matter] to the parties for their calculation and agreement regarding the remedy,” and he “retain[ed] jurisdiction to resolve any disputes regarding the remedy awarded.”^[5] 

 

                In a second award (Award II),^[6] the Arbitrator found that he had jurisdiction to resolve issues regarding the Agency’s alleged FLSA and FEPA violations that continued after Award I. And, in three more awards (Awards III,^[7] IV,^[8] and V^[9]), he resolved those issues, as well as the details of the remedies originally directed in Award I.

 

 

                This case began when the Union filed a grievance on May 31, 2005, alleging that the Agency had violated the FLSA and the FEPA by failing to pay officers overtime pay for certain pre-shift and post-shift activities. With regard to the “[d]ate(s) of violation(s),” the grievance stated: “For all FLSA violations, three . . . years prior to the date of this grievance. For [FEPA] violations, six . . . years prior to the date of this grievance.”^[10] With regard to remedies, the grievance requested: (1) “[f]or FLSA violations, back[p]ay and damages at the [officers’] overtime rate, compensatory time off at the [officers’] overtime rate of pay, [reclassification] of [officers] as [nonexempt] under the FLSA, and liquidated damages”; (2) “[f]or [FEPA] violations, back[p]ay and other damages”; and (3) “[f]or FLSA and FEPA violations, costs and attorney’s fees.”^[11]

 

 

                The Arbitrator found that the Agency violated the FLSA and the FEPA by failing to pay officers overtime pay for certain pre-shift and post-shift activities. The Arbitrator stated that “the precise amount of time consumed in the performance of” compensable pre-shift and post-shift activities “varies among . . . officers.”^[13] But, “[b]ased upon the totality of the record evidence, . . . the Arbitrator conclude[d] that an average amount of time expended per day[,] per . . . officer [was] equal to [thirty] minutes in excess of their regular eight-hour shift[s].”^[14] 

 

                As to remedy, the Arbitrator awarded “officers who worked . . . during applicable time periods . . .      one-half hour backpay at their respective overtime rates of pay plus interest thereon for all full shifts [that] they completed[,] commencing three years prior to initiation of the . . . grievance on May 31, 2005, until the date of this [a]ward.”^[15] The Arbitrator also found that the Union was entitled to reasonable attorney’s fees. The Arbitrator “remanded [the matter] to the parties for their calculation and agreement regarding the remedy awarded,” and “retain[ed] jurisdiction to resolve any disputes regarding the remedy awarded.”^[16]

 

                The Agency then filed, with the Authority, exceptions to Award I, and the Union filed an opposition to the Agency’s exceptions. The Authority resolved those exceptions in U.S. DOJ, Federal BOP, Federal Correctional Institution, Terminal Island, California (Terminal Island I).^[17] In Terminal Island I, the Authority found that Award I was contrary to law because the Arbitrator had erroneously: (1) failed to differentiate among officers who performed compensable pre-shift and post-shift activities and officers who did not; and (2) awarded each officer thirty minutes of overtime compensation, without taking into account the varying amounts of time that different officers spent in compensable activities.^[18] As the record did not provide sufficient information for the Authority to determine which officers performed compensable activities and the amount of time those officers were engaged in such activities, the Authority remanded the award “to the parties for resubmission to the Arbitrator, absent settlement, for a determination consistent with              [the Authority’s] decision.”^[19]

 

                On remand, the parties did not settle the matter, and the Arbitrator “reconvened the proceedings.”^[20] During those proceedings, the Union argued that the Arbitrator had jurisdiction to remedy alleged FLSA and FEPA violations that continued to occur after Award I issued, up until on or about June 21, 2009 – when the Agency had issued new post orders that directed officers to no longer engage in certain compensable activities. By contrast, the Agency argued that the Arbitrator’s jurisdiction was “limited to the issue of remedy pursuant to [Award I, and that] he was functus officio and without authority to address the merits of the alleged FLSA and FEPA violations occurring” after Award I.^[21]

 

                In Award II, the Arbitrator resolved the parties’ dispute regarding his jurisdiction. The Arbitrator determined that “the issue of alleged FLSA and FEPA violations occurring during the period December 1, 2006 through June 21, 2009 arises pursuant to the same grievance and [collective-bargaining-agreement] provisions [that] the Arbitrator was mutually appointed by the parties to adjudicate.”^[22] Additionally, the Arbitrator “noted [that] the alleged FLSA and FEPA violations during the foregoing period involve the same work location . . . and . . . [post orders that] the Arbitrator was mutually selected and agreed to resolve.”^[23] The Arbitrator “concluded [that] the sole distinguishing characteristic between those matters previously addressed in [Award I] and the issues [that] the Union now contends are included within the Arbitrator’s jurisdiction is the time period in question, to wit, December 1, 2006 through June 21, 2009.”^[24]

 

                The Arbitrator noted an Agency argument that his retention of jurisdiction in Award I was limited to the period through November 30, 2006 – the date of Award I. The Arbitrator also “noted, however, [that Award I] could only address and remedy alleged FLSA and FEPA violations [that] had occurred” as of that date.^[25] The Arbitrator stated that, in issuing Award I, he “could not presume to know what future actions would occur between the parties,” so that award “did not therefore consider or address prospective FLSA and FEPA violations.”^[26] The Arbitrator further stated:

 

 

 

                The Arbitrator further stated that resolving issues relating to the post-Award-I period was “consistent with the arbitral goals of efficiency and economy of resources in the resolution of labor-management disputes.”^[29] But he noted that, “[s]hould . . . [he] conclude[,] following presentation of all evidence[,] [that] the Union [was] in fact seeking adjudication of different issues than alleged in the grievance,” he would “decline to address any matters outside his proper jurisdiction.”^[30]

 

 

                While the Agency’s exceptions to Award II were pending before the Authority, the Arbitrator issued Award III. In Award III, the Arbitrator found that the Agency failed to lawfully compensate officers for       pre-shift and post-shift overtime from May 31, 2002 through November 30, 2006; directed the Agency to pay officers overtime compensation for that time period, plus interest; and specified different amounts of compensable time for different shifts and different units within the facility at issue. In addition, he found that the Union was “entitled to reasonable attorney[’s] fees[,] subject to proof.”^[31] And he “remanded to the parties for final calculation and agreement upon the dollar amount to be awarded [to] each . . . [o]fficer.”^[32] Further, he “retain[ed] jurisdiction to resolve any disputes regarding the remedy awarded[,] . . . as well as any potential remedy for the period from December 1, 2006, until on or about June 21, 2009.”^[33]

 

                On the same day that the Arbitrator issued Award III, the Authority – in U.S. DOJ, Federal BOP, Federal Correctional Institution, Terminal Island, California (Terminal Island II)^[34] – addressed the Agency’s exceptions to Award II. Before the Authority, the Agency acknowledged that its exceptions were “interlocutory,” because the Arbitrator had not fully resolved all of the issues before him, but argued that Authority review was warranted because the exceptions raised a “plausible jurisdictional defect.”^[35] The Authority stated that, in order to demonstrate that interlocutory review is appropriate, an excepting party must establish not only that there is a plausible jurisdictional defect, but also that interlocutory review will “advance the ultimate disposition of the case” – in other words, that “resolving the exceptions would end the litigation.”^[36] The Authority found that there was “no dispute” that the parties still needed to resolve “the issues raised by the Authority in” Terminal Island I, including “determining which . . . officers actually performed compensable activities, and the amount of time [that] they spent performing those activities.”^[37] Thus, the Authority said that, “even assuming that a plausible jurisdictional defect exist[ed], the Agency ha[d] not shown that interlocutory review [would] end the litigation, advancing the ultimate disposition of the case.”^[38] So the Authority found that interlocutory review was not warranted, and it dismissed the Agency’s exceptions, “without prejudice” to the Agency’s right to refile the exceptions at a later, appropriate time.^[39]

 

                Subsequently, the Arbitrator issued Award IV. The Arbitrator noted that the parties had been “[u]nable to achieve resolution of the remedy awarded by” him.^[40] Among other things, he established a schedule for      post-hearing briefs, and directed the parties to address various issues in those briefs, including, as relevant here: (1) “[t]he correct calculation of back[p]ay owed to [officers] . . . , including . . . [o]vertime compensation for each full shift completed during the May 31, 2002, through November 30, 2006 period, inclusive, plus interest thereon”;^[41] (2) “[w]hether the Agency failed to lawfully compensate [officers] . . . for pre-shift and    post-shift overtime activities . . . for the period December 1, 2006, until June 21, 2009”; (3) if the Agency did fail to lawfully compensate officers for that period, “[t]he correct calculation[s] of back[p]ay to be awarded” officers for that period;^[42] and (4) “[t]he specified amount of any reasonable [attorney’s] fees [that] should be awarded pursuant to proof provided.”^[43]

 

                Then, in Award V, the Arbitrator determined that “practices and procedures concerning pre-shift and post-shift work activities continued from December 1, 2006 until June 21, 2009” – the date on which the Agency changed the post orders.^[44] He further stated that “[i]n view of the conclusion [that] the Agency’s policy and practice remained consistent from May 31, 2002 to November 30, 2006, inclusive, and was substantially consistent therewith from December 1, 2006 to June 21, 2009, . . . it is concluded [that] the Agency failed to compensate . . . [o]fficers for compensable pre-shift and post-shift overtime work activities during the latter period in the identical amounts of time as specified in Award III.”^[45] Additionally, he found that “the Agency     . . . failed to demonstrate [that] its actions were taken in good faith with reasonable grounds for believing [that] its act or omission was not in violation of FLSA requirements, particularly in light of the issuance of Award I.”^[46] So he awarded liquidated damages, as well as attorney’s fees.

 

 

 

 

 

 

 

 

                The Agency argues that the Arbitrator exceeded his authority, and that the award is contrary to law, because the Arbitrator was “functus officio” as to – and, thus, without authority to resolve – the issue of whether the Agency committed FLSA violations from December 1, 2006 through June 21, 2009.^[47] According to the Agency, the Union never filed a grievance over that issue,^[48] and that issue “was not submitted to [him] when the case was brought before him in 2005.”^[49] In addition, the Agency asserts that, in Award I, the Arbitrator awarded backpay only “until the date of” Award I, and then “retained jurisdiction over [Award I] only for the purposes of resolving disputes over the remedy.”^[50] The Agency also argues that, in Award I, the Arbitrator fully resolved all of the issues submitted, and “[a]ny attempt to add additional liability, and find additional violations of the FLSA, goes to the merits of the award and would not conform to the Arbitrator’s original award[,] as required by”^[51] the Authority’s decision in SSA.^[52] Further, the Agency claims that the Arbitrator’s findings of additional violations conflict with “Article 32(a) and (h) of the parties’ agreement[,] which prohibits the [A]rbitrator from modifying the grievance, the alleged violation, or the remedy requested in the written grievance without the mutual consent of the parties.”^[53]

 

                The Union argues that the Arbitrator was not functus officio.^[54] In this regard, the Union contends that the grievance sought “to remedy all violations of the [FLSA] resulting from the Agency’s failures to compensate correctional officers for pre-shift and      post-shift overtime”^[55] – including all violations during the pendency of the proceedings.^[56] The Union also contends that one of the issues that the Arbitrator framed in Award I was “what is the appropriate remedy” for an Agency failure to compensate correctional officers for “pre-shift and post-shift overtime,”^[57] that the Arbitrator retained jurisdiction to resolve “any disputes regarding the remedy awarded,”^[58] and that “the effective dates of the remedy . . . have remained at issue since” Award I.^[59]

 

                Under the doctrine of functus officio, once an arbitrator resolves the matter submitted to arbitration, the arbitrator is generally without further authority.^[60] The doctrine of functus officio prevents arbitrators from reconsidering a final award.^[61] Consistent with this principle, the Authority has found that, unless an arbitrator has retained jurisdiction or received permission from the parties, the arbitrator exceeds his or her authority when reopening and reconsidering an original award that has become final and binding.^[62]

 

                However, federal courts and the Authority have recognized exceptions to the doctrine of functus officio.^[63] As relevant here, one exception applies where an arbitrator completes an award to resolve a submitted issue that the arbitrator’s initial award failed to resolve         (the completion exception).^[64]

 

                In this case, the grievance stated that it was alleging violations three or six years “prior to the date of [the] grievance.”^[65] But the remedial period set forth in the grievance contained no end date.^[66] And the issues that the Arbitrator framed in Award I – “did the Agency fail to lawfully compensate . . . officers . . . for pre-shift and post-shift overtime . . . pursuant to the [FLSA] and/or [FEPA]?”; and (2) if so, “what is the appropriate remedy?” – did not contain an end date for either the violations that he intended to resolve or the remedies that he intended to issue.^[67] 

 

                The only support for the notion that the Arbitrator intended to limit the remedial period was his statement, in Award I, that he was awarding officers backpay and interest “for all full shifts [that] they completed commencing three years prior to initiation of the . . . grievance on May 31, 2005, until the date of this [a]ward.”^[68] However, the Arbitrator then remanded the calculation of remedy to the parties, and expressly “retain[ed] jurisdiction to resolve any disputes regarding the remedy awarded.”^[69] Further, as the Arbitrator later explained in Award II, he interpreted the grievance as “seek[ing] to remedy all FLSA and FEPA violations resulting from” the Agency’s post orders at the facility at issue, and had not previously addressed the            post-Award-I period only because, when he issued Award I, he “could not presume to know what future actions would occur between the parties.”^[70] Accordingly, he found that the completion exception to functus officio applied.^[71]

 

                The Agency’s functus officio arguments, and its reliance on Article 32(a) and (h) of the parties’ agreement, are premised on the notion that the issues before the Arbitrator did not include the post-Award-I period.^[72] But the Arbitrator found to the contrary,^[73] and the Authority and the federal courts “accord an . . . arbitrator’s formulation of the issue to be decided . . . the same substantial deference [that is] accorded an arbitrator’s interpretation and application of a    collective[-]bargaining agreement.”^[74] The Agency provides no basis for concluding that the Authority should not defer to the Arbitrator’s interpretation of the issue before him as including the Agency’s continuing violations of the exact same nature that were adjudicated in Award I. As such, there is no basis for concluding that the Arbitrator erred in finding that – in the awards that followed Award I – he was resolving issues that were submitted to him before, but unresolved in, Award I. And – even assuming that the doctrine of functus officio otherwise would apply here – the Arbitrator’s finding supports the Arbitrator’s reliance on the completion exception to that doctrine.^[75] 

 

                With regard to the Agency’s citation to SSA,^[76] in that case, the initial arbitration award required the agency to give certain employees priority considerations for positions, but the arbitrator later directed the agency to select those employees by noncompetitive promotion.^[77] Thus, SSA involved a situation where the arbitrator’s second award directed something that was inconsistent with the first award. That is not the case here, so SSA does not support the Agency’s position.

 

                The Agency also argues^[78] that, in finding that the completion exception applies, the Arbitrator misinterpreted Colonial Penn.^[79] Specifically, the Agency asserts that the completion exception was “not at issue and therefore [was] not the basis of the [c]ourt’s reasoning” in that decision.^[80] By contrast, the Union argues that “[a]n analysis of . . . Colonial Penn is superfluous to a determination of whether functus officio applies here,” because the Authority has adopted the completion exception, and that exception applies in this case.^[81]

 

                It is immaterial whether the Arbitrator misinterpreted Colonial Penn. As discussed above, the Authority and the courts have recognized the completion exception,^[82] and there is no basis for finding that the Arbitrator erred in relying on that exception. Any alleged misinterpretation of Colonial Penn does not change that fact. Therefore, the Agency’s argument concerning Colonial Penn provides no basis for finding the Arbitrator’s exercise of jurisdiction deficient.

 

                The Agency further contends that, “[a]bsent a stipulated issue,” the Arbitrator’s “jurisdiction was limited to resolving the issues remanded to him by the [Authority] in”^[83] Terminal Island I.^[84] By contrast, the Union contends that, when the Authority remanded to the parties in Terminal Island I, “[n]othing transpired to divest the Arbitrator of his authority to issue an award that encompassed violations of the same kind that continued to occur during the pendency of the appeal.”^[85] 

 

                As stated previously, in Terminal Island I, the Authority found that, in Award I, the Arbitrator had erroneously: (1) failed to differentiate among officers who performed compensable pre-shift and post-shift activities and officers who did not; and (2) awarded each officer thirty minutes of overtime compensation, without taking into account the varying amounts of time that different officers spent in compensable activities.^[86] As the record did not provide sufficient information for the Authority to determine which officers performed compensable activities and the amount of time those officers were engaged in such activities, the Authority remanded the award “to the parties for resubmission to the Arbitrator, absent settlement, for a determination consistent with [the Authority’s] decision.”^[87] Nothing in Terminal Island I purported to limit the Arbitrator’s authority to complete Award I by resolving issues that had been raised before, but not completely resolved in, that award.

 

                Finally, the Agency argues that finding that the Arbitrator properly continued to assert jurisdiction “would be a slippery slope that could easily result in a never-ending arbitration process, the exact opposite result of the finality that the arbitration process is supposed to provide.”^[88] According to the Agency, if the Union wanted to adjudicate additional violations, “it was obligated under . . . the parties’ agreement to file a [new] grievance over the matter.”^[89] If the Union had done so, the Agency claims, then the Agency “could have remedied any such violations,” without having “to go through the costly arbitration process.”^[90] In this regard, the Agency contends that, “[b]y improperly allowing expansion of the grievance, [the Arbitrator] has required the Agency [to] incur . . . significant costs” – including attorney’s fees – “when it is possible [that] they did not need to be incurred.”^[91]

 

                In response to the Agency’s “slippery[-]slope” argument, the Union contends that, “[h]ad the Agency ceased perpetuating the same violations during the pendency of its appeal, this matter would not have been before the [Authority]” – and that, “[o]nce the Agency eventually changed its unlawful practices on June 21, 2009, the purported ‘slippery slope’ stopped.”^[92] Further, the Union argues that “[t]he Agency’s assertion that the Arbitrator’s actions resulted in unjustifiable expense to the Agency is disingenuous.”^[93] In this regard, the Union argues that, when the Authority remanded the matter in Terminal Island I, it directed the parties to resubmit the matter to the Arbitrator, “absent settlement.”^[94] According to the Union, the Agency “has made little effort to resolve any portion of this dispute.”^[95]

 

 

 

So, “[o]n the basis of the formidable federal policy favoring arbitration and the efficient resolution of disputes,”^[97] the Agency’s arguments provide no basis for finding that the Union was required to file an entirely new grievance, rather than submitting the issues of continuing violations, and remedies for those violations, to the Arbitrator. We note that the Agency does not challenge the merits of the Arbitrator’s finding that the Agency continued to commit violations in the             post-Award-I period, or his determinations regarding what remedies were appropriate for those violations.

 

                The Agency also argues that the Authority should set aside all of the monetary remedies for the    post-Award-I period, including attorney’s fees incurred in connection with litigating issues concerning that period.^[98] But this argument is premised on the notion that the Arbitrator lacked authority to resolve issues regarding that period. As we have found to the contrary,we reject the Agency’s argument.

 

 

 

 

 

 

 

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