FLRA EXPANDS ARBITRATORS’ POWERS
Up until last week, once an arbitrator issued a final decision he/she was done with that case and had no right to issue a supplemental or follow-up award. The arbitrator was considered to be “functus officio,” which is Latin for what can be loosely translated as the neutral is finished, done, and without the power to do anything else. FLRA recognized three long-time exceptions to that doctrine. Last week it added a fourth. (AFGE, 67 FLRA 19)
The long-time exceptions that enabled a neutral to remain involved with a case after issuing a final decision were where—
- he/she specifically retained jurisdiction to follow-up on a matter, usually the oversees application of a remedy or settle remedy disputes,
- the parties jointly gave the arbitrator permission to continue to work on the case, or
- the neutral needed to correct a clerical or calculation mistakes in the award.
Consequently, if in the past the arbitrator was given three issues to address and only decided two of them, the harmed party had to file exceptions with FLRA and have the case officially remand to the arbitrator to address the third issue. (The parties could agree to return the incomplete decision without going to FLRA.)
Now the party harmed by the arbitrator’s failure to address all the issues placed before him/her can petition the arbitrator to issue a supplemental award. If he/she does, that starts the clock anew for filing exceptions.
Here is how this played out in the newly issued FLRA decision. The parties went to arbitrator over the following issues: “Whether the agency violated the parties’ agreement when it cancelled or credited the paid leave of the grievants working a First Forty Work Schedule? If so, what shall be the remedy?” The union specifically asked for a remedy of 1- compensation for unpaid overtime, 2- liquidated damages, and 3- restoration of leave.
The arbitrator ruled the agency violated the contract by failing to pay FLSA overtime for certain hours, ordered the proper payment of those hours, and a restoration of any leave forfeited due to the agency’s improper actions. She never addressed the request for liquidated damages, which generally doubles the amount of retroactive time-and-one-half overtime to what approximates triple-time pay for the uncompensated hours.
The union petitioned her to address the final issue even though she had issued what she thought was her final decision. She found she had failed to do so even though the liquidated damages issue was officially before her during the hearing and issued a supplemental award ordering liquidated damages.
But, and this is a big but, suppose a party petitions the arbitrator for a supplemental award to address what it thinks is an unresolved issue and the arbitrator rules the issue was never before him/her? If more than 30 days have gone by since the original arbitration decision was issued, in all likelihood FLRA will rule it is too late to file exceptions to get a remand. Consequently, if a union does petition an arbitrator for a supplemental award, it had better also timely file exceptions—even if the effect of both documents is the same. That is our best guess; contact legal counsel if the question arises in one of your cases.