Philadelphia Metal Trades Council and U.S. Department of the Navy, Philadelphia Naval Shipyard (Authority decision, March 27, 1990)

Final FLRA decision. The Authority denied the union's exception to the arbitrator's refusal to revisit an earlier award, ending this proceeding before the Authority. Judicial review under 5 U.S.C. § 7123(a) generally does not extend to an Authority order involving an arbitration award under § 7122 unless the order involves an unfair labor practice. This order does not decide an unfair labor practice claim.

Plain-English summary

An arbitrator had overturned a Philadelphia Naval Shipyard employee's five-day suspension and ordered backpay. More than a year later, the employee asked the arbitrator to help resolve a dispute over how the shipyard applied the award. The arbitrator said he no longer had jurisdiction, and the union challenged that response. The Authority held that an arbitrator who did not retain jurisdiction cannot take further action on an award without a joint request from the parties. It denied the union's exception, leaving the earlier award and the compliance dispute untouched.

Decision snapshot

• Authority: Arbitration exception review under 5 U.S.C. § 7122(a).
• Outcome: Union exception denied; the arbitrator's refusal to revisit the 1987 award stands.
• Key point: An arbitrator cannot resolve a later compliance dispute alone after issuing an award without retaining jurisdiction.

Full text (FLRA public release)

[ v35 p251 ]
35:0251(29)AR

The decision of the Authority follows:

35 FLRA No. 29

FEDERAL LABOR RELATIONS
AUTHORITY

WASHINGTON, D.C.

PHILADELPHIA METAL TRADES
COUNCIL

(Union)

and

U.S. DEPARTMENT OF THE
NAVY

PHILADELPHIA NAVAL
SHIPYARD

(Activity)

0-AR-1752

DECISION

March 27, 1990

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to a finding of Arbitrator Kinard Lang. In response to a request by the grievant for assistance with respect to an earlier award of the Arbitrator, the Arbitrator stated that he was without legal authority or jurisdiction over the matter. For purposes of this Decision, we will treat the Arbitrator's finding as an award.

The Union filed an exception 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 Activity did not file an opposition to the Union's exception.

We conclude that the Union has failed to establish that the Arbitrator's award is deficient, and we will deny the Union's exception.

II. Background

The Activity had charged the grievant with 7 1/2 hours of absence without leave and suspended him for 5 days. A grievance was filed and submitted to arbitration. On November 19, 1987, the Arbitrator sustained the grievance. He ordered the Activity to charge the grievant for 7 1/2 hours of annual leave for January 25, 1984; pay the grievant for that number of hours at his current rate of pay; expunge from the grievant's record all references to the 5-day suspension; and make the grievant whole for the 5-day suspension. 1987 Award at 7. The Arbitrator did not retain jurisdiction and no exceptions were filed to the November 19, 1987 award.

On May 23, 1989, the grievant sent a letter to the Arbitrator requesting his assistance concerning the Activity's interpretation of the Arbitrator's earlier award. On May 24, 1989, the Arbitrator responded by letter to the grievant, stating that he had no legal authority or jurisdiction over the matter after the issuance of his 1987 award.

III. Exception

The Union contends that the Arbitrator erred when he stated that, after the issuance of his 1987 award, he had no legal authority or jurisdiction to address the "backpay matters" raised by the grievant. Union's Exception at 1. The Union argues that an arbitrator "has broad remedial powers, similar if not identical to those of the Merit Systems Protection Board." Id. The Union claims that "the Arbitrator issuing the award would be the appropriate individual to whom an alleged non-compliance matter should be directed." Id.

IV. Analysis and Conclusions

We have doubts as to whether the Arbitrator's May 24, 1989 letter to the grievant constitutes an award within the meaning of section 7122(a) of the Statute. Assuming, however, for the purposes of this Decision that the letter constitutes such an award, we conclude that the Union fails to establish that the award is deficient on any of the grounds set forth in section 7122(a). In our view, the Arbitrator correctly stated that he had no legal authority or jurisdiction after the issuance of his November 19, 1987 award.

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. General Services Administration and American Federation of Government Employees, Local 2600, 34 FLRA No. 171, slip op. at 6 (1990); Overseas Federation of Teachers AFT, AFL-CIO and Department of Defense Dependents Schools, Mediterranean Region, 32 FLRA 410, 415 (1988); Audie L. Murphy Veterans Administration Hospital, San Antonio, Texas and American Federation of Government Employees, AFL-CIO, Local No. 3511, 15 FLRA 276, 277 (1984). More specifically, if a question of compliance arises in connection with an arbitration award, any action by the arbitrator who rendered the award must be pursuant to the joint request of the parties. See Headquarters, U.S. Army Communications Command, et al., Fort Huachuca, Arizona and American Federation of Government Employees, Local 1662, 2 FLRA 786, 789 (1980). Moreover, the Authority has noted that, where appropriate, such a compliance matter can be raised as an unfair labor practice under section 7116 of the Statute. Id.

Consequently, in view of the fact that the Arbitrator did not retain jurisdiction over the matter, we reject the Union's contention that, in the absence of a joint request by the parties, it was appropriate to direct the alleged non-compliance matter to the Arbitrator. As there is no basis for finding the award deficient, we will deny the Union's exception.

V. Decision

The Union's exception is denied.

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