Sunday, January 18, 2015

"Functus officio" precludes arbitrator from substituting new award for an earlier one

Ruling on cross motions for summary judgment, the District Court for the Middle District of Florida addressed the "unique question" of:

whether an arbitrator, having finally addressed the merits of a CBA grievance, may reconsider and substitute an award which substantively changes the result, after being mistakenly persuaded that he had addressed an issue which was not to be arbitrated. 

Concluding that the arbitrator's first award was intended to be final, the Court determined that the doctrine of functus officio precluded the arbitrator from reconsidering the award and substituting a new one.

The dispute arose after several employees of Verizon Florida were declared surplus. The cba provided (in Article XI, Section 2) that surplus employees could bump junior employees within the same or lower wage progression schedule. Article XI also provided that an employee seeking to bump another

must have the ability to perform any job which he/she seeks to obtain through bumping. If it is a job which the employee has previously held, the employee will be allowed a reasonable period of time for re-familiarization and, if the job is one which he/she has not previously held, the employee must be able to perform the job with minimum additional training.

At the arbitration hearing the parties declined to stipulate an issue. The arbitrator framed the issue and, after reviewing the evidence and the cba, concluded that two of the nine grievants had previously held the position they sought to bump into and that they should have been allowed to bump into those positions. He rejected the grievance as it applied to the other grievants.

After the award, the Union requested clarification, maintaining that two additional employees had also previously held the position they sought to bump into and should therefore have been allowed to bump. Verizon opposed this request and also sought reconsideration, claiming that the issue of whether grievant's had previously held the job they sought to bump into was not properly before the arbitrator, and that the only issue was whether the grievants would require more than minimal training to perform the job. Three days after Verizon sought reconsideration the arbitrator issued a substituted decision, captioned "Order on Cross-Motions for Clarification/Change and Substituted Arbitrator's Award. In the new award the arbitrator indicated he had been persuaded that his earlier award had, in fact, relied on a contract provision not submitted for consideration. His new award deleted reference to whether the grievants' had previously held the position and rejected the grievances of all employees. 

The Union sought to vacate the second award while Verizon sought to confirm the second. 

Ruling on both motions the Court concluded:

the issue which the original arbitration award addressed had been presented to the arbitrator through the Union's broadly worded grievance and he was therefore well within his authority in his original determination of the merits. And contrary to the common law doctrine of functus officio, the arbitrator exceeded his authority when he reconsidered and issued the substituted award. The substituted award is therefore due to be vacated and the initial award confirmed.

The court explained:

The doctrine of functus officio ("a task performed") provides that an arbitrator may not revisit the merits of an award once it has issued. Office & Prof'l Emps. Int'l Union, Local No. 471 v. Brownsville Gen. Hosp., 186 F.3d 326, 331 (3d Cir. 1999). Because the arbitrator acts only as judge for a particular case, the doctrine arises "based on the analogy of a judge who resigns his office and, having done so, naturally cannot rule on a request to reconsider or amend his decision." Glass, Molders v. Excelsior Foundry Co., 56 F.3d 844, 846-47 (7th Cir.1995) (observing that an additional rationale is an arbitrator's susceptibility to ex parte communications, absent the constraint of judicial ethics). There are three established exceptions to functus officio, which allow an arbitrator to: (1) correct a mistake that is apparent on the face of the award; (2) rule upon an issue presented but not adjudicated; and (3) clarify an ambiguity in an otherwise complete award. Brown v. Witco Corp., 340 F.3d 209, 219 (5th Cir. 2003); Office & Prof. Emps., 186 F.3d at 331.

Finding that the question initially decided by the arbitrator was within the issue submitted, and that none of the exceptions applied, the court concluded that the arbitrator was without authority to reconsider his decision as Verizon had requested. 

The Court's opinion in IBEW, Local 824 v. Verizon Florida,LLC can be found here.

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