An earlier post, "Functus officio" precludes arbitrator from substituting new award for an earlier one, discussed a decision of the District Court in Florida vacating an arbitrator's award as being precluded by the doctrine of "functus officio." The Eleventh Circuit has now affirmed that decision.
CWA filed a grievance against Verizon Florida concerning what it claimed was the improper application of the parties bumping procedures. The relevant contract language provided that an employee could bump if he/she previously held the job into which they sought to bump or if they could perform the job with minimum additional training.
The parties refused to stipulate an issue, and there was apparently some uncertainty concerning the thrust of the grievance, i.e whether it focused on the previously held provision or the minimal training provision. However the Union's representative described the minimum additional training provision as the crux of the proceeding.
The arbitrator issued a decision finding that most of the grievants would require more than minimal training. However he also found that two of the grievants had previously been 'on loan' to the position in issue and were there eligible to bump under the "previously held" provisio.
The Union sought clarification from the arbitrator concerning two other employees who had also been on loan. The Company challenged the Union's request and also sought reconsideration of the award, claiming that the dispute was limited solely to the question of whether the employees required more than minimal training.
Shortly after receiving the Company's request the Arbitrator issued a new decision eliminating his discussion of the previously held position issue and denying the Union's grievance entirely. As noted in the earlier post, the District Court confirmed the initial award, concluding that it was a final award and that the arbitrator was without authority to issue the second award.
In affirming that decision the Eleventh Circuit concludes:
The primary question in this labor arbitration appeal is an unusual one: did the arbitrator exceed his power by issuing a substituted award after he determined that he had exceeded his power in the original award? After close review and oral argument, we agree with the district court that he did, and we affirm.
The Court found that the parties' cba incorporated AAA Rule 40 which essentially codified the functus officio doctrine and that, while the arbitrator was persuaded that his initial award was in error, Rule 40 precluded him from issuing the second award.
The Eleventh Circuit's decision can be found here.