**57 FLRA No. 78**

U.S. DEPARTMENT OF VETERANS AFFAIRS\
EASTERN KANSAS HEALTH CARE SYSTEM\
(Agency)

and

NATIONAL FEDERATION OF FEDERAL\
EMPLOYEES, LOCAL 1765\
(Union)

0-AR-3366

[\_\_\_\_\_]{.underline}

DECISION

July 31, 2001

[\_\_\_\_\_]{.underline}

Before the Authority: Dale Cabaniss, Chairman; Carol Waller Pope and
Tony Armendariz, Members
 [**\[n1\]**](http://www.flra.gov/search?NS-search-page=document&NS-rel-doc-name=/decisions/v57/#21306) 

Decision by Chairman Cabaniss for the Authority

# I.     Statement of the Case 

      This matter is before the Authority on exceptions to a
supplemental award of Arbitrator Lawrence H. Pelofsky filed by the
Agency under § 7122(a) of the Federal Service Labor-Management Relations
Statute (the Statute), 5 U.S.C. § 7100 *et seq*., and part 2425 of the
Authority\'s Regulations. The Union filed an opposition to the Agency\'s
exceptions.

      The Arbitrator issued an underlying award and subsequently sent a
bill for his services to the parties, split
equally. [**\[n2\]**](http://www.flra.gov/search?NS-search-page=document&NS-rel-doc-name=/decisions/v57/#21313) 
The Union did not pay its share and when contacted by the Arbitrator,
claimed that the parties\' agreement mandated that an arbitrator\'s fees
be paid by the losing party. More than 9 months after the initial
assessment of fees, the Arbitrator issued a supplemental award titled
\"Proportional Assessment of Fees,\" to which the Agency
excepts.*** [\[n3\]](http://www.flra.gov/search?NS-search-page=document&NS-rel-doc-name=/decisions/v57/#21316) ***

      For the reasons that follow, we set aside the Arbitrator\'s
supplemental award.

# II.     Background and Arbitrator\'s Supplemental Award 

## 1.     Background 

      The Arbitrator issued a decision sustaining the grievance in the
underlying case on January 22, 2000; the Arbitrator did not retain
jurisdiction. In the cover letter accompanying the decision, the
Arbitrator advised the parties that a statement regarding his fee would
follow. On January 31, 2000, the Arbitrator sent the parties a statement
billing each party one-half of the fee. The Agency paid its half share,
the Union did not.

      In response to a request for payment from the Arbitrator, the
Union sent the Arbitrator a letter dated July 5, 2000, advising him that
the parties\' agreement required an apportionment of the
costs. [**\[n4\]**](http://www.flra.gov/search?NS-search-page=document&NS-rel-doc-name=/decisions/v57/#21324) 
The Arbitrator asked each party to submit a letter outlining its
position on the payment of the Union\'s share of the fee. The Union\'s
position was that there had been no apportionment of the costs and,
because it prevailed at arbitration, the Agency was responsible for the
entire Arbitrator\'s fee. The Agency argued that there had been an
apportionment and that the Union\'s failure to file an exception to the
apportionment had resulted in a waiver of any objection to the
Arbitrator\'s determination of the fee allocation. On September 24,
2000, the Arbitrator issued his supplemental award.

## 2.     Arbitrator\'s Supplemental Award 

      The Arbitrator found that Article 7, Section 3 of the parties\'
agreement requires an arbitrator to determine the extent to which a
party does or does not prevail in a grievance and assess his costs
proportionately. The Arbitrator further found that use of the word
\"\'shall\'\" makes this proportional assessment mandatory. Award at 3.
The Arbitrator noted that he was unaware of this particular provision
and thus did not make any determination of the extent to which either
party did or did not prevail on the issues and did not apportion the
costs pursuant to that determination. For this reason, the Arbitrator
concluded that \"the doctrine of *functus officio* is not applicable.\"
*Id.*

      In this regard, the Arbitrator found that the billing statement he
submitted to the parties \"was not an award.\" *Id*. at 4. The
Arbitrator made further distinctions between his billing statement and
other situations found **\[ v57 p441 \]** in Authority precedent. The
Arbitrator noted that the statement was not based upon the terms of the
parties\' agreement. Additionally, the statement was written on the
Arbitrator\'s stationery and contained no case caption. The Arbitrator
concluded that there is no language in the statement \"that would lead
one to believe that the Arbitrator had made a determination pursuant to
Article 7, Section 3A.\" *Id*. The Arbitrator also concluded that the
assessment of the Arbitrator\'s costs does not draw its essence from the
terms of the parties\' agreement. The Arbitrator found that to \"relieve
the Agency of its legitimate obligation here would defeat the reasonable
expectations of the Union and would undermine the clear terms of the
collective bargaining agreement.\" *Id*. at 5.

      The Arbitrator found that although the \"Union might have been
prudent\" to have raised the issue before the Authority, \"failure to do
so does not prejudice its rights\" under the agreement or pursuant to
§ 7122. *Id*. The Arbitrator further found \"that the Agency acted in
less than good faith.\" *Id*.

      Accordingly, the Arbitrator found that the Agency is responsible
for the Arbitrator\'s entire fee. In addition, the Arbitrator calculated
the additional time he spent on the supplemental award and split the
additional cost in thirds, assigning one-third of the additional cost to
each party and one-third to himself.

# III.     Positions of the Parties 

## A.     Agency\'s Exceptions 

      The Agency asserts that the Arbitrator exceeded his authority in
issuing the supplemental award. The Agency contends that the Arbitrator
lacked jurisdiction to reconsider the issue of apportionment of his fee.
According to the Agency, the Union made a unilateral request for
reconsideration of that portion of the award ordering each party to pay
half of the Arbitrator\'s fee. The Agency asserts that the Authority has
long upheld the doctrine of *functus officio*, under which an official
has no further authority once that official has fulfilled the designated
purpose of the office. The Agency further contends that once an
arbitrator has issued an award, that arbitrator\'s power is exhausted,
unless both parties request further action by the arbitrator.

      The Agency argues that the Arbitrator\'s description of his
original fee allocation as not a \"\'real\' award\" is \"specious\"
because there is no required format that an arbitrator must observe in
transmitting his fee assessment to the parties. Exceptions at 5. The
Agency contends that once an award becomes final and binding, an
arbitrator is without power to change it.

      The Agency argues that if the Union wished to raise any objections
to the award, including that portion of the award concerning
apportionment of the Arbitrator\'s fee and expenses, it was required to
do so by filing an exception to the award with the Authority within
30 days of service of the award. The Agency contends that because the
Union failed to do so, the award became final and binding upon the
parties, pursuant to § 7122(b) of the
Statute. [**\[n5\]**](http://www.flra.gov/search?NS-search-page=document&NS-rel-doc-name=/decisions/v57/#21339) 
According to the Agency, the Authority has held that failure to timely
raise such exceptions renders the award final and binding and that the
parties must thereafter take the actions required by the award.

## B.     Union\'s Opposition 

      The Union argues that the doctrine of *functus officio* is not
applicable because the Arbitrator did not adjudicate the issue of fees
as required by the parties\' agreement. According to the Union, where an
arbitrator\'s award has failed to address an issue submitted to the
arbitrator, the arbitrator\'s power and function remain open until he
renders an award on that issue. In this case, the Union asserts that the
Arbitrator \"freely admitted\" that he had neglected to consider the
agreement provision on mandatory proportional allotment of the
arbitrator\'s fee. Opposition at 3. The Union argues that because the
proportional allotment of his fee had not been assessed, the
Arbitrator\'s authority to comply with the mandatory agreement provision
had not been exhausted. In sum, the Union contends that the Arbitrator
retained jurisdiction because the award was incomplete.

      According to the Union, the allocation of fees is mandatory under
Article 7, Section 3A of the parties\' agreement. The Union contends
that because its interpretation of the agreement prevailed in the
underlying grievance, appropriate relief was awarded. The Union asserts
that the Arbitrator recognized that the proportional assessment of the
arbitration fee and expenses is not discretionary under the parties\'
agreement and, therefore, the Arbitrator made the \"correct assessment
of fees because he made the assessment according \[to\] the mandatory
language\" of the parties\' agreement. Opposition at 2.

# IV.     Analysis and Conclusions 

      An arbitrator exceeds his or her authority when the arbitrator
fails to resolve an issue submitted to arbitration, resolves an issue
not submitted to arbitration, disregards specific limitations on his or
her authority, or **\[ v57 p442 \]** awards relief to persons who are
not encompassed within the grievance. *United States Dep\'t of Defense,
Army and Air Force Exch. Serv.*, 51 FLRA 1371, 1378 (1996).

      There is no contention that the matter of the allocation of the
Arbitrator\'s fees was submitted to the Arbitrator for resolution. In
fact, the Arbitrator did not address the allocation of his fees in his
award on the merits, and the Arbitrator states in the supplemental award
that he was unaware of the requirement that the Arbitrator\'s fees be
proportionally assessed. Supplemental Award at 3. The Union provides no
support for its assertion that the issue of the allocation of fees was
appropriate for the Arbitrator\'s resolution because \"it was a
mandatory determination under the \[parties\' agreement\].\" Opposition
at 4. Accordingly, as the issue of the allocation of arbitral fees was
never submitted to the Arbitrator for resolution, we find that the
Arbitrator exceeded his authority by issuing a supplemental award
reapportioning his
fees. [**\[n6\]**](http://www.flra.gov/search?NS-search-page=document&NS-rel-doc-name=/decisions/v57/#21348) 
*See United States Dep\'t of Veterans Affairs, Med. Ctr., St. Albans,
N.Y.*, 37 FLRA 1092, 1094-95 (1990). *Cf. Social Sec. Admin., Baltimore,
Md.*, 57 FLRA 181, 183 (2001) (arbitrator did not exceed authority by
addressing issue necessary to decide a stipulated issue).

# V.     Decision 

      The Arbitrator exceeded his authority in issuing the supplemental
award on an issue that had not been submitted to arbitration. Therefore,
the supplemental award is deficient and we set it aside.

**Footnote \# 1** for 57 FLRA No. 78

   Member Armendariz did not participate in this decision.

**Footnote \# 2** for 57 FLRA No. 78

   The substance of the underlying award is not at issue.

**Footnote \# 3** for 57 FLRA No. 78

   For purposes of this decision, and in the absence of any argument to
the contrary by the parties, we assume that the proportional assessment
of fees constitutes an award within the meaning of § 7122(a) of the
Statute.

**Footnote \# 4** for 57 FLRA No. 78

   Article 7, Section 3 of the parties\' agreement provides:

>      A.     the arbitrator\'s fees and expenses shall be
> proportionally assessed as determined by the arbitrator based upon
> his/her decision on all the issues.

Supplemental Award at 2.

**Footnote \# 5** for 57 FLRA No. 78

   The Agency cites no other law, rule or regulation regarding this
exception.

**Footnote \# 6** for 57 FLRA No. 78

   As the award is deficient on this ground, we find it unnecessary to
address the Agency\'s arguments that the award is deficient on other
grounds also.