*The Honorable Gene E.K. Pratter, United States District 

Judge for the Eastern District of Pennsylvania, sitting by 

designation. 

 PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 20-1908

____________

VERIZON PENNSYLVANIA, LLC

v.

COMMUNICATIONS WORKERS OF AMERICA, AFLCIO, LOCAL 13000; COMMUNICATIONS WORKERS OF 

AMERICA, AFL-CIO DISTRICT 2-13,

 Appellants 

 

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 2-18-cv-00394)

District Judge: Honorable Cynthia M. Rufe 

 

 

Argued on January 21, 2021

Before: HARDIMAN, ROTH, Circuit Judges and *PRATTER, 

District Judge

(Opinion filed: September 8, 2021)
2

Laurence M. Goodman

Nancy B.G. Lassen (ARGUED)

Alidz Oshagan

Willig, Williams & Davidson

1845 Walnut Street

24th Floor

Philadelphia, PA 19103

Counsel for Appellants

Meir Feder (ARGUED)

Jones Day

250 Vesey Street

New York, NY 10281

E. Michael Rossman

Samantha C. Woo

Jones Day

77 West Wacker Drive

Chicago, IL 60601

James R. Saywell

Jones Day

901 Lakeside Avenue East

Cleveland, OH 44114

Counsel for Appellee

O P I N I ON 
3

ROTH, Circuit Judge:

This appeal requires us to decide whether the wellestablished functus officio doctrine is still viable in labor 

arbitration cases. We hold that it is, and agree with the District 

Court that the arbitration award in this case cannot stand. The 

deference given to arbitration awards is almost unparalleled, 

but not absolute. An arbitrator’s powers are derived from and 

limited by the parties’ agreement, which is made against a 

background of default legal rules. Under these default rules, 

once the arbitrator decides an issue, the functus officio doctrine 

prohibits him from revising that decision without the parties’ 

consent. He can decide other issues submitted by the parties, 

correct clerical errors, and even clarify his initial decision—

but nothing more. 

Verizon brought this action to vacate an arbitration 

award made pursuant to the Collective Bargaining Agreement 

(CBA) between it and Communication Workers of America, 

AFL-CIO, Local 13000 (the Union). In its Merits Award, the 

Arbitration Board held that Verizon violated the CBA by 

contracting with common carriers to deliver FiOS TV set-top 

boxes to “existing customers” for self-installation, work that 

used to be performed exclusively by Union Service 

Technicians (Workers). Yet, months later, the Board, under 

the guise of creating a “remedy,” improperly expanded the 

scope of the violation identified in the Merits Award to include

not only deliveries to both existing and new customers, but also 

the accompanying self-installations. Such revisions are 

precisely what the functus officio doctrine prohibits. Thus, we 

affirm the District Court’s Order, vacating the Remedy Award 

to the extent that it awards damages for work that falls beyond 
4

the outer bounds of the Merits Award. The outer bounds were

the delivery of boxes to existing customers.

We also hold that the Board improperly awarded 

punitive damages, which the Parties agree are not permitted 

under the CBA. For this reason, we will affirm the District

Court’s Order, remanding the case back to the Board to 

redetermine what compensatory damages, if any, are 

appropriate.

I

Article 17.01 of the CBA provides that Verizon “will 

maintain its established policies as to the assignment of work 

in connection with the installation and maintenance of 

communications facilities owned, maintained and operated by 

the Company.”1 Article 13 provides that certain grievances,

alleging violations of the CBA, must be submitted to the Board 

of Arbitration. 

Verizon FiOS is a television, internet, and phone 

service. FiOS TV was first available in Pennsylvania in 2006. 

TV content enters the home through fiberoptic cables that lead 

into a “set-top box.” When FiOS launched, a customer could 

obtain, upgrade, or replace a set-top box in either of two ways: 

(1) a Union Service Technician delivered the box to the 

customer’s home and installed it (Option One), or (2) the 

customer picked up the box from a Verizon store and installed 

it herself (Option Two). In November 2007, Verizon added 

two more options (the mail options) for “adds, upgrades, 

1 Appx. 95.
5

downgrades, or swaps” for “existing customers”: Verizon 

mails the box to the customer’s home (at Verizon’s expense) 

using a common carrier and either (3) the customer installs it 

himself (Option Three), or (4) a Service Technician comes to 

install it for a fee (Option Four).

2

On February 25, 2008, shortly after learning about the 

mail options, the Workers filed Grievance “EXBD-005-08 

Self-Installation of Set Top Boxes,” demanding that “all work 

associated with the set top boxes must be performed by” the 

Workers.3 They alleged that Verizon violated the CBA by 

contracting out Union work to common carriers through the 

mail options. They did not challenge instore pickup or selfinstallation under Option Two.

On July 7, 2016, the Board issued the Merits Award, 

ruling that the mail options violated Article 17.01. The Board 

defined the issue submitted as whether Verizon violated the 

CBA by “implementing a process to deliver set top boxes to 

existing customers by common carrier for customer selfinstallation. And if so, what shall be the remedy?”4

 It stated 

that “beginning when [FiOS] was implemented,” Service 

Technicians “were assigned to deliver set top boxes that they 

installed,”5and that common carriers “who do the delivery 

work . . . are getting the advantage of work that is protected by 

Section 17.01.”6 The Board concluded that Workers “who 

have been denied the opportunity to perform the delivery work 

in question are entitled to compensation” and ordered Verizon 

2

Id. at 232, 305.

3

Id. at 405.

4

Id. at 229.

5

Id. at 247. 

6

Id. at 252.
6

“to cease and desist from delivery of set top boxes by anyone 

other than” Union employees.7 However, “[t]here [was] no 

record evidence by which to assess how often [Verizon] sent 

out set top boxes to existing customers who wanted a different 

box that they did not want to install themselves.”

8

 For that 

reason, the Board “referred [the issue of money damages] back 

to the parties for resolution” and retained jurisdiction in case 

the Parties could not agree on a “monetary remedy.”9 

The Parties failed to reach an agreement and submitted 

the remedy issue back to the Board. The Parties disagreed 

(then and now) about the scope of the “delivery work in 

question” protected by the Merits Award. Specifically, 

Verizon argued that, under the Merits Award, the protected 

work assignment included only the delivery aspect of the mail 

options, not the self-installation aspect, and that the Merits 

Award allowed any Union employee to deliver the boxes. 

Verizon had tried to comply with the Merits Award by creating 

a new Union position, Assistant Technician, solely to deliver 

set top boxes for self-installation by customers. The Workers 

argued that, under the Merits Award, any time a box is 

delivered to (rather than picked up by) a customer, the delivery 

and installation are a single work “assignment” protected by 

Article 17.01. Thus, “unless the customer obtains the box from 

the Company and brings it [home], the Company’s delivery of 

set top boxes, and the installation or maintenance (including 

swaps and upgrades) of those boxes must be performed by” the 

Workers.10 Because the mail options did not cause the 

Workers to fall below full-time employment, they sought 

7

Id. at 253.

8

Id. at 252.

9

Id. at 252–53.

10 Id. at 261.
7

backpay at overtime rates.

On January 10, 2018, the Board issued the Remedy 

Award, agreeing with the Workers that, in the Merits Award, 

it had ruled that both the delivery and self-installation aspects 

of the mail options violate the CBA. It further held that 

delivery by Assistant Technicians violated the CBA because 

the protected work assignment belonged to the Service 

Technicians. “[T]o compensate the[] [Service Technicians] 

and to deter future violations of Article 17.01,”11 the Board 

ordered Verizon to pay two hours (the average time to deliver 

and install a box) of backpay for each box shipment delivered 

by mail or an Assistant Technician, equitably distributed 

among the Service Technicians. Although the Workers sought 

overtime rates, the Board awarded only straight-time rates,

stating “that there is no firm basis for awarding pay at overtime 

rates” because the Workers “did not lose income as they were 

fully employed at the time.”12

On January 31, 2018, Verizon filed this action, 

challenging both Awards. The District Court granted summary 

judgment in part13 for Verizon, vacating the Remedy Award 

because it (1) amended the Merits Award in violation of the 

functus officio doctrine and (2) awarded punitive damages. 

The District Court remanded the case to the Board “for 

calculation of a remedy consistent with [its] opinion.”14 The 

11 Id. at 269.

12 Id. at 268.

13 The District Court granted summary judgment for the Workers to 

the extent that the Board held that delivery by common carrier 

violates the CBA. Appx. 26. Verizon does not challenge that ruling 

on appeal.

14 Id.
8

Workers appeal.

II

We exercise plenary review of the District Court’s 

decision to vacate the Remedy Award.

15

 Because parties 

litigating the validity of an arbitration award have bargained

for the arbitrator’s judgment, courts may not review the merits 

of the award.

16

 A court may vacate an arbitration award if “the 

arbitrators exceeded their powers, or so imperfectly executed 

them that a mutual, final, and definite award upon the subject 

matter submitted was not made.”17 Three limits on arbitrators’

powers are relevant here. First, because “arbitration is a 

creature of contract . . . an arbitration panel has the authority to 

decide only the issues that have been submitted for arbitration 

by the parties.”18 Second, courts must vacate an arbitrator’s 

award if it is “irrational.”19 An award is irrational if it fails to 

“‘draw[] its essence from the collective bargaining 

agreement’”20 in such a way that it “can[not] be rationally 

derived either from the agreement [or] the parties[’] 

15 Kaplan v. First Options of Chic., Inc., 19 F.3d 1503, 1509 (3d Cir. 

1994).

16 Major League Umpires Ass’n v. Am. League of Pro. Baseball 

Clubs, 357 F.3d 272, 279–80 (3d Cir. 2004).

17 9 U.S.C. § 10(a)(4).

18 Metromedia Energy, Inc. v. Enserch Energy Servs., Inc., 409 F.3d 

574, 578 (3d Cir. 2005).

19 Ario v. Underwriting Members of Syndicate 53 at Lloyds for 1998 

Year of Account, 618 F.3d 277, 295 (3d Cir. 2010).

20 Exxon Shipping Co. v. Exxon Seamen’s Union, 73 F.3d 1287, 

1295 (3d Cir. 1996) (quoting W.R. Grace & Co. v. Loc. Union 759, 

461 U.S. 757, 766 (1983)).
9

submissions to the arbitrators,”21 or “the record before the 

arbitrator reveals no support whatsoever for the arbitrator’s 

determination.”22 Finally, although courts must defer to an 

arbitrator’s initial decision, the functus officio doctrine “bar[s] 

an arbitrator from revisiting the merits of an award once it has 

issued.”23

III

A. Functus Officio

The District Court found that the Remedy Award 

violates the functus officio doctrine because it expanded the 

protected work identified in the Merits Award by including (1) 

deliveries and self-installations, rather than just deliveries; and 

(2) deliveries to new customers, rather than just “existing 

customers.” We agree.

As an initial matter, we reject the Workers’ argument 

that we should abrogate the functus officio doctrine in labor 

arbitration cases. “Although the doctrine was applied strictly 

at common law . . . ‘the federal courts have been less strict in 

applying the common law functus officio rule in reviewing 

21 Ario, 618 F.3d at 295 (last alteration in original).

22 United Indus. Workers, Serv., Transp., Pro. Gov’t of N. Am. of 

Seafarers’ Int’l Union of N. Am. v. Virgin Islands, 987 F.2d 162, 170 

(3d Cir. 1993); accord Citgo Asphalt Refining Co. v. Paper, AlliedIndus., Chem. & Energy Workers Int’l Union Loc. No. 2-991, 385 

F.3d 809, 816 (3d Cir. 2004); News Am. Publ’ns, Inc. Daily Racing 

Form Div. v. Newark Typographical Union, Loc. 103, 918 F.2d 21, 

24 (3d Cir. 1990).

23 Office & Pro. Emps. Int’l Union, Loc. No. 471 v. Brownsville Gen. 

Hosp., 186 F.3d 326, 331 (3d Cir. 1999).
10

labor disputes’”24 after the Supreme Court interpreted the 

Labor Management Relations Act of 1947 as directing lower 

federal courts to create common law for labor arbitration 

enforcement proceedings.25 Nonetheless, “it has never been 

abrogated by any court of which we have been made aware,”26

and we hold that it is alive and well in this Court. The doctrine 

prohibits arbitrators from revising their prior decisions because 

arbitrators “lack[] the institutional protection of judges.”

27

 

Moreover, the doctrine’s three exceptions give arbitrators 

flexibility to effectuate their contractually-derived powers: 

(1) an arbitrator “can correct a mistake which is 

apparent on the face of his award”; (2) “where 

the award does not adjudicate an issue which has 

been submitted, then as to such issue the 

arbitrator has not exhausted his function and it 

remains open to him for subsequent 

determination”; and (3) “[w]here the award, 

although seemingly complete, leaves doubt 

whether the submission has been fully executed, 

24 Id. (quoting Teamsters Loc. 312, 118 F.3d at 991).

25 See generally Textile Workers Union v. Lincoln Mills of Ala., 353 

U.S. 448 (1957).

26 Int’l Broth. of Elec. Workers, Loc. Union 824 v. Verizon Fla., 

LLC, 803 F.3d 1241, 1248 (11th Cir. 2015).

27 Brownsville Gen. Hosp., 186 F.3d at 331; accord Teamster Loc. 

312 v. Matlack, Inc., 118 F.3d 985, 991 (3d Cir. 1997) (“[F]unctus

officio conceives of arbitrators as ‘ad hoc judges—judges for a case; 

and when the case is over, they cease to be judges and go back to 

being law professors or businessmen or whatever else they are in 

private life.’” (quoting Glass, Molders, Plastics & Allied Workers 

Int’l Union, AFL-CIO, CLC, Loc. 182B v. Excelsior Foundry Co., 

56 F.3d 844, 847 (7th Cir. 1995))).
11

an ambiguity arises which the arbitrator is 

entitled to clarify.”28

Moreover, if parties want greater flexibility, they can negotiate 

around the doctrine entirely. 

The Workers do not explain why the doctrine should not 

continue to be the default rule. In fact, they specifically 

bargained for the doctrine to apply here. The CBA provides 

that any “arbitration shall be conducted under the Voluntary 

Labor Arbitration Rules.”29 Rule 40 allows “any party” to 

“request the arbitrator . . . to correct any clerical, typographical, 

technical, or computational errors in the award,” but prohibits 

the arbitrator from “redetermin[ing] the merits of any claim 

already decided.”30 Accordingly, the Board’s powers were 

limited by the functus officio doctrine. As explained below, the 

Remedy Award ran afoul of those limitations.

i Self-Installation

Verizon argues that the Board held in the Merits Award 

that self-installation did not violate the CBA and that the Board 

thus could not revisit that issue in the Remedy Award. The

record is not clear as to whether the Board decided the selfinstallation issue in the Merits Award. In many instances, it 

28 Brownsville Gen. Hosp., 186 F.3d at 331 (alteration in original) 

(quoting Colonial Penn Ins. Co. v. Omaha Indem. Co., 943 F.2d

327, 332 (3d Cir. 1991)).

29 Appx. 222.

30 AMERICAN ARBITRATION ASSOCIATION, LABOR ARBITRATION 

RULES ¶ 40 (2013), available at

https://www.adr.org/sites/default/files/Labor_Arbitration_Rules_3.

pdf.
12

suggested that the self-installation issue was not included in the 

Parties’ submission. For example, the Board stated that 

“[w]hile the Union views any work, even that done by a 

customer, on a set top box as bargaining unit work, the issue 

before us is whether contracting out the delivery of set top 

boxes to common carriers violates Section 17.01.”31 The 

Board also stated that Verizon’s “focus on customer selfinstallation” was “misplaced” because “[t]he Union’s focus is

on the delivery of set top boxes . . . by common carrier.”32 

Indeed, in their merits brief, the Workers stated that “this 

dispute is not about [Option Two] or who installs the set top 

boxes after they are delivered to existing customers.”33 

In the Remedy Award opinion, however, the Board 

concluded (and the Parties agree) that it had already decided

the scope of the work assignment, including the selfinstallation issue, “in [its] initial decision on the merits of the 

dispute.”34 Indeed, it stated in the opinion accompanying the

Merits Award that “[t]he question is whether there was an 

established policy in effect at the time of the change as to 

assignment of the installation or maintenance work and the 

delivery of the equipment.”35 Accordingly, we hold that the 

Board did decide this issue in the Merits Award. Indeed, if the 

Board had concluded that the self-installation issue was not 

within the scope of the Parties’ submission, the Board would 

31 Appx. 248.

32 Id. at 249 (brackets and emphases in original omitted). 

33 Id. at 551 n.7 (second emphasis added).

34 Id. at 267; see also United Mine Workers of Am. Dist. No. 5 v. 

Consolidation Coal Co., 666 F.2d 806, 811 (3d Cir. 1981)(“[I]t is 

an arbitrator, and not the court, who is to decide whether the same 

issue has already been resolved in an earlier proceeding.”).

35 Appx. 247 (emphasis added).
13

have exceeded the scope of its authority by deciding that issue 

in the Remedy Award. 

The Workers nonetheless argue that the Board could 

revisit the scope of the work assignment in the remedy 

proceedings for two reasons. First, the Workers argue that the 

Board reserved the remedy issue and could thus redecide the 

issues addressed in the Merits Award, including the scope of 

the work assignment, either because the Merits Award was not 

a “final award” and the functus officio doctrine did not apply

to it or because the doctrine’s second exception applied. We 

disagree. 

By its terms, the doctrine’s second exception does not 

apply. That exception “authorizes an arbitrator to decide a 

remaining issue which has been submitted by the parties but 

not resolved.”

36

 Moreover, although we have stated in dictum

that the functus officio doctrine applies only if the “award [is] 

final, complete, and coextensive with the terms of the 

submission,”37 the existence of the doctrine’s second exception

implies that the doctrine applies to partial decisions that finally 

resolve some, but not all, of the submitted issues. 

However, allowing arbitrators to revisit issues that they

have already decided merely because they retained jurisdiction 

on ancillary issues—here, the monetary remedy—creates 

several potential problems. Partial awards are just as 

susceptible as “final” awards to the types of post hoc influences 

and ex parte communications that the doctrine is meant to 

36 Teamsters Loc. 312 v. Matlack, Inc., 118 F.3d 985, 992 (3d Cir. 

1997) (emphases added).

37 La Vale Plaza, Inc. v. R.S. Noonan, Inc., 378 F.2d 569, 572 (3d 

Cir. 1967).
14

protect against. Additionally, an arbitrator could issue a partial 

award as a placeholder to apply settlement pressure, rather than 

just adjudicating the dispute as the parties agreed she would.

38

 

In any event, even if an arbitrator ordinarily could 

revisit the merits of a partial award, the Board could not do so 

in this case because the Parties narrowed the scope of their 

submission during the remedy proceedings.39 In their brief, the 

Workers submitted only the following issue: “What shall be 

the appropriate remedy for the Company’s violation of Article 

17.01 of the CBA?”40 The Workers repeatedly treated the 

scope of the work assignment as settled by the Merits Award, 

stating that “the cornerstone of a remedy is the Panel’s Award 

on the merits.”41 Accordingly, the Board was not free to revisit 

the scope of the work assignment.

Second, the Workers argue that the Remedy Award 

merely clarified an ambiguity about the scope of the work 

38 See id. (“The[] exceptions from the functus officio doctrine were 

narrowly drawn to prevent arbitrators from engaging in practices 

that might . . . change a party’s expectations about its rights and 

liabilities contained in an award.”).

39

 Cf. Metromedia Energy, Inc., 409 F.3d at 579 (explaining that 

courts will defer to, but not rubber stamp, arbitrator’s interpretation 

of the issues submitted to it); Trade & Transport, Inc. v. Natural 

Petroleum Charterers Inc., 931 F.2d 191, 195 (2d Cir. 1991) (“[I]f 

the parties have asked the arbitrators to make a final partial award 

as to a particular issue and the arbitrators have done so, the 

arbitrators have no further authority, absent agreement by the 

parties, to redetermine that issue.”).

40 Appx. 950.

41 Appx. 948.
15

assignment protected by the Merits Awards, under the 

doctrine’s third exception. Again, we disagree.

This exception usually arises in determining whether an 

award must be remanded: Where an award itself is too 

ambiguous to enforce, the court must remand it for 

clarification.42 The Workers argue that because the Board has 

already purported in the Remedy Award to clarify that the 

Merits Award protected all deliveries and accompanying selfinstallations, we are required to defer to that “clarification.” 

Not so. Unflagging deference to arbitrators’ “clarifications” 

would effectively give them the power to revisit the merits of 

prior decisions, thus completely eliminating the functus officio

doctrine. Where an arbitrator has actually decided an issue but 

the ruling is ambiguous, we defer to the arbitrator’s post hoc

interpretation of his award only if it is a rational clarification 

of the ambiguity; otherwise, the arbitrator is revising the 

award, not clarifying it.43 

42 Brownsville Gen. Hosp., 186 F.3d at 326; Loc. 719, Am. Bakery 

& Confectionary Workers of Am., AFL-CIO v. Nat’l Biscuit Co., 378 

F.2d 918, 926 (3d Cir. 1967); see also Arco-Polymers, Inc. v. Loc. 

8-74, 671 F.2d 752, 754 n.1 (3d Cir. 1982); Bell Aerospace Co. Div. 

of Textron, Inc. v. Loc. 516, Int’l Union, United Auto., Aerospace & 

Agric. Implement Workers of Am., 500 F.2d 921, 923 (2d Cir. 1974).

43 See Gen. Re Life Corp. v. Lincoln Nat’l Life Ins. Co., 909 F.3d 

544, 549 (2d Cir. 2018) (explaining that a supplemental award 

clarifying an earlier award violates the functus officio doctrine 

unless “the clarification merely clarifies the award rather than 

substantively modifying it”); Sterling China Co. v. Glass, Molders, 

Pottery, Plastics & Allied Workers Loc. No. 24, 357 F.3d 546, 556 

(6th Cir. 2004) (“[T]he arbitrator’s authority allows for clarification 

of an award subject to multiple interpretations.”); see also SBC 

Advanced Solutions, Inc. v. Commc’ns Workers of Am., Dist. 6, 794 

F.3d 1020, 1031 (8th Cir. 2015); Eastern Seaboard Const. Co., Inc. 
16

We agree with the Workers that the Merits Award itself

was ambiguous as to the scope of the protected work 

assignment. In the award, the Board stated that the Workers 

are entitled to compensation for “the delivery work in 

question,” but did not define that phrase. The Board also stated 

that “[t]he grievance is granted”44 The grievance, in turn, 

related to “all work associated with the set top box.”45 Yet, 

even the Workers do not contend that the Merits Award 

referred to “all work associated with the set top boxes”: They 

concede that Option Two does not violate the CBA. 

But we need not decide whether the Remedy Award is

a rational clarification of these ambiguities in the Merits Award 

itself, i.e., whether “delivery work in question” could be read 

as shorthand for both the delivery and self-installation aspects 

of the mail options, since that “clarification” is foreclosed by 

the Merits Opinion. Because “arbitrators have no obligation to 

explain their reasons for an award or even to write an opinion 

unless the contract so requires,”46 “mere ambiguity in the 

opinion accompanying an award, which permits the inference 

that the arbitrator may have exceeded his authority, is not a 

reason for refusing to enforce the award.”47 Nonetheless, we 

v. Gray Const., Inc., 553 F.3d 1, 6 (1st Cir. 2008); Brown v. Witco 

Corp., 340 F.3d 209, 221 (5th Cir. 2003) (“[T]he arbitrator went 

beyond the express scope of the remand order by issuing a 

clarification that essentially reversed the determinations that he 

made in the August 27 Clarification Letter.”).

44 Appx. 253.

45 Id. at 230.

46 Exxon Shipping Co. v. Exxon Seamen’s Union, 73 F.3d 1287, 

1297 (3d Cir. 1996).

47 United Steelworkers of Am. v. Enterprise Wheel & Car Corp., 363 
17

may vacate an award where “it is obvious from the written 

opinion” that the arbitrator exceeded his authority.48

Here, it is obvious from the Merits Opinion that the 

Remedy Award revised the Merits Award and thus exceeded 

the Board’s authority under the functus officio doctrine. In the 

Merits Opinion, the Board explicitly stated that either the 

Workers were not challenging the self-installation aspect of the 

mail options or, if they were, “[p]rior awards have confirmed 

that self-installation by a customer does not amount to 

contracting out bargaining unit work. . . . The question of selfinstallation of certain equipment . . . has long been settled. 

Delivery is another matter.”49 Thus, the Merits Award 

U.S. 593, 598 (1960); accord Exxon Shipping Co., 73 F.3d 1287, 

1297 (3d Cir. 1996) (“[A]n arbitrator’s decision need [not] be . . . 

internally consistent.”); United Parcel Serv., Inc. v. Int’l Broth. of 

Teamsters, Chauffeurs, Warehousemen & Helpers of Am., Loc. 

Union No. 430, 55 F.3d 138, 141–42 (3d Cir. 1995).

48 Metromedia Energy, Inc. v. Enserch Energy Servs., Inc., 409 F.3d 

574, 580 (3d Cir. 2005) (emphasis added); accord Raymond James 

Fin. Servs., Inc. v. Bishop, 596 F.3d 183, 191 (4th Cir. 2010); 

Randall v. Lodge No. 1076, Int’l Ass’n of Machinist & Aerospace 

Workers, AFL-CIO, 648 F.2d 462, 468 (7th Cir. 1981) (explaining 

that court will remand case based on ambiguities in an opinion only 

“once the reasons that are given strongly imply that the arbitrator 

may have exceeded his or her authority under the submission and 

contract”); U.S. Steel & Carnegie Pension Fund v. McSkimming, 

759 F.2d 269 (3d Cir. 1985); cf. M&C Corp. v. Erwin Behr GmbH 

& Co., 143 F.3d 1033, 1038 (6th Cir. 1998) (“[I]f the arbitrator’s 

opinion and award, read together, are not ambiguous, the award 

should be enforced.”).

49 Appx. 249. The Workers argue that the Board referred only to 

“prior awards” and thus was not ruling on this issue. We disagree. 

Why would the Board randomly mention prior awards, particularly 
18

protects, at most, deliveries under Options Three and Four, but 

not self-installations.

Nonetheless, the Workers argue that because they 

always install the boxes that they deliver, installation and 

delivery were a single work “assignment” before the mail 

options. The Workers rely on the Board’s statement that they

“were assigned to deliver the set top boxes that they 

installed.”50 This statement only further undermines their 

argument for two reasons.

First, the Workers made similar statements in their 

arbitration brief, but did so to show that “delivery is work in 

connection with the installation and maintenance of [a] 

communication facility” and thus can be protected by Article 

17.01.51 Indeed, the Workers specified that the “core work” 

was the “transporting and delivering [of] set top boxes to 

customers premises,” and that “the work . . . is now assigned 

to UPS and other common carrier employees.”52 

in the context of rejecting Verizon’s arguments about selfinstallation, if it was not ruling that self-installation, in some 

contexts, is permitted? As explained above, the Board ruled on the 

issue of self-installation, and these statements clearly show how it 

ruled on that issue: “[S]elf-installation by a customer does not 

amount to contracting out bargaining unit work.”

50 Id. at 247 (emphasis added).

51 Id. at 555 (emphases added).

52 Id. at 550–51 (emphasis added); accord id. at 551 (arguing that 

“the ‘basic work’ of delivery continues to be done[] by nonbargaining unit members” (emphasis added)).
19

Second, if anything, the Board’s statement that the 

Workers “deliver[ed] the set top boxes that they installed” 

suggests that “the delivery work in question” is even narrower

than Verizon’s proposed interpretation. Specifically, it 

indicates that the protected work assignment includes

deliveries only of “boxes that the[ Workers] installed,” not 

deliveries of boxes that others installed. Under that reading, 

the Merits Award protects only deliveries (and perhaps 

installations) under Option Four, where Service Technicians 

actually did the installations, and thus does not protect any 

deliveries under Option Three, let alone the accompanying 

self-installations. In fact, Verizon initially argued for that 

interpretation below, and several parts of the Merits Opinion 

support it. 

For example, the Board stated that Verizon must stop 

“mailing the product to customers when the Company is to 

provide the installation or maintenance on a set top box,” and 

that the Board could not issue a monetary remedy because there 

was no evidence about the number of deliveries to “customers 

who wanted a different box that they did not want to install 

themselves.”53 The Board also distinguished this case from an 

arbitration decision (Strongin) that held that mail delivery of 

telephone cords for self-installation did not violate the CSA 

because “delivery of the cords was merely incidental to the 

[self-]installation” and “the Company is no longer routinely 

engaged in installing these cords.”54 The Board explained that 

here, “technicians continue to install some set of the set top 

53 Id. at 252 (emphases added).

54 Id. at 250.
20

boxes . . . . When that occurs, delivery of a box is not 

incidental.”55 Where a box is delivered under Option Three (or 

by an Assistant Technician), Verizon does not “provide the 

installation or maintenance,” and the Workers did not present 

any evidence of customers who chose Option Three despite 

wanting to choose Options One or Four. 

Thus, the parts of the Merits Opinion on which the 

Workers rely, viewed in the context of the entire Opinion, 

undermine their argument. We need not decide whether the 

Merits Award protects all deliveries under Options Three and 

Four, as Verizon argues, or only deliveries and Unioninstallations under Option Four, as Verizon argued below. 

Regardless of which of those two interpretations is correct, 

both of them foreclose the Board’s purported “clarification”: 

The Merits Award does not protect self-installations under 

Option Three.56 Accordingly, it is obvious from the face of the 

Merits Opinion that the Board revised the Merits Award by 

awarding damages for self-installations, and the third 

exception to the functus officio doctrine thus does not apply.

In sum, the Merits Opinion forecloses the Remedy 

Award’s purported “clarification” of the scope of the protected 

work assignment, and the Board was not permitted to redecide 

that issue merely because it reserved jurisdiction on the 

remedy. Accordingly, we affirm the District Court’s Judgment 

holding that the Board violated the functus officio doctrine by 

awarding backpay for self-installations under Option Three. 

55 Id. (emphasis added). 

56 Because Verizon did not cross-appeal the District Court’s ruling 

that deliveries by Assistant Technicians (but not the accompanying 

self-installations) were protected in the Merits Award, we do not 

disturb that ruling. 
21

ii Existing Customers

The Merits Opinion was clearly limited to “existing 

customers,”57 but that term was omitted from the Remedy 

Award. The Workers quibble over the definition of “existing 

customers,” arguing that the District Court incorrectly limited 

the Remedy Award to “deliveries to customers that were in 

existence when the Union filed its grievance.”58 Not so. 

Neither the District Court nor the Board precisely defined what 

they meant by “existing customers.”

59

 It is for the Board to 

57 See, e.g., id. at 229 (framing issue as whether Verizon violated the 

CBA by “implementing a process to deliver set top boxes to existing 

customers by common carrier for customer self-installation”); id. at

238 (quoting Workers’ argument that they “were assigned to deliver 

[the] set top boxes to already existing customers”); id. at 249 (“The 

Union’s focus is on the delivery of set top boxes to existing 

customers by common carrier.”); id. at 252 (“There is no record 

evidence by which to assess how often the Company sent out set top 

boxes to existing customers . . . .”).

58 Appellants’ Br. at 40.

59 Although the Board never conclusively defined it, the record 

suggests that the term “existing customers” is derived from the 

scope of the mail options, which were allegedly limited to “adds, 

upgrades, downgrades, or swaps” for “existing customers,” Appx. 

305—in other words, “customers who already have a FiOS service.” 

Id. at 230 (emphasis added) (brackets omitted). But see id. at 252 

(discussing monetary remedy for deliveries “to existing customers 

who wanted a different box . . . .” (emphasis added)). Verizon 

suggested as much in its Motion for Summary Judgment, arguing 

that the Merits Award was limited to existing customers because, 
22

clarify any ambiguity in the meaning of “existing customers” 

if and when the remedy issue is submitted to it on remand.60 

Regardless of the precise remedial limitations that term 

imposes, the District Court correctly vacated the Remedy 

Award because it did not include that term at all and thus 

expanded the work assignment identified in the Merits Award. 

Accordingly, we will affirm the District Court’s ruling that the 

Remedy Award violated the functus officio doctrine because it 

was not limited to “existing customers.”

B. Punitive Damages

Verizon argues that the Board impermissibly awarded 

punitive damages. The Workers do not argue that the CBA 

allows the Board to award punitive damages.61 Instead, they

inter alia, the mail options were not available “to new customers

until years after the grievance in this case.” Mot. Sum. J. at 11. 

60 As with the self-installation issue, however, any clarification must 

rationally fit the Merits Award and not be foreclosed by the Merits 

Opinion.

61 Other circuits have created a presumption that punitive damages 

do not draw their essence from a CBA absent an explicit punitivedamages provision. E.g., Island Creek Coal Co. v. Dist. 28, United 

Mine Workers of Am., 29 F.3d 126, 129 (4th Cir. 1994); Raytheon 

Co. v. Automated Business Sys., Inc., 882 F.2d 6, 10 (5th Cir. 1989);

United Elec., Radio & Mach. Workers of Am., Loc. 1139 v. Litton 

Microwave Cooking Prod., Litton Sys., Inc., 704 F.2d 393, 395 (8th 

Cir. 1983); Desert Palace, Inc. v. Local Joint Exec. Bd. of Las 

Vegas, 679 F.2d 789, 794 (9th Cir. 1982); Bacardi Corp. v. 

Congreso de Uniones Industriales de P.R., 692 F.2d 210, 214 (1st 

Cir. 1982). Because the Workers do no argue that the Board was 

permitted to award punitive damages, however, we do not decide 

whether to adopt that presumption.
23

argue that the Remedy Award was only compensatory. We 

agree with Verizon.

Although the Remedy Award and the accompanying 

opinion are ambiguous, they “strongly imply that the [Board] 

may have exceeded [its] authority.”62 The Board stated that it 

sought “to compensate” and “to deter future violations.”63 

Although compensatory damages alone could “deter future 

violations” of the CBA, the goal of deterrence often indicates 

that damages are punitive.64 And although the Board stated 

that the Workers “lost work to which they were entitled,”65 it 

was merely holding that Verizon violated the CBA to the extent

that it assigned delivery work to Assistant Technicians. It did 

not make explicit findings that any Service Technicians 

actually lost pay for which they could be compensated. To the 

contrary, it stated that the Workers “did not lose income as they 

were fully employed at the time.”66 

The Workers argue that, in finding that they “did not 

lose income,” the Board was merely explaining its decision to 

award straight-time rates rather than overtime rates. The 

Workers are correct that that was the context of this finding, 

but that explanation makes no sense: Even accepting the 

Workers’ argument that the Board had discretion to award only 

62 Randall, 648 F.2d at 468.

63 Appx. 253.

64 Cf. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 266–67 

(1981) (“Punitive damages by definition are not intended to 

compensate the injured party, but rather to punish the tortfeasor 

whose wrongful action was intentional or malicious, and to deter 

him and others from similar extreme conduct.”).

65 Appx. 268.

66 Id.
24

straight-time backpay for lost overtime work,67 that does not 

explain the Board’s statement that they “did not lose income.” 

That someone was “fully employed” does not mean that he did 

not lose overtime work; to the contrary, it means that if he lost 

anything, it was overtime. And if he lost overtime, he 

presumably “los[t] income.” 

Ordinarily, we would remand this matter to the Board 

to clarify whether any part of the damages were punitive. Here, 

however, clarification is not necessary. If the Remedy Award 

was not at least partially punitive, it would be irrational 

because there was no record evidence supporting 

compensatory backpay for all box shipments.68 It is well 

settled that compensatory damages for breach of contract are 

intended “to put [the plaintiff] in the position he or she would 

have been in had there been no breach.”69 “[T]he non67 Cf. New Meiji Market v. United Food & Com. Workers Loc. Union 

905, 789 F.2d 1334, 1336 (9th Cir. 1986).

68 See NF&M Corp. v. United Steelworkers of Am., 524 F.2d 756, 

759–60 (3d Cir. 1975) (“[I]f an examination of the record before the 

arbitrator reveals no support whatever for his determinations, his 

award must be vacated.”); see also Swift Indus., Inc. v. Botany 

Indus., Inc., 466 F.2d 1125, 1134 (3d Cir. 1972) (vacating 

arbitrator’s bond award as irrational because it exceeded the 

maximum amount of liability supported by the record).

69 Official Comm. of Unsecured Creditors v. R.F. Lafferty & Co., 

Inc., 267 F.3d 340, 351 (3d Cir. 2001); accord Brand Mktg. Grp. 

LLC v. Intertek Testing Servs., N.A., Inc., 801 F.3d 347, 357 (3d Cir. 

2015) (“Compensatory damages ‘are intended to redress the 

concrete loss that the plaintiff has suffered by reason of the 

defendant’s wrongful conduct.’” (quoting Cooper Indus., Inc. v. 

Leatherman Tool Grp., Inc., 532 U.S. 424, 432 (2001))); ATACS 

Corp. v. Trans World Commc’ns, Inc., 155 F.3d 659, 669 (3d Cir. 

1998); see also United States v. Burke, 504 U.S. 229, 239 (1992) 
25

breaching party should not be placed in a better position 

through the award of damages than if there had been no 

breach.”70 Even setting aside the Board’s violation of the 

functus officio doctrine, the Workers have not pointed to any 

evidence that there were Service Technicians able and willing 

to perform any of the deliveries and installations, let alone all 

of them.71

(explaining that “backpay” includes “only an amount equal to the 

wages the employee would have earned” (emphasis added)); 

Carden v. Westinghouse Elec. Corp., 850 F.2d 996, 1005 (3d Cir. 

1988) (holding that “back pay cannot legitimately be claimed” 

where “no present compensation can be expected”); Leeper v. 

United States, 756 F.2d 300, 303 (3d Cir. 1985) (“A tort victim can 

also recover lost earnings where there has been an actual loss of 

income or an employment benefit.”).

70 Bluebonnet Sav. Bank, F.S.B. v. United States, 339 F.3d 1341, 

1345 (Fed. Cir. 2003); see also Ware v. Rodale Press, Inc., 322 F.3d 

218, 225–26 (3d Cir. 2003) (“To prove damages [for breach of 

contract], a plaintiff must give a factfinder evidence from which 

damages may be calculated to a ‘reasonable certainty.’” (quoting 

ATACS Corp., 155 F.3d at 668)).

71 See Citgo Asphalt Refining Co. v. Paper, Allied-Indus., Chem. & 

Energy Workers Int’l Union Loc. No. 2-991, 385 F.3d 809, 819–20 

(3d Cir. 2004); Ga. Power Co. v. Int’l Broth. of Elec. Workers, Loc. 

84, 995 F.2d 1030, 1032 (11th Cir. 1993); Westinghouse Elec. Corp. 

Aerospace Div. v. Int’l Broth. of Elec. Workers, AFL-CIO, 561 F.2d 

521, 523–24 (4th Cir. 1977); see also Leed Architectural Prods., 

Inc. v. United Steelworkers of Am., Loc. 6674, 916 F.2d 63, 66 (2d 

Cir. 1990); Bacardi Corp. v. Congreso de Uniones Industriales de 

Puerto Rico, 692 F.2d 210, 214 (1st Cir. 1982); cf. Brentwood Med. 

Assocs. v. United Mine Workers of Am., 396 F.3d 237, 243 (3d Cir. 

2005) (upholding award even though arbitrator impermissibly added 

new language to CBA because “there [was] sufficient substance in 

the remainder of the [opinion] to pass the minimum rationality 
26

Accordingly, the Remedy Award was either punitive or 

irrational. The District Court thus correctly vacated the 

Remedy Award and remanded the matter to the Board for a 

redetermination of what compensatory damages, if any, are 

appropriate based on the evidence and the scope of the work 

assignment identified in the Merits Award and Merits Opinion.

IV

For the forgoing reasons, we will affirm the judgment of 

the District Court.

threshold”).