United States Court of Appeals

For the Eighth Circuit

___________________________

No. 14-3351

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SBC Advanced Solutions, Inc.

lllllllllllllllllllll Plaintiff - Appellant

v.

Communications Workers of America, District 6

lllllllllllllllllllll Defendant - Appellee

____________

Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

____________

 Submitted: April 16, 2015

 Filed: July 28, 2015

____________

Before BYE and SMITH, Circuit Judges, and SCHILTZ, District Judge. 1

____________

SMITH, Circuit Judge.

The Honorable Patrick J. Schiltz, United States District Judge for the District 1

of Minnesota, sitting by designation.
SBC Advanced Solutions, Inc. ("Company") appeals the district court's grant

2

of summary judgment affirming an arbitration award in favor of the labor union

Communications Workers of America, District 6 ("Union"). The two parties

arbitrated a dispute in which the Union requested a pay differential to be awarded to

certain of the Company's employees who had performed job functions of higher-paid

employees without being compensated accordingly. The Company contends that the

arbitrator erred ruling in favor of the Union primarily by failing to follow precedent

established in previous arbitrations between the partiesregarding the same collective

bargaining agreement (CBA). We affirm.

I. Background

In the late 1990s, SBC Communications, Inc. ("SBC") created the Company

as a subsidiary to facilitate entry into the high-speed internet market. The Union

represented both the Company's and SBC's employees. Additionally, the Company's

relationship with its union employees was governed by the same CBA in effect

between SBC and the Union. Among other things, the CBA required that there be

tiered job classifications with specific work functions. SBC and the Company

occasionally renegotiated the CBA with the Union, which included the opportunity

to negotiate the compensation for each job classification. Under the CBA, the parties

agreed to arbitrate disputes that could not be handled through a formal grievance

process and that an arbitrator's disposition would be "final, and the parties agree[d]

to be bound and to abide by such decision." 

In 1999, the Company opened a call center in Earth City, Missouri, and staffed

it with employees who fit under the required job classifications. Among these job

classifications were customer service representatives (CSRs) and service

representatives (SRs). According to their specific work functions, a CSR "[p]rimarily

The Honorable Charles A. Shaw, United States District Judge for the Eastern 2

District of Missouri. 

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receives, screens, tests, analyzes, and dispatches trouble reports; explains and

suggests various services and/or products to customers; [and] performs other

generally related functions." SRs, on the other hand, "[h]andle[] the business

transactions in connection with customers' accounts, including telephone and

correspondence contacts and collection and order work, etc." 

In October 2008, the Company chose twenty CSRsfor special training to work

with a new computer system called Portal. The CSRs were trained to use Portal by an

SR, used SR training materials, and then were subsequently moved to a new work

location where they worked alongside SRs and took calls out of the same queue.

According to the testimony of the CSRs, this new work was different from the work

that they had performed prior to October 2008. Their prior worked focused primarily

on calls regarding trouble tickets, such as troubleshooting customer problems with

existing services. After their Portal training, however, they primarily worked on

order-related duties, such as assisting customers order new services. 

On November 13, 2008, the Union filed a grievance alleging that the Company

violated Article XV, § 7.a. of the CBA, which states the following:

A qualified employee . . . who is temporarily scheduled or assigned and

does work in a position with a higher established maximum rate of pay

throughout a period of two (2) or more full tours in a work week, except

for the purposes of training, shall receive for each full tour worked in

such position a Classification Differential equal to one-fifth (1/5) of the

amount of the weekly wage progression increase to which the employee

would at the time be entitled if the employee were actually changed to

the higher applicable classification at the employee's regular location.

Thus, as the Union contends, the Portal-trained CSRs were performing the job

functions of the higher-paid SRs without receiving a pay differential for this higherpaid work. SBC and the Union had previously arbitrated disputesregarding the same

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CBA language and the same issue of employees seeking pay differentials for

performing the job functions of higher-paid job classifications. As had been in

previous arbitrations, the Union bore the burden of showing a § 7 violation by

proving that the grieving employees (1) were qualified employees, (2) performed

work of a higher classification, (3) were temporarily scheduled or assigned to perform

this work, and (4) performed this work for a period of two tours or more each week

for which they seek a pay differential. See U-Verse Facilities Specialists—Temporary

Work in a Higher Position, AAA Case No. 58 300 00025 11 (2012). 

Arbitrator William McKee, Ph.D., arbitrated the dispute. With respect to the

first element of a § 7 violation, Arbitrator McKee rejected the Company's assertion

that the term "qualified" should be interpreted as "test qualified." During the dispute,

the Company argued that in order for an employee to be considered "qualified," the

employee had to pass the requisite tests to be eligible for promotion to the higher job

classification. Instead, Arbitrator McKee found that an employee could be considered

"qualified" "if there is evidence that management has made a cognitive selection of

certain employees who are capable of performing duties of a higher job

classification." In doing so, Arbitrator McKee relied upon a previous arbitration

award that he had decided, In re Senior Report Clerks, AAA Case No. 70 300 00505

06 (2008), and the U-Verse arbitration. Additionally, Arbitrator McKee distinguished

another arbitration that he had decided, Thomas White, AAA Case No. 70 300 00788

07 (2008), which came to a somewhat different interpretation based on factual and

evidentiary distinctions. Arbitrator McKee also considered and rejected the

Company's evidence of the parties' intent in the form of a rough transcript from the

1983 negotiation ofthe CBA. The transcriptreveals that a Union representative asked

"[i]n section 6a what does 'qualified' mean[?]" A SBC representative replied that 3

"[t]here are certain job requirements that qualify an employee for the job. Example,

Since 1983, the language once found in Article XV, § 6.a. was relocated to 3

§ 7.a. The actual language of the section has not been substantively changed. 

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if have typing for stenographer and can't type, not qualified." Another company

representative added that it "[m]eans test qualified. Does not change test

qualifications for job. If have group of operators and qualified, would be pressed to

go to senior." After a few lines of discussing the corresponding CBA provision

regarding seniority, however, the transcriptstates "Union Rejects!" After considering

this evidence, Arbitrator McKee stated that "clearly the Union did not agree to change

the language of the CBA to reflect [the Company's] interpretation" and that "the

parties left the term 'qualified' unchanged when they negotiated [subsequent]

contract[s]." 

Arbitrator McKee next addressed whether the CSRs were temporarily assigned

to perform the work of a higher classification. Similar to the last issue, Arbitrator

McKee relied upon the U-Verse arbitration and his previous decision in the Senior

Report Clerks arbitration. Arbitrator McKee interpreted the CBA language to mean

that "[a]n assignment of higher-level work is temporary until such time as the

Company chooses to change the job description of the lower title to include those

duties." Arbitrator McKee recognized that such an interpretation departed from

"Arbitrators Heinsz and Fowler[, who] have held otherwise, reasoning that

assignments are not 'temporary' once they become a permanent part of an employee's

workload." See Customer Serv. Representatives, AAA Case No. 71 300 00259 94

(1998) ("Heinsz Award"); Marketing Assistants Working in Higher Positions, AAA

Case No. 58 300 00028 01 (2003) ("Fowler Award"). Arbitrator McKee "respectfully

depart[ed]" from the Heinsz and Fowler Awards because their interpretation would

allow the Company to violate the CBA as long as it maintained a violation long

enough to deemnew work functions as "permanent."Based on contract interpretation

principles, Arbitrator McKee rejected this logic because it would empower the

Company with "the unilateral ability to render a provision of the contract

meaningless."

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Next, Arbitrator McKee addressed whether the CSRs indeed performed work

of a higher classification. Arbitrator McKee found that "[t]here is no dispute thatfrom

October through December 2008 the Grievants were trained to perform the work in

question: handling orders for new service and equipment." After comparing the job

titles of CSR and SR, Arbitrator McKee agreed with the Union that "the crucial

distinction between the two jobs isthat CSRs primarily handle maintenance or repair

issues, while [SRs] deal with orders for new service and equipment as well as billing

issues." Arbitrator McKee relied upon an arbitration decision by Arbitrator Richard

Bloch, Commc'n Workers of America, AAA Case No. 71 300 0085-88R (1989), to

conclude that the CSRs need not show that they performed all of the work of SRs.

Instead, CSRs need only prove that they performed work that was "clearly

attributable" to SRs. 

The Heinsz Award dealt with a similar request for pay differentials by CSRs

working for SBC related to their performance of higher-classified job functions of

SRs and Communication Technicians (CTs). The Heinsz Award found in favor of the

Company by interpreting the same CBA language to require "the Union to show that

only higher rated classifications performed the functions added to the duties of the

[CSRs]." The Union could not carry this burden before Arbitrator Heinsz because the

Company submitted evidence that indicated otherwise.Thus,Arbitrator Heinsz found

the following: 

While the changes in the work of the [CSRs] entail their performing

functions that may be performed by [SRs], a higher rated classification,

the same functions may also be performed by Service Order Writers, a

lower rated classification. Similarly, the changes in the manner in which

a few of the [CSRs] process certain of the customer reports of service

problems through interactions with the switch system are functions

which may be performed by [CTs], a higher rated classification, but are

also functions which may be performed by Line Translation Specialists,

a lower rated classification.

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Arbitrator McKee did not address this exclusivity requirement in the Heinsz

Award—that grievants show that the job functions for which they seek pay

differentials are exclusively performed by higher job classifications. Neither did

Arbitrator McKee address the relevant testimony of the Company's Labor Relations

Director, Lindsay Larson, who testified that the SR job functions for which the CSRs

specifically requested a pay differential are not exclusive to the SR classification, but

are also performed by lower-classified job titles. 

Finally, Arbitrator McKee addressed the last § 7 element regarding whether the

CSRs had performed the higher-classified work for two full tours each work week.

Based on the testimony presented, Arbitrator McKee concluded that "[a]lthough the

testimony on this point was uneven, evidence shows that the Grievants began

performing significant amounts of order-related work following their completion of

training in late fall 2008. This generally satisfies the requirement that the work be

performed 'throughout two or more full tours per work week.'" 

Based on the "uneven" testimony, however, Arbitrator McKee found that "[i]t

is possible that each of the CSRs did not perform order-related work throughout two

or more tours each week after their training started. As such, I grant the Union's

request for a make-whole remedy and retain jurisdiction to resolve disputes over

implementation." (Emphasis added.) ArbitratorMcKee then upheld the grievance and

clarified that he would "retain jurisdiction for the specific purpose of resolving any

disputes that may arise between the parties about the application or interpretation of

this awarded remedy." 

The Company sought review of the McKee Award under § 301 of the Labor

Management Relations Act. 29 U.S.C. § 185. The district court affirmed the

arbitration award. The Company argued that the McKee Award should be vacated

because it "fails to draw its essence from the [CBA]." See Hoffman v. Cargill, Inc.,

236 F.3d 458, 461 (8th Cir. 2001). The district court disagreed, granting the Union's

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motion for summary judgment. Giving due deference to the arbitrator's decision, the

court examined each of Arbitrator McKee's findings and concluded that Arbitrator

McKee did not exceed his authority. In particular, the court found that Arbitrator

McKee was not bound by previous arbitration awards, such as the Heinsz Award,

"because the instant grievance does not involve the same issue under the same facts

and circumstances as the prior Heinsz arbitration." The court also rejected the

Company's argument that by retaining jurisdiction, Arbitrator McKee violated the

functus officio doctrine that holds that "once an [arbitrator] renders a decision

regarding the issues submitted, [he] becomes functus officio and lacks any power to

reexamine that decision." Domino Grp., Inc. v. Charlie Parker Mem'l Found., 985

F.2d 417, 420 (8th Cir. 1993) (quotation and citation omitted). The district court

found that Arbitrator McKee's retention of jurisdiction was based on the need to

address problems that may arise in implementation of the award, such as the

determination of how much each grievant is due based on the number of weeks they

worked two tours or more. The court determined that this did not violate the functus

officio doctrine, which was meant "to limit the 'potential evil' of outside

communications affecting an arbitration award."

II. Discussion

On appeal, the Company seeks our review of the McKee Award contending

that it fails to draw its essence from the CBA. In addition, the Company argues that

the district court erred by finding that Arbitrator McKee was not bound by previous

arbitration awards, the Heinsz Award in particular. Finally, the Company argues that

Arbitrator McKee'sretention of jurisdiction was improper. "We review de novo both

the district court's grant of summary judgment and the court's legal conclusions in its

denial of a motion to vacate an arbitration award." Trailmobile Trailer, LLC v. Int'l

Union of Elec., Elec., Salaried, Mach. & Furniture Workers, AFL–CIO, 223 F.3d

744, 746 (8th Cir. 2000) (internal citations omitted).

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When reviewing an arbitration award, "we . . . accord 'an extraordinary level

of deference' to the underlying award itself." Boise Cascade Corp. v. Paper

Allied-Indus., Chem. &Energy Workers (PACE), Local 7-0159, 309 F.3d 1075, 1080

(8th Cir. 2002) (quoting KeeblerCo. v. Milk Drivers &Dairy Emps. Union, Local No.

471, 80 F.3d 284, 287 (8th Cir. 1996)). Thus, our review of arbitration awards is

extremely limited, and we are not to review the merits. Osceola Cnty. Rural Water

Sys., Inc. v. Subsurfco, Inc., 914 F.2d 1072, 1075 (8th Cir. 1990) (citation omitted).

"[A]s long as the arbitrator is even arguably construing or applying the contract and

acting within the scope of his authority, that a court is convinced he committed

serious error does not suffice to overturn his decision." United Paper Workers Int'l

Union, AFL–CIO v. Misco, Inc., 484 U.S. 29, 38 (1987). Thus, "[w]e may not set an

award aside simply because we might have interpreted the agreement differently or

because the arbitrators erred in interpreting the law or in determining the facts."

Hoffman, 236 F.3d at 462 (quotation and citation omitted). 

While this deference makes it an "unusual circumstance[]" when we overturn

an arbitration award, First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 942 (1995),

arbitration awards are not immune fromjudicial oversight. We will overturn an award

if "it is completely irrational or evidences a manifest disregard for the law." Hoffman,

236 F.3d at 461 (quotations and citations omitted). "An arbitration decision may only

be said to be irrational where it fails to draw its essence from the agreement, and an

arbitration decision only manifests disregard for the law where the arbitrators clearly

identify the applicable, governing law and then proceed to ignore it." Id. at 461–62

(emphasis added) (citing Stroh Container Co. v. Delphi Indus., 783 F.2d 743, 749–50

(8th Cir. 1986)). 

A. Drawing Its Essence From the Agreement

The Company argues that the McKee Award should be vacated because it fails

to draw its essence from the CBA in the following respects: First, Arbitrator McKee

failed to consider the parties' bargaining history and improperly considered prior

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arbitration awards in his interpretation of the term "qualified." Second, Arbitrator

McKee imposed new obligations and improperly departed from previous arbitration

awards in his interpretation of the term "temporarily scheduled or assigned." Third,

Arbitrator McKee improperly ignored previous arbitration awards and undisputed

evidence when he found that CSRs performed higher-classified work. 

1. "Qualified"

TheCompany begins by arguing that Arbitrator McKee ignored the undisputed

bargaining history of the CBA in his interpretation of the term "qualified." "[I]f an

arbitrator attempts to interpret a written agreement that issilent or ambiguous without

considering the parties' intent, his award will fail to draw its essence from the

[agreement]." Boise Cascade, 309 F.3d at 1082 (citing Bureau of Engraving, Inc. v.

Graphic Commc'ns Int'l Union, Local 1B, 164 F.3d 427, 429 (8th Cir. 1999)). Thus,

the Company contendsthat the McKee Award failed to consider the parties' intent by

failing to consult the undisputed bargaining history of the term "qualified." The

Company cites both Boise Cascade, 309 F.3d at 1084 and Bureau of Engraving, 164

F.3d at 429, as two analogous cases in which this court vacated arbitration awards

when the arbitrator did not consider evidence of the parties' intent. 

We reject the Company's argument, however, because Arbitrator McKee did

in fact address the parties' intent by explicitly considering "the bargaining history

introduced by the Company." Arbitrator McKee found that whatever the Company

negotiated for, it is clear that the Union did not agree to change the language or

otherwise bow to their interpretation of the term "qualified." Our narrow review

precludes us from reviewing the factual accuracy of Arbitrator McKee's finding. See

Boise Cascade, 309 F.3d at 1084. 

Arbitrator McKee's interpretation of the term "qualified" followed prior

arbitration awards. "[A]n arbitrator generally has the power to determine whether a

prior award is to be given preclusive effect . . . ." Trailways Lines, Inc. v. Trailways,

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Inc. Joint Counsel, 807 F.2d 1416, 1425 (8th Cir. 1986) (citing Conn. Light & Power

Co. v. Local 420, Int'l Bhd. of Elec. Workers, 718 F.2d 14, 20 (2d Cir. 1983)); see

also W.R. Grace & Co. v. Local Union 759, Int'l Union of United Rubber, Cork,

Linoleum & Plastic Workers of Am., 461 U.S. 757, 764–65 (1983) (holding that an

arbitrator's conclusion that he was not bound by a prior arbitrator's decision was

binding on the federal courts). Thus, Arbitrator McKee'sreliance on the interpretation

of the term "qualified" in the U-Verse arbitration and his Senior Report Clerks

arbitration decision was within his purview and is not subject to our review.

2. Temporarily Scheduled or Assigned

Next, the Company argues that the McKee Award misconstrues the term

"temporarily scheduled or assigned" and thus imposes a new obligation on the

Company not bargained for in the CBA. The Company relies upon our decision in

Keebler to support its position. 80 F.3d 284 (8th Cir. 1996). Because Keebler is not

apposite, we are unpersuaded. 

In Keebler, a company and its union entered into a CBA and subsequently a

side agreement to the CBA governing the sales and delivery of food products. Id. at

286. When a dispute arose, the parties settled the dispute and issued a settlement

letter governing the settlement. Id. When a second dispute arose, the case was

arbitrated. Id. This court vacated the arbitrator's award in favor of the union because

we found that the arbitrator based his award on the settlement letter and not on the

language of the CBA or the side agreement. Id. at 288 ("The arbitrator found that [the

company]'s obligation to obtain [the union's] agreement arose under the settlement

letter, to which the arbitrator apparently also looked to discern the parties' intent

under the [CBA] and the side agreement."). In this case, however, Arbitrator McKee

based his award solely on the ambiguous language "temporarily scheduled or

assigned" found in the CBA. 

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Arbitrator McKee's interpretation relied upon previous arbitration decisions

that addressed the same issue in Senior Report Clerks and U-Verse. The interpretation

that a work assignment is temporary until the Company has changed the job

description of the lower-job classification to include the higher-classified work was

first articulated by McKee in Senior Report Clerks, then adopted by Arbitrator Dana

Eischen in his U-Verse decision. Arbitrator McKee recognized, however, that this

interpretation was contrary to the interpretation of temporariness in the Heinsz and

Fowler Awards. As we stated in Trailways, "we recognize that there may be situations

where an arbitrator will refuse to defer to a prior award involving the same issue,"

including when "'(1) [t]he previous decision was clearly an instance of bad judgment;

(2) the decision was made without the benefit of some important and relevant facts

or considerations; or (3) new conditions have arisen questioning the reasonableness

of the continued application of the decision.'" 807 F.3d at 1425 n.16 (quoting F.

Elkouri & E. Elkouri, How Arbitration Works 428 (BNA 4th ed. 1985)). 

Arbitrator McKee explained his declination of deference to a prior award

involving a similar dispute by stating his disagreement with the prior decisions's

interpretation ofthe contract's provisions. According to Arbitrator McKee, the Heinsz

and Fowler Awards interpreted temporariness in a manner that gave the Company an

incentive to violate the CBA as long as they violated it consistently for a given

amount of time (or at least until the higher-classified job functions were performed

long enough by lower-classified employees to be considered a permanent part of their

job). Arbitrator McKee concluded that this interpretation was erroneous because it

gave the Company the unilateral ability to render the temporariness requirement

meaningless. In sum, Arbitrator McKee's decision to follow certain arbitration awards

and not others, based upon those awards' factual and legal differences, does not

authorize us to vacate his award under Trailways. 

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3. Performance of Higher-Classified Work

The Company also argues that the McKee Award inexplicably departed from

the Heinsz Award's interpretation of performing higher-classified work. Unlike in the

issue of temporarily assigned work, Arbitrator McKee failed to distinguish prior

similar arbitral awards involving the same performance of higher-classified work.

In Trailways, we commented on our "grave concerns" when an arbitrator did

not give precedential effect to a prior arbitration award. 807 F.2d at 1425. Trailways

involved two grievances regarding an employer's "no beard" policy. Id. at 1417. The

two grievances were raised by different groups of employees represented by the same

union. Id.Both grievances were arbitrated. Even though the arbitrations "involved the

same company, the same union, essentially the same issue, and interpretation of the

same contract," id. at 1425, they reached different conclusions. Id. at 1418–19.

Whereas the first arbitration award found for the company, the second arbitration

award "did not discuss the similar nature of the two grievances and why, in light of

this fact, the [first arbitration award] was not to be given preclusive effect." Id. at

1425. "[A]lthough not the basis of our decision," we stated that "[i]f an arbitrator does

not accord any precedential effect to a prior award in a case like this, or at least

explain the reasons for refusing to do so, it is questionable when, if ever, a 'final and

binding' determination will evolve from the arbitration process." Id. at 1425–26. On

the issue of performing higher-classified work, Arbitrator McKee did not apply the

Trailways standard by at least explaining his reasons for departing from the Heinsz

Award. 

While Arbitrator McKee did not have to follow the Heinsz Award, he at least

should have explained his departure—as he did for the temporariness issue outlined

above—under Trailways. 807 F.2d at 1425–26; see also Am. Nat'l Can Co. v. United

Steelworkers of America, 120 F.3d 886, 891–92 (8th Cir. 1997) (acknowledging the

burden on arbitrators under Trailways, but nevertheless finding that Trailways was

satisfied because the arbitrator "specifically identified the critical factual differences

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between the arbitral decisions cited by ANC and the case before him and, based upon

those material distinctions, determined that no preclusive effect should be accorded

the two prior decisions.").

Nevertheless, an arbitrator's error in failing to give precedential or preclusive

effect to a previous arbitration award is not alone sufficient to vacate an arbitration

award. Am. Nat'l Can Co., 120 F.3d at 892 (finding "that inconsistency with another

award is not enough in itself to justify vacating an award . . . [and] that neither award

will be set aside where both draw their essence from the collective bargaining

agreement." (alterations in original) (quoting McGraw Edison, Wagner Div. v. Local

1104, Int'l Union of Elec., Radio & Mach. Workers, 767 F.2d 485, 489 (8th Cir.

1985))). Therefore, as long as Arbitrator McKee's interpretation draws its essence

from the CBA, we will uphold the award, despite the Heinsz Award precedent. See

id. at 893. 

Taking into account Arbitrator McKee's findings that the CSRs performed

work that was not a part of their job classification but was a part of the SRs' job

classification, we conclude that Arbitrator McKee's interpretation drew its essence

from the CBA. The applicable language of § 7 requires compensation to employees

who "do[] work in a position with a higher established maximum rate of pay." While

the Heinsz Award interpreted this language to require that the work at issue was

exclusively performed by higher job classifications, Arbitrator McKee interpreted the

"key [a]s whether the functions being performed by the lower-rated job title are

'clearly attributable' to a higher-paid job." While the two interpretations are not

perfectly congruous, we cannot say that Arbitrator McKee's interpretation fails to

draw its essence from the CBA. Therefore, we will not vacate the McKee Award

based on the arbitrator's interpretation of the CBA or its inconsistency with the

Heinsz Award. 

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B. Retention of Jurisdiction

Finally, the Company argues that the McKee Award should be vacated because

it improperly retains jurisdiction in violation of the functus officio doctrine. Also, the

Company contendsthat the McKee Award erroneously reforms the CBA by imposing

new obligations beyond what the parties negotiated in the CBA. TheCompany argues

that Arbitrator McKee is attempting to give the Union a second bite of the apple. The

Company believes retaining jurisdiction would enable the union to adduce missing

evidence to avoid a failure of proof on whether grievant CSRs worked two tours or

more for each week they are seeking a pay differential. 

First, Arbitrator McKee's retention of jurisdiction does not give the Union

further opportunity to prove the prima facie elements of their case. While the

Company argues that Arbitrator McKee found that the Union had not carried their

burden of showing that the grievant CSRs had worked two tours or more a week, he

actually found the exact opposite. Although the evidence was described as "uneven"

on this topic, Arbitrator McKee found that the grievant CSRs "satisfie[d] the

requirement that the work be performed 'throughout two ormore full tours per week.'"

Therefore, as it pertained to liability, the Union had met its burden of showing that

the Company violated the CBA. As it pertained to the amount due to each grievant,

Arbitrator McKee was persuaded by the Company's evidence of the possibility "that

each of the CSRs did not perform [the higher-classified] work throughout two or

more tours each work week after their training occurred." According to this finding,

Arbitrator McKee found that "[t]he Grievants are entitled to be made whole for their

losses," but retained jurisdiction "for the specific purpose of resolving any disputes

. . . about the application or interpretation of this awarded remedy." To the extent the

parties could not agree on the amount of compensation due to each grievant,

Arbitrator McKee could then consider evidence to determine during which weeks

each CSR worked two or more tours that would determine the dollar amount of the

award. 

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For the same reasons, Arbitrator McKee's retention of jurisdiction does not

violate the functus officio doctrine. This court recognizesthe "generalrule in common

law arbitration that when arbitrators have executed their awards and declared their

decision they are functus officio and have no power to proceed further." Local P-9,

United Food & Commercial Workers Int'l Union, AFL-CIO v. George A. Hormel &

Co., 776 F.2d 1393, 1394 (8th Cir. 1985) (quotation and citation omitted). The

functus officio doctrine only applies, however, when an arbitration award is

considered a final award. See id.; Legion Insurance Co. v. VCW, Inc., 198 F.3d 718,

720 (8th Cir. 1999). 

In Local 36, Sheet Metal Workers International Association, AFL-CIO v.

Pevely Sheet Metal Co., we upheld an arbitrator's retention of jurisdiction under

circumstances similar to these. 951 F.2d 947, 949 (8th Cir. 1992). In Pevely Sheet

Metal, a board that resembled a panel of arbitrators upheld a union's grievance on

August 4, 1988, but retained jurisdiction in case the parties could not stipulate to the

amount of back pay owed to the grievants. Id. at 948. When the parties were unable

to resolve the issue of damages, the board considered evidence at a hearing and issued

an award with a specific dollar amount. Id. at 948–49. We upheld the board's

retention of jurisdiction and ultimate revisitation of the award because the original

award was not final. 

Although the August 4, 1988, determination of liability was more than

just a procedural event, it was not a final order. . . . The August 4, 1988,

order specifically contained a provision whereby the [board] retained

jurisdiction if the parties were unable to reach an agreement as to

damages. [The union] had no arbitration award to enforce until damages

were determined. The August 4, 1988, decision, while it was final as to

liability, was not intended to be a final enforceable award asisshown by

the [board]'s retaining jurisdiction.

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Id. at 949. Similarly, while the McKee Award decided liability, it is not a final order

until the amount of the award is eventually determined.

TheCompany relies primarily on Legion Insurance to support its argument that

the McKee Award was a final award that triggered the functus officio doctrine. 198

F.3d 718 (8th Cir. 1999). In Legion Insurance, an arbitration panel's initial award

found that VCW wasliable to Legion Insurance because it had not remitted insurance

premiums. Id. at 719. The arbitrator later rescinded its award ordering VCW to pay

the premiums. Id. On appeal, VCW sought to uphold the recision of the original

award on the basis that it was not final because the arbitrators "still had to decide

additional issues, such as the amount of adjustments to the award of premiums." Id.

at 720. We acknowledged that "[a]n award cannot be final if significant issues still

need to be determined." Id. Notwithstanding, "we do not think that a minor

adjustment to the award creates an important issue." Id. A minor adjustment to a

pecuniary award is quite different than the initial determination of the award's

amount. In Pevely Sheet Metal, we rejected a similar argument "that the determination

of damages was[merely] a 'ministerial' detail" because "the determination of damages

did not merely involve a simple calculation, but required the resolution ofsignificant

issues." 951 F.2d at 949. We find that the factual determination of how many tours

each CSR worked during which weeks is more akin to the significant issuesin Pevely

Sheet Metal rather than the minor adjustment to an award in Legion Insurance.

Therefore, the McKee Award is not final and the functus officio doctrine is not

triggered. 

The Company also argues that Arbitrator McKee's retention of jurisdiction

subjects them to a piecemeal hearing process that imposes new obligations on the

parties that is foreign to what they bargained for in the CBA. In the Steelworkers

trilogy, the Supreme Court said that parties that submit to arbitration bargain for the

arbitrator's "judgment and all that it connotes." United Steelworkers of Am. v. Am.

Mfg. Co., 363 U.S. 564, 568 (1960). Because the "amounts due [to grievant]

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employees" is a part of the judgment of an arbitrator, United Steelworkers of Am. v.

Enter. Wheel & Car Corp., 363 U.S. 593, 599 (1960), we find no merit to the

Company's argument. Arbitrator McKee's ultimate determination of the amount due

to employees is the very procedure and remedy the Company and the Union

bargained for in the CBA when they negotiated an arbitration clause.

III. Conclusion

For the reasons stated herein, we affirm the district court'sjudgment enforcing

the McKee Award.

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