SBC Advanced Solutions, Inc. v. CWA, District 6

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
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Submitted: April 16, 2015
Filed: July 28, 2015
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Before BYE and SMITH, Circuit Judges, and SCHILTZ,1 District Judge.
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SMITH, Circuit Judge.
1
The Honorable Patrick J. Schiltz, United States District Judge for the District
of Minnesota, sitting by designation.
SBC Advanced Solutions, Inc. ("Company") appeals the district court's2 grant
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 parties regarding 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
2
The Honorable Charles A. Shaw, United States District Judge for the Eastern
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 CSRs for 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 higher-
paid work. SBC and the Union had previously arbitrated disputes regarding 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 of the CBA. The transcript reveals that a Union representative asked
"[i]n section 6a what does 'qualified' mean[?]"3 A SBC representative replied that
"[t]here are certain job requirements that qualify an employee for the job. Example,
3
Since 1983, the language once found in Article XV, § 6.a. was relocated to
§ 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 transcript states "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 deem new 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 that from
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 is that 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.) Arbitrator McKee 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's retention 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 Keebler Co. 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 from judicial 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"
The Company 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 is silent 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 contends that 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's reliance 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 of the 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 contends that the McKee Award erroneously reforms the CBA by imposing
new obligations beyond what the parties negotiated in the CBA. The Company 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 or more 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 recognizes the "general rule 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 as is shown 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.
The Company 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 was liable 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 of significant
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 issues in 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's judgment enforcing
the McKee Award.
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