SBC Advance Solutions, Inc.

Filing 35

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiff SBC Advanced Solutions, Inc.'s motion for summary judgment is DENIED. [Doc. 17 ] IT IS FURTHER ORDERED that defendant Communications Workers of America, District 6's motion for summary judgment is GRANTED. [Doc. 26 ] A separate judgment will accompany this Memorandum and Order. Signed by District Judge Charles A. Shaw on 9/3/14. (KXS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SBC ADVANCED SOLUTIONS, INC.,
Plaintiff/Counter Defendant,
v.
COMMUNICATIONS WORKERS OF
AMERICA, DISTRICT 6,
Defendant/Counter Claimant.

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No. 4:13-CV-1711 CAS

MEMORANDUM AND ORDER
This matter is before the Court on the parties’ cross motions for summary judgment. The
motions are fully briefed and ready for decision. For the following reasons, the Court will grant
defendant Communications Workers of America, District 6’s (“CWA” or “the union”) summary
judgment motion and deny plaintiff SBC Advanced Solutions, Inc.’s (“ASI” or “the company”)
motion for summary judgment.
I.

Background
This is an action to vacate an arbitration award that requires ASI to pay additional

compensation to employees at its Earth City, Missouri call center who have been working at a
higher-paid job title, service representative, while being paid at a lower-paid job title, customer
service representatives.

After sustaining the employees’ grievance, the arbitrator retained

jurisdiction for the specific purpose of resolving any dispute regarding the application of the
awarded make-whole remedy. In its motion for summary judgment, ASI asks the Court to vacate
the labor arbitration award and the arbitrator’s post-award ruling.
Defendant CWA has also moved for summary judgment on its counterclaim to enforce the
underlying arbitration award. Alternatively, CWA seeks to have the matter remanded to the

arbitrator pursuant to the arbitrator’s retained jurisdiction to resolve the dispute regarding the
awarded make-whole remedy. CWA also seeks an order requiring ASI to pay its reasonable
attorneys’ fees because ASI’s refusal to comply with the arbitration award and its suit to vacate the
award are without substantial justification.
II.

Standard of Review of Arbitration Award
Review of a commercial arbitration award is governed by the FAA. The Eighth Circuit has

often stated that “judicial review of an arbitration award is extremely limited.” Val-U Constr. Co.
of S. Dak. v. Rosebud Sioux Tribe, 146 F.3d 573, 578 (8th Cir. 1998). The Supreme Court of the
United States has observed that courts will set aside arbitrator’s decisions “only in very unusual
circumstances.” First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 942 (1995). “Arbitration
awards should be construed, whenever possible, so as to uphold their validity.” Delta Mine Holding
Co. v. AFC Coal Properties, Inc., 280 F.3d 815, 923 (8th Cir. 2001). Courts do not review the
merits of the arbitration award, and where the arbitrator is even arguably construing or applying the
contract and acting within his authority, a court cannot overturn the decision even if it is convinced
that the arbitrator committed serious error. See Osceola County Rural Water Sys., Inc. v. Subsurfco,
Inc., 914 F.2d 1072, 1075 (8th Cir. 1990) (quoting United Paperworks Int’l Union, AFL-CIO v.
Misco, Inc., 484 U.S. 29, 38 (1987)).
The FAA lists only four narrow bases for vacating an arbitration award: (1) where the award
was procured by corruption, fraud, or undue means; (2) where there was evident partiality or
corruption in the arbitrators; (3) where the arbitrators were guilty of misconduct in refusing to hear
evidence material to the controversy, or of any other misbehavior; or (4) where the arbitrators
exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon
the subject matter was not made. See 9 U.S.C. § 10(a).
2

In addition to the statutory grounds for vacatur, the Eighth Circuit has recognized two nonstatutory bases for vacating an arbitration award: where the award “is completely irrational or
evidences a manifest disregard for the law.” Hoffman v. Cargill Inc., 236 F.3d 458, 461 (8th Cir.
2001) (quoting Val-U Constr. Co., 146 F.3d at 578 (internal quotations and citations omitted)).
“These extra-statutory standards are extremely narrow: 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 (citation omitted). A court “may not set aside an award
simply because [it] might have interpreted the agreement differently or because the arbitrators erred
in interpreting the law or in determining the facts.” Id. (internal quotation and citation omitted).
“Rather, the contract must not be susceptible of the arbitrator’s interpretation.” Id.
III.

Facts
In the late 1990s, for regulatory reasons Southwestern Bell’s parent company SBC

Communications created a new affiliate company to handle DSL internet service. That company
became ASI, and its union-represented employees were covered by the same collective bargaining
agreement (“CBA”) as those in Southwestern Bell.
ASI opened a call center in Earth City, Missouri in 1999. It staffed this center with several
different job titles under the CBA, including customer service representatives (“CSRs”) and service
representatives (“SRs”). SRs are paid more than CSRs under the CBA. The CSRs worked primarily
on “trouble tickets” or work orders. The CSRs’ job description states, in relevant part, that a CSR
“[p]rimarily receives, screens, tests, analyzes, and dispatches trouble reports; explains and suggests
various services and/or products to customers; performs other generally related functions.” (JR

3

256).1 The SRs’ job description states, in relevant part, that a SR “[h]andles the business
transactions in connection with customers’ accounts, including telephone and correspondence
contacts and collection and order work.” (JR 254).
In November 2008, approximately twenty CSRs at the Earth City facility filed a grievance
through their union, defendant CWA, alleging they were performing higher-paid SR work and were
entitled to a pay differential when working on service orders. CWA alleged a violation of Article
XV, Section 7, which states in relevant part:
Section 7. All Other Temporary Work in a Higher Position
a.
A qualified employee not otherwise covered by the provisions of Sections 1.
through 5. above, 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.
CWA demanded arbitration of its grievance, and the parties proceeded to arbitration under
the labor arbitration rules of the American Arbitration Association (“AAA”), which rules are
expressly a part of the parties’ arbitration provisions in their CBA.
The parties’ arbitration provisions state in part:
Section 2. In the event that either party hereto, within sixty (60) days after
completion of the Formal Grievance procedure aforesaid, elects to submit a matter
described in the preceding section to arbitration, the parties agree that the matter
shall be so submitted and agree that such submission shall be to one (1) arbitrator .
. . . [T]he arbitration shall be conducted under the then obtaining rules of the
Voluntary Labor Arbitration Tribunal of the American Arbitration Association . . .
.
1

The parties submitted a joint record of exhibits supporting their cross motions for summary
judgment. The joint record consists of the entire record of proceedings from the underlying labor
arbitration. See Doc. 22. This joint record will be cited throughout this Memorandum and Order
as (JR ___).
4

Section 3. The arbitrator shall be confined to the subjects submitted for decision, and
may in no event, as part of any such decision impose upon either party any obligation
to arbitrate on any subjects which have not herein been agreed upon as subjects for
arbitration; nor may the arbitrator, as a part of any such decision, effect reformation
of the contract, or of any of the provisions thereof.
Section 4. The decision of the arbitrator, selected in accordance with Section 2.
hereof, shall be final, and the parties agree to be bound and to abide by such
decision.
As to the union’s claim under Article XV, Section 7, the parties agreed that the union had
the burden of proving all of the four following elements, showing that all the CSR grievants:
1.

Were “qualified” for the higher title whose work the union claims the
grievants are performing;

2.

Were “temporarily scheduled or assigned” to the allegedly higher work;

3.

Performed the allegedly higher work “throughout two or more full
tours in a work week”; and,

4.

Performed “work in a position with a higher established maximum
rate of pay.”

(JR at 2831).
The parties could not agree as to the statement of the issue to be decided at arbitration, but
jointly stipulated that the arbitrator had the authority to frame the issue. (JR 1929-30). The
arbitrator framed the issue at arbitration as follows:
Whether the Grievants are entitled to a classification differential under Article XV,
Section 7 of the 2004 Departmental Agreement? If so, what is the appropriate
remedy?
(JR 2821).
Arbitrator William L. McKee, Ph.D., issued his final award on May 31, 2013. He sustained
the grievance and ruled that the grievants were entitled to be made whole for their losses. He stated

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further that he “retain[s] jurisdiction for the specific purpose of resolving any disputes that may arise
between the parties about the application or interpretation of this awarded remedy.” (JR 2839).
ASI did not participate in any proceedings pursuant to the reserved jurisdiction. ASI
reasoned that under AAA rules and the doctrine of functus officio, the arbitrator has no further
authority or jurisdiction after he has issued his final award. Arbitrator McKee, however, held it was
appropriate for him to retain and exercise jurisdiction to effectuate the award. He based this ruling
on the provision of The Code of Professional Responsibility for Arbitrator of Labor-Management
Disputes that permits the retention of remedial jurisdiction even in the absence of consent from the
parties. (JR 3004-07).
IV.

Discussion
At arbitration, the parties agreed that the Union must prove the following elements to

establish a violation of Article XV, Section 7: (1) a “qualified employee”; (2) temporarily scheduled
or assigned to perform work in a higher classification; (3) did perform the work in a position with
a higher established maximum rate of pay; (4) throughout a period of two or more full tours in a
work week. As to each element, ASI argues the underlying arbitration award fails to draw its
essence from the parties’ CBA.
A.

A “Qualified Employee”

Article XV, Section 7 requires that the grievant be a “qualified employee” to receive the pay
differential at issue. ASI argues that “qualified” as used in the CBA means “test qualified,” that is,
employees seeking the pay differential had to have passed the tests required of the higher-paid title.
ASI supported its position at arbitration with its Labor Relations Director, Lindsay Larson’s,
testimony, in which he cited the original bargaining history documents from the negotiation of the

6

CBA. In these notes of the negotiations, the chief bargainer for the company, Zac Bettis, states that
qualified “means test qualified.” (JR 1562).
For its part, defendant CWA states that the phrase “test qualified” does not appear in the
CBA. It states further that the Court’s assessment of the arbitrator’s interpretation of the word is
limited to determining whether the arbitrator was acting within his jurisdiction and if the
construction draws upon the CBA. The Court does not review the award to determine whether it
was correct. Putting that aside, CWA argues that ASI’s evidence regarding the meaning of the word
“qualified” did not persuade the arbitrator. The arbitrator’s decision was informed by an earlier
arbitration award he issued concerning Article XV, Section 7 and another arbitration in 2012 that
held employees need not be test qualified to receive the classification differential.
In his arbitration award, Arbitrator McKee reviewed two prior cases in which he interpreted
the CBA’s use of the term “qualified” in Article XV, Section 7: Senior Reports Clerks, AAA Case
No. 70 300 00505 06 (JR 2618-28), and Thomas White, AAA Case No. 70 300 00788 07 (JR 276067). In Senior Reports Clerks, he held that “qualified” did not mean “test qualified” as the company
had argued. In Thomas White, he determined the grievant was not “qualified” because he did not
have the licensure qualifications that were bargained for and added to the position description. In
addition, he found evidence that grievant was not assigned the duties of the higher job classification.
In this arbitration, consistent with his prior determinations, Arbitrator McKee found that an
employee could be “qualified” if there is evidence that management had selected certain employees
capable of performing the duties of the higher classification, trained these employees to perform the
duties of the higher classification, and assigned these employees to perform the new work on a
regular basis. Arbitrator McKee then addressed the “credible testimony of Mr. Larson,” and the
bargaining history evidence introduced by ASI. He stated that he was not persuaded by this
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evidence because despite the company stating its interpretation of the term “qualified,” the union
did not agree to change the language of the CBA to reflect this interpretation. The CBA
unambiguously states “[a] qualified employee,” not “a test qualified employee.” Additionally, the
parties left the term “qualified” unchanged when they negotiated the 2009 CBA.
The Court finds the arbitrator’s award draws its essence from the CBA and is not merely the
arbitrator’s “own brand of industrial justice.” United Paperworkers Int’l Union v. Misco, Inc., 484
U.S. 29, 36 (1987). The Court is not authorized to reconsider the merits of the award, but merely
determine whether the arbitrator has exceeded his authority. The arbitrator analyzed the issue of
“qualified” versus “test qualified” by examining his prior decisions on this issue. He also credited
the testimony of ASI’s witness, Mr. Larson, and the bargaining history evidence he introduced at
the hearing. This additional evidence, however, did not alter his prior analyses. Despite the
company’s position that “qualified” meant “test qualified” in the bargaining process, the union did
not agree to change the language of the CBA to reflect this language and left the term unchanged
when they negotiated the 2009 contract. The arbitrator considered the parties’ intent and the
bargaining history, but did not ultimately side with the company because the language of the CBA
remained unchanged despite the company’s position at negotiations. Broadly construing the
agreement with all doubts being resolved in favor of the arbitrator’s award, the Court finds the
arbitrator interpreted the plain language of the CBA, and this interpretation draws its essence from
the CBA.
B.

Performance of Higher Classification

Arbitrator McKee found that the CSRs were required to perform the work of SRs, a higherpaid job title. The company argues that because lower-paid job titles also perform the disputed
work, the CSRs cannot claim they are performing higher-paid SR work. The company cites a prior
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arbitration award, the Heinsz award (AAA Case No. 71 300 00259 94 (JR 2647-65)), in which
Arbitrator Heinsz found that both lower-paid titles and higher-paid titles performed the work at
issue, and therefore the grievants could not establish they were performing higher-paid SR work.
For legal support, the company cites this Court’s decision in Trailways Lines, Inc. v. Trailways, Inc.
Joint Council, 624 F. Supp. 880 (E.D. Mo. 1985), for the proposition that because a previous
arbitration between the parties made this finding, this finding is now part of the parties’ CBA and
cannot be reformed by the arbitrator. The company claims Arbitrator McKee “ignored prior
contrary and binding arbitration awards,” namely the Heinsz arbitration award, and therefore the
award fails to draw its essence from the CBA. (Pls.’ Mem. at 10-11).
The Trailways case involved a interstate bus line’s no-beards policy, which was arbitrated
twice in an eight-month period under the same collective bargaining agreement. The first award,
rendered August 8, 1984, held that the policy was reasonable and sustained the right of Trailways
to enforce it. The second award, rendered by a different arbitrator on February 28, 1985, held the
no-beards policy unreasonable and not enforceable. The facts and circumstances in both arbitration
proceedings were identical in all material respects. Trailways, 624 F. Supp. 881. In fact, both
arbitral proceedings “necessitated the construction of the identical contract provision of the same
national labor contract between the same employer and the same union, in deciding the merits of
a grievance involving the same issue under essentially the same facts and circumstances.” Id. at 883
(emphasis in original).
The Court finds that the Heinsz arbitration award is not final and binding on Arbitrator
McKee under Trailways, because the instant grievance does not involve the same issue under the
same facts and circumstances as the prior Heinsz arbitration. The Heinsz arbitration addressed how
CSRs used their computer terminals to forward information concerning sales they had made to their
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customers, who had called regarding service problems. At some point prior to the early 1990s,
CSRs would forward information regarding sales to the company’s marketing business offices,
where SRs or Service Order Writers entered the information into a mechanized system called SORD.
In the early 1990s, however, CSRs could access SORD through their newly furnished computer
terminals. Management decided it was more cost effective to have the CSRs enter order information
concerning sales they had made to customers directly into SORD whenever the CSRs workload
permitted. Time did not allow the CSRs to input all orders into SORD, and approximately fifty
percent of all sales made by CSRs were still forwarded to the marketing department to process.
Here, Arbitrator McKee addressed a different issue. The company assigned work that was
predominantly within the SR job description to lower-paid CSRs with a distinguishably different
job description, trained the CSRs to perform this new order-related work, chose a SR to provide the
necessary training, and then required CSRs to handle matters related to orders for new service and
equipment. Unlike Trailways, in which two different arbitrators decided the identical issue under
essentially the same facts and circumstances, here the issues are different and the facts and
circumstances are different. The Trailways decision does not provide support for the company’s
position that the decision in the Heinsz arbitration is final and binding on the parties.
Moreover, Arbitrator McKee did not “ignore” the Heinsz award; he considered the decision,
but distinguished it noting that in the present case the CSRs testified that performing the work of the
SRs had become the primary component of their jobs. (JR 2833). Additionally, Arbitrator McKee
used the principles of contract interpretation to find it unreasonable that the company should have
the unilateral ability to render a provision of the contract meaningless. (JR 2834). Arbitrator
McKee considered the Heinsz award and the company’s position, but rejected it in favor of the
union’s position. He did not exceed his authority, as the Heinsz award was not final and binding on
10

the parties. The Court is not authorized to reconsider the merits of the award, but only determine
whether it draws its essence from the CBA. Arbitrator McKee acted within his authority in
construing and applying the contract, and the Court will not vacate the award.
C.

Temporarily Scheduled or Assigned

The company’s argument regarding whether the CSRs were “temporarily scheduled or
assigned” to the higher-paid work rests again on Arbitrator Heinsz’s prior arbitration award.
Arbitrator Heinsz previously held that if the disputed work becomes a permanent part of an
employee’s job, the employee is not entitled to a pay differential.
The Court again concludes that Arbitrator McKee was not bound to follow the prior award
in Heinsz. See Part IV.B., supra. Arbitrator McKee declined to follow the prior awards, stating that
the grievants here testified that performing the work in question had become the primary component
of their jobs. (JR 2833). He “respectfully depart[ed] from Arbitrators Heinsz and Fowler,” stating:
The contract does not specify any period of time after which assignment of work
becomes “permanent” rather than temporary so as to preclude liability under Article
XV, Section 7. The Union’s argument—that the Company’s proposed interpretation
of this provision would allow it to avoid liability simply by violating the CBA for a
prolonged period of time—is persuasive. Normal principles of contract
interpretation suggest that it is unreasonable to conclude that the parties intended to
give one party, the Company, the unilateral ability to render a provision of the
contract meaningless, so long as there is another plausible interpretation.
(JR 2833-34).
Arbitrator McKee’s reasoned and well-articulated departure from the prior awards does not
provide grounds for vacating the award.
D.

Performed Higher-Paid Work “Throughout Two or More Full Tours
in a Work Week”

The company disputes the final element of the union’s case: proof that the CSRs performed
the work of the higher classification throughout at least two full tours in each work week for which
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they seek a pay differential. To complicate matters, the company argues that the question of whether
the CSRs performed the work of SRs throughout two full tours in each work week is inextricably
tied to the question of the arbitrator’s retained jurisdiction.
The union, on the other hand, argues that Arbitrator McKee ruled that the union had satisfied
the requirement that work be performed throughout two or more full tours per work week—he
sustained the grievance. The union states that the arbitrator’s construction of the contract cannot
be attacked in these proceedings. (Def. Opp’n at 12-13 (Doc. 31)). As to the question of retained
jurisdiction, the union argues that the retained jurisdiction does not relate to the requirement that the
work of the higher-paid title be performed for more than two tours in a week. Rather, the retained
jurisdiction relates only to the unresolved question of the amount of back-pay required to make each
respective CSR whole.
The Court construes the arbitration award consistent with the union’s interpretation, and will
uphold the validity of the award. The arbitration award states in relevant part:
. . . The testimony of the CSRs established that they now work primarily, if
not exclusively, on order-related matters. Some of the witnesses specifically testified
that they perform this work for two or more full tours per week; other testified that
they do this work on a “full time” basis. The Company did not rebut this testimony
with documentary evidence of other, non-order-related work performed by the
Grievants.
At the hearing, Company counsel elicited testimony from many of the
Grievants that the order-related work they described is a “regular, full-time duty.”
....
The Union was able to demonstrate that core competency SR work is being
done by CSRs. Although 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[.]” However, Mr. Thurman’s testimony and that of some of the Grievants
persuades me that some or most of the Grievants continued working on trouble
tickets after their training and move to the fourth floor, at least until that work was
12

eliminated entirely. It is possible that each of the CSRs did not perform order-related
work throughout two or more tours each work week after their training occurred. As
such, I grant the Union’s request for a make-whole remedy and retain jurisdiction to
resolve disputes over implementation.
V. AWARD
For the reasons set forth above, the grievance is upheld. . . . The Grievants
are entitled to be made whole for their losses. I 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.
(JR 2837-39) (emphasis added).
The arbitrator stated that the evidence showed the grievants performed significant amounts
of order-related work (i.e., SR work) following their completion of training in October 2008 and that
the amount of work “generally satisfies the requirement” of performing the work of the higher title
throughout two or more full tours in a workweek. (JR 2839). The arbitrator also found that many
of the CSRs testified that they worked on order-related work on as a “regular, full-time duty.” (JR
2838). In context, it is clear that the arbitrator’s ruling determined that all the union needed to prove
to sustain the grievance was that the work of a higher-paid title had been performed for more than
two tours in a work week over the course of the four years that had passed from the October 20,
2008 training to the hearing on September 27 and November 7-8, 2012. The union’s evidence was
sufficient to convince him “generally” that enough higher-paid work was performed to trigger the
requirement to pay the classification differential. These facts support his finding a breach of the
CBA and sustaining the grievance.
Although the arbitrator found the union satisfied this requirement, he stated that based on
Mr. Thurman’s testimony, some of the grievants continued to work on CSR work after their SR
training, until that CSR work was eliminated entirely. He, therefore, recognized the possibility “that
each of the CSRs did not perform order-related work throughout two or more tours each work week
13

after their training occurred.” (JR 2839) (emphasis added). “As such,” he stated, “I grant the
Union’s request for a make-whole remedy and retain jurisdiction to resolve disputes over
implementation.” (Id.). In other words, because there was still CSR work to do after the CSRs went
through their SR training, some of the grievants continued to perform CSR work after the training,
at least until that CSR work was eliminated entirely. So, of the twenty CSRs who filed the
grievance, all may not have performed SR work throughout two or more tours for all work weeks
from the training date to the date of the hearing. Thus, because the damage award would differ for
each of the twenty grievants, the arbitrator retained jurisdiction to resolve disputes over the
“application or interpretation” of “this awarded [make-whole] remedy.” (Id.).
This finding does not, as the company would have it, invalidate the arbitrator’s ruling
upholding the grievance. The Arbitrator had already ruled that the union had satisfied the
requirement that the work be performed throughout two or more full tours per work week. The
arbitrator was construing and applying the CBA and acting within his authority when he made this
finding.
E.

Retained Jurisdiction

Finally, the company argues that the arbitrator’s granting the union’s request for additional
hearings regarding the application and interpretation of the remedy violates the long-settled functus
officio doctrine. The company characterizes this act as “giv[ing] the Union additional bites of the
apple with multiple hearings to try to prove a prima facie case.” (Pl.’s Mem. at 19 (Doc. 25)). It
states that the parties did not bargain for a bifurcated process in their arbitration article, nor do the
AAA rules contemplate pre- and post-award hearings. For this reason, the company seeks to vacate
the arbitrator’s post-award ruing granting additional hearings.

14

The doctrine of functus officio 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 Group, Inc. v. Charlie Parker Mem’l Found., 985 F.2d 417, 420 (8th Cir. 1993). The
purpose of this doctrine is to limit “the potential evil of outside communication and unilateral
influence which might affect a new conclusion.” Id. The Court finds the doctrine of functus officio
inapplicable to this case for a variety of reasons.
First, it bears repeating that the arbitrator unambiguously sustained the grievance. In no
uncertain terms, he found “[t]he Company violated Article XV, Section 7 of the Departmental
Agreement when it failed to pay Customer Service Representatives a Service Representative
‘Classification Differential’ after training and requiring them to handle matters related to orders for
new service and/or equipment.” (JR 2839). If the purpose of the functus officio doctrine is to limit
the “potential evil” of outside communications affecting an arbitration award, that concern is of no
relevance here. The violation occurred; the grievance was sustained. The arbitrator retained
jurisdiction for the “specific purpose of resolving any disputes that may arise between the parties
about the application or interpretation of this awarded [make-whole] remedy.” (Id.). To the extent
the Company argues the arbitrator is allowing the union additional bites at the apple to prove a prima
facie case, the argument is entirely without merit. The award is perfectly clear that the retained
jurisdiction relates “specifically” to disputes regarding the remedy, not the prima facie case
regarding the violation. (JR 2839)
Despite the company’s argument to the contrary, arbitrators frequently retain limited
jurisdiction to resolve issues related to the implementation of a remedy ordered by the arbitrator,
both at the request of the parties and sua sponte. See Frank Elkouri & Edna Asper Elkouri, How
Arbitration Works 145 (Kenneth May ed., 6th ed. Cumm. Supp. 2010). In fact, the Seventh Circuit
15

found an arbitrator’s ability to retain jurisdiction over disputes regarding the implementation of an
award so well established that it upheld the issuance of Rule 11 sanctions against a party who
claimed the arbitration was barred by functus officio from retaining jurisdiction to address damages.
Id. at 146-47 (citing CUNA Mut. Ins. Soc’y v. Office & Prof’l Emp. Local 39, 443 F.3d 556, 565
(7th Cir. 2006) (functus officio did not bar arbitrator from retaining jurisdiction over disputes
concerning implementation of arbitration award)); see also Utility Workers Union of Am., Local 335
v. Missouri-Am. Water Co., 2010 WL 4177772, **8-9 (E.D. Mo. Oct. 20, 2010) (citing cases)
(“‘Today, riddled with exceptions, functus officio is hanging on by its fingernails and whether it can
even be said to exist in labor arbitration is uncertain.’ Glass, Molders, Pottery, Plastics & Allied
Workers Int’l Union v. Excelsior Foundry Co., 56 F.3d 844, 846 (7th Cir. 1995).”). As Arbitrator
McKee specifically cited in his ruling on the union’s request for additional hearing, a 2007
amendment to the Code of Professional Responsibility for Arbitrators of Labor-Management
Disputes allows discretionary retention of remedial jurisdiction unless otherwise prohibited by the
parties’ agreement or applicable law, even if one party objects.2 (JR 3005-06). In fact, the company
is no stranger to arbitration awards in which the arbitrator retains jurisdiction to resolve disputes
regarding interpretation of the awarded remedy. See U-Verse Facilities Specialists, AAA Case No.
58 300 00025 11 (JR 2608) (“Jurisdiction is retained for the sole purpose of resolving any disputes
that may arise between the Parties regarding the application or interpretation of this awarded
remedy.”).
The company’s cited cases to the contrary are inapposite. See Pl. Opp’n at 13 n.27 (Doc.
29). In Local P-9, United Food & Commercial Workers International Union v. George A. Hormel
2

The amendment was approved by the American Arbitration Association. See Frank Elkouri
& Edna Asper Elkouri, How Arbitration Works 147, n.15 (Kenneth May ed., 6th ed. Cumm. Supp.
2010).
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& Company, 776 F.2d 1393 (8th Cir. 1985), the Eighth Circuit did not decide the extent to which
the functus officio doctrine was applicable to the arbitration proceedings. Id. at 1394 n.1. And in
Legion Insurance Co. v. VCW, Inc., 198 F.3d 718, 720 (8th Cir. 1999), the arbitration award did not
retain jurisdiction to resolve issues related to the implementation of the remedy.
Here, the arbitration award retained jurisdiction for the specific purpose of resolving any
dispute between the parties about the application or interpretation of the awarded make-whole
remedy. The parties expressly stipulated and granted the arbitrator authority to frame the issue to
be decided, which included the appropriate remedy, and granted arbitral authority to resolve the
issue. (JR 1930, 2821). Arbitrator McKee’s retained jurisdiction allows him to resolve the question
of the appropriate remedy, the outcome for which the parties bargained. Based on the Court’s
review of the arbitration award, there is no indication that the arbitrator exceeded his authority or
that the award is either irrational or evidences a manifest disregard for the law. See Keirnan v. Piper
Jaffray Cos., Inc., 137 F.3d 588, 594 (8th Cir. 1998) (quoting Lee v. Chica, 983 F.2d 833, 885 (8th
Cir. 1993)).
F.

Attorneys’ Fees

In its counterclaim to enforce the arbitration award, CWA seeks an order requiring ASI to
pay CWA’s reasonable attorneys’ fees. The statutory basis for the instant action, Section 301 of the
Labor Management Relations Act, as amended, 29 U.S.C. § 185, does not provide for attorneys’
fees. See American Fed’n of Musicians, Local 2-197, AFL-CIO v. St. Louis Symphony Soc’y, 203
F.3d 1079, 1081 (8th Cir. 2000). As a matter of equity, however, a prevailing party may recover
fees in an action under § 301 if the losing party has acted in bad faith, vexatiously, wantonly, or for
oppressive reasons. Id.

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The Court will deny CWA’s motion for attorneys’ fees. Although the Court rejects ASI’s
position, it does not find that ASI’s position was argued in bad faith, vexatiously, wantonly, or for
oppressive reasons.
G.

Permanent Injunctive Relief

In its counterclaim to enforce the arbitration award, CWA seeks specific performance of the
award through a permanent injunction ordering ASI to comply with the award by paying all affected
employees within the scope of the grievance retroactive pay in the amount of the classification
differential which SBC failed to pay them in violation of the CBA. Counterclaim at 8-9. CWA’s
motion for summary judgment on its counterclaim does not mention its prayer for permanent
injunctive relief, and the memorandum in support of the motion does not address the issue of
injunctive relief, the standard for imposition of such relief, or the factors relevant to permanent
injunctive relief in a case such as this. Consequently, the Court finds that the record has not been
developed with regard to whether a permanent injunction is necessary for enforcement of the
arbitrator’s award, and CWA’s request for such relief will be denied without prejudice.
V.

Conclusion
For the foregoing reasons, the Court concludes that the arbitrator’s award should be enforced

in all respects, including the arbitrator’s retained jurisdiction. As a result, plaintiff SBC Advanced
Solutions, Inc.’s motion for summary judgment should be denied, and defendant Communications
Workers of America, District 6’s motion for summary judgment should be granted. The Court will
order SBC Advanced Solutions, Inc. to comply with the arbitrator’s award by paying all affected
employees within the scope of the grievance retroactive pay in the amount of the classification
differential which ASI failed to pay them in violation of the collective bargaining agreement.

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Accordingly,
IT IS HEREBY ORDERED that plaintiff SBC Advanced Solutions, Inc.’s motion for
summary judgment is DENIED. [Doc. 17]
IT IS FURTHER ORDERED that defendant Communications Workers of America,
District 6’s motion for summary judgment is GRANTED. [Doc. 26]
A separate judgment will accompany this Memorandum and Order.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE
Dated this 3rd day of September, 2014.

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