Magazine article Dispute Resolution Journal

Forfeiture of Functus Officio Defense

Magazine article Dispute Resolution Journal

Forfeiture of Functus Officio Defense

Article excerpt

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The 1st Circuit held that when an arbitrator purports to clarify an award in a way that is unfavorable to the prevailing party, that party must seek judicial review when it learns of the clarification. Otherwise it forfeits the functus officio defense in an action to enforce the clarified award.

Thomas Ouellette, a Verizon employee, was given a one-day unpaid suspension for unauthorized leave during which he attended a funeral. The dispute was arbitrated and the arbitrator found the suspension was not for "just cause." The award stated that "the one unpaid day shall be converted to leave without pay and the discipline removed from his file." The union interpreted the award to require back pay. When Verizon disagreed, the union asked the arbitrator to clarify the award to provide for back pay. The arbitrator subsequently wrote a letter purporting to clarify the award. It stated that the grievant "shall be made whole for all lost wages and benefits arising from this suspension," and that the day of the funeral "shall be treated as [a] day of leave without pay." When Verizon did not comply, the union filed a lawsuit and then sought summary judgment enforcing the back-pay directive. The union argued that Verizon forfeited its "alteration" defense because it did not seek court review to set aside the original award or the purported clarification.

The district court granted summary judgment to the union. It found that the arbitrator's letter was a permissible clarification of the original award. …

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