15:0276(60)AR - Audie L. Murphy V.A. Hospital, San Antonio, TX and AFGE Local No. 3511 -- 1984 FLRAdec AR



[ v15 p276 ]
15:0276(60)AR
The decision of the Authority follows:


 15 FLRA No. 60
 
 AUDIE L. MURPHY VETERANS
 ADMINISTRATION HOSPITAL,
 SAN ANTONIO, TEXAS
 Activity
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL NO. 3511
 Union
 
                                            Case No. O-AR-242
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Albert V. Carter filed by the Union under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.  The Agency filed an opposition.
 
    The parties submitted to arbitration the issue of whether management
 had violated the provisions of its upward mobility program in not
 considering the grievant's completion of Zoology 602a in filling an
 upward mobility nursing position.  The Arbitrator determined that
 management had violated provisions of the upward mobility program in not
 considering the grievant's course completion and prescribed the
 following as a remedy for the violation:
 
          The Grievant shall be reimbursed for the cost of tuition,
       registration, textbooks, and uniforms required, incurred by him
       while participating in the program at his own expense because of
       not being selected as a trainee by the Employer.  In addition,
       should the Grievant have suffered a reduction in earnings as a
       direct result of not having been selected for the training
       position announced, he shall be paid the amount of such reduction
       sustained.
 
    In conjunction with his award, the Arbitrator expressly provided that
 he would retain jurisdiction in this case "in the event the parties
 cannot determine and arrive at the remedy prescribed."
 
    Pursuant to the Arbitrator's retention of jurisdiction, the Activity
 requested a clarification of the remedy which the Arbitrator had
 prescribed, and the Arbitrator clarified the remedy to specify the time
 frame involved and to specify that the corrective action with respect to
 the selection action is to reannounce the position with proper
 consideration given to completion of the require zoology course.  In
 addition, he restated that should the grievant have suffered a reduction
 in earnings as a direct result of not having been selected for the
 training position announced, he shall be paid the amount of such
 reduction sustained.  The Arbitrator subsequently further clarified the
 award to expressly deny attorney fees.
 
    In its first exception the Union contends that the clarification by
 the Arbitrator of the remedy is invalid.  Specifically, the Union argues
 that the Arbitrator's "clarification" is invalid because it
 substantially modified the award and, in any event, that the
 clarification is invalid because the Arbitrator was functus officio in
 that the clarification was issued pursuant to the ex parte request of
 the Activity and not the joint request of both parties.
 
    The Authority concludes that the Union has failed to establish that
 the Arbitrator's clarification is invalid.  The Union has not
 substantiated that the Arbitrator's clarification of the remedy
 substantially modified the award.  Likewise, the Union has not
 substantiated that the doctrine of functus officio applies in this case
 since the Arbitrator expressly retained jurisdiction to resolve
 precisely the difficulty which arose and the Arbitrator on the basis of
 this retention provision simply clarified the remedy already prescribed.
 
    In its second exception the Union maintains that the grievant was
 entitled to have been retroactively selected for the upward mobility
 position, pursuant to the Back Pay Act, 5 U.S.C. 5596.
 
    However, it is well established that in order for the grievant to
 have been entitled to be retroactively selected for the upward mobility
 position, the Arbitrator must have expressly determined that but for the
 Activity's violation, the grievant originally would have been selected
 for the position.  See, e.g., American Federation of Government
 Employees, Local 2811 and U.S. Government District Office, Social
 Security Administration, St. Paul, Minnesota, 7 FLRA 618, 620 (1982).
 In this case the Arbitrator specifically refused to make this
 determination when he clarified the corrective action prescribed with
 respect to the selection for the upward mobility position.  Accordingly,
 the Union's exception is denied.
 
    In its third exception the Union contends that the Arbitrator's
 denial of attorney fees is contrary to the Back Pay Act.  In
 International Brotherhood of Electrical Workers and United States Army
 Support Command, Hawaii, 14 FLRA No. 90 (1984), the Authority for the
 first time addressed in detail the statutory requirements regarding
 awards of attorney fees by arbitrators.  The Authority held that under
 the applicable standards of the Back Pay Act, an arbitrator must provide
 a fully articulated, reasoned decision setting forth the specific
 findings supporting the determination on each pertinent statutory
 requirement, including the basis upon which the reasonableness of the
 amount was determined when fees are awarded.  In this case the
 Arbitrator's award is not in accordance with these standards.  However,
 the Arbitrator's determination was made without the benefit of the
 instruction and guidance provided by U