17:0424(67)AR - Army Corps of Engineers and NFFE Local 639 -- 1985 FLRAdec AR
[ v17 p424 ]
The decision of the Authority follows:
17 FLRA No. 67 U.S. ARMY CORPS OF ENGINEERS Activity and NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 639 Union Case No. 0-AR-637 DECISION This matter is before the Authority on an exception to the award of Arbitrator Daniel E. Matthews 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 Activity filed an opposition. /1/ The dispute before the Authority in this matter concerns the Arbitrator's denial of the Union's request for attorney fees under the Equal Access to Justice Act (EAJA), 5 U.S.C. 504. In his award on the merits, the Arbitrator found that the Activity properly charged the grievant with three hours of AWOL but that it did not have just cause to also issue a written reprimand. The Arbitrator therefore denied the grievance in part and granted it in part. The Union subsequently filed a motion with the Arbitrator requesting an award of attorney fees under the EAJA. The Arbitrator found that neither the disciplinary action procedures followed by the Activity nor the arbitration proceeding constituted an "adversary adjudication" within the meaning of the EAJA and also that he was not an "adjudicative officer of the agency" under the Act. Accordingly, the Arbitrator denied the Union's motion. In its exception, the Union contends that the Arbitrator's denial of its motion is contrary to the EAJA primarily because the arbitration proceeding was an "adversary adjudication" under the EAJA. Section 504(a)(1) of the EAJA provides: /2/ An agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency as a party to the proceeding was substantially justified or that special circumstances make an award unjust. "Adversary adjudication" is defined in section 504(b)(1)(C) as "an adjudication under section 554 of (the Administrative Procedure Act) . . . in which the position of the United States is represented by counsel or otherwise." An adjudication under section 554 is one "required by statute to be determined on the record after opportunity for an agency hearing," unless the proceeding falls within one of six exceptions, none of which apply to this case. 5 U.S.C. 554(a). Grievance procedures under the Federal Service Labor-Management Relations Statute are not subject to the procedural requirements of the Administrative Procedure Act. Rather, the procedures are determined by the parties in their collective bargaining agreements and by arbitrators, and the procedures vary from agreement to agreement and arbitrator to arbitrator. /3/ Therefore, the Arbitrator in this case correctly determined that the proceeding before him was not an "adversary adjudication" for purposes of the EAJA and on that basis alone attorney fees under the EAJA were not warranted in connection with such proceeding. /4/ Consequently, the Union has failed to establish that the Arbitrator's denial of its motion is contrary to law as alleged. Accordingly, the Union's exception is denied. Issued, Washington, D.C., April 9, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Activity contends, among other things, that the Union's exception was not timely filed. However, the Authority has determined that the time limits for filing the Union's instant exception commenced with the Arbitrator's denial of the Union's motion for attorney fees under the Equal Access to Justice Act, which denial was served on the parties after his award on the merits in this matter, and therefore that the Union's exception was timely filed. E.g., United States Department of the Interior, Bureau of Land Management, Eugene District Office and National Federation of Federal Employees, Local 1911, 6 FLRA 401, 403 n. 2 (1981). /2/ As to the current status of 5 U.S.C. 504(a)(1), the Authority notes that section 203(c) of the EAJA (Pub. L. No. 96-481, Sec. 203(c); 94 Stat. 2325, 2327 (1980)) provides: Effective October 1, 1984, section 504, and the item relating to section 504 in the table of sections, of title 5, United States Code, as added by subsection (a) of this section, are repealed, except that the provisions of such section shall continue to apply through final disposition of any adversary adjudication as defined in subsection (b)(1)(C) of such section, initiated before the date of repeal. /3/ See F. Elkouri & E. Elkouri, How Arbitration Works 181-83 (3d ed. 1973). /4/ In denying on this basis the Union's exception to the Arbitrator's decision denying attorney fees, the Authority finds it unnecessary to pass on the other arguments raised in the Activity's opposition to the Union's exception.