32:1159(155)AR - - NAGE Local R4-106 and Air Force, Langley AFB, Virginia - - 1988 FLRAdec AR - - v32 p1159
[ v32 p1159 ]
The decision of the Authority follows:
32 FLRA No. 155
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R4-106
DEPARTMENT OF THE AIR FORCE
LANGLEY AIR FORCE BASE
Case No. 0-AR-1514
I. Statement of the Case
This matter is before the Authority on an exception to the supplemental award of Arbitrator M. David Vaughn. The Arbitrator denied the Union's "Motion to Reopen the Award and Order Payment of Attorney Fees" filed in connection with an arbitration proceeding.
The Union filed an exception to the supplemental award under section 7122(a) of the Federal Service Labor- Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Activity did not file an opposition.
For the reasons discussed below, we conclude that the Arbitrator's denial of the Union's motion is deficient. We remand the matter of the Union's request for attorney fees to the parties for further proceedings consistent with this decision.
The Activity suspended the grievant for 14 days for "wanton disregard of Air Force Directive AFR 40-735, Civilian Conduct and Responsibility, and her refusal to comply with proper orders." Supplemental Award at 1. The Union filed a grievance over the suspension, and the grievance was submitted to arbitration.
In its opening statement to the Arbitrator, the Union requested that the Arbitrator award the grievant attorney fees. However, according to the Arbitrator, the Union did not submit at the hearing any documentation of, or support for, an award of attorney fees. Arbitrator's Supplemental Award at 1. The Union also did not address an award of attorney fees in its closing statement or brief to the Arbitrator and did not request the Arbitrator to retain jurisdiction for the purpose of later determining the appropriateness of an award of attorney fees or the amount of such fees. Id.
In his award dated June 22, 1987, the Arbitrator sustained the grievance and ordered that the suspension be rescinded. The Arbitrator also ordered that the grievant be "made whole for wages and benefits lost as a result of the suspension." June 22 Award at 10. The Arbitrator retained jurisdiction over the case for 30 days to resolve any disputes concerning the amount of backpay to be provided the grievant. Id. The award did not mention the Union's request for an award of attorney fees.
On June 22, 1987, the Union filed a "Motion to Reopen the Award and Order Payment of Attorney Fees." The Activity responded and disputed whether the statutory requirements for an award of attorney fees had been met. The Union replied to the Activity's response and argued that the requirements disputed by the Activity had been met. Supplemental Award at 1-2.
The Union also filed exceptions to the June 22 award with the Authority. The Union contended that the award was deficient to the extent that the Arbitrator had failed to award attorney fees. The Union subsequently withdrew its exceptions and asserted to the Arbitrator that the issue of attorney fees was properly before him. The Activity responded and argued that the Arbitrator lacked jurisdiction over the Union's request for an award of attorney fees. Id. at 2.
III. Arbitrator's Supplemental Award
The Arbitrator stated that the following questions were presented for resolution:
Does the Arbitrator have jurisdiction to consider the Union's request for attorney fees? If so, would an award of attorney fees be in the interest of justice?
The Arbitrator stated that his June 22 award did not provide for the payment of attorney fees for two reasons:
[F]irst, because the Union presented no evidence at the hearing and no argument prior to the issuance of the Award to support such an award, nor did it request that I retain jurisdiction for the purpose of allowing it to present such evidence in the event it prevailed; and, second, I did not find the record to establish that such an award would have been in the interest of justice.
Id. at 3.
With respect to whether an award of attorney fees was warranted in the interest of justice, the Arbitrator recognized that Allen v. U.S. Postal Service, 2 MSPR 420 (1980), sets forth circumstances under which an award of attorney fees would be warranted in the interest of justice. He explained that a listing of the circumstances was unnecessary and noted "in summary that such fees would be appropriate if the [Activity's] actions were grossly improper, utterly baseless, or motivated by bad faith." Id. The Arbitrator stated that he "did not find that the [Activity's] action met any of these criteria." Id. He explained, in particular, that he "did not find the [Activity] to have acted in bad faith in interpreting its regulations, even though [he] found application of the regulation to the Grievant under the circumstances not to warrant the discipline imposed." Id. at 4.
The Arbitrator stated that under the doctrine of functus officio, his authority with respect to the June 22 award terminated on completion and delivery of the award to the parties, except for the limited purpose for which he retained jurisdiction. He determined that his limited reservation of jurisdiction to resolve any backpay disputes could not be construed as reserving jurisdiction for the purpose of considering an award of attorney fees.
The Arbitrator also determined that he would not rule that the Activity had waived its right to contest his jurisdiction to reopen or modify the June 22nd award. He explained that:
In light of my conclusion in connection with issuance of the prior Award that the "interest of justice" test was not met, a determination that the [Activity] waived jurisdictional objections to the Union's request for attorney fees, thereby allowing a denial of the Union's request on the merits would merely exhault [sic] form over substance.
Therefore, the Arbitrator concluded for the reasons he had discussed that he was "without jurisdiction [to] modify the prior Award to grant the Union attorney fees." Id. Accordingly, he denied the Union's motion to reopen the award.
The Union contends that the Arbitrator erred in failing to award attorney fees. The Union maintains that in accordance with the Authority's practice and the practice of the Merit Systems Protection Board on such matters, requests for an award of attorney fees under the Back Pay Act, 5 U.S.C. § 5596, are timely and properly filed after the award has been rendered. The Union argues that it would be illogical to request attorney fees before the award has been rendered and reviewed to determine if an award of attorney fees is warranted. The Union also argues that the Activity waived any objection to the Arbitrator's authority.
The Union also notes the Arbitrator's discussion that the award of fees "may not be warranted in the 'interest of justice.'" Union's Memorandum In Support of Exception at 2. The Union states that "[a]lthough the Arbitrator did not decide the case on this ground, the Union is compelled to respond to this issue." Id. The Union maintains that the Arbitrator found that the grievant was "substantially innocent" and that consequently, the award of attorney fees is warranted in the interest of justice.
For these reasons, the Union requests that the Authority order that the Activity pay attorney fees.
The Activity did not file an opposition.
We conclude that the Arbitrator's denial of the Union's request for an award of attorney fees is deficient. Although the Arbitrator clearly denied the Union's request, we are uncertain from the Supplemental Award the basis on which the Arbitrator denied the request. The Arbitrator appears to have denied the request for one or both of the following reasons:
1. Under the doctrine of functus officio, he lacked jurisdiction to consider the Union's request for an award of attorney fees because the request with support and documentation was not filed with him until after he issued the grievance award and the Union had not requested that he retain jurisdiction for the purpose of considering an award of attorney fees; and/or
2. Under the doctrine of functus officio, he lacked jurisdiction to consider the Union's request for an award of attorney fees because he had decided in the prior grievance award that an award of attorney fees was not warranted in the interest of justice and he could not reopen or modify the grievance award after it had issued.
For the reasons that follow, we find that neither basis constitutes a proper basis for denying the Union's request for attorney fees.
A. Denial of the Union's Request because It was Filed after the Grievance Award Issued
To the extent that the Arbitrator decided that he lacked jurisdiction to consider the Union's request because the request--with support and documentation--was not filed with him until after he issued the grievance award, the Arbitrator erred.
In Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 32 FLRA 417 (1988), we discussed whether the Back Pay Act and its implementing regulations, 5 C.F.R. Part 550, authorize the filing of a request for an award of attorney fees after an arbitrator has issued an award of backpay. After examining the Back Pay Act, 5 C.F.R. Part 550, and regulations which address the timely filing of requests for attorney fees, including our regulations and the regulations issued by the Merit Systems Protection Board, we concluded that the Back Pay Act confers jurisdiction on an arbitrator to consider a request for attorney fees after the issuance of an arbitrator's decision awarding backpay. In view of this conclusion, we also concluded that the doctrine of functus officio does not permit an arbitrator to refuse to consider the request.
We further stated that parties may agree to establish a time period during which a request for attorney fees must be filed with an arbitrator. In the absence of such an agreement, a request must be filed within a reasonable period of time after the award is issued or becomes final and binding, if an appropriate request had not been filed before the award issued. Under section 7122 of the Statute, an award becomes final and binding when (1) the 30-day period for the filing of exceptions to the award has expired, or (2) the Authority issues a decision resolving timely-filed exceptions. 51 Fed. Reg. 45,754 (1986) (revoking section 2429.8 of the Authority's Rules and Regulations); see also