34:0047(12)AR - - AFGE Local 1547 and Air Force, Luke AFB, AZ - - 1989 FLRAdec AR - - v34 p47



[ v34 p47 ]
34:0047(12)AR
The decision of the Authority follows:


34 FLRA No. 12

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1547

and

U.S. DEPARTMENT OF THE AIR FORCE

LUKE AIR FORCE BASE, ARIZONA

0-AR-1772

ORDER DISMISSING EXCEPTION

December 27, 1989

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to the supplemental award of Arbitrator Julius Rezler. In the supplemental award, the Arbitrator denied the application of AFGE Local 1547 (the Union) for attorney fees.

The Union filed an exception 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 Department of the Air Force (the Agency) filed an opposition to the Union's exception on behalf of Luke Air Force Base (the Activity).

For the reasons discussed below, we are without jurisdiction under section 7122(a) of the Statute to review the Union's exception.

II. Background and the Arbitrator's Award

In his original award, the Arbitrator reduced the removal of the grievant to a 6-month suspension. The Arbitrator directed the Activity to reinstate the grievant to his former position after the grievant was found to be fit for duty. The Arbitrator awarded the grievant backpay from the date the 6-month suspension expired until the date of his medical fitness for duty examination. The Arbitrator also denied the preliminary request of the Union for an award of attorney fees. The Arbitrator subsequently suspended the denial of the application for attorney fees and permitted the parties to file briefs on whether an award of attorney fees was warranted.

In the supplemental award, the Arbitrator denied the application for attorney fees because he found that an award of fees was not warranted in the interest of justice.

III. Positions of the Parties

The Union contends that the award is contrary to law because the Arbitrator erred in determining that the interest-of-justice standard had not been met. The Agency contends that the award is not deficient because an award of fees is not warranted under the interest-of-justice standard.

IV. Discussion

We are without jurisdiction under section 7122(a) of the Statute to review the Union's exception.

Section 7122(a) of the Statute provides, in pertinent part, as follows:

Either party to arbitration under this chapter may file with the Authority an exception to any arbitrator's award pursuant to the arbitration (other than an award relating to a matter described in section 7121(f) of this title).

The matters described in section 7121(f) include serious adverse actions covered under 5 U.S.C. º 7512, such as removals. Review of arbitration awards relating to such matters, like review of decisions of the Merit Systems Protection Board, may be obtained by filing an appeal with the U.S. Court of Appeals for the Federal Circuit in accordance with 5 U.S.C. º 7703.

In our view, an award resolving a request for attorney fees supplementing an arbitrator's earlier award relating to a matter described in section 7121(f) is not separate and distinct from the earlier award. The award resolving a request for attorney fees relates to the matter described in section 7121(f) and, therefore, is an award over which we have no jurisdiction. For example, Veterans Administration and American Federation of Government Employees, Local 2610, 33 FLRA 347 (1988).

Because the supplemental award on attorney fees relates to the removal of the grievant, a matter which is covered under 5 U.S.C. º 7512 and described in section 7121(f), exceptions to the award may not be filed with th