34:1091(168)AR - - Allen Park VA Medical Center and AFGE Local 933 - - 1990 FLRAdec AR - - v34 p1091



[ v34 p1091 ]
34:1091(168)AR
The decision of the Authority follows:


34 FLRA No. 168

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

ALLEN PARK VETERANS ADMINISTRATION

MEDICAL CENTER

(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 933

(Union)

0-AR-1588

DECISION

February 28, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award on remand of Arbitrator William M. Ellmann filed by the Veterans Administration (the Agency)(1) 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 Union filed an opposition to the exceptions.(2)

In an earlier award, the Arbitrator ruled that the Activity must pay environmental differential pay (EDP) to certain bargaining unit employees who were exposed to asbestos. The Agency filed exceptions to that award with the Authority. The Agency alleged that the award, particularly that portion in which the Arbitrator ruled that any exposure to asbestos made employees eligible for EDP, was contrary to law.

In Allen Park Veterans Administration Medical Center, Allen Park, Michigan and American Federation of Government Employees, Local 933, 28 FLRA 1166 (1987), the Authority remanded the case to the parties to request the Arbitrator to clarify his award to address fully whether the requirements for the payment of EDP for exposure to asbestos contained in Category 16 of Appendix J of the Federal Personnel Manual (FPM) were met. The Authority directed the Arbitrator to provide a fully articulated, reasoned decision based on quantitative, objective factors as to: (1) whether the amounts of airborne asbestos present at the Activity during the time period in question were at levels which may have exposed employees to potential illness or injury; and (2) if so, whether protective devices or safety measures taken by the Activity did not practically eliminate the potential for such personal illness or injury. 28 FLRA at 1170-71. In light of the remand, the Authority did not address the Agency's other exceptions.

The Arbitrator issued an award on remand in which he found that the presence of airborne asbestos at the Activity may have exposed employees to potential illness or injury during the period in question. He also found that the Activity has not eliminated the potential for illness by use of protective devices and safety measures. As a remedy, he stated that wage grade employees represented by the Union were entitled to EDP since 1978, interest on backpay, and attorney fees.

The Agency filed exceptions to the award on remand. The Agency asserts that the award is contrary to law and to the Authority's instructions on remand because it orders payment of EDP to employees for exposure to asbestos in any amount. The Agency also alleges that the award of attorney fees and interest on backpay is contrary to law.

For the reasons which follow, we set aside the award of attorney fees. Our action setting aside the award of attorney fees is without prejudice to the Arbitrator's consideration of any request for fees filed by the Union in accordance with the time limits discussed in Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 32 FLRA 417 (1988) and of any response to such a request filed by the Agency. The Agency's remaining exceptions are denied.

II. Background and Arbitrator's Award

In the award on remand, the Arbitrator stated that the issue before him was "whether wage grade employees represented by Local 933 are entitled to Environmental Differential Pay because of exposure to asbestos at this Veterans facility." Arbitrator's Award at 15.

The Agency contended before the Arbitrator that O'Neall v. United States, 797 F.2d 1576 (Fed. Cir. 1986), requires exposure to a specific quantitative level of asbestos before employees can be eligible for EDP. The Agency asserted that it was required under the parties' agreement to comply with the Occupational Safety and Health Act and with Occupational Safety and Health Administration (OSHA) regulations. Arbitrator's Award at 5. The Agency maintained that the threshold quantitative level for determining entitlement to EDP should be 0.1 asbestos fibers per cubic centimeter (0.1 f/cc). According to the Agency, 0.1 f/cc is the standard established by OSHA and adopted by the Veterans Administration as the level of exposure at which protective action must be taken. Id. at 5-6. The Agency argued that a lower limit of 0.005 f/cc related only to asbestos removal projects and was not relevant to a determination of entitlement to EDP. Id. at 6.

The Union maintained before the Arbitrator that there is no safe level of asbestos exposure and that the Agency's standard of 0.1 f/cc imposes a "significant risk as a matter of law." Arbitrator's Award at 10. The Union stated that according to OSHA, the 0.1 f/cc standard would cause 2.259 cancer deaths per thousand employees. The Union noted that in Industrial Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 601 (1980), the Supreme Court held that a rate of 1 death per thousand individuals from inhaling gasoline vapors was considered to be a significant risk of injury. The Union asserted that the Arbitrator could properly find that there is no quantitative level of exposure to asbestos which is free of risk. Arbitrator's Award at 10. The Union maintained that employees were exposed to dangerous amounts of asbestos and that the Agency "has not claimed that protective devices or safety measures have practically eliminated the potential for illness or injury." Id. at 13.

Although the Agency had asserted that the parties' agreement required the use of the OSHA standard for the payment of EDP for exposure to asbestos, the Arbitrator did not make such a finding. Rather, in his award on remand, the Arbitrator stated that "every piece of evidence presented showed that there is no safe level of airborne asbestos exposure." Arbitrator's Award at 15. He further stated: "I find as a matter of law and fact that there is no quantitative threshold level below which exposure will not have the potential of illness or injury and that asbestos diseases are dose-responsive." Id. The Arbitrator discussed evidence on the adverse effects of asbestos exposure and noted that the Environmental Protection Agency "finds that there is no safe level of exposure to asbestos." Id. He also noted that the National Institute for Occupational Safety and Health agrees that "asbestos creates a potential for illness and injury" and that "data available to date provides no evidence for a threshold level [of exposure to asbestos]." Id. at 17. He stated that "all the evidence overwhelmingly demonstrates that the .1f/cc level proposed by the VA entails significant potential risk as defined in Industrial Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 601 (1980)." Id.

The Arbitrator concluded:

I find that all wage-grade employees represented by Local 933 have been exposed even according to the facility's incomplete documentation. I must take the union's documents as true in that they have not [been] refuted.

While EDP liability can be ended by providing protective devices or instituting safety measures, the facility has not provided such devices or instituted any significant safety measures.

That the facility has delayed over an extended period to fashion a remedy to this problem. Its compliance was belated. The first air sampling was late. Respirators were not ordered until mid-1982, and I find no record before me that the facility has hired a certified instructor. The record is barren in this respect.

I, therefore, find that protective devices and safety measures have not removed and have not practically eliminated the potential for illness or injury.

AWARD

I find for many reasons that the amounts of airborne asbestos present at this facility since

July 26, 1978 have been at levels which may have exposed Local 933 represented wage grade employees to potential illness or injury. I find that the members of Local 933 are entitled to EDP since 1978. The government cannot hide its liability in constructive inaction over the years.

I further find that the employees are entitled to interest and attorneys fees pursuant to 5 U.S.C. § 5596, and further the provisions of 5 U.S.C. § 5596 apply to grievants seeking EDP.

Jurisdiction is maintained.

Arbitrator's Award at 20-21.

III. Positions of the Parties

A. Agency's Exceptions

The Agency contends that the Arbitrator's award on remand is deficient because the Arbitrator failed to comply with established legal requirements and with the Authority's remand order. The Agency states that the Arbitrator "deliberately disregarded the Authority's clear directive to make a reasoned, factually supported explanation whether airborne asbestos was present, during the time involved, at specific quantitative levels which placed exposed employees at risk of potential illness, and, if so, whether medical center-initiated protective devices or safety measures did not practically eliminate the risk of potential illness." Exceptions at 6. The Agency argues that by ruling that any exposure to asbestos entitles the 65 affected employees to EDP without establishing a quantitative level of exposure, the Arbitrator's award fails to comply with the Authority's directions on remand.

Further, the Agency asserts that the Arbitrator failed to discuss the effectiveness of management safety measures and that he made a summary ruling that safety measures or protective devices did not alleviate the problem. The Agency cites Department of the Navy v. FLRA, 815 F.2d 797 (1st Cir. 1987) and O'Neall as support for its position that there must be "a specific threshold quantitative level of exposure" for entitlement to EDP. Exceptions at 7. The Agency also maintains that the Union failed to meet its burden of proof under O'Neall that the threshold level had been reached.

The Agency asks the Authority "to modify the award to permit EDP for asbestos only for exposure at levels in excess of the OSHA 0.1 f/cc standard, and further to modify it to find that VA has instituted safety measures whereby airborne asbestos generally does not exist at levels beyond the OSHA standard, and that in any event, protective devices (i.e., respirators) were available if exposure were at levels exceeding the OSHA standard." Exceptions at 8.

Additionally, the Agency contends that the award of attorney fees is deficient because: (1) there is no valid award of backpay; and (2) the Arbitrator failed to make the required finding that fees were warranted in accordance with the requirements of 5 U.S.C. § 7701(g). The Agency contends that the award of interest on backpay is deficient because the award of backpay relates to the original award dated April 7, 1987. The Agency maintains that interest on backpay is allowable only in connection with final decisions awarding backpay rendered after December 22, 1987. The Agency claims that the award on remand does not qualify for interest.

The Agency incorporates its exceptions filed in 28 FLRA 1166 and requests the Authority to rule on those exceptions.

B. Union's Opposition

The Union contends that the Agency's exceptions do not comply with the requirements of section 2425.2 of the Authority's Rules and Regulations because the exceptions: (1) set forth no evidence; (2) contain no citations to documents; and (3) do not include an accurate copy of the award or pertinent documents.

The Union maintains that the Arbitrator fully understood and observed the terms of the Authority's remand order and that he considered and discussed the Authority's questions on remand. The Union states that in his opinion on remand, the Arbitrator "thoroughly and explicitly considers whether (a) he can rationally set an ambient asbestos level below which there is no potential exposure to illness, (b) the Local 933-represented employees have been working at levels that may, in fact, have exposed them to potential illness, and (c) protective devices or safety measures have practically eliminated the illness potential." Opposition at 23.

The Union contends that the Arbitrator based his findings on uncontroverted evidence that the Agency's proposed level of 0.1 f/cc for entitlement to EDP would entail significant risk to employees. The Union cites American Petroleum Institute, 448 U.S. at 655, and argues that if the Supreme Court found that a rate of 1 death per thousand could be considered a significant risk, then the rate predicted by OSHA of 2.259 cancer deaths per thousand from exposure to 0.1 f/cc of airborne asbestos would be significant. Opposition at 24-25. The Union maintains that the testimony presented to the Arbitrator overwhelmingly demonstrates that there is no safe level of exposure to asbestos, and argues that the Arbitrator's finding that there is no safe quantitative level of exposure is based on that unrefuted evidence.

The Union maintains that the Arbitrator's findings as to the existing asbestos levels and the amount of exposure of employees at the Activity are based on detailed and uncontroverted evidence and that those levels of exposure would expose the employees to potential illness. Further, the Union contends that the evidence supports the finding that employees are required to work in areas where airborne asbestos is present and that the potential for illness was not practically eliminated by safety measures or protective devices. Opposition at 30-31.

The Union disagrees with the Agency's contention that O'Neall compels the Arbitrator to set a quantitative threshold level of exposure to asbestos before EDP can be paid. The Union contends that in O'Neall the plaintiff had the burden of showing that the agency acted "capriciously, arbitrarily or outside its discretion{,}" while in the instant grievance arbitration the Union has no such burden. Opposition at 32. Further, the Union contends that in O'Neall, the agency "introduced proofs that apparently persuaded someone that its regulated exposure level eliminated the potential for illness," while "[t]he VA has introduced no such proofs in this arbitration." Id.

The Union contends that "OSHA has never set levels based on safety from potential illness" and that the OSHA-set levels of exposure "assumed significant risk to workers." Opposition at 34. The Union maintains that "the dramatic swing in OSHA's exposure limits from 12f/cc to .2f/cc/.1f/cc demonstrates the absolute lack of scientific support for any threshold level of safe asbestos exposure." Id.

The Union states that it intends to file a motion for attorney fees upon completion of these proceedings and asserts that the Agency's exception regarding attorney fees is premature. The Union also contends that the recent amendments to the Back Pay Act, 5 U.S.C. § 5596(b)(2), Pub. L. No. 100-202, § 101(m) [Tit. VI, § 623(a)], 101 Stat. 1329-428 (Dec. 22, 1987), entitle the grievants to interest on backpay because the award of backpay will not be final until the Authority issues its decision in this case. Opposition at 36.

IV. Discussion

We find that the Agency's exceptions comply with section 2425.2 of the Rules and Regulations and we will consider them. We deny the Union's request for a summary dismissal of the Agency's exceptions.

A. The Authority's Decision Remanding the Award

In 28 FLRA 1166, the Authority noted that Category 16 of Appendix J authorizes EDP to persons working under the following conditions:

16. Asbestos. Working in an area where airborne concentrations of asbest[os] fibers may expose employees to potential illness or injury and protective devices or safety measures have not practically eliminated the potential for such personal illness or injury.

The Authority noted that the specific work situations for which an environmental differential is payable under the categories of FPM Supplement 532-1, Appendix J are left to local determination, including arbitration. 28 FLRA at 1168. The Authority pointed out that Category 16 of Appendix J contains two requirements for the payment of EDP: (1) a finding that persons are working in an area where airborne concentrations of asbestos fibers may expose employees to potential illness or injury; and (2) a finding that protective devices or safety measures have not practically eliminated the potential for such personal illness or injury. Id.

The Authority also discussed the court's decision in O'Neall and the ruling that there be a quantitative level of asbestos exposure set as a condition precedent for entitlement to EDP. The Authority stated that "the proper application of Category 16 of Appendix J requires the consideration of a threshold quantitative level of exposure related to potential illness or injury. What that level should be and how it is derived is, of course, a matter for local determination." 28 FLRA at 1170. The Authority also emphasized that consideration must be given to whether protective devices or safety measures have practically eliminated potential illness or injury.

The Authority remanded the award to the parties and directed them to request the Arbitrator to: (1) address fully whether the requirements contained in Category 16 of Appendix J for the payment of EDP for exposure to asbestos have been met in this case; and (2) provide a fully articulated, reasoned discussion based on quantitative, objective factors as to whether the amounts of airborne asbestos present at the Activity during the time period in question were at levels which may have exposed employees to potential illness or injury. Further, the parties were directed to ask the Arbitrator to determine whether protective devices or safety measures taken by the Activity practically eliminated the potential for personal illness or injury.

B. The Arbitrator's Award On Remand Complies With the Authority's Remand Order and Is Not Contrary To Law, Rule or Regulation

We conclude that the Arbitrator's award on remand complies with the Authority's remand order. The Arbitrator has fully addressed the requirements of Appendix J to determine whether the level of exposure was sufficient to cause potential illness or injury and whether protective devices or safety measures practically eliminated that potential. In a fully articulated, reasoned discussion based on quantitative, objective factors, the Arbitrator determined that the amounts of airborne asbestos present at the Activity during the time period in question were at levels which may have exposed employees to potential illness or injury. The Agency's exceptions fail to establish that the award is deficient either because it fails to comply with the Authority's remand order or because it is contrary to applicable law, rule or regulation.

In the award on remand, the Arbitrator addressed whether the grievants are entitled to EDP under the requirements of Category 16 of Appendix J and related his findings to the requirements of that category. See Arbitrator's Award at 15. He found, based on the evidence and testimony at the hearing, "that there is no quantitative threshold level below which exposure will not have the potential of illness or injury and that asbestos diseases are dose-responsive." Id. The Arbitrator found that the 0.1 f/cc standard proposed by the Agency would create a "significant potential risk." Arbitrator's Award at 17-18.

The Arbitrator found that employees were exposed to asbestos in amounts which might expose them to potential illness or injury and were, therefore, entitled to EDP. He noted that the Activity failed to maintain adequate records of asbestos exposure and found that "[t]here is no doubt" that employees were exposed. Arbitrator's Award at 18. He found "that all wage-grade employees represented by Local 933 have been exposed even according to the facility's incomplete documentation." Id. at 20. He also concluded that the Activity had not provided protective devices or instituted safety measures and found "that protective devices and safety measures have not removed and have not practically eliminated the potential for illness or injury." Id.

The Arbitrator's award on remand is consistent with the requirements of O'Neall. As the Authority noted in its remand, the court in O'Neall required the setting of a quantitative level of exposure reasonably related to potential illness as a condition precedent to entitlement to EDP. See 28 FLRA at 1169. However, the court in O'Neall was affirming a lower court decision which held that the Air Force acted reasonably in adopting the then-current OSHA standard of 2 f/cc as the threshold level of exposure for EDP. The court in O'Neall did not rule that all agencies must adopt the OSHA standard and recognized that the standard for entitlement to EDP may change as more information is learned about asbestos. 797 F.2d at 1582. The Authority stated that "[i]n agreement with the court in O'Neall, we also believe that the proper application of Category 16 of Appendix J requires the consideration of a threshold quantitative level of exposure related to potential illness or injury. What that level should be and how it should be derived is, of course, a matter for local determination." 28 FLRA at 1170.

The Arbitrator considered what the applicable threshold quantitative level of exposure should be. He found "as a matter of law and fact that there is no quantitative threshold level below which exposure will not have the potential of illness or injury[.]" Arbitrator's Award at 15. He noted the Agency's contention that it is required under the parties' agreement to comply with the Occupational Safety and Health Act and with Occupational Safety and Health Administration (OSHA) regulations. Id. at 5. The Agency maintained that the threshold quantitative level for determining entitlement to EDP should be 0.1 f/cc because that is the standard established by OSHA and adopted by the Veterans Administration as the level of exposure at which protective action must be taken. Id. at 5-6.

In our view, by finding "as a matter of law and fact that there is no quantitative threshold level below which exposure will not have the potential of illness or injury[,]" the Arbitrator rejected the Agency's assertion that the OSHA standard was the applicable threshold quantitative level. The Arbitrator concluded that the grievants had been exposed to asbestos and that "the amounts of airborne asbestos present at [the Activity] since July 26, 1978 have been at levels which may have exposed Local 933 represented wage grade employees to potential illness or injury." Arbitrator's Award at 20. He found that protective devices and safety measures had not practically eliminated the potential for illness or injury.

In view of: (1) the lack of any specified quantitative level of exposure set forth in Appendix J; (2) the established principle that specific work situations for which EDP is payable under Appendix J are left to local determination, including arbitration; and (3) our conclusion that the Arbitrator rejected the Agency's argument that the OSHA standard was the applicable threshold quantitative level, we find that the Arbitrator's award is consistent with applicable legal requirements.

In summary, the Arbitrator's award on remand complies with the Authority's instructions to provide a fully reasoned decision on the application of the requirements of Appendix J. The Arbitrator stated in a fully articulated opinion and award that he was convinced by the evidence presented that there is a potential for asbestos-related disease to occur at any level of exposure and that there is no safe threshold level of exposure. In the absence of a mandated quantitative level set by applicable law or regulation or otherwise agreed to by the parties, that finding constitutes an appropriate determination of quantitative levels for purposes of entitlement to EDP under Appendix J.

The Arbitrator found that asbestos was present at the Activity, that the grievants had been exposed to amounts of airborne asbestos which would expose them to potential illness, and that protective devices and safety measures had not practically eliminated the potential for illness or injury. These findings have not been shown to violate law or applicable regulation. Accordingly, the Agency's exceptions present no basis for finding the award deficient or for modifying the award in the manner requested by the Agency.

C. The Grievants Are Entitled To Interest

Interest on backpay is permissible under the amendment to the Back Pay Act, 5 U.S.C. § 5596(b), contained in the Continuing Appropriations Act of 1988, Pub. L. No. 100-202, 1988 U.S. Code Cong. & Admin. News (101 Stat.) 1329-1, 1329-428--1329-429, which states in pertinent part:

Sec. 623. Interest on Back Pay For Federal Employees.--(a) In General.--Section 5596(b) of title 5, United States Code is amended--

. . . . . . .

(b) Effective Date.--

(1) Generally.--Except as provided in paragraph (2), the amendments made by subsection (a) shall take effect on the date of the enactment of this Act, and shall apply with respect to any employee found, in a final judgment entered or a final decision otherwise rendered on or after such date, to have been the subject of an unjustified or unwarranted personnel action, the correction of which entitles such employee to an amount under section 5596(b)(1)(A)(i) of title 5, United States Code.

The effective date of the amendment was December 22, 1987.

The Agency maintains that the final decision awarding backpay in this case was the Arbitrator's award dated April 7, 1987. The Agency contends that the award on remand, dated June 18, 1988, "is a remand decision explaining the earlier decision and does not qualify for interest under the new provision." Exceptions at 11. Therefore, the Agency contends that the grievants are not entitled to interest on backpay. We disagree.

The provision authorizing the payment of interest on backpay awards to Federal employees "applies to determinations that become final on or after" December 22, 1987. Office of Personnel Management interim rule implementing Pub. L. 100-202, (section 550.806(h), 53 Fed. Reg. 18071-72 (May 20, 1988)), adopted without change in final rule at 53 Fed. Reg. 45885 (Nov. 15, 1988). The award in this case will become final and binding upon issuance of our decision on the Agency's exceptions to the award on remand. See Veterans Administration Central Office, Washington, D.C. and Veterans Administration Medical and Regional Office Center, Fargo, North Dakota, 27 FLRA 835, 838 (1987) (VACO), aff'd sub nom. AFGE v. FLRA, 850 F.2d 782 (D.C. Cir. 1988) (arbitration awards become "final and binding" either when no timely exceptions are filed under section 7122(a) of the Statute or when timely filed exceptions are denied by the Authority). As our decision is dated after the effective date of the amendment to the Back Pay Act, the Arbitrator's award of interest on backpay is covered by the amendment to the Back Pay Act and the Agency's exception to that portion of the award must be denied.

D. The Grievants Are Entitled To Backpay Since 1978

In the Arbitrator's first award, he awarded EDP retroactive to 1978 for the grievants' exposure to asbestos. He rejected the Agency's argument that the grievants were entitled to backpay only to 30 days prior to the date of the 1986 grievance. In its exceptions to the original award, the Agency contended that the award of backpay from 1978 was contrary to the Back Pay Act and to the collective bargaining agreement. The Agency claimed that the Union had failed to file a timely grievance on the matter within 30 days of the effective date of the agreement or to pursue a 1984 grievance to arbitration.

In the award on remand, the Arbitrator again ruled that the grievants were entitled to EDP retroactive to 1978. Because the Agency has requested that we rule on exceptions not ruled on in the original award, we will address the Agency's assertion that the award violates the Back Pay Act and the collective bargaining agreement.

We conclude that the Agency has failed to show that an award of EDP retroactive to 1978 is contrary to the Back Pay Act. Under the Back Pay Act, an arbitrator can award backpay to remedy an unjustified or unwarranted personnel action that has resulted in the withdrawal of a differential that the employees otherwise would have received. See, for example, Veterans Administration Medical Center, Leavenworth, Kansas and American Federation of Government Employees, Local 85, 24 FLRA 902, 904 (1986). In this case, the Arbitrator made a proper finding that the grievants were subjected to an unwarranted personnel action--the denial of EDP for asbestos exposure--but for which they would have received the EDP. Nothing in the Back Pay Act or in FPM Supplement 532-1, Appendix J, indicates that the period of time for which the Arbitrator awarded backpay was improper. See Robins Air Force Base, Warner Robins, Georgia and American Federation of Government Employees, AFL-CIO, Local 987, 18 FLRA 899 (1985) (an arbitrator's provision for a lump sum payment and a specification of a 3-year time limit for which the payment of an environmental differential was warranted is not inconsistent with FPM Supplement 532-1). Therefore, we reject the Agency's exception that the award conflicts with the Back Pay Act.

The Agency's assertion that the award conflicts with the collective bargaining agreement provides no basis for finding the award deficient. The exception merely constitutes disagreement with the Arbitrator's reasoning and conclusions and with his interpretation of the collective bargaining agreement. See, for example, American Federation of Government Employees, Local 1917 and Department of Justice, Immigration and Naturalization Service, 33 FLRA 412 (1988).

E. The Award of Attorney Fees Is Deficient

The Back Pay Act, 5 U.S.C. § 5596, confers jurisdiction on an arbitrator to consider a request for attorney fees filed in connection with a decision awarding backpay. Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 32 FLRA 417 (1988). In Philadelphia Naval Shipyard, the Authority stated the following with respect to the timeliness of filing requests for attorney fees with arbitrators:

In our view, the Act and its implementing regulations authorize the filing of an attorney fees request after an arbitrator has issued an award of backpay. The purpose of the Act is to provide backpay and attorney fees only after certain conditions have been satisfied. To require that a request for attorney fees be filed with an arbitrator before the prerequisites for fees have been met would not further the purpose of the Act.

Moreover, determinations as to whether a grievant is a prevailing party and whether backpay is a legally authorized remedy cannot be made until an award becomes final and binding. Therefore, it would be premature for an arbitrator to decide requests for attorney fees before an award becomes final and binding. While such requests may be submitted during the course of an arbitration proceeding, nothing in the Act or [Office of Personnel Management] regulations requires that a request for attorney fees be made before an award is final and binding.

32 FLRA at 420.

The Union notes that under Philadelphia Naval Shipyard, it may file a motion for fees within a reasonable time after the Authority issues its decision resolving the exceptions in this case. Opposition at 35. The Union states that it "reserves the right to make that motion upon the completion of these proceedings." Id. at 36.

Under the Back Pay Act, "[a]n employee or an employee's personal representative may request payment of reasonable attorney fees related to an unjustified or unwarranted personnel action. . . . Such a request may be presented only to the appropriate authority that corrected or directed the correction of the unjustified or unwarranted personnel action." 5 C.F.R. § 550.806(a). The regulations also provide that "[t]he appropriate authority to which such a request is presented shall provide an opportunity for the employing agency to respond to a request for payment of reasonable attorney fees." 5 C.F.R. § 550.806(b).(3)

Accordingly, the applicable regulations contemplate that before an appropriate authority makes a determination to grant an award of attorney fees, a request for attorney fees will be made and the employing agency will have an opportunity to respond to the request. Moreover, the Authority has held that "[w]hen exceptions are filed to arbitration awards resolving requests for attorney fees, our role is to ensure that the arbitrator complies with applicable statutory standards." U.S. Patent and Trademark Office and Patent Office Professional Association, 32 FLRA 375, 378 (1988) (emphasis added).

Nothing in the record indicates that the Union has requested an award of attorney fees or that the Agency has had an opportunity to respond to a request for fees. The Union indicated in its opposition that it reserves the right to make a motion for fees within a reasonable time after the Authority issues its decision resolving the exceptions in this case. Accordingly, in the absence of a request by the Union for fees and an opportunity for the Agency to respond to such a request, we will set aside the award of attorney fees. Our action setting aside the award of attorney fees is without prejudice to the Arbitrator's consideration of any request for fees filed by the Union in accordance with the time limits discussed in Philadelphia Naval Shipyard and of any response to such a request filed by the Agency.

V. Decision

The Arbitrator's award of attorney fees is set aside, without prejudice to the Arbitrator's consideration of any request for fees filed by the Union in accordance with the time limits discussed in Philadelphia Naval Shipyard and of any response to such a request filed by the Agency. The Agency's remaining exceptions are denied.




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