35:0998(107)AR - - Agriculture, Animal and Plant Health Inspection Service and NAAE - - 1990 FLRAdec AR - - v35 p998



[ v35 p998 ]
35:0998(107)AR
The decision of the Authority follows:


35 FLRA No. 107

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF AGRICULTURE

ANIMAL AND PLANT HEALTH INSPECTION SERVICE

(Agency)

and

NATIONAL ASSOCIATION OF AGRICULTURE EMPLOYEES

(Union)

0-AR-1769

0-AR-1828

ORDER DISMISSING EXCEPTIONS AND

REQUEST FOR ATTORNEY FEES

May 3, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to awards of Arbitrator Marshall J. Seidman filed by the Agency pursuant to 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 oppositions to the Agency's exceptions. Case Nos. 0-AR-1769 and 0-AR-1828 are combined in this consolidated decision because both cases involve the same parties and arise from the same grievance arbitration proceeding.

The Arbitrator decided in Case No. 0-AR-1769 that an employee's grievance over her removal was grievable and arbitrable under the parties' collective bargaining agreement and that he had jurisdiction to resolve the grievance on the merits. In the award in Case No. 0-AR-1828, the Arbitrator ruled on the merits of the grievance that removal was too severe a punishment for the grievant's offense. He ordered that the removal be set aside and replaced with a 3-day suspension. He also awarded backpay for the time the grievant was wrongfully removed and determined that the grievant was entitled to attorney fees.

The Agency filed exceptions to the Arbitrator's decision on the issue of grievability and arbitrability and to the award on the merits. In its exceptions, the Agency contends that the Arbitrator's awards are deficient because the Arbitrator erroneously decided that the grievance was grievable and arbitrable and that he had jurisdiction to rule on the merits.(*)

For the reasons stated below, we conclude that we are without jurisdiction under section 7122(a) of the Statute to review the Agency's exceptions.

II. Background and Arbitrator's Awards

The grievant was removed from her position of Plant Protection and Quarantine Officer, GS-9, for making an unauthorized inquiry into the U.S. Customs Service's Treasury Enforcement Communications System (TECS) computer and disclosing the results of the inquiry to a private individual. The grievant filed a grievance contesting her removal. The Agency contended that the grievance was not grievable or arbitrable under the parties' collective bargaining agreement. The grievance was submitted to arbitration. The parties agreed that the Arbitrator should first resolve the threshold issue of grievability and arbitrability under the negotiated grievance procedure.

The Arbitrator found that the grievance was grievable and arbitrable under Article 10, Section 1 of the agreement, which provides in pertinent part:

This article establishes the exclusive procedures available to bargaining unit employees, the Union or the Employer, whereby they may seek consideration of grievances arising out of any and all matters relating to, and within the authority and jurisdiction of the parties to this Agreement, except matters for which a statutory appeal procedure exists or are excluded by statute. Disputes as to whether or not a grievance is precluded by existing statutory appeal procedures and all other disputes of grievability shall be submitted in writing to an arbitrator as a threshold question prior to any hearing on the matter[.]

Agency's Exceptions, Exhibit 11 at 10. The Arbitrator issued an award in which he ruled that the grievant's removal was "grievable under either the procedures of the Merit Systems Protection Board or the grievance and arbitration procedures of the collective bargaining contract between the parties" and that the grievance was "entitled to be considered on the merits." Award at 13-14.

The Arbitrator also ruled that he had jurisdiction to resolve the grievance on the merits. He noted that the Agency representative "had stated his view that if [the Arbitrator] ruled in favor of the Grievant the parties would then determine whether [the Arbitrator], or another [a]rbitrator, should hear the merits of this dispute. [The Agency representative] did not state or indicate in any manner that the Union had agreed with his view of the matter." Id. at 14. The Arbitrator further noted that his appointment to the case by the Federal Mediation and Conciliation Service stated that he "was appointed to hear both the procedural and substantive matters involved in the [grievant's] discharge." Id. The Arbitrator stated that the Union "assumed that if [the Arbitrator] resolved the threshold issue in its favor [the Arbitrator] would thereafter continue in authority to hear and determine the merits of the matter." Id.

The Arbitrator held a hearing and issued an award on the merits of the grievance. He determined that although the grievant committed the act of unauthorized use of the TECS computer terminal and release of the information obtained to an unauthorized person, a penalty of removal was too harsh. He ruled that for a first offense for an employee with the grievant's otherwise good record, any penalty beyond a 3-day suspension would be "arbitrary, capricious and an abuse of discretion." Award on merits at 26. The Arbitrator set aside the removal action and replaced it with a suspension of 3 calendar days. He ordered that the grievant be reinstated to her former position with all references to the removal deleted from her personnel record. He awarded backpay with interest for the period August 8, 1988, the date the grievant filed a formal answer to the Agency's charges, to the date of the grievant's reinstatement. The Arbitrator denied the Agency's request that the cost of the transcript be divided equally between the parties. The Arbitrator granted the grievant's request for attorney fees and retained jurisdiction to determine a reasonable amount of attorney fees.

III. Positions of the Parties

A. The Agency's Exceptions

The Agency filed exceptions to the Arbitrator's decision that the grievance was arbitrable and to the Arbitrator's award on the merits. The Agency contends that the parties requested the Arbitrator to resolve only the issue of grievability and arbitrability of the grievance and maintains that the grievability and arbitrability issue is separate from the merits issue which was not properly before the Arbitrator. The Agency contends that the Arbitrator's finding that the grievance is arbitrable is deficient because: (1) it is erroneous and fails to draw its essence from the agreement, which plainly excludes matters for which a statutory appeals procedure exists from the negotiated grievance procedure; (2) it is contrary to law; (3) it is based on a mistake of fact; and (4) the Arbitrator failed to recognize that the Union waived the right to grieve removals.

The Agency maintains that the Arbitrator's erroneous interpretation of the agreement improperly changed the terms of the agreement from those intended by the parties. The Agency argues that if the question of grievability had been presented to an arbitrator for a decision on that issue alone with no decision on the merits, the Authority would consider exceptions under section 7122(a) of the Statute. The Agency states that the Office of Personnel Management advised the Agency that it will not seek judicial review of the award in the case and, consequently, the Agency has no appeal other than to the Authority before the Arbitrator's award becomes final and binding. The Agency asks that the Arbitrator's decision that the grievance was grievable and arbitrable be reversed and the award on the merits be set aside.

B. The Union's Opposition

The Union contends that the Agency's exceptions to the Arbitrator's decision holding the grievance to be grievable and arbitrable under the parties' agreement are interlocutory. The Union maintains that the Arbitrator's decision on grievability and arbitrability was the threshold issue leading to the arbitration of the grievance on the merits. The Union also contends that the Authority is without jurisdiction to consider the Agency's exceptions under section 7122(a) of the Statute because the awards relate to a removal under 5 U.S.C. § 7512, which is a matter described in section 7121(f).

Further, the Union maintains that, even if considered by the Authority, the Agency's exceptions fail to provide a basis for finding the awards deficient. The Union asserts that the Agency is merely disagreeing with the Arbitrator's interpretation of the agreement to find that the grievant's removal was grievable and arbitrable. The Union contends that the Agency has failed to show that the awards are contrary to any law or that the awards fail to draw their essence from the agreement.

The Union also requests that the Authority grant the grievant reasonable attorney fees and costs for the time spent responding to the Agency's exceptions. The Union maintains that the granting of such a request is within the Authority's power under either the Back Pay Act, 5 U.S.C. § 5596, or under the broad powers granted the Authority under sections 7105 and 7118 of the Statute. In support of its request, the Union asserts that (1) the grievant has incurred attorney fees; (2) the grievant is the prevailing party; (3) the grievant is entitled to fees in the interest of justice; and (4) the grievant can show that the amount of fees requested is reasonable.

IV. Analysis

A. Authority Jurisdiction

We find that we are without jurisdiction under section 7122(a) of the Statute to review the Agency's exceptions.

Section 7122(a) 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. § 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. § 7703.

We do not agree with the Agency that the Arbitrator's decision on grievability and arbitrability should be treated separately from his award on the merits of the grievant's removal and is therefore subject to the filing of exceptions under section 7122(a) of the Statute. The threshold issue of grievability and arbitrability is directly connected to and an integral part of the grievance over the removal of the grievant under 5 U.S.C. § 7512. See U.S. Department of Justice, Immigration and Naturalization Service, Baltimore, Maryland and National Immigration and Naturalization Service Council, American Federation of Government Employees, 34 FLRA 79 (1989) (INS, Baltimore) (supplemental award resolving request for attorney fees in award relating to a matter described in section 7121(f) is not separate and distinct from the award resolving the section 7121(f) matter); U.S. Army Armament Research, Development, and Engineering Center (ARDEC), Dover, New Jersey and National Federation of Federal Employees (NFFE), Local 1437, 24 FLRA 837 (1986) (award interpreting settlement agreement under which grievant's removal was changed to 6-month suspension related to matter described in section 7121(f) of the Statute and was not separate and distinct from original issue of removal).

We do not view the Arbitrator's threshold decision on grievability and arbitrability and the decision on the merits as two separate and distinct awards. Rather, we view the two awards, as did the Arbitrator, as parts of one decision on the issue of the grievant's removal. Because the Arbitrator's two awards relate to the grievant's removal, which is a matter covered under 5 U.S.C. § 7512 and described in section 7121(f), exceptions to the awards may not be filed with the Authority under section 7122(a) of the Statute. Consequently, we are without jurisdiction to review the Agency's exceptions and we will dismiss them. See, for example, American Federation of Government Employees, Local 3627 and Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Region IV, 31 FLRA 1178 (1988); International Organization of Masters, Mates, and Pilots, ILA, AFL-CIO, Panama Canal Branch and Panama Canal Commission, 30 FLRA 646 (1987).

B. The Request For Attorney Fees

The Union has requested that the Authority grant the grievant attorney fees in this case and asserts that the Authority has the power to make such a grant. However, as stated above, the Authority does not have jurisdiction in this case under section 7122(a) of the Statute because the case involves a removal. Therefore, we do not have jurisdiction over the Union's request for attorney fees. See INS, Baltimore.

The Union maintains that the Authority has the power under sections 7105 and 7118 of the Statute to grant the grievant attorney fees in this case. The Union argues that the Authority's power is similar to that of the National Labor Relations Board (NLRB) under 29 U.S.C. § 160. Opposition at 34. We find that the Union's argument in this regard is misdirected. Section 7105 provides a broad description of the Authority's powers and duties but makes no specific reference to awards of attorney fees. Section 7118 of the Statute relates to the Authority's role in the resolution of unfair labor practice cases. Similarly, 29 U.S.C. § 160 describes the powers and duties of the NLRB in resolving unfair labor practices. However, the basis for awarding attorney fees in arbitration proceedings is the Back Pay Act, 5 U.S.C. § 5596. See American Federation of Government Employees, Local 1960 and Naval Education and Training Program Development Center, Pensacola, Florida, 34 FLRA 799, 804 (1990) (there is no basis for the Authority to award attorney fees under the Equal Access to Justice Act, 5 U.S.C. § 504, in arbitration proceedings); Department of the Air Force Headquarters, 832d Combat Support Group DPCE, Luke Air Force Base, Arizona, 32 FLRA 1084, 1093-95 (1988) (arbitrator was the appropriate authority for determination of attorney fee award for the arbitration, but the Authority was the appropriate authority for considering request for attorney fees in unfair labor practice case over agency's failure to comply with award).

With regard to requests for attorney fees under the Back Pay Act, 5 C.F.R. § 550.807(a) states that a request for attorney fees related to an unjustified or unwarranted personnel action "may be presented only to the appropriate authority that corrected or directed the correction of the unjustified or unwarranted personnel action." In the instant case, the Arbitrator corrected the Agency's unjustified or unwarranted personnel action by finding that the grievant's removal was an excessive punishment for the offense committed and mitigated the removal to a 3-day suspension. Therefore, the Arbitrator is "the appropriate authority" under 5 C.F.R. § 550.807(a) for purposes of considering the grievant's request for attorney fees. See Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 32 FLRA 417, 420-21 (1988) (arbitrator is appropriate authority to settle grievance with an award of backpay and can consider successful grievant's request for attorney fees submitted either during the arbitration proceeding or after award has become final and binding). We note that the Arbitrator has already ruled favorably on the Union's request for attorney fees on behalf of the grievant.

Because the Authority does not have jurisdiction in this case under section 7122(a) of the Statute, we will not consider the Union's requ