40:0084(10)AR - - Army Transportation Center, Fort Eustis, Virginia and NAGE Local R4-6 - - 1991 FLRAdec AR - - v40 p84
[ v40 p84 ]
The decision of the Authority follows:
40 FLRA No. 10
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on a request filed by the Union for clarification of our decision in 38 FLRA 186 (1990). The Agency filed a response to the Union's request for clarification.
We conclude that our decision in 38 FLRA 186 needs no clarification, and we will deny the request.
A. Arbitrator's Award
The Arbitrator found that management violated the parties' collective bargaining agreement by failing to impose discipline on the grievant within the time limit prescribed by the agreement. The Arbitrator sustained the grievance and directed management to revoke the 5-day suspension of the grievant and to expunge all references to the discipline from the grievant's personnel file. The Arbitrator also directed management to provide the grievant with backpay for the days she was improperly suspended and to "pay the legal fees and costs incurred by the Grievant in the prosecution of this grievance[.]" Arbitrator's Award at 11.
B. The Decision in 38 FLRA 186
The Agency filed exceptions to the award. We concluded that the Agency failed to establish that the award was contrary to management's right to discipline under section 7106(a)(2)(A) of the Federal Service Labor-Management Relations Statute (the Statute). We also concluded that the award of attorney fees was contrary to the Back Pay Act.
With respect to the award of attorney fees, we first rejected the Union's contention that the Arbitrator had not awarded attorney fees, but had merely indicated an eligibility for an award that would not be made until after receiving a motion for attorney fees, absent settlement. We found that the Arbitrator had specifically awarded attorney fees. Therefore, we also rejected the Union's contention that the exception to the award of fees was premature. Noting that the Authority had repeatedly held that an award of attorney fees under the Back Pay Act requires a fully articulated, reasoned decision setting forth the specific findings supporting the determination on each pertinent statutory requirement, we concluded that the Arbitrator had awarded attorney fees without the proper support and that, consequently, the award of fees was contrary to the Back Pay Act. We also noted that in National Association of Air Traffic Specialists and Federal Aviation Administration, Washington Flight Service Station, 21 FLRA 169, 173 (1986), the Authority explicitly stated that in future cases, an award granting attorney fees without the required support will be found deficient and will be set aside or modified as appropriate. Accordingly, we modified the award to strike the provision for attorney fees.
C. Arbitrator's Supplemental Award
On November 27, 1990, after our decision, the Union filed a motion for attorney fees with the Arbitrator. In a supplemental award, the Arbitrator denied the Union's request for a "new award of attorney fees." Arbitrator's Supplemental Award at 3. She advised that the matter of the Union's request would not be further pursued unless the Union obtained an order from the Authority remanding the matter to her for an articulation of findings.
On January 18, 1991, the Union filed a timely exception to the Arbitrator's supplemental award. The exception is currently pending before the Authority in Case No. 0-AR-2056.
III. Positions of the Parties
A. The Union
The Union notes that in its exception to the Arbitrator's supplemental award, it contends that the appropriate time for filing a motion for attorney fees is following the final decision in the case. The Union argues that it properly submitted a motion for fees following the Authority's decision. Noting that in her supplemental decision, the Arbitrator stated that she would need a remand order to be able to issue a fee award, the Union requests that we "clarify the decision to reflect that the Arbitrator has continuing authority to issue a decision on the fee issue." Request for Clarification at 2.
B. The Agency
The Agency maintains that the decision needs no clarification. In the Agency's view, the Union is seeking to have the award remanded when this was not what the Authority ordered. The Agency claims that the decision needs no such clarification because the award was set aside and not remanded.
The Agency also maintains that because the Union is seeking a remand, the Union's request is actually a request for reconsideration and not for clarification. As such, the Agency argues that it should either be dismissed as not timely filed or denied because the Union fails to establish extraordinary circumstances warranting reconsideration.
IV. Analysis and Conclusions
Initially, we conclude that we will consider the Union's request to be a request for clarification, as specifically stated by the Union. We will not dismiss or deny the request as a request for reconsideration, as asserted by the Agency. Instead, we deny the Union's request because in our view our decision in 38 FLRA 186 requires no clarification. As we noted in denying a similar request in U.S. Army Transportation Center, Ft. Eustis, Virginia and National Association of Government Employees, Local R4-106, 34 FLRA 601, 603 (1990), when the Authority remands an award to the parties, the Authority's decision will specify that the arbitrator's award is remanded; similarly when an award is set aside, in whole or in part, the award is vacated as to the portion or portions set aside. In 38 FLRA 186 we clearly set aside the provision of the award regarding attorney fees and did not intend to remand the award to the parties.
We also deny the request because the actual issue raised by the Union in its