40:0154(16)AR - - Navy, Naval Aviation Depot, Norfolk, Virginia and NAGE Local R4-83 - - 1991 FLRAdec AR - - v40 p154
[ v40 p154 ]
The decision of the Authority follows:
40 FLRA No. 16
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to the award of Arbitrator Mollie H. Bowers filed by the Agency 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 Agency's exception.
In her award, the Arbitrator resolved an issue concerning the designation and area of responsibility of the grievant as chief steward of the bargaining unit. The Arbitrator directed the Agency to restore to the grievant 2 hours annual leave and to record the time as official time. She also directed that the Agency pay the Union's attorney fees and retained jurisdiction to resolve any attorney fee dispute that might arise. The Agency filed an exception to the award of attorney fees. For the following reasons, we conclude that the award of attorney fees is contrary to law and we will modify the award to strike that portion pertaining to attorney fees.
II. Background and Arbitrator's Award
The events leading to the grievance in this case began when the Union notified the Agency that the grievant had been designated chief steward and the Agency replied that there was no such position under the parties' collective bargaining agreement. The Union then advised the Agency that the grievant had been assigned a NADEP-wide (Naval Aviation Depot) area of responsibility as steward. Later, the Agency denied the grievant official time and charged him 2 hours of annual leave for time spent discussing his representational rights with a management official.
A grievance was filed and submitted to arbitration on the following issue:
Under Article VIII of the collective bargaining agreement, does the Union have the unilateral right to designate [the grievant] as chief steward and assign him a NADEP-wide area of responsibility?
Award at 1.
The Arbitrator held that the Union has the right under law and the parties' collective bargaining agreement to name its own stewards and officers. However, she agreed with the Agency that there is no requirement in the agreement "to recognize a chief steward position as a legitimate part of the Union's representational structure." Award at 11. The Arbitrator found that the Union may assign duties to its officers or representatives as it chooses except that the agreement does not allow the Union president to serve in place of a steward unless the regular steward is absent or otherwise not available. The Arbitrator also found that the agreement requires that the assignment of stewards must be coordinated with the Agency by providing the Agency with notice of assignments. She ruled that nothing in law or the agreement precludes a NADEP-wide assignment of stewards. The Arbitrator concluded that the Agency had improperly restricted the grievant in his representational activities and that he was improperly charged 2 hours annual leave instead of being granted official time for the meeting with management.
The Arbitrator made the following award:
The Union is entitled to appoint the grievant to whatever position it desires. However, the position of chief steward is not encompassed by the Agreement nor is the creation of a two-tier representational system. The Union must notify the Agency of the position's duties and coordinate who will represent each employee as situations arise. The [g]rievant's two hours of annual leave shall be restored within 30 days of the date of this award. The Agency will pay [the Union's attorney] reasonable attorney fees and will pay the entire cost of this arbitration. The Arbitrator retains jurisdiction to resolve any attorney fee disputes should they arise.
Award at 15.
III. Positions of the Parties
A. Agency's Exception
The Agency excepts only to that part of the Arbitrator's award which grants attorney fees. The Agency asserts that the award of attorney fees is deficient because it fails to meet the statutory requirements of the Back Pay Act, 5 U.S.C. § 5596, and relevant Authority decisions. The Agency maintains that the award fails to comply with the standards established under 5 U.S.C. § 7701(g) because the Arbitrator did not make the required analysis of the statutory requirements of that provision of law and because the Arbitrator "provided no analysis, findings or conclusions as to how she reached her decision that the [A]gency must pay reasonable attorney fees." Exceptions at 3. The Agency asks that the award of attorney fees be struck from the award.
B. Union's Opposition
The Union asserts that the Arbitrator has not yet made an award of attorney fees but has "properly retained jurisdiction over the matter should any dispute arise." Opposition at 2. The Union claims that the exception is premature because the Arbitrator has not yet issued a final decision on attorney fees. The Union states that "[t]he issue raised by the [A]gency is not ripe for an exception because the issue has not yet been argued before the Arbitrator." Id. The Union maintains that the Arbitrator only indicated that attorney fees are appropriate and that she is allowing the parties an opportunity to settle the matter between themselves before making an actual award. The Union contends that the Agency is aware that the Arbitrator has reserved jurisdiction over the matter and that the Agency is attempting "to avoid litigation on the attorney fee issue[.]" Id. at 3.
IV. Analysis and Conclusions
We reject the Union's contention that the Arbitrator has done nothing more than reserve jurisdiction over the attorney fee issue." Opposition at 3. In Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 32 FLRA 417 (1988), we held that 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 and that an arbitrator may consider such a request for attorney fees. Further, we have held that an arbitrator may retain jurisdiction in a case for the purpose of considering requests for attorney fees. See U.S. Department of Defense Dependents Schools, Germany Region and Overseas Education Association, 39 FLRA No. 3 (1991) (arbitrator properly retained jurisdiction after rendering final award of backpay to entertain a motion for attorney fees). However, those principles are not applicable in the present case because there is no indication in the record that the parties or the Arbitrator intended that jurisdiction would be retained for the purpose of entertaining a request for attorney fees. As we have found above, the request for attorney fees was made by the Union at the arbitration hearing and the Arbitrator made a definite award of attorney fees. We view the Arbitrator's retention of jurisdiction as being only for the purpose of resolving any disputes arising from that attorney fee award, not for the purpose of resolving a new request. Compare Allen Park Veterans Administration Medical Center and American Federation of Government Employees, Local 933, 34 FLRA 1091, 1105 (1990) (award of attorney fees set aside without prejudice to later timely filing of request because union had not yet made request and parties had not made arguments concerning attorney fees).
We also reject the Union's contention that the Arbitrator has not yet rendered a final award of attorney fees but is only allowing time for the parties to reach a settlement on the matter. The Arbitrator specifically stated: "The Agency will pay [the Union's attorney] reasonable attorney fees and will pay the entire cost of this arbitration." Award at 15. We conclude that the Arbitrator made a final award of attorney fees and, therefore, the Agency's exception is not premature, as charged by the Union. See U.S. Department of the Army, Army Transportation Center, Fort Eustis, Virginia and National Association of Government Employees, Local R4-6, 38 FLRA 186 (1990) (Fort Eustis), request for clarification denied 40 FLRA No. 10 (1991), in which we rejected the union's contention that a one-sentence award of attorney fees did not constitute an award but merely indicated eligibility for an award of attorney fees.
We find that the Arbitrator's award is deficient because the Arbitrator failed to provide the required analysis to support an award of attorney fees. The Authority has 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 and the Authority will set aside or modify, as appropriate, awards granting attorney fees without providing the required support. See U.S. Department of Veterans Affairs, Medical Center, Allen Park, Michigan and American Federation of Government Employees, Local 933, 38 FLRA 688, 699 (1990); Fort Eustis, 38 FLRA at 191.
The Arbitrator's award of attorney fees in this case is similar to the award which was found to be deficient in Fort Eustis. Just as in Fort Eustis, the award grants attorney fees without reasoning or discussion of the legal requirements for an award of attorney fees under the Back Pay Act and 5 U.S.C. § 7701(g). The Arbitrator noted the Union's request that the Agency be required to pay attorney fees. See Award at 9. The only distinction that is apparent between the two cases is that, in the instant case, the Arbitrator retained jurisdiction "to resolve any attorney fee disputes should they arise." Id. at 15. In Fort Eustis there was no retention of jurisdiction by the Arbitrator.
We take this opportunity to remind parties to arbitration proceedings of their interest in informing an arbitrator of the requirements which must be observed in making an award of attorney fees under the Back Pay Act. The Authority stated in National Association of Air Traffic Specialists and Federal Aviation Administration, Washington Flight Service Station, 21 FLRA 169, 173 (1986), that "[i]n the future, . . . if the Authority finds that an award granting attorney fees is deficient because it is not fully supported as required, the Authority will set aside or modify the award as appropriate." The Authority also noted that in prior cases, parties were not "fully apprised by the Authority of their responsibility and interest in ensuring that arbitrators make the requisite determinations." Id. Now that parties to arbitration awards have been fully apprised of the requirements for attorney fee awards, they bear some responsibility for making those requirements known to arbitrators. However, we must also point out that if arbitrators are informed of the requirements and still fail to comply by providing fully articulated decisions, such deficient attorney fee awards will be set aside. See Local 1749, American Federation of Government Employees and Commander, 47FTW, Laughlin Air Force Base, Texas, 24 FLRA 117 (1986), in which the agency informed the arbitrator of his obligation to provide an award of attorney fees consistent with applicable requirements and his award did not meet those requirements. The award of attorney fees in that case was set aside despite the union's assertion that the arbitrator was not provided with a copy of applicable Authority rulings.
In summary, the Arbitrator awarded attorney fees pursuant to the Union's request without providing the required fully articulated support. Accordingly, we conclude that the award of fees is contrary to the Back Pay Act, and we modify the award to strike the provision for attorney fees.
The Arbitrator's award is modified by striking that portion of the award which requires the Agency to pay reasonable attorney fees and in which the Arbitrator retains jurisdiction to resolve a