43:0080(8)AR - - Navy, Naval Aviation Depot, Norfolk, Virginia and NAGE Local R4-83 - - 1991 FLRAdec AR - - v43 p80



[ v43 p80 ]
43:0080(8)AR
The decision of the Authority follows:


43 FLRA No. 8

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE NAVY

NAVAL AVIATION DEPOT

NORFOLK, VIRGINIA

(Agency)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R4-83

(Union)

0-AR-2129

DECISION

November 13, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Mollie H. Bowers filed by the Union 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 Agency filed an opposition to the Union's exception.

In her original award, the Arbitrator found, among other things, that the Agency improperly charged the grievant 2 hours of annual leave. She ordered the Agency to restore the grievant 2 hours of annual leave and to pay the Union's counsel reasonable attorney fees. The Arbitrator retained jurisdiction to resolve any dispute over attorney fees that might arise. The Agency filed an exception to the portion of the award in which the Arbitrator granted attorney fees. We concluded that the award of attorney fees was contrary to the Back Pay Act. Accordingly, in U.S. Department of the Navy, Naval Aviation Depot, Norfolk, Virginia and National Association of Government Employees, Local R4-83, 40 FLRA 154 (1991) (Naval Aviation Depot), we modified the award to strike the award of attorney fees.

After issuance of the Authority's decision in Naval Aviation Depot modifying the award, the Union filed a motion for attorney fees with the Arbitrator. In a supplemental award, the Arbitrator denied the request. She stated that she did not have jurisdiction to consider the request for attorney fees.

We conclude that the Union fails to establish the supplemental award is deficient and we will deny the exception.

II. Background

A. The Decision in 40 FLRA 154

As relevant here, in her original award the Arbitrator directed the Agency to pay the Union's attorney fees. The Arbitrator retained jurisdiction to resolve any dispute over attorney fees that might arise. The Agency filed an exception to the portion of the award dealing with attorney fees. We concluded that the award of attorney fees was contrary to the Back Pay Act.

In so concluding, we first rejected the Union's contention that the Arbitrator had not awarded fees, but had merely "reserved jurisdiction over the attorney fee issue." Naval Aviation Depot, 40 FLRA at 157. We found that the Arbitrator's retention of jurisdiction was not for the purpose of entertaining a request for attorney fees, but rather was for the purpose of resolving any disputes arising from the Arbitrator's award of attorney fees. We also rejected the Union's contention that the Arbitrator had not yet rendered a final award of attorney fees, but was only allowing time for the parties to reach a settlement on the matter. We found that the Arbitrator, in response to a request by the Union, 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) (Washington Flight Service Station), the Authority stated that in future cases, an award granting attorney fees without the required support would be found deficient and would be set aside or modified, as appropriate, rather than being remanded. Accordingly, we modified the award to strike the provision for attorney fees.

B. Arbitrator's Supplemental Award

After issuance of our decision in Naval Aviation Depot modifying the Arbitrator's original award, the Union filed a motion for attorney fees with the Arbitrator.

The Arbitrator noted that the portion of her award covering attorney fees had been struck by the Authority in Naval Aviation Depot. Thus, the Arbitrator concluded that she had "neither jurisdiction nor authority to consider [the] request for attorney fees." Supplemental Award.

III. Positions of the Parties

A. Union's Exception

The Union contends that the supplemental award is deficient because, contrary to the Arbitrator's determination, she had jurisdiction over the motion for attorney fees.

The Union concedes that the Arbitrator's original award was deficient. However, the Union maintains that the award was deficient because the award of attorney fees was made by the Arbitrator before the Union had filed its motion for fees. The Union asserts that at the arbitration hearing it "only reserved its right to file for fees following the [A]rbitrator's decision on the grievance." Exception at 2 (emphasis in original). The Union claims that the Arbitrator erroneously awarded fees prior to the proper motion being filed by counsel. The Union disputes the Authority's finding in Naval Aviation Depot that the Union's request for attorney fees was made at the arbitration hearing and argues that "[t]here is absolutely no evidence in the record to support the conclusion reached by the Authority." Id. (emphasis in original).

Further, with respect to the deficiency of the Arbitrator's original award, the Union "notes that for the Authority to assume a course of action to dismiss an [a]rbitrator's decision when it is not in accordance with law is highly prejudicial to [u]nions [because] . . . in most instances, the [u]nion is the moving party." Id. The Union maintains that "[t]he proper course of action is to remand a decision that is not in accordance with law. Any other decision would reward an agency for the [a]rbitrator's error." Id.

Finally, the Union states that the Arbitrator's supplemental award is not in accordance with law. Specifically, the Union claims that under the Back Pay Act the Union is entitled to attorney fees. Accordingly, the Union requests the Authority to find that the Arbitrator has jurisdiction and authority to consider the Union's attorney fees motion and to remand the matter to the Arbitrator for a decision on its motion.

B. Agency's Opposition

The Agency contends that Arbitrator correctly determined that she had no jurisdiction or authority to consider the Union's request for attorney fees. Accordingly, the Agency concludes that the Authority should sustain the Arbitrator's supplemental award.

The Agency asserts that the Union's exception to the Arbitrator's supplemental award "is really [an attempt] to have the Authority reverse its decision" in Naval Aviation Depot. Opposition at 2. The Agency claims that the Authority addressed a set of circumstances "virtually identical to those presented in the instant case" in U.S. Department of the Army, Army Transportation Center, Fort Eustis, Virginia and National Association of Government Employees, Local R4-6, 40 FLRA 275 (1991) (Fort Eustis). Id. The Agency points out that in Fort Eustis, the Authority stated that "'when the Authority sets aside a portion of an arbitration award, that portion of the award is voided and vacated. . . . [That] mean[s] that all future proceedings with respect to the matter set aside are also barred unless the parties jointly agree otherwise.'" Id. (quoting Fort Eustis, 40 FLRA at 281).

The Agency argues that the decision in Fort Eustis is dispositive of the contentions made by the Union in this case. The Agency states that in Fort Eustis the Authority addressed and rejected the first two arguments raised by the Union in its exception. The Agency asserts that "[t]he only real difference between the instant case and Fort Eustis is that in Fort Eustis the arbitrator requested guidance from the parties on awarding attorney fees, which was not provided." Id. at 3. The Agency notes that, "[w]hile in the instant case, the [A]rbitrator did not request guidance, the Authority has long held that the parties bear the responsibility for ensuring that arbitrators make the requisite determinations with respect to awarding attorney fees[.]" Id. The Agency asserts that the Union's contention that the supplemental award is not in accordance with law is without merit.

IV. Analysis and Conclusions

We conclude that the Union's exception provides no basis for finding the award deficient. We find that the Arbitrator properly determined that because her award of attorney fees had been set aside by the Authority, she did not have jurisdiction to consider the Union's request for attorney fees.

In Fort Eustis we considered an exception substantially similar to the one presented by the Union in this case. In Fort Eustis, we denied a union's exception to an arbitrator's supplemental award in which the arbitrator found that, because we had voided and set aside her award of attorney fees, she was precluded from reopening the matter of attorney fees to correct the deficiency in her award of fees. In denying the union's exception we reiterated that when the Authority "'sets aside [an] award in whole or in part, the award is dismissed as to the portion or portions set aside.'" Fort Eustis, 40 FLRA at 281 (quoting U.S. Department of the Army, Army Transportation Center, Fort Eustis, Virginia and National Association of Government Employees, Local R4-6, 34 FLRA 601, 603 (1990)). We also pointed out that once we find an award deficient and set aside the award, "a claim that the [a]rbitrator could now render a legally sufficient decision does not establish a basis on which to remand th[e] case to the [a]rbitrator." Id. (quoting 34 FLRA at 604). We further stated that

when the Authority sets aside a portion of an arbitration award, that portion of the award is voided and vacated. [That] means[s] that all future proceedings with respect to the matter set aside are barred unless the parties jointly agree otherwise. Therefore, the matter involved could not be reopened or reconsidered by the arbitrator absent joint approval of the parties.

Id.

Accordingly, because we voided and set aside the Arbitrator's award of attorney fees in Naval Aviation Depot, and inasmuch as there was no joint request to reope