47:0791(74)AR - - DOD, Defense Logistics Agency, Defense Distribution Region East, New Cumberland, PA and AFGE Local 2004 - - 1993 FLRAdec AR - - v47 p791



[ v47 p791 ]
47:0791(74)AR
The decision of the Authority follows:


47 FLRA No. 74

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF DEFENSE

DEFENSE LOGISTICS AGENCY

DEFENSE DISTRIBUTION REGION EAST

NEW CUMBERLAND, PENNSYLVANIA

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2004

(Union)

0-AR-2389

_____

ORDER DISMISSING AGENCY EXCEPTIONS

DECISION ON UNION EXCEPTION

June 3, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to a supplemental award of Arbitrator Perry A. Zirkel filed by both parties 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 exceptions.

In his supplemental award, the Arbitrator clarified that his original award, granting environmental differential pay (EDP), was intended to encompass all unit employees. The Arbitrator did not rule on the Union's request for attorney's fees. For the following reasons, we will dismiss the Agency's exceptions and remand the matter of the Union's request for attorney fees to the parties.

II. Preliminary Matters

The time limit for filing exceptions to an arbitration award is 30 days beginning on the date the award is served on the filing party. 5 C.F.R. § 2425.1(b). The date of service is the date the arbitration award is deposited in the U.S. mail or is delivered in person. 5 C.F.R. § 2429.27(d). Absent evidence to the contrary, the date of an arbitration award is presumed to be the date of service of the award. See Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local No. 916, 32 FLRA 165, 167 (1988). If an award is served by mail, 5 days are added to the period for filing exceptions to the award. 5 C.F.R. § 2429.22. The time limit may not be extended or waived by the Authority. 5 C.F.R. § 2429.23(d).

The Arbitrator's award is dated December 1, 1992. Presuming that the award was deposited in the U.S. mail on that date, the Agency's exceptions, to be considered timely, had to be either postmarked by the U.S. Postal Service or received in person at the Authority by close of business on January 4, 1993. The Agency's exceptions are postmarked January 5, 1993, and were received by the Authority on January 7, 1993.

In response to the Authority's Order To Show Cause, the Agency states that, although it did not retain the envelope in which the award was mailed, it did not receive the Arbitrator's award until December 7, 1992. It is well established, however, that the date of receipt of the award is not controlling in determining the timeliness of exceptions. U.S. Department of the Navy, Navy Resale Activity, Guam and American Federation of Government Employees, Local 1689, 39 FLRA 1109, 1110 (1991) (Guam). Instead, the date of service of the award controls. 5 C.F.R. § 2429.27(d). As the Agency has not submitted evidence to the contrary, the date of the arbitration award, December 1, 1992, is presumed to be the date of service of the award. As the Agency's exceptions were not filed by January 4, 1993, they will be dismissed as untimely. See Guam, 39 FLRA at 1111.

III. Background and Arbitrator's Award

In his original award, the Arbitrator concluded that the Agency violated the parties' collective bargaining agreement by exposing employees to unhealthy levels of asbestos. The Arbitrator ordered the Agency to, among other things, pay affected employees retroactive EDP for the time they were exposed to asbestos. The Arbitrator retained jurisdiction for the limited purpose of implementing the award.

Both parties filed exceptions to the award with the Authority. In April 1991, we denied all but one of the exceptions and modified the award to include the payment of interest. U.S. Department of the Army, New Cumberland Army Depot, New Cumberland, Pennsylvania and American Federation of Government Employees, Local 2004, 40 FLRA 186 (1991).

In August 1992, the parties entered into a settlement agreement which set the amounts to be paid to affected wage grade (WG) and wage leader (WL) positions, but "le[ft] in dispute the question of whether general schedule (GS) employees were entitled to EDP relief." Supplemental Award at 2. In September 1992, the Union filed a motion with the arbitrator for attorney fees. In October 1992, the Agency responded to the request by letter and asserted that the Arbitrator "'has no authority to grant attorney fees in this case.'" Id.

Thereafter, in his supplemental award, the Arbitrator ruled that his original award granting EDP was intended to apply to all employees, with no distinction between WG/WL and GS employees. With regard to the request for attorney fees, the Arbitrator stated as follows:

[T]he relevant issue at this time is not whether the matter was raised during the hearing, but rather whether it was raised in [a] timely fashion when the [a]ward became final and binding.

Id. at 6.

The Arbitrator stated that he "would have preferred to have a hearing, if the parties could not settle the matter of attorney fees, to complete the record with evidence and arguments as to when the Award became final and binding, whether the Union's request was timely, and any other relevant sub-issues." Id. at 6-7 (footnote omitted). The Arbitrator also stated, however, that the Agency "adamantly resisted any further proceedings, insisting instead that the matter be advanced beyond the arbitrator to further forums, such as the FLRA." Id. at 7 (footnote omittted). The Arbitrator concluded as follows:

[T]his ends the arbitrator's rulings in this case unless 1) a competent agency, such as the FLRA or a court, remands . . . these matters to the arbitrator, or 2) the parties jointly submit . . . [the] matters to him (footnote omitted).

Id.

IV. Union's Exception

The Union excepts only to that portion of the award concerning attorney fees. The Union claims that the award is contrary to Authority precedent because the Arbitrator should have proceeded ex parte when the Agency refused to participate in a hearing on the Union's request for attorney fees. The Union requests that the Authority remand the attorney fee matter to the Arbitrator and direct him to proceed ex parte if the Agency refuses to participate in the proceeding. The Union maintains that such an approach is "required by" the Statute because a refusal by one party to participate in arbitration proceedings would "frustrate the Congressional scheme requiring binding arbitration of such disputes." Exception at 3.

V. Analysis and Conclusions

We are unable to determine whether the award is deficient. In particular, having considered the record as a whole, we are unable to determine whether the Arbitrator's decision not to rule on the attorney fee request is based on his interpretation of law or the parties' collective bargaining agreement.

In this connection, we note, first, that we are not aware of any law or regulation that prohibits an arbitrator from considering a request for attorney fees filed within a reasonable time after an award becomes final and binding. Indeed, the Authority has held that the Back Pay Act, 5 U.S.C. § 5596, confers such jurisdiction on an arbitrator. U.S. Department of Veterans Administration, Medical Center, Leavenworth, Kansas and American Federation of Government Employees, Local 85, 38 FLRA 232, 239-40 (1990); Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 32 FLRA 417, 421 (1988).

We also note that, under the Statute, arbitrators may proceed ex parte on matters that are otherwise properly before them. In this regard, the Authority has sustained awards resulting from ex parte hearings in circumstances similar to those here. For example, U.S. Department of the Air Force, Griffiss Air Force Base, Rome, New York and American Federation of Government Employees, Local 2612, 38 FLRA 276, 279-80 (1990); Department of Labor, Employment Standards Administration/Wage and Hour Division, Washington, D.C., 10 FLRA 316, 320 (1982).

On the other hand, parties may agree to procedures governing arbitration proceedings. For example, National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 1349, 1355-57 (1991) (provision precluding agency from raising grievability and arbitrability questions in certain circumstances held negotiable); American Federation of State, County and Municipal Employees, Local 2478 and U.S. Commission on Civil Rights, 24 FLRA 87, 89-90 (1986) (proposal that Federal Mediation and Conciliation Service designate arbitrator if agency refused to participate in selection held negotiable). An award enforcing such procedures is not deficient unless, as relevant here, it fails to draw its essence from the agreement. For example, U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base and American Federation of Government Employees, Local 916, 35 FLRA 700, 702-03 (1990) (exceptions denied to award enforcing provision requiring party failing to appear at arbitration hearing to pay cancellation fee to arbitrator); Oklahoma City Air Logistics Command, Tinker Air Force Base and American Federation of Government Employees, Local 916, AFL-CIO, 34 FLRA 568, 571-72 (1990) (exceptions denied to award finding grievance not arbitrable because of union's failure to reach agreement with agency on date for arbitration hearing).

In this case, we are unable to determine the basis of the Arbitrator's decision not to rule on the Union's attorney fee request. It is clear, in this regard, that the Arbitrator acknowledged that an issue had been raised concerning the timeliness of the Union's request. However, it also is clear that the Arbitrator did not refuse to grant attorney fees because of a finding that the request was not timely. Instead, the Arbitrator stated that, although he preferred to hold a hearing on the matter, including questions of timeliness, he would not so do because the Agency "adamantly resisted any further proceedings[.]" Supplemental Award at 7.

As noted above, we are aware of no statutory or regulatory basis for the Arbitrator's apparent belief that he was not authorized to proceed, ex parte, on the Union's request for attorney fees. Accordingly, insofar as the Arbitrator based his refusal on such basis, the award would be deficient as contrary to law. However, also as noted above, the parties may agree to, and arbitrators may enforce, procedures governing arbitral proceedings.

As we are unable to determine the basis for the Arbitrator's refusal to proceed with the Union's request, we are also unable to determine whether the award is deficient. Accordingly, we will remand the case to the parties for resubmission to the Arbitrator for clarification of his award