48:1117(122)AR - - AFGE, Local 1923 and HHS, Health Care Financing Administration - - 1993 FLRAdec AR - - v48 p1117



[ v48 p1117 ]
48:1117(122)AR
The decision of the Authority follows:


48 FLRA No. 122

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1923

(Union)

and

DEPARTMENT OF HEALTH AND HUMAN SERVICES

HEALTH CARE FINANCING ADMINISTRATION

(Agency)

0-AR-2449

_____

DECISION

December 14, 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 Herbert Fishgold 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 exceptions.

In his supplemental award, the Arbitrator found, in pertinent part, that the Union's application for attorney fees was untimely and denied the application. For the following reasons, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

From August 26 through 30, 1991, two Agency employees who were Union officials attended the American Federation of Government Employees' (AFGE) convention. Because the Union took the position that Union officials were entitled under the parties' collective bargaining agreement to take official time to attend the convention, the Union officials did not submit leave slips for the period of their absence while attending the convention. The Agency charged both employees with being absent without leave (AWOL) for that period. The Union filed a grievance over the AWOL charge. The parties submitted the matter to arbitration.

On May 11, 1992, the Arbitrator issued an award granting the grievance in part by removing the AWOL charges from the grievants' records. The Arbitrator denied the grievance in part by refusing to grant the grievants backpay for the entire convention, but directed the parties to meet and determine the type of leave to be substituted for the AWOL. The Arbitrator also stated that if the parties were unable to agree within 30 days, he would determine the type of leave that would be granted. No exceptions were filed to the Arbitrator's award.

On September 1, 1992, the parties agreed to apply the award of Arbitrator Henry Segal (Segal Award) in a companion case, which was then pending on exceptions before the Authority, to the facts of this case. In that case, Arbitrator Segal had awarded 2 days of official time to other Union representatives who had attended the AFGE convention. The Authority denied the Agency's exceptions to the Segal Award in Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, SSA General Committee, 46 FLRA 1118 (1993) (Social Security Administration) on January 8, 1993.

On February 25, 1993, the Agency advised the Union that it was "implementing back pay" for the two grievants in this case consistent with the Segal Award. Supplemental Award at 2. On March 8, 1993, the Union's attorney filed with the Arbitrator an application for attorney fees for preparing the Union's brief to the Arbitrator in this case. The Agency opposed the application.

The Arbitrator framed the issue as

[w]hether [the Union's attorney] is entitled to [attorney] fees pursuant to the Back Pay Act and the Civil Service Reform Act of 1978?

Id. at 4. As a threshold issue, the Arbitrator considered whether the Union attorney's application for fees was timely filed. According to the Arbitrator, the "crux of this issue is whether the clock started running in May 1992, when the Award was issued[,] or whether the clock started running in January [1993,] when the FLRA affirmed the Segal Award." Id. at 5 (footnote omitted). The Arbitrator agreed with the Agency that "there is no basis for using the finality of the Segal Award as the date for when the [attorney fees] application should have been made." Id. The Arbitrator enumerated the issues that he would consider in determining whether attorney fees were warranted in connection with the arbitration proceeding in this case and concluded that all of those issues could have been resolved based on his original award in May 1992. The Arbitrator found that whether attorney fees were warranted "was determinable in May 1992, when the [a]ward was issued." Id. Consequently, the Arbitrator concluded that the Union's application for attorney fees was untimely. The Arbitrator also stated that "[w]hile the timeliness issue is dispositive of this case, it is also worth mentioning that [attorney] fees would not be warranted based on the substantive factors that determine the application of [attorney] fees." Id. at 6. Accordingly, the Arbitrator denied the application for attorney fees.

III. First Exception

A. Positions of the Parties

1. Union

The Union contends that the Arbitrator's supplemental award finding that the application for attorney fees was untimely filed is contrary to law, rule, and regulation.

The Union argues that the Arbitrator erred in finding that his award on the underlying grievance was final and binding in May 1992. The Union asserts that, because the Arbitrator retained jurisdiction to determine the type of leave that should be awarded to the grievants if the parties could not agree, his award was not final. According to the Union, the Arbitrator's award in this case became final on February 25, 1993, when the Agency implemented the parties' agreement of September 1, 1992. The Union contends that the Arbitrator should have determined whether the application was timely based on the fact that his award became final on February 25, 1993. The Union also contends that the Arbitrator had jurisdiction to consider the application for attorney fees after the award became final and binding.

The Union claims that the supplemental award must be remanded to the Arbitrator to determine whether attorney fees are warranted and the amount of the attorney fees.

2. Agency

The Agency claims that the Arbitrator properly determined when his award became final. The Agency notes that the Arbitrator considered that his award was final on the date of issuance, May 11, 1992. The Agency also notes that no exceptions were filed to the Arbitrator's award and states that the May 11 award "could be accepted by both parties as final and binding and in fact became final and binding when the 30 day period for filing exceptions had passed." Opposition at 7.

The Agency argues that there is "no justification" for the Union to wait to file an application for attorney fees until the Agency had complied with the Segal Award. Id. at 10. According to the Agency, the delay in implementation of the award in this case had no relationship to the finality of the Segal Award. The Agency contends that the Union was not prohibited from filing an application for attorney fees even before the award in this case was final. The Agency contends that the "crux of the Union's argument" is that the Arbitrator's award in this case became final on February 25, 1993, when the Agency implemented the parties' September 1, 1992 agreement pursuant to the award in this case. Id. at 12. The Agency claims that this view of the finality of the award is inconsistent with law.

The Agency argues that the Arbitrator was not required to refrain from ruling on the Union's application for attorney fees until after the Authority ruled on the exceptions to the Segal Award. According to the Agency, the Segal Award "had no impact on the merits" of the Arbitrator's award in this case. Id. at 13. The Agency notes that the Arbitrator could have ruled on an attorney fees application at the same time as he issued his award on the merits in this case and contends that the Union should have filed its application after the issuance of that award and not after the Authority's decision on the exceptions to the Segal Award. The Agency claims that an application for attorney fees in connection with an arbitration award must be filed within a reasonable period of time after the award becomes final and binding and contends that, because the Union attorney's application was filed 9 months after the award in this case became final, the application is untimely.

B. Analysis and Conclusions

For the following reasons, we find that the Union has failed to establish that the Arbitrator's award is deficient under section 7122 of the Statute because it is contrary to law.

In the absence of an agreement between the parties as to the period of time during which a request for attorney fees must be filed with an arbitrator, an application for attorney fees must be filed within a reasonable period of time after the award becomes final and binding. See Department of the Air Force Headquarters, 832D Combat Support Group DPCE, Luke Air Force Base, Arizona, 32 FLRA 1084, 1094 (1988) (Luke AFB); Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 32 FLRA 417, 421 (1988) (Philadelphia Naval Shipyard). There is no evidence in the record of this case that the parties had negotiated an agreement governing the period of time during which an application for attorney fees must be filed with an arbitrator. Consequently, in order for the Union attorney's application for fees in this case to have been timely filed, it must have been filed within a reasonable time after the Arbitrator's award became final and binding.

An arbitration award is final and binding under the Statute when all the issues submitted for arbitration are completely and unambiguously resolved. See, for example, American Federation of Government Employees, Local 1960 and Naval Education and Training Program Development Center, Pensacola, Florida, 34 FLRA 799, 802 (1990). If all the issues submitted for arbitration are completely and unambiguously resolved by the arbitrator's award, that award becomes final and binding under section 7122(b) of the Statute 30 days after the date on which the award is served when no timely exceptions are filed to the award under section 7122(a). See Department of Health and Human Services, Social Security Administration, 41 FLRA 755, 766 (1991) (DHHS, SSA), enforced, 976 F.2d 1409 (D.C. Cir. 1992); United States Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 15 FLRA 151, 153 (1984), affirmed, 775 F.2d 727, 733 (6th Cir. 1985).

The Arbitrator found that his underlying arbitration award of May 11, 1992, became final and binding in May 1992. The Union contends that the award is deficient under section 7122(a) of the Statute because it is contrary to law. Specifically, the Union claims that the Arbitrator should have found that the underlying award did not become final and binding until February 25, 1993, and the Arbitrator should have determined the timeliness of the application for attorney fees based on that date. We disagree.

Even assuming, as the Union argues, that the underlying arbitration award was not final and binding in May 1992, the latest date on which, as a matter of law, the award could have become final and binding was January 8, 1993, the date on which the Authority issued its decision on the Agency's exceptions to the Segal Award in Social Security Administration. Pursuant to the terms of the parties' September 1, 1992, agreement, the Authority's disposition of the Agency's exceptions in Social Security Administration was the point at which the issue of the leave that would be substituted for the grievants' AWOL under the May 11, 1992, award was completely and unambiguously and finally resolved. Consequently, any action that the parties took after January 8, 1993, solely concerned the implementation of the underlying award. Accordingly, we reject the Union's contention that the award became final and binding only on February 25, 1993.

The Union's attorney filed his application for attorney fees on March 8, 1993, 2 months after the latest date on which the award could have become final and binding. In this regard, the issue is whether, as a matter of law, the Arbitrator erred in concluding that the application was not timely filed. See Philadelphia Naval Shipyard, 32 FLRA at 421 (request for attorney fees filed within 25 days after the award became final and binding was filed in a timely manner). Compare Luke AFB, 32 FLRA at 1094 (request for attorney fees filed 3 years and 3 months after award became final and binding was not timely). We note that the Authority has held that it will apply equitable considerations to the timeliness of motions for attorney fees under the Back Pay Act and will be guided to the extent practicable by FLRA regulations for the filing of applications for fees under the Equal Access to Justice Act. See United States Department of Justice, Bureau of Prisons, Washington, D.C. and Bureau of Prisons, Federal Correctional Institution, Ray Brook, New York, 32 FLRA 20, 25 (1988), reversed in part and remanded sub nom. American Federation of Government Employees, AFL-CIO, Local 3882 v. FLRA, 944 F.2d 922 (D.C. Cir. 1991), decision on remand, 46 FLRA 1002 (1992). Under section 2430.7 of the Authority's Rules and Regulations, a party has 30 days after an Authority order becomes final to file an application for attorney fees pursuant to the Equal Access to Justice Act.

The Union has not established that, in the circumstances of this case, the Arbitrator erred as a matter of law in concluding that the application was not timely filed. Consequently, we conclude that the Union has failed to show that the Arbitrator's award dismissing its application for attorney fees as untimely is deficient as contrary to law. Accordingly, we deny the Union's first exception.

IV. Second Exception

A. Positions of the Parties

1. Union

In its second exception, the Union contends that the award was based on a nonfact. The Union asserts that the Arbitrator "ignored [the fact] that he retained jurisdiction in his award on the underlying grievance." Exceptions at 8. According to the Union, the Arbitrator's retention of jurisdiction "is central to the issue of timeliness." Id.

2. Agency

The Agency contends that the Arbitrator's supplemental award is not based on a nonfact. The Agency argues that the Union's nonfact argument is "nothing more than disagreement by the Union with the [a]ward of the Arbitrator." Opposition at 16.

B. Analysis and Conclusions

We reject the Union's claim that the supplemental award is deficient under section 7122(a) of the Statute because it is based on a nonfact. To establish that an award is based on a nonfact, the party making the allegation must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. For example, U.S. Department of Defense, Dependents Schools, Mediterranean Region and Overseas Federation of Teachers, AFT, AFL-CIO, 47 FLRA 3, 9 (1993).

Even assuming, as contended by the Union, that the Arbitrator's finding that the underlying award was final and binding when it was issued on May 11, 1992, was an erroneous finding of fact, the Union has not demonstrated that but for that finding the Arbitrator would have concluded that its application for attorney fees was timely filed. Therefore, the Union has not demonstrated that the award is based on a nonfact. Instead, the Union's exception constitutes mere disagreement with the Arbitrator's finding of fact and evaluation of the evidence and provides no basis for finding the award deficient. See, for example, American Federation of Government Employees, Local 2128 and U.S. Department of Defense, Defense Logistics Agency, Defense Contract Management District South, 47 FLRA 962, 967 (1993). Accordingly, the Union's exception is denied.

V. Decision

The Union's exceptions are denied.(*)




FOOTNOTES:
(If blank, the decision does not