52:1386(131)AR - - Alabama Association of Civilian Technicians and DOD, AL State Military Department, AL National Guard - - 1997 FLRAdec AR - - v52 p1386



[ v52 p1386 ]
52:1386(131)AR
The decision of the Authority follows:


52 FLRA No. 131

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

ALABAMA ASSOCIATION OF CIVILIAN TECHNICIANS

(Union)

and

U.S. DEPARTMENT OF DEFENSE

ALABAMA STATE MILITARY DEPARTMENT

ALABAMA NATIONAL GUARD

(Agency)

0-AR-2917

_____

DECISION

April 30, 1997

_____

Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator James E. Giblin 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 Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator declined to exercise jurisdiction to address the Union's request for attorney fees.

For the following reasons, we conclude that the award is deficient. We set aside the award and remand the matter to the parties for joint resubmission to the Arbitrator for further proceedings consistent with this decision.

II. Background and Arbitrator's Award

The Arbitrator sustained the Union's grievance claiming that the Agency failed to appropriately compensate the grievant, but declined to retain jurisdiction to allow the Union to submit its attorney fee application. The Union excepted to the Arbitrator's declination to retain jurisdiction.

The Authority denied the Union's exception, holding that the Arbitrator was not required by law, regulation, or Authority precedent to retain jurisdiction. Alabama Association of Civilian Technicians and U.S. Department of Defense, Alabama State Military Department, Alabama National Guard, 51 FLRA 1262 (1996) (Alabama ACT). However, the Authority concluded that the Back Pay Act, 5 U.S.C. § 5596, confers statutory jurisdiction on an arbitrator to consider an attorney fee request after issuing an award. The Authority concluded, therefore, that the Arbitrator could entertain a request for attorney fees even though he had not retained jurisdiction.

The Authority further concluded that because the Union had filed exceptions to the award, it did not become final and binding until the Authority issued the decision denying the exceptions. Id. at 1264. As a result, the Authority stated that the Union could file a request for fees within a reasonable time from the date of the decision, consistent with the Arbitrator's statutory jurisdiction. Id.

Approximately 4 weeks after the Authority's decision in Alabama ACT, the Union submitted to the Arbitrator a Request for Award of Attorneys' Fees. Concluding that he was functus officio,(1) the Arbitrator declined to exercise jurisdiction over the attorney fee request. The Arbitrator stated that he had "fulfilled [his] function, discharged the office, accomplished the purpose, and therefore of no other force or authority in [the] case." Arbitrator's Decision at 1.

III. Exceptions

A. Union's Contentions

The Union asserts that the Arbitrator's refusals to exercise statutory jurisdiction over the Union's attorney fee request and to award attorney fees are contrary to law. According to the Union, the Arbitrator's refusal to exercise statutory jurisdiction is directly contrary to the Authority's decision in Alabama ACT. In addition, the Union contends that "the Authority's decision now should not be limited simply to telling the [A]rbitrator the same thing again." Exceptions at 2. Rather, the Union asserts, the Authority should order the Agency to pay the requested attorney fees.

B. Agency's Opposition

The Agency argues that the Arbitrator's determination is "in compliance with his function, jurisdiction, and the law." Opposition at 2. Specifically, the Agency asserts that the Arbitrator's refusal to address the attorney fees question constituted the Arbitrator's determination that the "interest of justice" would not be served by such an award. Id. at 3.

The Agency further asserts that, if the Authority finds that the award is deficient, then the Authority should return the case to the Arbitrator for a decision on awarding attorney fees.

IV. Analysis and Conclusions

As we stated in Alabama ACT, the Back Pay Act confers statutory jurisdiction on an arbitrator to consider an attorney fee request, which may be submitted to the arbitrator after issuance of an award. 51 FLRA at 1263 (citing Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 32 FLRA 417, 420-22 1988) (Philadelphia Naval Shipyard). Where the Back Pay Act confers statutory jurisdiction on an arbitrator to consider an attorney fee request, the functus officio doctrine does not preclude the arbitrator from considering the request. Philadelphia Naval Shipyard, 32 FLRA at 421.

The Union in this case submitted an attorney fee request to the Arbitrator after issuance of the award. The Arbitrator's refusal to exercise his statutory jurisdiction over this matter, based on his erroneous reliance on the principle of functus officio, is contrary to the Back Pay Act. Id. at 421-22. Therefore, the Arbitrator's award is deficient.

A request for attorney fees related to an unjustified or unwarranted personnel action may be presented to an "appropriate authority," as defined in 5 C.F.R. § 550.807(a). In the instant case, the Arbitrator corrected the unjustified or unwarranted personnel action by finding that the Agency failed to appropriately compensate the grievant and, therefore, is such "appropriate authority" for purposes of considering the grievant's request for attorney fees. U.S. Department of Housing and Urban Development and American Federation of Government Employees, Local 476, 47 FLRA 1053, 1064 (1993); U.S. Department of Agriculture, Animal and Plant Health Inspection Service and National Association of Agriculture Employees, 35 FLRA 998, 1003-04 (1990). Because in this case the Authority is not such an "appropriate authority," within the meaning of 5 C.F.R. § 550.807(a), we deny the Union's request that the Authority order the Agency to pay the requested attorney fees.

The Arbitrator's reliance on functus officio is misplaced. However, even applying that principle, a joint request by both parties would serve to remove any questions that the attorney fee request is within the scope of the Arbitrator's office. See Dependent Schools, 49 FLRA at 122. Accordingly, to expedite resolution of this matter, we will direct both parties to jointly request the Arbitrator to proceed.

V. Decision

The Union's exception to the Arbitrator's declination to accept jurisdiction to consider the attorney fee request is granted. The Arbitrator's award is set aside, and the attorney fee question is remanded to the parties for j