53:1595(139)AR - - AFGE Local 3310 and Army Corps of Engineers, Waterways Experiment Station, Vicksburg, MI - - 1998 FLRAdec AR - - v53 p1595



[ v53 p1595 ]
53:1595(139)AR
The decision of the Authority follows:


53 FLRA No. 139

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3310

(Union)

and

U.S. DEPARTMENT OF THE ARMY

ARMY CORPS OF ENGINEERS

WATERWAYS EXPERIMENT STATION

VICKSBURG, MISSISSIPPI

(Agency)

0-AR-2972

_____

DECISION

March 13, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

Decision by Chair Segal for the Authority.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator William H. Holley, Jr. 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 sustained in part a grievance alleging that the Agency violated the parties' collective bargaining agreement by imposing a 2-day suspension based on grievant's absence without leave (AWOL). The Arbitrator denied the Union's request for attorney fees because he found that the Union was not the prevailing party.

For the following reasons, we remand the award to the parties for submission to the Arbitrator, absent settlement, for consideration of the issue of attorney fees.

II. Background and Arbitrator's Award

On April 9, 1996, the grievant requested 2 hours' annual leave from a supervisor upon receiving a telephone call to pick up his baby daughter. The grievant also requested 8 hours' annual leave for April 10. Although the supervisor denied both requests, the grievant left the Agency's premises. Two days later, the grievant telephoned his supervisor, and requested leave in order to attend to Union affairs. Although the leave was not approved, the grievant did not attend work on April 11 or April 12.

The Agency determined that the grievant was AWOL for 2 hours on April 9 and for 8 hours each on April 10, 11, and 12. As a penalty, the Agency imposed a 2-day suspension on the grievant. The Union grieved the suspension. When the grievance was not resolved, it was submitted to arbitration, where the Arbitrator framed the issue as:

Did the Agency violate the Agreement when it suspended [the grievant] for two days and placed him on AWOL for April 9 (two hours), 10, 11, and 12, 1996? If not, what should be the appropriate remedy?

Award at 6.

With regard to the grievant's absence on April 9 and 10, the Arbitrator found that the grievant's actions in leaving work without obtaining approval from his supervisor was improper, and that the grievant's family responsibility did not constitute a "personal emergency" as set forth in Article 33, Section 5 of the parties' agreement.(1) The Arbitrator thus determined that the grievant was properly charged for AWOL. In doing so, the Arbitrator rejected the Union's claim that the Agency disparately treated the grievant. The Arbitrator determined that "in [the grievant's] case, it is clear that [the grievant] was alerted to Article 33 and the requirements of compliance in his counseling session . . . just days before he did not comply with Article 33." Id. at 25.

With respect to the grievant's absence on April 11 and 12, the Arbitrator found that the grievant telephoned his supervisor to request leave, and that the grievant was entitled to leave on these days under the parties' agreement. As such, the Arbitrator determined that the grievant "did not violate the leave request procedure" and that his absence on these days was not improper. Id.

Based on the foregoing, the Arbitrator mitigated the 2-day suspension to a written reprimand. The Arbitrator also directed the Agency to pay the grievant back pay for the 2 days he was improperly suspended. However, the Arbitrator did not grant the Union attorney fees based on his determination that "the Union did not meet the criterion of the 'prevailing party[.]'" Id.

III. Positions of the Parties

A. Union's Exceptions

The Union excepts to the award on three bases. The Union first claims that "[t]he Arbitrator failed to answer the issue of disparate treatment of [the grievant] by management which was presented for arbitration by the Union." Exceptions at 1. The Union argues that while the Arbitrator made one finding with respect to this issue--that the grievant was alerted to the requirements of Article 33 of the parties' agreement in his counseling session and failed to comply--the Arbitrator nonetheless failed to address the issue of whether the Agency violated Article 5, Section 1 of the parties' agreement.(2) Exceptions at 4.

The Union's second claim is that "[t]he Arbitrator denied attorney fees to the Union and to [the grievant] incorrectly determining that they were not a 'prevailing party.'" Id. at 1. The Union argues that the Arbitrator's remedy--mitigating the disciplinary penalty from a 2-day suspension to a written reprimand--constitutes a "significant portion of the relief requested" in accordance with the relevant test in Naval Air Development Center, Department of the Navy and American Federation of Government Employees, Local 1928, AFL-CIO, 21 FLRA 131 (1986) (Naval Air). Exceptions at 9-10.

The Union's third claim is that "[t]he Arbitrator denied attorney fees without a fully articulated, reasoned decision . . . ." Id. at 1. The Union argues that Naval Air requires the Arbitrator to provide a reasoned decision pursuant to 5 U.S.C. § 7701(g)(1). The Union requests that the award "be reversed and the remaining relief already requested be granted." Exceptions at 14.

B. Agency's Opposition

The Agency claims that the Arbitrator properly determined the issue of the Agency's alleged disparate treatment of the grievant. The Agency also claims that "the [A]rbitrator correctly found that the grievant was not the prevailing party in this dispute." Opposition at 7. In addition, the Agency "agrees with the [U]nion that the [A]rbitrator's denial of attorney fees is not fully articulated." Id. However, the Agency requests that the Authority set aside, but not remand, the portion of the award concerning attorney's fees. In support of its claim, the Agency cites U.S. Department of the Navy, Headquarters, Naval District, Washington, D.C. and Fraternal Order of Police, U.S. Navy Yard Labor Committee, 48 FLRA 1264, 1266-67 (1993) (Navy Yard).

IV. Analysis and Conclusions

A. The Arbitrator Did Not Exceed His Authority.

We construe the Union's assertion that "[t]he Arbitrator failed to answer the issue of disparate treatment of [the grievant] by management which was presented for arbitration by the Union" as a contention that the Arbitrator exceeded his authority. Exceptions at 1.

An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. U.S. Department of Defense, Army and Air Force Exchange Service and American Federation of Government Employees, (Worldwide Consolidated Bargaining Unit), 51 FLRA 1371, 1378 (1996). However, an arbitrator does not exceed his or her authority when, in the absence of a stipulation between the parties as to the issues to be resolved in arbitration, the arbitrator formulates and decides the issue. Id.

In the instant case, because the parties did not stipulate the issue, the Arbitrator was free to formulate it. The Arbitrator framed the issue as whether the Agency violated the parties' agreement in suspending the grievant. In resolving this issue, the Arbitrator found that the Agency did not violate the agreement with regard to the AWOL charges on April 9 and 10 because the Agency alerted the grievant to the requirements for requesting leave. Despite the Union's argument to the contrary, there is no basis for finding that the Arbitrator was required to make a finding on whether the Agency violated Article 5 of the parties' agreement. As such, the Union has not established that the Arbitrator exceeded his authority, and consequently, we deny the Union's exception.

B. The Award Denying Attorney Fees Is Contrary To The

Back Pay Act.

1. The Union Is The Prevailing Party.

The Back Pay Act provides for the recovery of attorney fees where, as a threshold requirement, there is a finding that the grievant was affected by an unjustified or unwarranted personnel action that resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials. National Association of Government Employees, Local R4-6 and U.S. Department of the Army, Fort Eustis, Virginia, 52 FLRA 1522, 1527 (1997) (Fort Eustis). Once such a finding is made, the Back Pay Act further requires that an award of attorney fees must be: (1) in conjunction with an award of back pay, i.e., pay, allowances, or differentials, to the grievant on correction of the personnel action; (2) reasonable and related to the personnel action; and (3) in accordance with standards established under 5 U.S.C. § 7701(g)(1). Id. at 1527-28.

The standards established under 5 U.S.C. § 7701(g)(1), which apply to all cases except those involving allegations of discrimination, include the threshold requirement that the employee must be the prevailing party. U.S. Department of Defense, Defense Distribution Region East, New Cumberland, Pennsylvania and American Federation of Government Employees, Local 2004, 51 FLRA 155, 158 (1995) (Local 2004). This requirement is met if the employee has "received 'an enforceable judgment or settlement which directly benefitted him at the time of the judgment or settlement.'" Id. at 160 (citing DiGiulio v. Department of Treasury, 66 MSPR 659, 663 (1995)). The degree of success obtained is not a consideration in determining whether an employee is a prevailing party. Local 2004, 51 FLRA at 161.

The Arbitrator found that the grievant "did not violate the leave request procedure" in connection with his request for leave on 2 days, and the Arbitrator mitigated the disputed 2-day suspension to a written reprimand. Award at 25 (emphasis in original). The Arbitrator also directed the Agency "to pay [the grievant] two days of back pay plus interest." Id. Clearly, the grievant directly benefitted from the award, and, as a result, the grievant is the prevailing party. See Local 2004, 51 FLRA at 160. Accordingly, the portion of the award denying attorney fees, based on the determination that the Union was not the prevailing party, is deficient as contrary to the Back Pay Act.

2. A Remand Is Appropriate.

The Union requests that the Authority order the Agency to compensate the Union for its attorney fees, and the Agency requests that the portion of the award regarding attorney fees be set aside, but not remanded. We conclude that neither request is appropriate.

With regard to the Union's request, a motion for attorney fees related to an unjustified or unwarranted personnel action must be determined by an "appropriate authority," as defined in 5 C.F.R. § 550.807(a). Alabama Association of Civilian Technicians and U.S. Department of Defense, Alabama State Military Department, Alabama National Guard, 52 FLRA 1386, 1388 (1997). The Arbitrator determined that the grievant had been affected by an unjustified or unwarranted personnel action--the Agency's improper suspension of the grievant without pay--and provided a remedy for the action. Therefore, the Arbitrator is the "appropriate authority" for purpose of considering the grievant's request for attorney fees. See id. Because the Authority is not the "appropriate authority," within the meaning of 5 C.F.R. § 550.807(a), the Authority may not order the Agency to pay the requested attorney fees. See id. at 1389.

With regard to the Agency's request, in Navy Yard, the Authority found that the arbitrator insufficiently addressed the requirements of 5 U.S.C. § 7701(g)(1) and, as a result, set aside the portion of the award denying attorney fees. This case is distinguishable from Navy Yard in that the Arbitrator here sufficiently addressed, but erroneously applied, one of the requirements of 5 U.S.C. § 7701(g)(1). This situation is analogous to that presented in Fort Eustis, in which the arbitrator had erroneously determined that the restoration of leave did not constitute back pay under the Back Pay Act, and, as a result, declined to address the requirements of 5 U.S.C. § 7701(g)(1). The Authority found that the award in Fort Eustis was contrary to the Back Pay Act and remanded the motion for attorney fees to the parties for submission to arbitration.

Based on the foregoing, and consistent with Fort Eustis, we remand the award to the parties for submission to the Arbitrator, absent settlement, for consideration of the issue of attorney fees, including the standards establ