54:0759(77)AR - - Red River Army Depot, Texarkana, TX and NAGE Local R14-52 - - 1998 FLRAdec AR - - v54 p759
[ v54 p759 ]
The decision of the Authority follows:
54 FLRA No. 77
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE ARMY
RED RIVER ARMY DEPOT
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
August 27, 1998
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
Decision by Member Wasserman for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Charles N. Carnes 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 refused to award the grievant attorney fees. We find that the refusal is deficient. Accordingly, we modify the award to strike the refusal to award fees.
II. Background and Arbitrator's Award
The Arbitrator sustained the grievance and awarded the grievant backpay for overtime denied him in violation of the parties' collective bargaining agreement and past practice.
In its post-hearing brief, the Union had stated that it believed the grievance would be sustained and that the grievant would be awarded backpay, in which case he would "be eligible for reasonable attorney fees." Brief at 21. The Union briefly noted the requirements of the Back Pay Act for an award of attorney fees and "maintain[ed] that reasonable attorney fees are warranted in the interest of justice and request[ed] [that] the Arbitrator retain jurisdiction for purposes of determining an award of reasonable attorney fees." Id. at 22. In conclusion, the Union again requested that "the Arbitrator retain jurisdiction for purposes of determining a reasonable attorney fee award." Id.
In his award, the Arbitrator noted that "[i]n its brief the Union requested the award of reasonable attorney fees." Award at 13. He ruled as follows:
In this case there is not information in the record to determine whether or not an award would be "warranted in the interest of justice," and none is awarded.
III. Positions of the Parties
A. Union's Exceptions
The Union contends that the award is deficient because the Arbitrator's resolution of its request for attorney fees fails to conform to law and regulation. The Union asserts that the Arbitrator prematurely denied an award of fees before the Union could submit its motion for fees with a supporting memorandum. The Union claims that this denial is inconsistent with the process for filing requests for an award of attorney fees under the Back Pay Act, 5 U.S.C. § 5596. In support of its exception, the Union cites Alabama Association of Civilian Technicians and U.S. Department of Defense, Alabama State Military Department, Alabama National Guard, 51 FLRA 1262 (1996) and Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 32 FLRA 417 (1988), which interpret the Back Pay