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 Act and its implementing regulations, 5 C.F.R. part 550, subpart H to support the filing of a request for an award of attorney fees after an arbitrator's award.
The Union also contends that the award is based on a nonfact. The Union asserts that it had only requested the Arbitrator to retain jurisdiction for a motion for attorney fees and that, consequently, the Arbitrator erred in his determination that the Union had requested an award of fees. The Union maintains that its request would have been premature prior to the award becoming final.
The Union requests that the Authority find that the award is deficient and award attorney fees. Alternatively, the Union requests that the Authority remand the award to have the Arbitrator decide the issue of attorney fees.
B. Agency's Opposition
The Agency disputes the Union's claim that it would have been premature to have requested an award of fees before the award became final. The Agency notes that the Authority has specifically held that "it is not premature to request attorney fees as part of an arbitrator's award on the merits of a grievance." Opposition at 11 (quoting Health Care Financing Administration, Department of Health and Human Services and American Federation of Government Employees, Local 1923, 35 FLRA 274, 289-90 (1990) (HCFA)). The Agency similarly argues that it was not deficient for the Arbitrator to have resolved the Union's request for attorney fees at the same time he issued his award.
In the Agency's view, this case is about whether the Arbitrator reasonably determined that the Union had requested an award of fees prior to the issuance of his award. The Agency maintains that he reasonably concluded that the Union had presented the attorney fee issue for his decision and denied the request based on the lack of support by the Union for its request.
IV. Analysis and Conclusions
A. The Union Did Not Request an Award of Fees as Part of the Merits Award
Although as noted by the Agency, the Union made some general assertions of entitlement to an award of fees, we find that the Union did not request an award of fees as part of the merits award. Instead, we find the Union's request to be that as repeatedly stated in its post-hearing brief: a request that the Arbitrator retain jurisdiction in order to entertain a subsequent motion for an award of fees with supporting memorandum. This seems evident from the fact that the Union's post-hearing brief never mentions any amount of fees.(1)
B. The Arbitrator's Resolution of the Fee Request Fails to Conform with 5 C.F.R. § 550.807
The Back Pay Act provides that an employee affected by an unjustified or unwarranted personnel action is entitled, on correction of the personnel action, to receive "reasonable attorney fees related to the personnel action[.]" 5 U.S.C. § 5596(b)(1)(A)(ii). Regulations implementing this portion of the Act require that in order to be awarded attorney fees by an arbitrator, the grievant or the grievant's representative must present a request for fees to the arbitrator, who must provide the employing agency with an opportunity to respond. See 5 C.F.R. § 550.807(a)-(b); International Association of Fire Fighters, Local F-89 and U.S. Department of the Army, Headquarters, Fort Sam Houston, Fort Sam Houston, Texas, 50 FLRA 327, 329 (1995) (Ft. Sam Houston); Allen Park Veterans Administration Medical Center and American Federation of Government Employees, Local 933, 34 FLRA 1091, 1105 (1990) (Allen Park VAMC).
In this case, the Union did not request an award of fees as part of the merits award and the Agency was not granted an opportunity to respond to any request for fees. Thus, the Arbitrator prematurely addressed the issue of attorney fees in his merits award. Under governing regulations, he was required to wait for presentation of the grievant's or the Union's request. Consequently, his refusal to award fees is deficient as not