United States Department of the Army, Corpus Christi Army Depot, Corpus Christi, Texas (Agency) and American Federation of Government Employees, Local 2142 and National Federation of Federal Employees, Local 797 and International Association of Machinists and Aerospace Workers, Lodge 2049 (Unions)

[ v58 p77 ]

58 FLRA No. 16

UNITED STATES DEPARTMENT OF THE ARMY
CORPUS CHRISTI ARMY DEPOT
CORPUS CHRISTI, TEXAS
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2142

and

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 797

and

INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS
LODGE 2049
(Unions)

0-AR-3309

(Order Concerning Remedy)

_____

DECISION

September 13, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      This matter is before the Authority on exceptions to two awards, in the form of orders, of Arbitrator John B. Barnard filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Unions filed an opposition to the Agency's exceptions to each order. Because the orders are related, we have consolidated the cases for decision. The Agency also filed a "Request for Relief," which is opposed by the Unions.

      We find that the Interim Order was superseded by the Order Concerning Remedy and that the Order Concerning Remedy is, in part, deficient. We modify the Order Concerning Remedy accordingly. In addition, we grant, in part, the relief requested by the Agency.

II.     Background

      The Arbitrator's orders are related to two arbitration awards issued by the Arbitrator and reviewed by the Authority in United States Dep't of the Army, Corpus Christi Army Depot, Corpus Christi, Tex., 56 FLRA 1057 (CCAD), reconsid. denied, 57 FLRA 290 (2001) (CCAD II). [n2]  In an initial award, the Arbitrator ruled that employees were entitled to have received environmental differential pay (EDP) for exposure to asbestos and awarded them backpay. In addition, the Arbitrator ordered contractual attorney fees, pursuant to a contingency fee agreement, to be segregated and paid to the Unions' attorneys at the time of the payment of the backpay award. In a supplemental award, the Arbitrator clarified which employees were eligible to receive EDP and clarified the process by which the contractual attorney fees would be distributed. The Agency filed exceptions to the initial award and the supplemental award.

      In CCAD, the Authority resolved the exceptions to both the initial and supplemental awards. The Authority viewed the supplemental award to have superseded the initial award as it pertained to contractual attorney fees and ruled that the supplemental award was deficient to the extent that it directed the head of Corpus Christi Army Depot to permit and make deductions from EDP to pay the contractual attorney fees. Otherwise, the Authority denied or dismissed the Agency's exceptions. The Authority modified the supplemental award to direct that the Corpus Christi Army Depot submit a request to the "head of the agency," within the meaning of 5 C.F.R. § 550.311, to consider authorizing an allotment for the payment of the contractual attorney fees. [n3] 

      In their request for reconsideration of the Authority's decision in CCAD, the Unions argued that the Authority's decision was inconsistent with the Arbitrator's direction that the contractual fees were to be segregated and paid at the time of the distribution of the award. The Unions claimed that the Arbitrator's direction had not been vacated or modified by the Authority.

      While this request was pending before the Authority, the Unions filed with the Arbitrator an "Emergency Motion for Interim Order and Expedited Compliance Hearing to Ensure Remedy." The Arbitrator conducted a hearing and thereafter issued an "Interim Order." He ordered, in pertinent part, as follows:

1.     The Agency shall not distribute award monies to eligible employees unless and until satisfactory and effective arrangements are [ v58 p78 ] implemented to the satisfaction of the Unions' lawyers as certified to the arbitrator to insure payment of the contractual attorneys' fees to the Union lawyers.
2.     As soon as such information is available to the Agency, the Agency shall provide the Unions' attorneys with written notification identifying the employees to be paid, per the Agency's calculations, and the address and telephone number of the employees to be paid, the amount of money to be paid to each employee, and the manner of calculation of the monies to be paid to each employee. The Agency shall not distribute any award monies until the Unions through their attorneys, have agreed that the amounts to be paid and the employees to receive payment are correct and accurate, or until the Arbitrator issues his decision concluding that the amounts to be paid and the employees to receive payments are correct.
3.     The Agency shall insure that payments include continuing EDP pay through the date of actual payment, with interest thereon.

      . . . .

7.      The Agency is directed to provide Union counsel . . . with all information it has available as to the identities of persons to be paid, per the Agency's calculations, and the address and telephone number of the employees to be paid, the amount of money to be paid to each employee, and the manner of calculation of the monies (indicating both principal and interest) to be paid to each employee.

Interim Order at 1-2.

      In CCAD II, the Authority denied the Unions' request for reconsideration of the decision in CCAD. The Authority noted that the Unions had misconceived the decision. The Authority advised that after modification of the award, backpay could be segregated and distributed only in accordance with the modifications of the award.

      After the decision in CCAD II, the Unions requested additional orders from the Arbitrator concerning remedies. The Arbitrator held a hearing on the request, during which the Agency challenged the Arbitrator's jurisdiction and authority. The Arbitrator rejected the challenge and directed the Agency to respond to a proposed order. The Agency responded, after which the Arbitrator issued an "Order Concerning Remedy." He ordered, in pertinent part, as follows:

1.     CCAD's [Corpus Christi Army Depot] EDP liability under the [initial award] shall continue until the date that I have finally determined and ruled that CCAD's continuing EDP liability has terminated or until the date that the parties may mutually agree.

      . . . .

3.     The Award includes the TMDE [U.S. Army Test Measurement Diagnostic Equipment Activity] wage grade employees within AFGE's exclusive recognition.
4.     CCAD shall deliver all Award money payments or checks payable to employees pursuant to the [initial award] to Gray & Becker as attorney of record and attorney-in-fact for CCAD wage grade employees eligible under the Award. Gray & Becker is designated attorney-in-fact on behalf of the employees eligible under the Award to: (a) accept delivery of Award money payments on behalf of the employees; (b) negotiate and deposit Award payments into the Gray & Becker, P.C. trust account as attorney-in-fact for the employees; and (c) to remit payment for each employee from the Gray & Becker, P.C. trust account in the amount of each employee's Award monies less the 33-1/3% contractual attorney's fee payable to Gray & Becker pursuant to the fee agreements and the [initial award].
5.     Notwithstanding the foregoing, CCAD is ordered not to deliver or release Award monies to employees unless and until Gray & Becker has verified in writing that satisfactory arrangements have been made for the payment of the contractual attorney's fees to Gray & Becker.

Order Concerning Remedy at 6.

III.     Threshold Question

      A threshold question for resolution is what order or orders should be addressed by the Authority. Both the Interim Order and the Order Concerning Remedy address the issues of contractual attorney fees and the continued liability by the Agency for the payment of EDP.

      The Authority was presented with a similar question in its consideration of the earlier phases of this [ v58 p79 ] same dispute. In CCAD, the Authority noted that the Arbitrator issued a supplemental award that clarified the order as to contractual attorney fees, which was contained in his initial award. As the process by which contractual fees would be distributed was substantively changed by the supplemental award, the Authority viewed the supplemental award to have supplanted the initial award on the matter of the process for distributing contractual fees. Consequently, on this matter, the Authority addressed only the exceptions filed to the supplemental award. See 56 FLRA at 1059.

      We will follow a similar approach in this case. As both orders address the issues of contractual attorney fees and the continued liability by the Agency for the payment of EDP, we will address only the exceptions filed to the Order Concerning Remedy. We view the Interim Order effectively to have been superseded by the Order Concerning Remedy, and the exceptions to the Interim Order to be moot. [n4] 

IV.     Merits Issues

A.     Introduction

      After the Arbitrator issued his remedial orders and the parties submitted their filings in this case, the Authority was administratively advised that an Authority regional director had issued a series of decisions dismissing several unfair labor practice charges concerning the issue of contractual attorney fees that is involved in the exceptions in the case before us. See, e.g., IAM Local 2049, Case No. DA-CO-02-0145 (Feb. 27, 2002). No appeals were filed to these decisions. In the decisions, the regional director found that the Unions' attorneys had been sued by a group of employees who were entitled to EDP under the initial award but had contested the payment of the contractual fee. In addition, the regional director noted that the United States District Court for the Southern District of Texas had issued orders directing the United States Department of the Army to disclose the addresses of employees entitled to backpay under the Arbitrator's initial award. Salgado v. Gray & Becker, No. C-01-307 (S.D. Tex. Oct. 25, 2001).

      As a result of the information contained in the regional director's decisions, it appears that the matters addressed by the Arbitrator in his remedial orders may well be moot, in whole or in substantial part. It is well established that a dispute becomes moot when the parties no longer have a legally cognizable interest in the outcome and that the burden of demonstrating that neither party has a legally cognizable interest is a heavy one and is on the party urging mootness. See, e.g., Soc. Sec. Admin., Boston Region (Region 1), Lowell Dist. Office, Lowell, Mass., 57 FLRA 264, 268 (2001). Neither party informed the Authority of the regional director's decisions or addressed the impact of the events described therein on the pending exceptions. It is the responsibility of parties to advise the Authority of relevant developments that occur after the submission of their filings that may have an effect in a pending case. Parties may seek leave to file such documents pursuant to § 2429.26 of the Authority's Regulations.

      Accordingly, in view of the Authority's approach to mootness, which places the responsibility and burden on the parties, and in view of the parties' failure either to inform the Authority of the subsequent events noted above or to address their impact on the pending exceptions, we believe that, under these circumstances, the best approach is to resolve the exceptions on the merits based on the record before us, as we do below.

B.     Continuing Liability for EDP

1.     Positions of the Parties

      The Agency contends that to the extent that the Order Concerning Remedy imposes continued liability for EDP, the order violates the Back Pay Act and 5 C.F.R. part 532, and the Arbitrator was functus officio.

      In support of its contention that the order violates the Back Pay Act and 5 C.F.R. part 532, the Agency notes that employees are entitled to the claimed environmental differential only when they work in areas where airborne concentrations of asbestos fibers may expose them to potential illness or injury and protective devices or safety measures have not practically eliminated the potential for illness or injury. The Agency argues that the order is deficient to the extent that it continues to award backpay and payment of the differential without regard to continued exposure to airborne asbestos.

      In support of the contention that the Arbitrator was functus officio, the Agency notes that originally the Arbitrator ordered that EDP was to accrue "until this entire matter reaches final status for settlement," and only addressed backpay and interest. Initial Award at 96. The Agency maintains that the Order Concerning Remedy modifies the original award by addressing future and continuing EDP. The Agency argues that the Arbitrator was functus officio as to EDP accrual and lacked jurisdiction over the issue of future EDP. [ v58 p80 ]

      The Unions dispute that the Arbitrator was functus officio. The Unions argue that the Arbitrator's specific retention of jurisdiction authorized him to issue the Order Concerning Remedy.

      The Unions also contend that the order does not violate the Back Pay Act or 5 C.F.R. part 532. The Unions maintain that in their request for a clarification of a termination date for EDP liability, they restated the evidence warranting the continued payment of EDP by the Agency.

2.     Analysis and Conclusions

a.     The Arbitrator was not functus officio.

      The principle of functus officio means that once an arbitrator has accomplished the resolution of the matter submitted, the arbitrator is without further authority. See, e.g., AFGE Local 2172, 57 FLRA 625, 627 (2001). Accordingly, unless an arbitrator retains jurisdiction after issuance of the award, the arbitrator has no authority to take any further action without the joint request of the parties. See, e.g., United States Dep't of Def. Dependents Sch., 49 FLRA 120, 122 (1994).

      In the initial award, the Arbitrator specifically noted that as a remedy, the Unions had requested the award of EDP "continuing until the exposure no longer exists." Initial Award at 3. The Arbitrator sustained the grievance and awarded EDP "until this entire matter reaches final status for settlement and payments of amounts due." Id. at 96. Pursuant to his retained jurisdiction to resolve disputes over interpretation or implementation of the award, the Arbitrator ordered that absent agreement of the parties, liability for EDP would continue until he ruled that liability had terminated.

      The Agency provides no basis for finding the Order Concerning Remedy deficient in this respect, as alleged. A remedy continuing liability for EDP was specifically requested and the initial award specifically ordered accrual until settlement. Pursuant to his retained jurisdiction, the Arbitrator continued to order accrual in the Order Concerning Remedy. The Agency has failed to establish that the Arbitrator, without authority, addressed for the first time in the Order Concerning Remedy the accrual of continuing liability for EDP. Accordingly, we deny this exception.

b.     The order is contrary to 5 C.F.R. § 532.511 to the extent that it continues liability for EDP.

      The Agency contends that the order is contrary to Government-wide regulation. When a party's exception disputes an award's consistency with a Government-wide regulation, we review the question of regulation raised by the award and the exception de novo. See NTEU Chapter 24, 50 FLRA 330, 332 (1995).

      As noted in CCAD, under 5 C.F.R. § 532.511 and Appendix A, an agency shall pay a federal wage system employee an environmental differential when the employee is exposed to a hazard, physical hardship, or working condition listed in Appendix A. In terms of asbestos, category 16 of Appendix A conditions the payment of an environmental differential for exposure to asbestos on findings that: (1) employees worked in areas where airborne concentrations of asbestos fibers may expose them to potential illness or injury; and (2) protective devices or safety measures did not practically eliminate the potential for such illness or injury. See part 532, subpart E, Appendix A.

      We conclude that the Agency has established that the Order Concerning Remedy is deficient. The order specifically continues payment of EDP without finding that employees continue to work in areas where asbestos may expose them to potential illness or injury and that protective devices or safety measures have not practically eliminated the potential for such illness or injury. Accordingly, we strike paragraph 1 of the Order Concerning Remedy.

C.     Contractual Attorney Fees

1.     Positions of the Parties

      The Agency contends that to the extent that the Order Concerning Remedy concerns contractual attorney fees, the Arbitrator lacked authority under the decisions in CCAD and CCAD II. The Agency further contends that to the extent that the order directs payment of the contractual attorney fees, it violates the Back Pay Act and 5 C.F.R. § 550.311 and is precluded by sovereign immunity.

      The Agency argues that the Arbitrator lacked authority under the Authority's decisions because after these decisions, there was no remaining dispute regarding contractual fees. The Agency notes that the Authority specifically advised in CCAD II that the Unions had misconceived the decision in CCAD in claiming that the Arbitrator's order of segregation and distribution was unaffected by the Authority's modification of the award. The Agency asserts that as a consequence, all portions of the Order Concerning Remedy that involve contractual attorney fees are deficient.

      In addition, the Agency argues that the order violates § 550.311 because the payment of one-third of the backpay award to the Unions' attorneys constitutes an allotment. The Agency argues that the order violates the Back Pay Act because the Arbitrator awarded statutory attorney fees under the Back Pay Act in a companion case.

      The Unions contend that the order concerning contractual attorney fees is consistent with the Authority's decisions in CCAD and CCAD II. The Unions argue [ v58 p81 ] that the order does not disregard the Authority's decisions because the Authority did not modify or vacate the Arbitrator's order that contractual fees were to be segregated and paid at the time of distribution of the award. The Unions claim that the Authority's modification of the award only concerned segregation and payment of contractual fees through an allotment and that the Arbitrator's order does not entail an allotment. For the same reason, the Unions contend that the order does not violate § 550.311.

      The Unions claim that the order does not violate the Back Pay Act because the amount of any award of statutory attorney fees has no relevance to contractual attorney fees. The Unions further claim that sovereign immunity does not preclude the Federal Government from being directed to provide to a claimant something to which the claimant is entitled.

2.     Analysis and Conclusions

      We conclude that paragraphs 4 and 5 of the Order Concerning Remedy are precluded by the Authority's decisions in CCAD and CCAD II[n5] 

      In the initial award, the Arbitrator ordered that the "contractual attorney's fees payable to the Unions' attorneys pursuant to the Unions' attorney's fees agreements are to be segregated and paid to the Unions' attorneys at the time of distribution and payment of the award." Initial Award at 97. In his supplemental award, the Arbitrator clarified the process by which the contractual attorney fees would be distributed. Specifically, he ordered as follows:

     [T]he orders pertaining to the segregation and payment of the Unions' contractual attorney's fees at the time of distribution and payment of the award means that the Arbitrator finds that the Unions have, pursuant to their authority to represent the Bargaining Units, contractually agreed on behalf of the individual employees that 33 1/3% of the EDP award shall be paid to the Unions' attorneys in accordance with the contractual attorney's fees agreement. . . . The CCAD [Corpus Christi Army Depot] "Agency head" is, therefore, directed, pursuant to 5 C.F.R. § 550.311(c) to permit and make deductions from the EDP to be paid to the eligible employees pursuant to this award in the amount of 33 1/3% which shall be paid to [the Unions' attorneys.]

Supplemental Award at 1.

      In CCAD, the Authority determined that this portion of the supplemental award was inconsistent with § 550.311 to the extent that it directed the head of Corpus Christi Army Depot to permit and make deductions from EDP to pay the contractual attorney fees. Addressing the Arbitrator's alternative order, the Authority found that the actions or procedures available to the Agency were limited by the restrictions of sovereign immunity and the allotment procedures of 5 C.F.R. part 550 subpart C. To give effect to this order, the Authority modified the award to direct that Corpus Christi Army Depot submit a request to the head of the agency to consider authorizing an allotment for the payment of contractual attorney fees. As noted, the Deputy Secretary of Defense declined to authorize such an allotment.

      In modifying the award in this manner, the Authority reiterated the restrictions of sovereign immunity that "no federal funds can be disbursed except for purposes authorized by federal law." 56 FLRA at 1075 (citing Knight v. United States, 982 F.2d 1573, 1577 (Fed. Cir. 1993)). The Authority also concluded that other than part 550, subpart C, it was "unaware of any other law or regulation that would authorize the disbursement of federal funds as ordered by the Arbitrator." Id.

      In requesting reconsideration of CCAD, the Unions argued that the decision was inconsistent with the Arbitrator's direction that the contractual fees were to be segregated and paid at the time of distribution of the award. In CCAD II, the Authority responded that the Unions had misconceived the decision in claiming that the Arbitrator's order of segregation and distribution was unaffected by the modification of the award. The Authority ruled that as a result of modification of the award, backpay could be segregated and distributed only in accordance with the modifications of the award. See 57 FLRA at 292.

      In our view, under the Authority's decisions in CCAD and CCAD II, once the agency head declined to authorize an allotment for contractual fees, the Arbitrator could no longer order any Agency involvement with the contractual fees or any restrictions on the Agency conditioned on the payment of the contractual fees. Accordingly, the Authority's decisions preclude the Arbitrator from ordering the Agency to physically deliver the backpay checks to Gray & Becker and conditioning delivery of backpay to employees on verification of arrangements to pay contractual fees.

      As the Authority ruled in CCAD II, backpay could be segregated and backpay could be distributed to the Unions' attorneys by the Agency only if an allotment were approved by the head of the agency. The Unions again misconceive the effect of this ruling. The effect of this ruling once the allotment was rejected is to preclude any involvement of the Agency in a distribution of backpay other than directly to employees. Because the ruling was specifically based on broad principles of sovereign [ v58 p82 ] immunity, the effect is not merely limited to precluding the Agency from segregating the contractual fees, as claimed by the Unions. Instead, as the Authority suggested in United States Dep't of Veterans Affairs Med. Ctr., Ann Arbor, Mich., 56 FLRA 216 (2000), this is now a "private contract matter" between employees and the Unions' attorneys. 56 FLRA at 226 n.9.

      Accordingly, we strike paragraphs 4 and 5 of the Order Concerning Remedy.

D.     TMDE Employees

1.     Positions of the Parties

      The Agency contends that the Arbitrator exceeded his authority by awarding TMDE employees EDP. The Agency argues that these employees are not covered by the grievance or the award.

      The Agency claims that a grievance was never filed on behalf of TMDE employees. The Agency maintains that AFGE Local 2142 filed the grievance against Corpus Christi Army Depot as the exclusive representative of bargaining unit employees employed by the Depot, not against the U.S. Army Test Measurement Diagnostic Equipment Activity. The Agency asserts that TMDE provides services to the Depot and other agencies, upon request and on a reimbursable basis, and that consequently, TMDE employees are not employees of Corpus Christi Army Depot for any purpose and were not covered by the grievance or the award.

      The Unions contend that the Agency should not be allowed to dispute that these employees are covered by the award of EDP. The Unions argue that in his initial award, the Arbitrator directed the Agency to pay EDP to all wage-grade employees within the Unions' bargaining units. The Unions maintain that TMDE employees are part of the AFGE bargaining unit and that the Arbitrator specifically noted this in his initial award. The Unions note that this is the first time the Agency has asserted that TMDE employees are not part of the Unions' bargaining units. The Unions assert that consequently, the Agency's exception is untimely because any objection to TMDE employees should have been raised in exceptions to the initial award. The Unions also argue that this issue should be barred because the Agency failed to raise it during the hearing on, or in its response to, the proposed order.

      On the merits of the exception, the Unions argue that the Arbitrator appropriately awarded EDP to these employees. The Unions claim that the Agency incorrectly implies that there were no TMDE employees physically located at Corpus Christi Army Depot, who were exposed to asbestos. The Unions assert that the TMDE employees covered by the award were physically located at the Depot and have been in the AFGE bargaining unit since 1991.

2.     Analysis and Conclusions

a.     The exception is timely.

      When an arbitrator has issued several awards or orders in a matter, the timeliness of an exception is judged from the date of the award or order in which the alleged deficiency arose. See, e.g., Nat'l Archives and Records Admin., 42 FLRA 664, 669 (1991). The alleged deficiency raised by the Agency in its exception is the Arbitrator's specific ruling that TMDE employees are covered by the award of EDP. This deficiency did not arise until the Order Concerning Remedy, and the exception was timely filed to that order.

      In claiming that the exception is untimely, the Unions misconstrue the alleged deficiency. They view the alleged deficiency to be with the Arbitrator's ruling that TMDE employees are part of the Unions' bargaining units. The Agency does not dispute that TMDE employees are represented by AFGE Local 2142. Instead, the Agency disputes whether TMDE employees are employees covered by the grievance and award. As these employees are employed by the U.S. Army Test Measurement Diagnostic Equipment Activity, it was not apparent that the Arbitrator viewed TMDE employees to be covered by the award of EDP until the Order Concerning Remedy.

b.     The exception is not barred by § 2429.5.

      Under § 2429.5 of the Authority's Regulations, the Authority will not consider issues that could have been, but were not, presented to the Arbitrator. The Unions claim that the Agency never raised the issue of the Arbitrator's authority to include the TMDE employees within the coverage of the EDP award.

      In reply to the proposed Order Concerning Remedy, the Agency claimed that the Arbitrator had no jurisdiction over the proposed matters and had no authority to reopen or expand the original award. We conclude that the claims raised by the Agency in its response to the proposed Order Concerning Remedy are sufficiently reiterated in its exception to warrant our consideration of the exception. See United States Dep't of Justice, Federal Bureau of Prisons, United States Penitentiary, Atlanta, Ga., 57 FLRA 406, 408-09 (2001) (exception was not barred by § 2429.5 because the argument to the arbitrator was essentially the same as the exception to the award).

c.      The Arbitrator exceeded his authority.

      Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority, or award relief to persons who were not encompassed by the grievance. See, e.g., Soc. Sec. Admin., 57 FLRA 530, 537 (2001). In our [ v58 p83 ] view, the Arbitrator exceeded his authority by awarding relief to persons not encompassed by the grievance.

      It is not disputed that TMDE employees are not employees of the Corpus Christi Army Depot. Instead, they are employees of the U.S. Army Test Measurement Diagnostic Equipment Activity. In addition, it is not disputed that the grievance filed by AFGE Local 2142 was filed against Corpus Christi Army Depot for its alleged refusal or failure to pay EDP.

      Environmental differentials under 5 C.F.R. § 532.511 are received by employees as part of their basic pay. As a basic pay matter, a refusal or failure to pay the differential must be addressed to the employee's employer. Corpus Christi Army Depot's responsibility for payment of environmental differentials can only extend to its employees and not to the employees of another employer. We conclude that the Agency has established that it is not the employer of TMDE employees and that it is not responsible for payment of any environmental differentials to which they may be entitled. Consequently, by extending relief to be paid by Corpus Christi Army Depot in the Order Concerning Remedy to persons not employed by the Depot, the Arbitrator exceeded his authority.

      In their opposition, the Unions misconstrue this deficiency. Because the available relief against Corpus Christi Army Depot is necessarily limited to its employees, the Unions' apparent claim that TMDE employees were exposed to asbestos is unavailing. Even if TMDE employees were exposed to asbestos, the Arbitrator was not authorized to order Corpus Christi Army Depot to pay EDP to persons with whom it has no employment relationship.

      Accordingly, we strike paragraph 3 of the Order Concerning Remedy.

E.     Agency's Request for Relief

1.     Positions of the Parties

      In conjunction with its exceptions, the Agency has also filed a request that in any future matters involving this case, either party should be authorized to request a different arbitrator. The Agency maintains that like the arbitrator in United States Dep't of the Navy, Naval Surface Warfare Ctr., Indian Head Div., Indian Head, Md., 56 FLRA 848 (2000) (Naval Surface Warfare Ctr.), the Arbitrator in this case has evidenced that he is no longer capable of assisting the parties in the resolution of this case. The Agency asserts that the Arbitrator has not demonstrated neutrality over the issue of contractual fees. The Agency claims that the Arbitrator has signed every request for subpoena, order for hearing, and award proposed by the Unions' attorneys with respect to the issue of contractual fees. The Agency claims that the Arbitrator's continued attempts to retain and expand his jurisdiction "suggest an improper economic motivation." Exceptions at 19.

      The Agency has further requested an order prohibiting the assessment against the Agency of either statutory attorney fees or arbitration fees for time spent on the issue of contractual attorney fees after the Authority's decision in CCAD.

      The Unions contend that there is no basis for removing the Arbitrator and that this case is unlike Naval Surface Warfare Ctr. The Unions concede that the Order Concerning Remedy reflects the Arbitrator's conviction that contractual attorney fees should be honored and paid. However, the Unions claim that such a conviction is appropriate and consistent with his obligation to the parties to resolve their dispute and fashion a full and proper award as he considers necessary.

      With respect to the Agency's claim of lack of neutrality, the Unions note that the Arbitrator modified the Order Concerning Remedy from what was proposed by the Unions and that the Arbitrator signed every request for a subpoena requested by the Agency and scheduled a hearing whenever the Agency requested one. The Unions further note that the Arbitrator signed the Interim Order only after the Agency stated that it had no objections to the proposed order and signed the Order Concerning Remedy only after the Agency failed to submit substantive objections to the order. The Unions also object to the Agency's claim that the Arbitrator is economically motivated as without any factual basis. Consequently, in the Unions' view, there is no history or pattern established that is similar to the history and pattern noted by the Authority in Naval Surface Warfare Ctr., which would warrant removing the Arbitrator.

2.     Analysis and Conclusions

a.     Fee Assessment

      With respect to the request concerning the assessment of either statutory attorney fees or arbitration fees, the Agency has not identified any such assessment. Consequently, it is premature for the Authority to address such matters at this time. Accordingly, we deny the request.

b.     Selection of Different Arbitrator

      In requesting authority to choose a different arbitrator, the Agency relies on Naval Surface Warfare Ctr. In Naval Surface Warfare Ctr., the Authority remanded matters to the parties for further proceedings. In its remand, the Authority authorized either party to object to resubmission of the matters to the original arbitrator.

      The Authority recognized that the customary practice in remanding awards contemplates that absent settlement, the parties will resubmit the matter to the same arbitrator who adjudicated the matter. At the same time, [ v58 p84 ] the Authority noted its broad discretion under § 7122(a)(2) of the Statute to take necessary actions concerning awards. The Authority explained that in unusual cases, these actions have included remand to a different arbitrator and permitting the parties to choose a different arbitrator. 56 FLRA at 854.

      The Authority determined in Naval Surface Warfare Ctr. that similar action was warranted. The Authority noted as follows:

[T]he role of the Arbitrator in this case was to enforce compliance with two bilateral settlement agreements made by the parties. The Arbitrator has now issued five separate compliance awards involving issues that are escalating in number and tone. Moreover, the nature of the Arbitrator's statements in Award V, and the Agency's interpretations of them, may raise the question of his continuing ability to assist the parties to resolve their disputes and improve their labor-management relationship.

Id.

      We conclude that the unusual action of permitting either party to choose another arbitrator is warranted in this matter. The Arbitrator issued orders concerning contractual fees even though the Arbitrator had been informed of the refusal of the Deputy Secretary of Defense to authorize an allotment for the payment of the contractual fees and despite Authority decisions precluding any involvement of the Agency in the distribution of backpay to the Unions' attorneys other than through an approved allotment. In addition, in the Order Concerning Remedy, the Arbitrator admonished the Agency that (1) the payment of contractual attorney fees was "an essential part of my Award;" (2) the "Award does not provide a right to any would-be recipient to receive back pay without payment of the full contractual attorney fees;" and (3) "[s]uch beneficiaries may not collect or receive anything pursuant to the Award unless each in fact pays his or her share of contractual attorney fees." Order Concerning Remedy at 3-4.

      In Naval Surface Warfare Ctr., the Authority assessed not only the arbitrator's statements, but also the agency's interpretations of them in determining the continuing ability of the arbitrator to assist the parties. Similar to the agency in Naval Surface Warfare Ctr., see 56 FLRA at 854, the Agency's interpretation of these orders is that the Arbitrator has lost his neutrality and, in effect, has become a collection agent for the Unions' attorneys, see Exceptions at 19-20.

      In Naval Surface Warfare Ctr., the record of the arbitrator's statements and the agency's interpretations of them raised the question of the continuing ability of the arbitrator to assist the parties to resolve their disputes and improve their labor relationship, and warranted the Authority's action of permitting the parties to choose another arbitrator. Similarly, we find that the record in this case of the Arbitrator's actions and statements and the Agency's interpretation of them raises the question of the continuing ability of the Arbitrator to assist the parties to resolve their disputes and improve their labor relationship. As a result, we grant the Agency's request that in any future matter involving this case, either party is authorized to request a different arbitrator.

V.     Decision

      We strike paragraph 1 and paragraphs 3-5 of the Order Concerning Remedy, and we authorize either party to request a different arbitrator in any future matter involving this case. [n6] 


File 1: Authority's Decision in 58 FLRA No. 16
File 2: Opinion of Member Pope


Footnote # 1 for 58 FLRA No. 16 - Authority's Decision

   Member Pope's opinion, dissenting in part, is set forth at the end of this decision.


Footnote # 2 for 58 FLRA No. 16 - Authority's Decision

   Member Pope did not participate in either CCAD or CCAD II. Member Armendariz was not a member of the Authority at the time of the decisions in CCAD or CCAD II.


Footnote # 3 for 58 FLRA No. 16 - Authority's Decision

   The Depot submitted the request, and the Deputy Secretary of Defense declined to authorize such an allotment.


Footnote # 4 for 58 FLRA No. 16 - Authority's Decision

   Part of the Interim Order directs the Agency to disclose to the Unions' attorneys employee addresses and phone numbers. In our view, the sole purpose of this provision was to assist the Unions' attorneys in collecting contractual attorney fees from individual employees if the other arrangements ordered by the Arbitrator did not result in the payment of the fees. We believe that this purpose is reflected in the Order Concerning Remedy where the Arbitrator ordered delivery of backpay checks to the law firm of Gray & Becker in order to supplant the need for individual collections by the Unions' attorneys using home addresses. Accordingly, we conclude that this provision of the Interim Order pertained to contractual attorney fees and that it was superseded by the Order Concerning Remedy.


Footnote # 5 for 58 FLRA No. 16 - Authority's Decision

   In view of this decision, we need not address the Agency's other exceptions to this portion of the order.


Footnote # 6 for 58 FLRA No. 16 - Authority's Decision

   In United States Dep't of the Army, Corpus Christi Army Depot, Corpus Christi, Tex., 58 FLRA No. 17, a related case concerning statutory attorney fees under the Back Pay Act which also issued today, we are remanding a matter to the parties for further actio