United States, Department of Defense, Education Activity (Agency) and Federal Education Association (Union)

[ v60 p254 ]

60 FLRA No. 57

UNITED STATES
DEPARTMENT OF DEFENSE
EDUCATION ACTIVITY
(Agency)

and

FEDERAL EDUCATION ASSOCIATION
(Union)

0-AR-3788

_____

DECISION

September 17, 2004

_____

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

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator John E. Sands 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 Union filed an opposition to the Agency's exceptions.

      For the reasons that follow, we find that the award of backpay to grievant Bruce Ullery is contrary to the Back Pay Act and that the award of attorney fees was premature. We also find that the Agency's exception to the award, as it pertains to grievant Maureen Flock, is barred. Otherwise, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

      According to the Arbitrator, the Union commenced this case by filing a union grievance, which sought relief for a list of teachers who had experienced pay problems and similarly situated members of the bargaining unit. The Agency rejected the grievance on procedural grounds. The Agency claimed that the grievance was untimely and that it attempted to circumvent the negotiated grievance procedure by consolidating a number of individual grievances for arbitration in violation of the requirement of the parties' collective bargaining agreement that there be mutual consent of the parties prior to consolidating grievances for arbitration. The Agency reiterated these procedural objections to the Arbitrator.

      The Arbitrator ruled that the grievance was procedurally arbitrable. He determined that it was timely filed and that it was authorized under the parties' agreement as a union grievance concerning a matter relating to the employment of unit employees. He rejected the Agency's claim that the grievance was a unilateral effort by the Union to consolidate more than one arbitration case for review by the same arbitrator. He found that nothing in the agreement prevents the Union from processing to arbitration its own grievance on issues shared with individual grievances.

      Insofar as the grievance pertained to grievant Bruce Ullery, the Arbitrator first ruled that Ullery had timely filed his pay claim. He determined that Ullery did not learn, and could not reasonably have learned, of his entitlement to the relief sought until November 2000 and that his individual grievance filed on December 14, 2000, was therefore timely filed.

      On the merits, the Arbitrator sustained Ullery's claim for additional experience for salary step placement. He ordered the Agency to credit Ullery for all 17 years of his prior teaching experience and pay him backpay and benefits retroactive to his rehire date with the Agency in August 1986.

      Insofar as the grievance pertained to grievant Maureen Flock, the Arbitrator sustained her claims relating to her periods of teacher employment as a substitute teacher, as a substitute and half-time teacher, and as a full-time teacher. The Arbitrator granted her relief for each of these periods.

      The Arbitrator also sustained the pay claims of grievants Ray Church, William Edwards, and Harriet Scofield and granted them relief. The Arbitrator ordered similar relief with respect to the class of similarly situated teachers. In addition, the Arbitrator ordered the Agency to "reimburse [the Union] for its reasonable attorneys fees and costs incurred in its representation of the individual[-]named grievants and the class members in this proceeding." Award at 86.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency contends that the award is deficient in numerous respects.

      The Agency first argues that by finding the grievance to be arbitrable, the award fails to draw its essence from the agreement. The Agency asserts that the Arbitrator violated the terms of the agreement by allowing the Union to unilaterally consolidate individual grievances. [ v60 p255 ] The Agency also asserts that the Arbitrator's ruling that nothing in the agreement prevents the Union from filing its own group grievance is deficient. The Agency argues that this ruling violates Article 12, Section 7A. [n1]  The Agency claims that the issues in this case are not identical and that the grievance was not signed by all of the grieving employees.

      With respect to Flock, the Agency contends that by granting relief for her claims during the time she was a substitute teacher, the award is contrary to the Statute because substitute teachers are not members of the bargaining unit. The Agency also asserts that the award of interest to Flock on substitute teaching backpay is contrary to the Back Pay Act because substitute teaching pay does not constitute pay within the meaning of the Act.

      With respect to Ullery, the Agency contends that the award fails to draw its essence from the agreement and is contrary to the Back Pay Act, 5 U.S.C. § 5596. The Agency argues that the award fails to draw its essence from the agreement because Ullery's pay claim was not timely because it had not been filed within 15 days, as required by Article 12, Section 4. [n2]  The Agency argues that the award is contrary to § 5596(b)(4) by awarding backpay to Ullery for a period beginning more than 6 years before the filing of his individual grievance. The Agency notes that the Arbitrator acknowledged that Ullery filed his individual grievance on December 14, 2000. Consequently, the Agency claims that the backpay ordered by the Arbitrator retroactive to August 1986 is deficient because it could not begin earlier than December 14, 1994.

      Finally, the Agency contends that the award of attorney fees to Flock, and to grievants Church, Edwards, and Scofield is contrary to the Back Pay Act. The Agency maintains that in order to be entitled to an award of attorney fees under the Back Pay Act, the Arbitrator must have awarded backpay. The Agency asserts that the relief awarded by the Arbitrator to these grievants did not involve pay, allowances, or differentials, but instead, involved contributions to their Thrift Savings Plans (TSP), which are expressly not covered by the Back Pay Act under 5 C.F.R. § 550.803.

B.     Union's Opposition

      The Union contends that the exceptions should be denied or dismissed.

      The Union argues that the Arbitrator's ruling that the grievance was arbitrable is not deficient. The Union asserts that questions of whether there has been compliance with the procedural requirements of the collective bargaining agreement are questions for an arbitrator and not the Authority.

      With respect to the relief granted Flock for claims during the time she was a substitute teacher, the Union argues that this exception should be barred under § 2429.5 of the Authority's Regulations because the issue of Flock's status is raised for the first time in the Agency's exception.

      The Union argues that the award, as it pertains to Ullery, is not deficient. The Union asserts that the Arbitrator's ruling that Ullery's pay claim had been timely filed draws its essence from the agreement. The Union further asserts that the Agency's exception to the period of backpay should also be barred because the issue was not raised to the Arbitrator. However, the Union states that if the issue is addressed and § 5596(b)(4) is found controlling, the award of backpay should be modified, as claimed by the Agency, to commence on December 14, 1994.

      With respect to the award of attorney fees, the Union argues that the exception is premature because the amount of fees has not been determined. The Union also argues that the exception should be barred because the issue of attorney fees was not raised to the Arbitrator. On the merits of the exception, the Union asserts that the award of attorney fees is not contrary to the Back Pay Act.

IV.     Analysis and Conclusions

A.     The award is not deficient by finding the grievance to be procedurally arbitrable.

      The Authority generally will not find an arbitrator's ruling on the procedural arbitrability of a grievance deficient on grounds that directly challenge the procedural arbitrability ruling itself. See, e.g., AFGE Local 3882, 59 FLRA 469, 470 (2003). However, the Authority has stated that a procedural arbitrability determination may be found deficient on the [ v60 p256 ] ground that it is contrary to law. See id. (citing AFGE Local 933, 58 FLRA 480, 481 (2003)). In addition, the Authority has stated that a procedural arbitrability determination may be found deficient on grounds that do not directly challenge the determination itself, which include claims that an arbitrator was biased or that the arbitrator exceeded his or her authority. See id. See also United States Equal Employment Opportunity Comm'n, 60 FLRA 83, 86 (2004) (citing AFGE Local 2921, 50 FLRA 184, 185-86 (1995)).

      In its exception, the Agency contends that the Arbitrator's ruling finding that the Union's grievance was procedurally arbitrable fails to draw its essence from the agreement. This exception directly challenges the Arbitrator's ruling that the grievance was procedurally arbitrable and does not contend that it is contrary to law. Further, the Agency does not except to the Arbitrator's ruling on any grounds that do not directly challenge the determination itself. Accordingly, the exception provides no basis for finding this ruling deficient, and we deny this exception. See AFGE Local 3882, 59 FLRA at 470.

B.     The Agency's exception to the award, as it pertains to Flock, is barred by § 2429.5.

      Section 2429.5 bars Authority consideration of any issue that could have been, but was not, presented to the arbitrator. There is no indication in the record that the Agency argued to the Arbitrator, as it has in its exception, that no relief could be granted Flock for any claims during the time she was a substitute teacher. Clearly, such an issue could have been raised to the Arbitrator. As this issue should have been, but was not, raised to the Arbitrator, Authority consideration of this exception is barred by § 2429.5. See, e.g., AFGE Local 1546, 59 FLRA 126, 128 (2003). Accordingly, we dismiss this exception.

C.     The Arbitrator's ruling that Ullery's pay claim had been timely filed is not deficient.

      As noted above, the Authority generally will not find an arbitrator's ruling on the procedural arbitrability of a grievance deficient on grounds that challenge the procedural arbitrability ruling itself. See, e.g., AFGE Local 3882, 59 FLRA at 470. In its exception, the Agency contends that the Arbitrator's ruling that Ullery's pay claim had been timely filed fails to draw its essence from the agreement. This exception directly challenges the Arbitrator's ruling that the grievance was procedurally arbitrable and does not contend that it is contrary to law. Further, the Agency does not except to the Arbitrator's ruling on any grounds that do not directly challenge the determination itself. Accordingly, the exception provides no basis for finding this ruling deficient, and we deny this exception. See id.

D.     The Agency's exception, which contends that the award of backpay is contrary to § 5596(b)(4), is not barred by § 2429.5.

      The Union contends that this exception should be barred because the Agency never raised the issue of the statutory limitation on the period of backpay to the Arbitrator. However, in its post-hearing brief to the Arbitrator, the Agency specifically asserted that if any backpay is granted Ullery, it must be limited to 6 years as required by statute. Accordingly, the issue of the statutory limitation on the period of backpay was raised to the Arbitrator, and the issue is not barred by § 2429.5. See, e.g., Soc. Sec. Admin., Office of Hearings and Appeals, Falls Church, Va., 59 FLRA 507, 510 (2003).

E.     The award of backpay for a period beginning more than 6 years before the filing of the individual grievance is contrary to § 5596(b)(4).

      Section 5596(b)(4) provides, in relevant part, as follows: "[I]n no case may pay, allowances, or differentials be granted under this section for a period beginning more than 6 years before the date of the filing of a timely appeal[.]" The Authority has specifically held that this provision "establishes the earliest date from which an award of back pay may commence." AFGE Local 1156, 57 FLRA 602, 603 (2001); accord AFGE Local 933, 58 FLRA 480, 482 (2003). The Arbitrator and the parties all use Ullery's individual grievance filed on December 14, 2000, as the date of the filing of a timely appeal within the meaning of the Back Pay Act. Consequently, the Arbitrator's award of backpay retroactive to Ullery's rehire date with the Agency in August 1986 is contrary to § 5596(b)(4). As claimed by the Agency, and as acknowledged by the Union, the award of backpay should commence on December 14, 1994. Accordingly, the award of backpay before that date is deficient, and the award of backpay must be modified.

F.     The award of attorney fees was premature.

      The Back Pay Act expressly 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 [ v60 p257 ] provide the employing agency with an opportunity to respond. See 5 C.F.R. § 550.807(a)-(b); United States Dep't of the Army, Red River Army Depot, Texarkana, Tex., 54 FLRA 759, 762 (1998) (Red River). Moreover, the Authority has held that when exceptions are filed to arbitration awards resolving requests for attorney fees, the Authority's role is to ensure that the arbitrator complies with applicable statutory standards. See, e.g., United States Dep't of the Navy Headquarters, Naval Dist., Washington, D.C., 48 FLRA 1264, 1266 (1993).

      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 address the matter of attorney fees. Instead, as in Red River, the Union requested in its post-hearing brief that the Arbitrator retain jurisdiction to "hear any motions for attorneys' fees[.]" Union's Post-hearing Brief at 59.

      "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." Red River, 54 FLRA at 762; accord Allen Park Veterans Admin. Med. Ctr., 34 FLRA 1091, 1105 (1990) (VAMC). Our appropriate action with respect to the award of fees in absence of a request by the Union and an opportunity for the Agency to respond to such a request is to set aside the award of fees. [n3]  See VAMC, 34 FLRA at 1105. However, our action in setting aside the award of fees is without prejudice to the Arbitrator's consideration of any timely request for fees filed by the Union and of any response to such a request filed by the Agency. See id.

V.     Decision

      The award of backpay to grievant Bruce Ullery is modified by making it retroactive to December 14, 1994. The Arbitrator's award of attorney fees was premature. The award of fees is set aside without prejudice to the Arbitrator's consideration of any timely request for fees filed by the Union and of any response to such a request filed by the Agency. The Agency's exception to the award, as it pertains to grievant Maureen Flock, is dismissed as barred by § 2429.5 of the Authority's regulations. Otherwise, the Agency's exceptions are denied



Footnote # 1 for 60 FLRA No. 57 - Authority's Decision

   Article 12, Section 7A provides, in pertinent part:

When a group of unit employees has an identical grievance, it will be considered as an individual grievance of one unit employee and will be processed as a single grievance in the name of the unit employee designated by the others to act for them. All unit employees electing to join in the grievance must be identified and must sign the grievance at the stage it is put in writing.

Footnote # 2 for 60 FLRA No. 57 - Authority's Decision

   Article 12, Section 4 provides, in pertinent part:

[T]he unit employee or his/her Association representative must present the grievance, in writing, to the appropriate supervisor within fifteen (15) calendar days of the act or incident giving rise to the grievance.

Footnote # 3 for 60 FLRA No. 57 - Authority's Decision

   Because the Arbitrator prematurely add