United States, Department of the Navy, Naval Surface Warfare Center, Indian Head Division (Agency) and American Federation of Government Employees, Local 1923 (Union)

[ v60 p530 ]

60 FLRA No. 108

UNITED STATES
DEPARTMENT OF THE NAVY
NAVAL SURFACE WARFARE CENTER
INDIAN HEAD DIVISION
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1923
(Union)

0-AR-3866

_____

DECISION

December 30, 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 Richard I. Bloch 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 did not file an opposition to the Agency's exceptions.

      The Arbitrator sustained a grievance alleging that the Agency violated the parties' agreement by failing to distribute overtime to the grievant in a fair and equitable manner. As part of his remedy, the Arbitrator awarded attorney fees to the Union.

      For the reasons that follow, we set aside the award of attorney fees, and we deny the remaining exceptions.

II.      Background and Arbitrator's Award

      The Union filed a grievance alleging that the grievant was improperly deprived overtime opportunities in [ v60 p531 ] violation of Article 16, § 5d of the parties' agreement. [n1]  The grievance was unresolved and submitted to arbitration. The Arbitrator stated the issue as follows: "Did the Agency violate Article 16 of the [parties'] [a]greement by failing to offer [the] grievant . . . available overtime in accordance with the applicable [parties'] [a]greement? If not [sic], what should the remedy be?" Award at 2.

      Before the Arbitrator, the Agency argued that the grievance was not arbitrable because it did not contain sufficient detail regarding the basis of the grievance, as required by Article 9, § 5b of the parties' agreement. [n2]  The Arbitrator found that the grievance was arbitrable because the Agency's responses to the Union during the steps of the grievance procedure demonstrated that the Agency understood the nature of the grievance.

      On the merits, the Arbitrator stated that the evidence established that the Agency's process of overtime distribution is to allow employees to schedule other employees to perform overtime on projects assigned to them. The Arbitrator found that this process is contrary to Article 16, § 5d of the parties' agreement, which provides that management is responsible for distributing overtime. The Arbitrator also found that this process "virtually guarantees claims of favoritism and/or disparate treatment" because there was no evidence that employees were required to distribute overtime fairly and equitably. Award at 7.

      Based on the foregoing, the Arbitrator concluded that the process of overtime distribution violated the parties' agreement. As a remedy, the Arbitrator ordered the Agency to cease and desist the practice of permitting employees to schedule other employees to perform overtime. Because the Arbitrator was unable to identify specific overtime assignments for which the grievant was improperly bypassed, he denied the Union's request for a make-whole remedy. The Arbitrator granted the Union's request for attorney fees.

III.      Agency's Exceptions

      The Agency contends that the Arbitrator's determination that the grievance was procedurally arbitrable fails to draw its essence from Article 9, § 5b of the parties' agreement, which requires a grievance to contain sufficient detail. In this regard, the Agency claims that even if its responses to the Union during the steps of the grievance procedure demonstrate that it understood the nature of the grievance, the Union was required to submit a grievance containing sufficient detail.

      The Agency further contends that the Arbitrator exceeded his authority by resolving, and awarding a remedy concerning, an issue not submitted to arbitration. Specifically, the Agency asserts that the issue before the Arbitrator was whether the grievant was improperly denied overtime and that the Arbitrator answered this issue by finding that the grievant failed to demonstrate entitlement to specific overtime opportunities. According to the Agency, the Arbitrator "went beyond" this issue by finding that the Agency's process for assigning overtime violated the parties' agreement and by directing the Agency to modify the process. Exceptions at 9.

      In addition, the Agency alleges that the Arbitrator's award of attorney fees is contrary to law. In this regard, the Agency asserts that the award conflicts with the Back Pay Act because no backpay was awarded. The Agency further asserts that even if the Arbitrator had the authority to award attorney fees absent an award of backpay, this award is inconsistent with 5 U.S.C. § 7701(g), because the grievant was not the prevailing party and the Arbitrator did not find that the award of attorney fees was warranted in the interest of justice. [n3] 

IV.      Analysis and Conclusions

A.      The Arbitrator's procedural arbitrability determination is not deficient.

      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 [ v60 p532 ] may be found deficient on the 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)).

      The Agency contends that the Arbitrator's determination that the grievance was procedurally arbitrable fails to draw its essence from Article 9, § 5b of the parties' agreement. This exception directly challenges the Arbitrator's determination that the grievance was procedurally arbitrable. Further, the Agency does not except to the Arbitrator's determination on any grounds that do not directly challenge the determination itself. Accordingly, the exception provides no basis for finding this determination deficient, and we deny the exception. See United States Dep't of Defense, Educ. Activity, 60 FLRA 254, 255-56 (2004).

B.      The Arbitrator did not exceed his authority.

      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 authority, or awards relief to persons who are not encompassed by the grievance. See United States Dep't of Defense, Army and Air Force Exchange Serv., 51 FLRA 1371, 1378 (1996). Arbitrators do not exceed their authority by addressing any issue that is necessary to decide an issue before the arbitrator, see NATCA, MEBA/NMU, 51 FLRA 993, 996 (1996), or by addressing any issue that necessarily arises from issues specifically included in an issue before the arbitrator. See Air Force Space Div., L.A. Air Force Station, Cal., 24 FLRA 516, 519 (1986) (Air Force Space Div.). Both the Authority and Federal courts have consistently emphasized the broad discretion to be accorded arbitrators in the fashioning of appropriate remedies. See AFGE, Local 916, 50 FLRA 244, 246-47 (1995) (citing Air Force Space Div., 24 FLRA at 519).

      Here, the issue before the Arbitrator was whether the Agency violated the parties' agreement "by failing to offer [the] grievant . . . available overtime" and, if it did, what the remedy should be. Award at 2. Article 16, § 5d of the parties' agreement requires the Agency to distribute overtime "fairly and equitabl[y]." In determining whether the grievant was offered overtime opportunities in a fair and equitable manner, the Arbitrator examined the Agency's process of permitting employees to schedule other employees to perform overtime and found that the practice violated the parties' agreement because it did not result in the fair and equitable distribution of overtime. As a remedy, he ordered the Agency to cease and desist from continuing this overtime practice. The issue of whether the Agency's process of overtime distribution violated the parties' agreement arose in the resolution of the issue whether the grievant was improperly deprived overtime opportunities and is consistent with the arguments made before the Arbitrator. Accordingly, we find that the Agency has not demonstrated that the Arbitrator exceeded his authority, and we deny the exception.

C.      The award of attorney fees is contrary to law.

      When an exception involves an award's consistency with law, the Authority reviews any question of law raised by the exception and the award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See United States DOD, Dep'ts of the Army and the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      The Authority has long held that an award of attorney fees must be pursuant to specific statutory authorization. See Laborers' Int'l Union of N. America, Local 1376, 54 FLRA 700, 704 (1998). In this regard, the Back Pay Act specifically authorizes awards of attorney fees. See 5 U.S.C. § 5596(b)(1)(A)(ii). However, awards of attorney fees under the Back Pay Act must be in conjunction with an award of pay, allowances, or differentials. See, e.g., Health Care Financing Admin., Dep't of Health and Human Serv., 35 FLRA 274, 290 (1990).

      There is no dispute that the Arbitrator did not award backpay or any other monetary relief. Therefore, the award of attorney fees is not authorized by the Back Pay Act. See id. Moreover, the Arbitrator did not specify, and the Union has not claimed, any other statutory authorization for attorney fees. Accordingly, we conclude that the award of attorney fees is contrary to law. [n4] 

V.      Decision

      The award of attorney fees is set aside, and the remaining exceptions are denied.



Footnote # 1 for 60 FLRA No. 108 - Authority's Decision

   Article 16, § 5d provides, in pertinent part, that:

The [Agency] agrees that overtime shall be distributed fairly and equitable (sic) among employees who perform the same duties and as long as the [Agency's] skill needs are met. . . . [T]he [U]nion recognizes that there will be emergencies whereby the [Agency] will have to be selective in assigning overtime.
(1) Rosters of employees will normally be used to determine voluntary or mandatory overtime[, unless]
. . . .
(3) . . . . the parties agree to a new procedure.

Award at 3.


Footnote # 2 for 60 FLRA No. 108 - Authority's Decision

   Article 9, § 5b provides, in pertinent part, that "[i]f the grievance is not satisfactorily resolved at Step 1, it shall be presented to the Step 2 official, in writing . . . . The grievance must state, in detail, the basis for the grievance and the corrective action desired." Agency's Exceptions, Exhibit 1 at 33.


Footnote # 3 for 60 FLRA No. 108 - Authority's Decision

   5 U.S.C. § 7701(g)(1) provides, in pertinent part, for an award of reasonable attorney fees incurred by an employee provided "the employee . . .is the prevailing party" and payment "is warranted in the interest of justice[.]"


Footnote # 4 for 60 FLRA No. 108 - Authority's Decision

   In view of this finding, it is unnecessa