File 3: Opinion of Member Pope
[ v62 p128 ]
Opinion of Member Carol Waller Pope, dissenting in part:
I agree that the exceptions are not interlocutory and that, as the Agency has not excepted to the Arbitrator's finding of a contract violation, the Agency has not demonstrated that the award is deficient based on the Arbitrator's alternative finding regarding veterans' preference.
I believe that the majority errs in its resolution of the attorney fee exception. In this regard, the majority finds the award of attorney fees deficient on the ground that there has been no demonstration that the grievant lost pay as a result of the Agency's action and sets the award aside with prejudice. In finding that the second requirement of the Back Pay Act was not satisfied, the majority relies on two decisions to which I dissented. Those decisions are not dispositive of the issue here, however. [n*] In particular, it is undisputed that the Union has not filed an application for attorney fees. It also is undisputed that the Arbitrator provided two remedial options -- a retroactive promotion with backpay or priority consideration -- and the record does not reveal which remedial option was or will be granted following denial of the Agency's exceptions on the merits of the award. It is clear that, if the grievant is retroactively promoted with backpay, then there is no basis to deprive the Union of its right to request attorney fees. In this connection, unchallenged, on-point precedent establishes that an award of attorney fees made prior to a request for such fees is premature and should be set aside without prejudice to consideration of a proper and timely subsequent request by the Union and any response to such a request filed by the Agency. See United States DOD Educ. Activity, 60 FLRA 254, 257 (2004). The majority's decision to set aside the award without indicating that its action is without prejudice to a future, timely request is a wholly unexplained departure from this precedent, which it does not acknowledge, and, thus, is arbitrary and capricious on its face. See, e.g., Atchison, T & S. F. Ry. Co. v. Wichita Bd. of Trade, 412 U.S. 800, 808 (1973) (citation omitted).
For the foregoing reasons, I dissent in part.