American Federation of Government Employees, Local 1148 (Union) and United States Department of Defense, Defense Supply Center, Columbus, Ohio (Agency)
65 FLRA No. 82
OF GOVERNMENT EMPLOYEES
DEPARTMENT OF DEFENSE
DEFENSE SUPPLY CENTER
December 23, 2010
Before the Authority: Carol Waller Pope, Chairman, and Thomas M. Beck and Ernest DuBester, Members
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Harry Graham filed by the Union under § 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 determined that the Agency’s five-day suspension of the grievant was without just cause. As a remedy, the Arbitrator ordered that the grievant be made whole for all monies lost as a result of the unjust suspension. In a subsequent award, the Arbitrator found that he was without authority to award attorney fees to the Union. For the reasons set forth below, we set aside the award and remand it to the parties for resubmission to the Arbitrator, absent settlement.
II. Background and Arbitrator’s Award
The Agency suspended the grievant for five days for insubordination. See Exceptions, Ex. 6 at 3. The Union filed a grievance challenging the suspension. The matter was unresolved and was submitted to arbitration. In his initial award, the Arbitrator considered the following issue: “Did the [Agency] have just cause to discipline the [g]rievant? If not, what shall the remedy be?” Id. at 1. The Arbitrator sustained the grievance, finding that the suspension of the grievant was not for just cause. Id. at 10. Accordingly, the Arbitrator ordered that the grievant’s suspension be rescinded and that he be compensated for any monies lost as a result of the suspension. Id. The Arbitrator retained jurisdiction for sixty calendar days from the date of his award. Id.
Approximately one month later, the Union submitted a request for attorney fees. Exceptions, Ex. 1. The Arbitrator found that he lacked authority to consider this request. According to the Arbitrator, Article 37, Section E of the parties’ agreement provides that “[t]he arbitrator’s award shall be limited solely to answering the question(s) put to him/her by the parties’ submission.” Award at 1. The Arbitrator concluded that, because the above issue was the sole issue presented to him, he did not have authority to award the fees requested by the Union. Id.
III. Positions of the Parties
A. Union’s Exceptions
The Union contends that the award is contrary to law because the Arbitrator was authorized, by statute, to award attorney fees once the requirements of the Back Pay Act had been met. Exceptions at 5. The Union asserts that, while the parties’ agreement limits an arbitrator’s award to answering questions submitted by the parties, the issue presented to the Arbitrator included a possible remedy of attorney fees. Id. at 5-6. The Union contends that, because nothing in the parties’ agreement “prohibits or circumscribes” the authority of an arbitrator to award attorney fees, the Arbitrator was authorized to consider the Union’s fee request. Id. at 6(citing U.S. Dep’t of the Army, Red River Army Depot, Texarkana, Tex., 39 FLRA 1215 (1991) (Texarkana)).
The Union also contends that the attorney fee award is contrary to law because it fails to provide a fully articulated and reasoned opinion, as required by Authority precedent. Id. at 8-9. The Union argues that remand is not necessary, however, as the record provides sufficient information for the Authority to analyze properly the statutory requirements. Id. at 9-15. In the alternative, the Union contends that the Authority should remand the award to the Arbitrator for specific findings. Id. at 15.
B. Agency’s Opposition
The Agency’s opposition addresses only “whether the [Authority] should render a decision on fees and expenses or whether the issue should be remanded to the parties for submission to the [A]rbitrator.” Opp’n at 1. The Agency argues that the award fails to contain sufficient findings and analysis regarding whether an award of attorney fees is warranted under the Back Pay Act. Id. Accordingly, the Agency contends that, because there is “nothing in the record that could provide the basis” for the Authority to award attorney fees, the matter should be remanded to the Arbitrator. Id. at 2-3.
IV. The award is not 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 U.S. 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 U.S. Dep’t of Def., Dep’ts of the Army & 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.
A. The Arbitrator is authorized to consider the Union’s request for attorney fees.
The Union contends that the award is contrary to law because the Arbitrator was authorized, by statute, to award attorney fees once the requirements of the Back Pay Act had been met. Exceptions at 5. The Back Pay Act confers jurisdiction on an arbitrator to consider a request for attorney fees at any time during the arbitration or within a reasonable period of time after the arbitrator’s award of backpay becomes final and binding. See, e.g., AFGE, Council of Prison Locals In addition, parties can negotiate into their collective bargaining agreement time limits and other procedures to govern the filing of requests for attorney fees. See id. Moreover, a union may agree to language that clearly and unmistakably waives its statutory right to attorney fees. See , 55 FLRA 192 (1999) (citations omitted).Texarkana, 39 FLRA at 1221.
Here, the Arbitrator’s underlying award rescinded the grievant’s suspension and ordered that the grievant be awarded backpay for the loss that he suffered as a result of the unjust suspension. Exceptions, Ex. 6 at 10. Such an award conferred jurisdiction on the Arbitrator to consider the merits of a request for attorney fees. See AFGE, Council of Prison Locals, 55 FLRA at 192 (Back Pay Act conferred jurisdiction on an arbitrator to consider an attorney fee request where the remedy involved payment under the Back Pay Act). Thus, unless precluded by the parties’ agreement, the Arbitrator was authorized to address the merits of the Union’s request. See id. at 193.
The Arbitrator found that, because Article 37, Section E of the parties’ agreem