32:0417(63)AR - - Philadelphia Naval Shipyard and Philadelphia MTC - - 1988 FLRAdec AR - - v32 p417

[ v32 p417 ]
The decision of the Authority follows:

32 FLRA No. 63






Case No. 0-AR-1475


I. Statement of the Case

This matter is before the Authority on exceptions to the supplemental award of Arbitrator Kinard Lang filed by Counsel for the Union (the Union) under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations.

The Arbitrator found that he lacked jurisdiction over the Union's request for attorney fees incurred in connection with the arbitration proceeding involved in Department of the Navy, Philadelphia Naval Shipyard, Philadelphia, Pennsylvania and Philadelphia Metal Trades Council, Philadelphia, Pennsylvania, 28 FLRA 574 (1987). For the reasons discussed below, we find that the Arbitrator's award is contrary to law.

We conclude that the Back Pay Act (the Act), 5 U.S.C. § 5596, confers jurisdiction on an arbitrator to consider a request for attorney fees filed within a reasonable time after an arbitrator's award becomes final and binding. We further conclude, as to this case, that the request for attorney fees was filed within a reasonable time after the award became final and binding. Therefore, the Arbitrator's supplemental award denying jurisdiction of the request for fees is contrary to the Back Pay Act.

II. Background and Arbitrator's Award

The Union filed a grievance alleging that the Activity violated the parties' agreement by not assigning three employees to participate in sea trials of certain equipment aboard a naval ship. The grievance was submitted to arbitration. The Arbitrator sustained the grievance in part as to two grievants and awarded them backpay to be computed at straight-time rates. He denied the remainder of the grievance.

The Union filed timely exceptions to the award with the Authority. On August 13, 1987, the Authority found that the portion of the Arbitrator's award which limited the backpay of the two grievants to straight-time compensation was deficient because it did not include overtime pay. Philadelphia Metal Trades Council, 28 FLRA 574 (1987). The Authority modified the award to provide that the two grievants be paid backpay at appropriate straight-time and overtime rates consistent with applicable law, regulations and the parties' contract. The Authority denied the Union's other exceptions.

On September 4, 1987, the Union filed a petition for attorney fees with the Arbitrator. On October 20, 1987, the Activity responded to the request and alleged that the Arbitrator lacked "jurisdiction over this matter, inasmuch as the issue of attorney fees was not raised prior to the close of the record." Union's Exceptions, Exhibit B.

On October 27, 1987, the Union filed a response to the Activity's submission. The Union asserted that the Back Pay Act vested the Arbitrator with jurisdiction over the issue of attorney fees, and that nothing in the Act or elsewhere required that the issue be raised before the close of the record before the Arbitrator. The Union asserted that the issue of attorney fees arises only after a successful resolution of the underlying case, and that any request for fees before that time would be premature.

By letter dated November 28, 1987, the Arbitrator stated that "[a]fter careful review of the parties['] evidence and arguments, with respect to [this matter], I find that I lack jurisdiction to decide the merits thereof." Union's Exceptions, Exhibit D.

The Union then timely filed the instant exceptions to the Arbitrator's decision of November 28, 1987.

III. Positions of the Parties

The Union requests the Authority to set aside the Arbitrator's decision of November 28 and remand the attorney fees request to the Arbitrator for a decision on the merits. The Union maintains that under the Back Pay Act, the Arbitrator has jurisdiction over the attorney fees issue and that there is no "judicial or administrative authority . . . which holds that attorney fees are to be awarded only if the issue of [attorney] fees is raised prior to the close of the record in the case in chief." Union's Exceptions at 1-2. The Union asserts that this case is similar to National Association of Air Traffic Specialists and Federal Aviation Administration, Washington Flight Service Station, 21 FLRA 169 (1986), in which the Authority approved an award of attorney fees where the request for attorney fees was made after an arbitrator had awarded a grievant backpay.

The Activity did not file an opposition to the exceptions.

IV. Discussion

The Back Pay Act provides in pertinent part as follows:

§ 5596. Back pay due to unjustified personnel action

. . . . . . .

(b)(1) An employee of an agency who, on the basis of a timely appeal or an administrative determination (including a decision relating to an unfair labor practice or a grievance) is found by appropriate authority under applicable law, rule, regulation, or collective bargaining agreement, to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials of the employee--

(A) is entitled, on correction of the personnel action, to receive for the period for which the personnel action was in effect--

. . . . . . .

(ii) reasonable attorney fees related to the personnel action which . . . shall be awarded in accordance with standards established under section 7701(g) of this title[.]

Emphasis added.

Regulations implementing the Act were promulgated by the Office of Personnel Management (OPM). The regulations define "appropriate authority" as an "entity having authority in the case at hand to correct or direct the correction of an un