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32:0633(92)AR - - Philadelphia Naval Shipyard and Philadelphia MTC - - 1988 FLRAdec AR - - v32 p633

[ v32 p633 ]
The decision of the Authority follows:

32 FLRA No. 92






Case No. 0-AR-1525


I. Statement of the Case

This matter is before the Authority on exceptions to the supplemental award of Arbitrator Louis E. Seltzer 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 Department of the Navy (the Agency) filed an opposition to the Union's exceptions on behalf of the Activity.

The Arbitrator found that he lacked jurisdiction over the Union's request for attorney fees incurred in connection with an arbitration proceeding. The award on the merits of the grievance was dated July 27, 1987, and the request for attorney fees was dated August 17, 1987.

We recently found that the Back Pay Act, 5 U.S.C. º 5596, (the Act), 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. Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 32 FLRA 417 (1988). We find in this case that the request for fees was timely filed. Therefore, we conclude that the Arbitrator's supplemental award, which denies jurisdiction over the request for fees, is contrary to the Back Pay Act.

II. Background and Arbitrator's Award

The Agency proposed to suspend the grievant for 10 days for three separate offenses: (1) "wasting time," (2) "failure to meet muster formation," and (3) "unauthorized absence" from work. Arbitrator's Award at 1. The Union grieved the matter. The charge related to the second offense was dropped and the remaining matters were submitted to arbitration.

In his award dated July 27, l987, the Arbitrator found that the imposition of discipline for the offense of wasting time was warranted. The Arbitrator found that the imposition of discipline for unauthorized absence from work was unwarranted. Therefore, the Arbitrator sustained this portion of the grievance. Noting that only one charge out of the three original charges against the grievant was valid, the Arbitrator ordered that the 10-day suspension be reduced to 3 days. He further ordered that the grievant be made whole for pay lost (other than overtime) during the 10-day suspension.

On August 17, l987, the Union filed a petition for attorney fees with the Arbitrator. By letter dated October 27, l987, the Union supplemented its petition. 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 also 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.

On October 28, l987, the Activity responded to the request and alleged that the Arbitrator lacked jurisdiction to award fees because the matter of attorney fees was not raised prior to the close of the record. The Activity further asserted that attorney fees is a form of remedy and as such, should have been added to the record as an issue. The Activity maintained that since "there is no provision in the parties{'} negotiated agreement allowing entry of issues after close of the record, [the Arbitrator was] estopped from accepting jurisdiction in the matter[.]" Union's Exceptions, Exhibit D.

By letter dated February 15, 1988, the Arbitrator stated that "I have concluded that I do not have jurisdiction any longer. Accordingly, I am obliged to decline rendering a decision on the merits {of the request for attorney fees}." Union's Exceptions, Exhibit E.

The Union then timely filed the instant exceptions to the Arbitrator's decision of February 15, l988.

III. Positions of the Parties

A. The Union

The Union incorporates by reference the arguments it made in Philadelphia Naval Shipyard, 32 FLRA 417. The Union requests the Authority to set aside the Arbitrator's decision of February 15, 1988, 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, Exhibit F 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.

B. The Agency

The Agency contends that the exceptions were not filed by a party to the case, that is, by the Union or by Counsel for the Union, but rather by Counsel for the grievant, and requests us to dismiss the exceptions on this basis. The Agency further contends that the exceptions should be denied since they do not show that the award is contrary to law, rule or regulation. The Agency maintains that the exceptions express mere disagreement with the Arbitrator's interpretation of the parties' contract. The Agency asserts that there is no provision in the parties' negotiated agreement which allows a party to raise issues before the Arbitrator following the close of the record. Agency's Opposition at 3. It contends that while the Arbitrator could have construed the agreement as allowing him to reopen the record to deal with the request, he did not. The Agency maintains that the Arbitrator interpreted the agreement as conferring no authority on him to provide remedies not requested in the original dispute.

IV. Discussion

We reject the Agency's contention that Counsel was not representing a party in the arbitration proceeding and, therefore, the exceptions filed by Counsel should be dismissed. As stated at the outset of the Arbitrator's award of July 27, 1987, Counsel appeared before the Arbitrator as the representative of the Union. Union's Exceptions, Exhibit A. Accordingly, we find that the exceptions were filed on behalf of the Union, a party to the arbitration proceeding, and we deny the Agency's request. Further, we find that the request for attorney fees was filed within a reasonable time after the Arbitrator's decision awarding backpay. The Arbitrator's supplemental award denying jurisdiction of the request is, therefore, contrary to the Back Pay Act.

In Philadelphia Naval Shipyard, we discussed whether the Act and its implementing regulations, 5 C.F.R. Part 550, authorize the filing of an attorney fees request after an arbitrator has issued an award of backpay. After examining the Act and regulations which address the timely filing of an attorney fees request, including regulations issued by the Merit Systems Protection Board and the Authority, we concluded that the Back Pay Act confers jurisdiction on an arbitrator to consider an attorney fees request filed after the issuance of an arbitrator's decision awarding backpay. We further stated that parties may agree to establish a time period during which an attorney fees request must be filed with an arbitrator. In the absence of such an agreement, a request must be filed within a reasonable time after an award, which includes a backpay remedy, becomes final and binding.

In this case, unlike Philadelphia Naval Shipyard, no exceptions to the Arbitrator's decision on the merits were filed. Section 7122 of the Statute provides that "{i}f no exception to an arbitrator's award is filed . . . during the 30-day period beginning on the date the award is served on the party, the award shall be final and binding." The request for attorney fees in this case was filed by the Union on August 17, l987, shortly after the Arbitrator issued his decision of July 27, 1987, on the merits of the grievance. Thus, the attorney fees request was filed with the Arbitrator even before the award became final and binding under section 7122 of the Statute. We find that in these circumstances, the Union's request was filed in a timely manner.

We further reject the Agency's contention that the Union's exceptions simply constitute disagreement with the Arbitrator's interpretation of the parties' contract. The Arbitrator's decision made no mention of the parties' contract. Under these circumstances, we find no basis to conclude that the Union's exceptions constitute disagreement with the Arbitrator's interpretation of the parties' contract.

We find, therefore, that the Arbitrator had jurisdiction to consider the Union's request. The Arbitrator's supplemental award is contrary to the Back Pay Act. We will set aside the award and remand the matter to the parties.

In finding that the Arbitrator has jurisdiction to consider the request of attorney fees under the Back Pay Act, we make no determination as to the merits of the request.

V. Decision

For the reasons set forth above, we find that the award is deficient. The matter is remanded to the parties, who are directed to request the Arbitrator to consider the Union's attorney fees request under applicable provisions of law and regulation.

Issued, Washington, D.C.,

Jerry L. Calhoun, Chairman
Jean McKee, Member

(If blank, the decision does not have footnotes.)