40:0154(16)AR - - Navy, Naval Aviation Depot, Norfolk, Virginia and NAGE Local R4-83 - - 1991 FLRAdec AR - - v40 p154

[ v40 p154 ]
The decision of the Authority follows:

40 FLRA No. 16













April 11, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator Mollie H. Bowers filed by the Agency 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 Union filed an opposition to the Agency's exception.

In her award, the Arbitrator resolved an issue concerning the designation and area of responsibility of the grievant as chief steward of the bargaining unit. The Arbitrator directed the Agency to restore to the grievant 2 hours annual leave and to record the time as official time. She also directed that the Agency pay the Union's attorney fees and retained jurisdiction to resolve any attorney fee dispute that might arise. The Agency filed an exception to the award of attorney fees. For the following reasons, we conclude that the award of attorney fees is contrary to law and we will modify the award to strike that portion pertaining to attorney fees.

II. Background and Arbitrator's Award

The events leading to the grievance in this case began when the Union notified the Agency that the grievant had been designated chief steward and the Agency replied that there was no such position under the parties' collective bargaining agreement. The Union then advised the Agency that the grievant had been assigned a NADEP-wide (Naval Aviation Depot) area of responsibility as steward. Later, the Agency denied the grievant official time and charged him 2 hours of annual leave for time spent discussing his representational rights with a management official.

A grievance was filed and submitted to arbitration on the following issue:

Under Article VIII of the collective bargaining agreement, does the Union have the unilateral right to designate [the grievant] as chief steward and assign him a NADEP-wide area of responsibility?

Award at 1.

The Arbitrator held that the Union has the right under law and the parties' collective bargaining agreement to name its own stewards and officers. However, she agreed with the Agency that there is no requirement in the agreement "to recognize a chief steward position as a legitimate part of the Union's representational structure." Award at 11. The Arbitrator found that the Union may assign duties to its officers or representatives as it chooses except that the agreement does not allow the Union president to serve in place of a steward unless the regular steward is absent or otherwise not available. The Arbitrator also found that the agreement requires that the assignment of stewards must be coordinated with the Agency by providing the Agency with notice of assignments. She ruled that nothing in law or the agreement precludes a NADEP-wide assignment of stewards. The Arbitrator concluded that the Agency had improperly restricted the grievant in his representational activities and that he was improperly charged 2 hours annual leave instead of being granted official time for the meeting with management.

The Arbitrator made the following award:

The Union is entitled to appoint the grievant to whatever position it desires. However, the position of chief steward is not encompassed by the Agreement nor is the creation of a two-tier representational system. The Union must notify the Agency of the position's duties and coordinate who will represent each employee as situations arise. The [g]rievant's two hours of annual leave shall be restored within 30 days of the date of this award. The Agency will pay [the Union's attorney] reasonable attorney fees and will pay the entire cost of this arbitration. The Arbitrator retains jurisdiction to resolve any attorney fee disputes should they arise.

Award at 15.

III. Positions of the Parties

A. Agency's Exception

The Agency excepts only to that part of the Arbitrator's award which grants attorney fees. The Agency asserts that the award of attorney fees is deficient because it fails to meet the statutory requirements of the Back Pay Act, 5 U.S.C. § 5596, and relevant Authority decisions. The Agency maintains that the award fails to comply with the standards established under 5 U.S.C. § 7701(g) because the Arbitrator did not make the required analysis of the statutory requirements of that provision of law and because the Arbitrator "provided no analysis, findings or conclusions as to how she reached her decision that the [A]gency must pay reasonable attorney fees." Exceptions at 3. The Agency asks that the award of attorney fees be struck from the award.

B. Union's Opposition

The Union asserts that the Arbitrator has not yet made an award of attorney fees but has "properly retained jurisdiction over the matter should any dispute arise." Opposition at 2. The Union claims that the exception is premature because the Arbitrator has not yet issued a final decision on attorney fees. The Union states that "[t]he issue raised by the [A]gency is not ripe for an exception because the issue has not yet been argued before the Arbitrator." Id. The Union maintains that the Arbitrator only indicated that attorney fees are appropriate and that she is allowing the parties an opportunity to settle the matter between themselves before making an actual award. The Union contends that the Agency is aware that the Arbitrator has reserved jurisdiction over the matter and that the Agency is attempting "to avoid litigation on the attorney fee issue[.]" Id. at 3.

IV. Analysis and Conclusions

We reject the Union's contention that the Arbitrator has done nothing more than reserve jurisdiction over the attorney fee issue." Opposition at 3. In Philadelphia Naval Shipyard and Philadelphia Metal Trades Council,