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The decision of the Authority follows:
40 FLRA No. 28
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to the supplemental award of Arbitrator Sue Olinger Shaw filed by 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 Agency filed an opposition to the Union's exception.
In her original award, the Arbitrator sustained the grievance over a 5-day suspension. She ordered management to make the grievant whole and pay the grievant's legal fees and costs. The Agency filed exceptions to the award. We concluded that the award was not contrary to section 7106(a)(2)(A) of the Statute, but that the award of attorney fees was contrary to the Back Pay Act. Accordingly, in U.S. Department of the Army, Army Transportation Center, Fort Eustis, Virginia and National Association of Government Employees, Local R4-6, 38 FLRA 186 (1990), request for clarification denied, 40 FLRA No. 10 (1991), we modified the award to strike the provision for attorney fees.
After the Authority's decision modifying the award, the Union filed a motion for attorney fees with the Arbitrator. In a supplemental award, the Arbitrator denied the Union's request. She stated that the matter of fees would not be pursued without an order of the Authority remanding the matter to her.
We conclude that the Union fails to establish that the supplemental award is deficient and we will deny the exception.
A. Arbitrator's Original Award
The Arbitrator found that management violated the parties' collective bargaining agreement by failing to impose discipline on the grievant within the time limit prescribed by the agreement. The Arbitrator sustained the grievance and directed management to revoke the 5-day suspension of the grievant and to expunge all references to the discipline from the grievant's personnel file. The Arbitrator also directed management to provide the grievant with backpay for the days she was improperly suspended and to "pay the legal fees and costs incurred by the Grievant in the prosecution of this grievance[.]" Award at 11.
B. The Decision in 38 FLRA 186
The Agency filed exceptions to the award. We concluded that the Agency had failed to establish that the award was contrary to management's right to discipline under section 7106(a)(2)(A) of the Statute. We also concluded that the award of attorney fees was contrary to the Back Pay Act.
With respect to the award of attorney fees, we first rejected the Union's contention that the Arbitrator had not awarded fees, but had merely indicated an eligibility for an award that would not be made until after receiving a motion for attorney fees, absent settlement. We found that the Arbitrator had specifically awarded attorney fees. Therefore, we also rejected the Union's contention that the exception to the award of fees was premature. Noting that the Authority had repeatedly held that an award of attorney fees under the Back Pay Act requires a fully articulated, reasoned decision setting forth the specific findings supporting the determination on each pertinent statutory requirement, we concluded that the Arbitrator had awarded attorney fees without the proper support and that, consequently, the award of fees was contrary to the Back Pay Act. We also noted that in National Association of Air Traffic Specialists and Federal Aviation Administration, Washington Flight Service Station, 21 FLRA 169, 173 (1986) (Washington Flight Service Station), the Authority explicitly stated that in future cases, an award granting attorney fees without the required support would be found deficient and would be set aside or modified, as appropriate, rather than being remanded. Accordingly, we modified the award to strike the provision for attorney fees.
C. Arbitrator's Supplemental Award
After our decision modifying the award, the Union filed a motion for attorney fees with the Arbitrator.
The Arbitrator noted that the matter of attorney fees was raised during the arbitration hearing and that, in her original award, the Arbitrator ruled that attorney fees were warranted. The Arbitrator acknowledged that this portion of the award had been struck by the Authority and that the Authority had rejected the Union's position that the award merely indicated an eligibility for the award of fees. Thus, the Arbitrator stated the issue to be whether she could clarify the award of fees after that award had been voided and set aside by the Authority: that is, whether she could correct the deficiency in her award of attorney fees upon the renewed request of the Union, absent a remand order of the Authority. She stated that the issue was not whether she had jurisdiction to consider a request for attorney fees after the award on the merits had become final and binding.
The Arbitrator reminded the parties that at the arbitration hearing, when the Union first requested an award of attorney fees, she inquired of the parties as to the basis for the request. She noted that the Union's response was a "firm assertion," in which the Agency's representative concurred, that the Arbitrator had the authority to award attorney fees. Award at 2. The Arbitrator stated that despite her request for support for the authority to award attorney fees, "none was offered." Supplemental Award at 2. She explained that, as a result, she fashioned the award specifically to provide an award of attorney fees "to the extent and within limits established by applicable laws and regulations" in an effort to avoid the award of an impermissible fee. Id. at 2-3. Although the Arbitrator was of the view that the award was found deficient as a result of the failure of the parties to provide her with applicable guidelines, the Arbitrator found that the Authority's decision in Local 1749, American Federation of Government Employees and Commander 47FTW, Laughlin Air Force Base, Texas, 24 FLRA 117 (1986) (Laughlin Air Force Base), precluded her from correcting the deficiency in her award without a specific remand order from the Authority.
Accordingly, the Arbitrator denied "the Union's request for a new award of attorney fees[.]" Id. at 3. She advised that the matter of fees would not be further pursued unless one of the parties obtained an order from the Authority remanding the matter of the Union's request for fees to her for an articulation of findings.
D.Union's Request for Clarification of the Decision in 38 FLRA 186
In addition to filing an exception to the Arbitrator's supplemental award, the Union filed a request for clarification of our decision in 38 FLRA 186 "to reflect that the Arbitrator has continuing authority to issue a decision on the fee issue." Request for Clarification at 2. In U.S. Department of the Army, Army Transportation Center, Fort Eustis, Virginia and National Association of Government Employees, R4-6, 40 FLRA No. 10 (1991), we denied the request. We found that our decision needed no clarification and that the issue of the authority of the Arbitrator following our decision was more appropriately addressed in resolving the Union's exception in this case.
III. Positions of the Parties
A. Union's Exception
The Union contends that the supplemental award is deficient because, contrary to the Arbitrator's determination, she had jurisdiction over the motion for attorney fees.
The Union maintains that what occurred in the original award is that "the Arbitrator 'jumped the gun' and awarded fees as part of the initial decision." Exception at 2. The Union claims that the Arbitrator erroneously awarded fees prior to the proper motion being filed in which counsel would have advised the Arbitrator of the number of hours worked, the work performed, and the rationale for awarding fees as warranted in the interest of justice. Accordingly, the Union asserts that, in accordance with Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 32 FLRA 417 (1988) (Philadelphia Naval Shipyard), the Union timely and properly moved for an award of attorney fees within a reasonable period of time after the award became final and binding as a result of the Authority's decision in 38 FLRA 186. Consequently, the Union contends that the Arbitrator erroneously found that she needed a remand order from the Authority.
The Union also maintains that this case highlights a serious problem facing unions. The Union claims that as a result of the Arbitrator's inability to write a legal decision, the Union will be penalized and must bear the financial burden of failing to have the award of attorney fees sustained.
B. Agency's Opposition
The Agency contends that the Union's exception should be denied.
The Agency argues that the Union's suggestion that the Arbitrator's award of fees was premature is contradicted by the Arbitrator's award. The Agency maintains that the Arbitrator clearly stated that the request for attorney fees was made at the original arbitration hearing. The Agency claims that there were discussions concerning the fees, but that insufficient guidance was provided to the Arbitrator.
The Agency also argues that Philadelphia Naval Shipyard does not support the Union's exception. The Agency maintains that although requests for fees can be made after an award becomes final under Philadelphia Naval Shipyard, requests during the course of the arbitration hearing are not premature and negate the right to file after the award issues.
The Agency further argues that the Union's statements about the problems facing unions do not warrant finding the award deficient. The Agency claims that the Union implies that the Union has been wronged by the Arbitrator's lack of familiarity with awarding fees. The Agency maintains that the Union is being penalized not by the Arbitrator's lack of familiarity, but by the parties' failure to inform the Arbitrator concerning her obligation to issue a fully articulated decision, as the Authority has strongly
encouraged the parties to do. The Agency notes that in her award, the Arbitrator reminded the parties that she had requested support for her authority to award attorney fees, but "none was offered." Opposition at 4 (quoting Arbitrator's supplemental award).
IV. Analysis and Conclusions
We conclude that the Union's exception provides no basis for finding the award deficient. We find that the Arbitrator properly determined that because her award of attorney fees had been voided and set aside by the Authority, she was precluded from correcting the deficiency in her award of attorney fees.
In striking the provision of an award of attorney fees in 38 FLRA 186, we noted that in Washington Flight Service Center, the Authority explicitly stated that in future cases, an award of attorney fees without the required support would be set aside or modified, as appropriate, rather than remanded to the arbitrator for clarification. 38 FLRA at 191. Furthermore, in Laughlin Air Force Base, cited by the Arbitrator, the Authority held that the failure of the parties to provide the Arbitrator with applicable rulings of the Authority on awards of attorney fees by arbitrators did not cure the deficiency of the arbitrator's award of attorney fees without the required support and did not warrant a remand of the case to the arbitrator for clarification. 24 FLRA at 119.
Similarly, in U.S. Army Transportation Center, Ft. Eustis, Virginia and National Association of Government Employees, Local R4-106, 34 FLRA 601 (1990) (NAGE Local R4-106), we denied the union's request for a clarification of the Authority's decision in 33 FLRA 391 (1988), in which the Authority had set aside, in part, an arbitration award. We also denied the union's request that the case be remanded to the arbitrator. In the initial decision in that case, the Authority had set aside the first four remedies awarded by the arbitrator and denied exceptions to the fifth remedy. In NAGE Local R4-106, the union requested that we clarify the decision in 33 FLRA 391 to provide instruction as to whether the case had been remanded to the arbitrator for a more complete opinion or whether the case had been dismissed. The union argued that the arbitrator had sufficient information to render a decision that was not
deficient. The union maintained that the appropriate action was to set aside the award and remand it to the arbitrator.
We found no need to clarify the Authority's decision. We held that when the Authority "sets aside the award in whole or in part, the award is dismissed as to the portion or portions set aside." 34 FLRA at 603. We also found no basis to remand the award to the arbitrator. We held that once we find an award deficient and set aside the award, "a claim that the Arbitrator could now render a legally sufficient decision does not establish a basis on which to remand this case to the Arbitrator." Id. at 604.
In our view, these cases mean that when the Authority sets aside a portion of an arbitration award, that portion of the award is voided and vacated. These cases also mean that all future proceedings with respect to the matter set aside are barred unless the parties jointly agree otherwise. Therefore, the matter involved could not be reopened or reconsidered by the arbitrator absent joint approval of the parties. U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia and National Association of Government Employees, Local R4-19, 39 FLRA 692, 695 (1991) (once the Authority has set aside an arbitrator's award, an arbitrator is precluded from reopening and modifying an award unless both parties request the arbitrator to do so). Consequently, as we indicated in NAGE Local R4-106, it is irrelevant that the arbitrator could subsequently render a decision that is not deficient. For these reasons, we agree with the Arbitrator that because we had voided and set aside her award of attorney fees, she was precluded from reopening the matter of attorney fees to correct the deficiency in her award of attorney fees.
The Authority's decision in Philadelphia Naval Shipyard does not provide otherwise. As noted by the Arbitrator, the issue presented was not one of whether she had jurisdiction to consider a request for attorney fees after an award on the merits had become final and binding under Philadelphia Naval Shipyard; the issue was whether she could clarify the award of fees already awarded after that award had been voided and set aside by the Authority. We also reject the Union's claim that the Arbitrator "jumped the gun" in awarding fees in her initial decision. As noted by the Agency, we have expressly held that "it is not premature to request attorney fees as part of an arbitrator's award on the merits of a grievance." Health Care Financing Administration, Department of Health and
Human Services and American Federation of Government Employees, Local 1923, 35 FLRA 274, 289-90 (1990). If what the Union was attempting to do was merely to reserve the right to file a motion for fees, it was incumbent on the Union to make that reservation understood to the Arbitrator. Instead, the Union failed to respond to the specific request of the Arbitrator for further guidance on what the Arbitrator viewed to be a request for an award of fees. Therefore, this case is in contrast to Allen Park Veterans Administration Medical Center and American Federation of Government Employees, Local 933, 34 FLRA 1091 (1990) (Allen Park VA Medical Center), where "[n]othing in the record indicate[d] that the Union ha[d] requested an award of attorney fees or that the Agency has had an opportunity to respond to a request for fees." 34 FLRA at 1105. Consequently, in Allen Park VA Medical Center, we set aside the award of attorney fees "without prejudice to the Arbitrator's consideration of any request for fees filed by the Union in accordance with the time limits discussed in Philadelphia Naval Shipyard and of any response to such a request filed by the Agency." Id.
Finally, we reject the Union's suggestion that the Union is being penalized for the Arbitrator's inability to write a binding decision. The Authority has repeatedly indicated that it is in the interests of the parties to assure that their arbitrators are advised of pertinent statutory requirements in rendering awards. See Laughlin Air Force Base, 24 FLRA at 119. The Arbitrator specifically requested that the Union provide her further guidance in resolving its request for attorney fees, but "none was offered." Arbitrator's Supplemental Award at 2. In our judgment, the Union is not so much being penalized as suffering the consequences of its failure to provide requested guidance to the Arbitrator that would have enabled her to issue a sustainable award.
The Union's exception is denied.
(If blank, the decision does not have footnotes.)