48:0938(101)AR - - Treasury, U.S. Customs Service, Nogales, AZ and NTEU, Chapter 116 - - 1993 FLRAdec AR - - v48 p938

[ v48 p938 ]
The decision of the Authority follows:

48 FLRA No. 101













(47 FLRA 1391 (1993))



November 24, 1993


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on a motion filed by the Agency under section 2429.17 of the Authority's Rules and Regulations seeking reconsideration of our order in 47 FLRA 1391 dismissing the Agency's exceptions to an arbitration award as untimely filed. The Union filed an opposition to the motion. For the following reasons, we conclude that the Agency has failed to establish that extraordinary circumstances exist warranting reconsideration of our order. Accordingly, we will deny the motion for reconsideration.

II. The Authority's Order in 47 FLRA 1391

In 45 FLRA 1391, we determined that the Agency's exceptions to the Arbitrator's award were untimely filed. We noted that, as the Arbitrator's award was served on the parties by mail on February 12, 1993, any exception to that award had to be postmarked by the U.S. Postal Service or delivered in person to the Authority no later than March 22, 1993, in order to be timely filed. Because the Agency' exceptions were mailed in an envelope without a postmark and received by us on April 20, 1993, we presumed, in accordance with section 2429.21(b) of the Authority's Rules and Regulations, that the exceptions were filed on April 15, 1993. Accordingly, we dismissed the exceptions as untimely filed. In so ruling, we rejected the Agency's claim that, because the Arbitrator retained jurisdiction for 30 days after issuing the award in order to resolve the Union's request for attorney fees, the award was an interim award.

III. Positions of the Parties

The Agency contends that our order in 47 FLRA 1391 is "inconsistent with relevant case law and is contrary to fundamental federal labor policies." Motion at 1. The Agency contends that the February 12 award was not a final award to which exceptions could be filed because the Arbitrator retained jurisdiction to address the Union's request for attorney fees. The Agency notes that section 2429.11 of the Authority's Rules and Regulations, which provides that the Authority ordinarily will not consider interlocutory appeals, means that "exceptions to an arbitration award will not be considered unless the award constitutes a complete determination of all issues submitted to arbitration." Id. In support, the Agency relies on American Federation of Government Employees Local 12 and U.S. Department of Labor, 38 FLRA 1240 (1990) (Department of Labor) and American Federation of Government Employees, General Committee and Department of Health and Human Services, Social Security Administration, 32 FLRA 173 (1988) (Social Security Administration). The Agency also relies on several Federal court decisions in which arbitration awards were found to be interim because issues before the arbitrator remained unresolved (1) as well as on 28 U.S.C. § 1291, which concerns judicial review of certain district court judgments.

The Union contends that the Authority properly dismissed the Agency's exceptions.

IV. Analysis and Conclusions

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish extraordinary circumstances to request reconsideration of an Authority decision. We conclude that the Agency has not established such extraordinary circumstances in this case.

The grievance involved in this case concerned the propriety of a proposed 14-day suspension of an employee. The Arbitrator concluded that, although a 14-day suspension was not warranted, an official reprimand was justified. As his award, the Arbitrator ordered, among other things, the withdrawal of the proposed 14-day suspension and the issuance of a letter of reprimand in its place. The Arbitrator retained jurisdiction for 30 days in order for the parties to address the Union's request for attorney fees.

A threshold requirement for entitlement to attorney fees under the Back Pay Act is an award of backpay. See Department of Health and Human Services, Public Health Service, Region IV, Atlanta, Georgia and National Treasury Employees Union, Chapter 210, 34 FLRA 823, 829 (1990). In this regard, "Congress intended to provide for recovery of attorney fees subsequent to a successful grievance; that is, after an arbitrator has . . . awarded backpay." Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 32 FLRA 417, 420 (1988). Moreover, as "determinations as to whether . . . backpay is a legally authorized remedy cannot be made until an award becomes final and binding," parties are not required to request, and arbitrators are not required to decide requests for, attorney fees "before the award becomes final and binding." Id. An award becomes final and binding under section 7122 of the Statute when (1) the period for filing exceptions expires, (2) the Authority issues a decision resolving exceptions, or (3) exceptions are withdrawn. National Association of Government Employees, Local R4-106 and Department of the Air Force, Langley Air Force Base, Virginia, 32 FLRA 1159, 1164 (1988).

Consistent with the Authority's holding that arbitrators are not required to decide requests for attorney fees before awards of backpay become final and binding, we conclude that an arbitrator's retention of jurisdiction solely to decide requests for attorney fees does not automatically render interim an award on the merits of an underlying grievance.(2) Accordingly, it is necessary to determine whether the February 12 award is otherwise interim.(3)

In this case, the Arbitrator did not label his February 12, 1993, award as an interim award and nothing in the award otherwise indicates that the Arbitrator intended it to be interim. Moreover, t