49:1372(122)AR - - NAGE, Local R1-109 and VA Medical Center, Newington, CT - - 1994 FLRAdec AR - - v49 p1372
[ v49 p1372 ]
The decision of the Authority follows:
49 FLRA No. 122
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF VETERANS AFFAIRS
(49 FLRA 815 (1994))
ORDER DENYING MOTION FOR RECONSIDERATION
June 15, 1994
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 Union under section 2429.17 of the Authority's Rules and Regulations seeking reconsideration of our decision dismissing the Union's exceptions in National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut, 49 FLRA 815 (1994).(1) The Agency did not file an opposition to the motion for reconsideration.
For the following reasons, we conclude that the Union has failed to establish that extraordinary circumstances exist warranting reconsideration of our decision. Accordingly, we will deny the Union's motion for reconsideration.
II. The Decision in 49 FLRA 815
In 49 FLRA 815, we determined that the Arbitrator's denial of attorney fees was not supported by a fully reasoned and articulated decision, as required under the Back Pay Act, 5 U.S.C. § 5596. In this regard, we noted that the Arbitrator's finding that attorney fees were not warranted in the interest of justice was conclusory and did not address the statutory criteria relevant to that issue. Accordingly, we set aside the award.
III. Motion for Reconsideration
The Union claims first that the award was fully articulated and reasoned. Second, the Union asserts that the award is based on an erroneous application of criteria applicable to determining attorney fees under the Back Pay Act. The Union also asserts that the FLRA should "look beyond the arbitrator's award to the parties['] pleadings in order to make a proper award of attorney fees." Motion at 7.
The Union acknowledges that, consistent with American Federation of Government Employees, Local 1770 and U.S. Department of the Army, Headquarters, XVIII Airborne Corps, Fort Bragg, North Carolina, 44 FLRA 1287, 1289-90 (1992) (Fort Bragg), the Authority sets aside unarticulated denials of attorney fees. However, the Union claims that the Authority's policy "deprives the Union of the ability to represent its members in arbitration proceedings by demonstrating a lack of enforcement of backpay awards against [an] agency." Motion at 8-9. Accordingly, the Union requests the Authority to reconsider Fort Bragg.
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 a decision or order of the Authority. We conclude that the Union has not established extraordinary circumstances in this case.
In resolving a request for attorney fees under the Back Pay Act, an arbitrator must provide a fully articulated, reasoned decision setting forth specific findings supporting determinations on each pertinent statutory requirement. For example, U.S. Department of the Army, Army Transportation Center, Fort Eustis, Virginia and National Association of Government Employees, Local R4-6, 38 FLRA 186, 191 (1990), request for clarification denied, 40 FLRA 84 (1991). An award granting or denying fees which fails to provide a fully articulated decision is deficient and will be set aside. See Fort Bragg, 44 FLRA at 1289.
We reject the Union's unsupported claim that the Arbitrator's award was fully reasoned and articulated. This claim constitutes mere disagreement with our decision in 49 FLRA 815, and does not establish extraordinary circumstances which warrant reconsideration of that decision. See U.S. Department of the Army, Army Transportation Center, Fort Eustis, Virginia and National Association of Government Employees, Local R4-6, 40 FLRA 945, 946 (1991). Similarly, the Union's request that we make our own findings based on the record constitutes an attempt to relitigate the merits of the attorney fee issue, and provides no basis for reconsidering our decision in 49 FLRA 815. See Equal Employment Opportunity Commission and American Federation of Government Employees, National Council of EEOC Locals No. 216, 49 FLRA 7, 10 (1994), petition for review filed sub nom. Equal Employment Opportunity Commission v. FLRA, No. 94-1168 (D.C. Cir. May 16, 1994).
Finally, we deny the Union's request that we reconsider Fort Bragg. The request constitutes nothing more than disagreement with our determination in Ft. Bragg, to set aside unarticulated denials of fees. We have previously determined that such disagreement provides no basis for reconsidering that decision. See U.S. Department of the Army, Fort Polk, Louisiana and National Association of Government Employees, Local R5-168, 45 FLRA 971 (1992), petition for declaratory relief and writ of mandamus dismissed sub nom. National Association of Government Employees v. McKee, Armendariz, Talkin and FLRA, No. 2:93-CV83 (E.D. Va. June 29, 1993).
As the Union has not established that extraordinary circumstances exist warranting reconsideration of our decision in 49 FLRA 815, we will deny the Union's motion.
The Union's motion for reconsideration is denied.
(If blank, the decision does not have footnotes.)
1. The Union also filed a separate request that the Authority take official notice of, and apply, a recent Merit Systems Protection Board decision. However, as the Authority's Rules and Regulations do not provide for the filing of supplemental submissions, we have not considered the submission. For example, U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California and Federal Employees Metal Trades Council, 49 FLRA 802 n.1 (1994).