[ v52 p1471 ]
The decision of the Authority follows:
52 FLRA No. 137
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE NAVY
MARE ISLAND NAVAL SHIPYARD
FEDERAL EMPLOYEES METAL TRADES COUNCIL
May 9, 1997
Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Philip Tamoush 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 Regulations. The Union filed an opposition to the Agency's exceptions.(1)
The Arbitrator issued an award on October 10, 1995 (original award) sustaining a grievance alleging that the Agency violated reduction-in-force (RIF) regulations when it separated the grievant from service during a RIF. In that award, the Arbitrator ordered the grievant's reinstatement, backpay, and attorney fees and retained jurisdiction solely for the purpose of resolving any dispute between the parties over the specific remedy to be granted the grievant and the amount of attorney fees. In a supplemental award issued on February 6, 1996 (supplemental award), the Arbitrator awarded specific backpay and attorney fees.
For the following reasons, we conclude that the Agency's exceptions were untimely filed. Accordingly, we dismiss the exceptions.
II. Background and Arbitrator's Award
A. Original Award
The grievant was an Ocean Engineering Pipefitter (OEP) in Shop 56 when the Agency conducted a RIF in 1990 that resulted in the grievant's separation. The Union filed a grievance alleging, as relevant here, that the grievant should have been permitted to "retreat" to a position in Shop 99 where an OEP with less seniority had been retained. Original Award at 3.(2) When the parties could not resolve the grievance, the matter was submitted to arbitration, where the Arbitrator framed the issue as:
Was [the grievant] properly separated from service during the 1990 [RIF]? If not, what is the appropriate remedy?
Id. at 2.
In the original award, the Arbitrator concluded that the Agency misapplied the RIF regulations and should have allowed the grievant to retreat to the position in Shop 99. Consequently, the Arbitrator concluded that the Agency improperly separated the grievant from employment. As relevant here, the Arbitrator ordered the Agency to:
1. [R]einstate the [g]rievant to an [OEP] position in Shop 99 or as otherwise agreed by her and her Union with full back pay, seniority and benefits for which she would have qualified but for her improper separation from [s]ervice during the 1990 RIF.
2. [P]ay reasonable interest and [a]ttorneys fees as provided by statute and precedent.
Id. at 13. The Arbitrator also retained jurisdiction "solely for the purpose of resolving any dispute between the Parties over the specific remedy to be granted [the grievant] and the amount of interest and fees." Id.
B. Supplemental Award
Approximately 2 months after issuance of the original award, the Agency notified the Arbitrator that it disagreed with his award and that it "intend[ed] to appeal the Opinion when [the] matter [became] final." Exceptions, Exhibit 4 at 1. The Arbitrator informed the Agency that he would not act on its submission unless both parties agreed to further retain him relative to legal questions about the remedy.
Subsequently, the Union submitted to the Arbitrator a list of the grievant's backpay entitlements. Thereafter, noting the parties' submissions, the Arbitrator advised them that he was giving them an opportunity to respond before he "issue[d] any final clarification, more specific award, etc." Id., Exhibit 7. Both parties submitted responses.
In the supplemental award, the Arbitrator determined that the grievant was entitled to backpay and reasonable interest, less monies earned by the grievant during the separation. The Arbitrator accepted the calculations submitted by the Union on the specific amount of backpay and interest due for the period of September 1990 through December 1995. The Arbitrator also determined that the grievant was entitled to attorney fees in the interest of justice.
A. Agency's Contentions
The Agency contends that the award is deficient on three grounds. First, the Agency contends that "a back pay award which is greater than zero is contrary to law, rule, and regulation." Exceptions at 4. Second, the Agency asserts that "a back pay award which extends beyond 1991 is contrary to law, rule, and regulation." Id. Third, the Agency argues that "[a]n attorney fee award which is greater than zero is contrary to law, rule, and regulation." Id.
As to its first exception, the Agency asserts that the Arbitrator erred in awarding the grievant any backpay, and, as such, the award is contrary to the Back Pay Act and its implementing regulation. The Agency asserts that the grievant would have been separated in 1990 despite the Agency's misinterpretation of the RIF regulations, and, therefore, there is no justification for reversing the RIF and awarding backpay.
As to its second exception, the Agency asserts that, even if it erred in failing to place the grievant in the Shop 99 position during the 1990 RIF, the grievant is not entitled to full backpay because the grievant would have been separated during a subsequent RIF in 1991. Therefore, according to the Agency, the grievant can be entitled under the Back Pay Act and its implementing regulation to backpay for no longer than 11 months: the period of time from the date in 1990 that the grievant was in fact separated until the time that she would have been separated as a result of the 1991 RIF. In this regard, the Agency asserts that after the original award, it submitted unrebutted evidence to the Arbitrator that showed that if the grievant had been allowed to retreat to the Shop 99 position in 1990, she would have been separated during the 1991 RIF.
As to its third exception, the Agency claims that the Arbitrator's determination that attorney fees were warranted in the interest of justice is contrary to the Back Pay Act.
B. Union's Opposition
The Union asserts that the award is not deficient because it is not contrary to law, rule, or regulation.
IV. Analysis and Conclusions
The time limit for filing exceptions to an arbitration award is 30 days beginning on the date that a final award is served on the filing party. 5 C.F.R. § 2425.1(b). As neither party filed exceptions to the original award, it became final and binding. E.g., U.S. Department of Defense, Defense Distribution Region East, New Cumberland, Pennsylvania and American Federation of Government Employees, Local 2004, 51 FLRA 155, 159 (1995); Patent and Trademark Office and Patent Office Professional Association, 22 FLRA 7, 10 (1986). In this regard, the retention of jurisdiction by the Arbitrator to resolve problems that might arise concerning the original award did not extend the time limit for filing exceptions to the award. See United States Customs Service, Region I, Boston, Massachusetts and National Treasury Employees Union, 15 FLRA 816, 817 (1984). Only where an arbitrator modifies an award in such a way as to give rise to the deficiencies alleged in the exception does the filing period begin with a supplemental award. Id.
Consistent with the foregoing, it is necessary to determine whether the three deficiencies alleged in the Agency's exceptions arose from the original award, or whether they arose from the supplemental award. For the following reasons, we conclude that the deficiencies alleged in the Agency's exceptions arose from the original award, not from the supplemental award.
In the original award, the Arbitrator found a causal connection between the Agency's misapplication of the RIF regulations and the grievant's separation and entitlement to backpay. The Arbitrator concluded, therefore, that the grievant "was not properly separated . . . during the 1990 [r]eduction in [f]orce." Original Award at 13. By contending that the grievant is not entitled to any backpay because there was no causal connection between its misapplication of the RIF regulations and the grievant's separation, the Agency is challenging the Arbitrator's determination in the original award that the grievant was not properly separated during the 1990 RIF. That is, the first exception does not challenge a matter that arose from the supplemental award. As the deficiency alleged in the exception arose from the original award, the Agency's first exception is untimely.
Turning to the second exception, the original award was issued over 4 years after the date on which the Agency claims that the grievant would have been separated as a result of the 1991 RIF. The original award specifically ordered reinstatement of the grievant with full backpay. The original award of reinstatement and full backpay encompassed the entire period up to the time of the award, including the disputed 11-month period in 1990 and 1991. Accordingly, the specific matter to which the Agency has excepted was encompassed in the original award ordering reinstatement of the grievant with full backpay. As the deficiency alleged in the exception arose from the original award, the Agency's second exception is untimely.
Finally, in the original award, the Arbitrator ordered the Agency to "pay reasonable interest and [a]ttorneys [f]ees as provided by statute and precedent." Id. The Arbitrator reserved for subsequent determination only "the amount of interest and fees." Id. Because the Arbitrator retained jurisdiction only for the purpose of resolving disputes over the amount of interest and fees, it is clear that the Arbitrator determined in the original award that attorney fees were warranted. The Agency's third exception challenges the Arbitrator's determination in the original award that attorney fees were warranted, not the Arbitrator's determination in the supplemental award as to the amount of fees. As the deficiency alleged in this exception arose from the original award, the Agency's third exception is untimely.
The exceptions are dismissed.
(If blank, the decision does not have footnotes.)
1. The Agency filed a reply to the Union's opposition. The Authority's Regulations do not provide for the filing of supplemental submissions, and the Agency fails to demonstrate a reason for the Authority to consider its reply in this case. Accordingly, we have not considered the Agency's supplemental submission. See U.S. Department of the Army, Fort Polk, Louisiana and National Association of Government Employees, Local R5-168, 45 FLRA 971, 971 n.* (1992).
2. "Retreat" refers to the right of employees to displace others who occupy positions with lower retention standing. See 5 C.F.R. § 351.701(a).