52:1471(137)AR - - Navy, Mare Island Naval Shipyard, Vallejo, CA and Federal Employees Metal Trades Council, Local 217 - - 1997 FLRAdec AR - - v52 p1471

[ v52 p1471 ]
The decision of the Authority follows:

52 FLRA No. 137















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.

III. Exceptions

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 se