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55 FLRA No. 33
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL OF
U.S. DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
February 11, 1999
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
Decision by Member Wasserman for the Authority.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Bernard Marcus 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 Regulations. [n1] The Agency did not file an opposition to the Union's exception.
The Arbitrator sustained the grievance and awarded affected employees backpay. However, the Arbitrator denied the Union's request for an award of attorney fees. We find that the denial of the Union's request is deficient, and we remand the award.
II. Background and Arbitrator's Award
The Union filed a grievance, which claimed that the Agency was assigning overtime improperly. The Arbitrator sustained the grievance to the extent that the Agency had forced employees to take compensatory time off instead of paying them overtime. He awarded backpay to all employees who had suffered a loss in overtime pay as a result of the Agency's improper actions. In addition, the Arbitrator noted that in its post-hearing brief, the Union had requested an award of attorney fees. He resolved the request as follows:
This claim for relief is not sought in the grievance or any of the other pre-arbitration documents. Nor was it litigated, or even referenced, at the hearing. The claim is denied.
Award at 15 n.14. For the same reasons, he denied the Union's request for reconsideration of the denial.
III. Union's Exception
The Union contends that the Arbitrator's denial of its request for an award of attorney fees is contrary to the Back Pay Act, 5 U.S.C. § 5596. The Union maintains that nothing in the Act or its implementing regulations (5 C.F.R. § 550.807) precluded the Arbitrator from addressing its request for fees.
IV. Analysis and Conclusions
When an exception to an award involves the consistency of the award with law, we review de novo the questions of law raised by the award and the exception. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995). In applying a de novo standard of review, we assess whether the arbitrator's legal conclusions are consistent with the applicable standard of law.
The Back Pay Act confers jurisdiction on an arbitrator to consider a request for attorney fees at any time during the arbitration or within a reasonable period of time after the arbitrator's award of backpay becomes final and binding. See, e.g., U.S. Department of the Army, Red River Army Depot, Texarkana, Texas and National Association of Government Employees, Local R14-52, 54 FLRA 759, 761 n.1 (1998) (NAGE Local R14-52); U.S. Department of the Army, Red River Army Depot, Texarkana, Texas and National Association of Government Employees, Local R14-52, 39 FLRA 1215, 1221 (1991) (Red River Army Depot) (citing Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 32 FLRA 417 (1988)).
In addition, parties can negotiate into their collective bargaining agreement time limits and other procedures to govern the filing of requests for attorney fees. See U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region East, New Cumberland, Pennsylvania and American Federation of Government Employees, Local 2004, 47 FLRA 791, 794-96 (1993) (Defense Distribution Region East).
We conclude that the Back Pay Act conferred jurisdiction on the Arbitrator in this case to consider on the merits the Union's request for attorney fees raised in [ v55 p193 ] its post-hearing brief, even though the request was not made in the grievance or any other pre-arbitration documents and was not litigated or referenced at the hearing. See NAGE Local R14-52, 54 FLRA at 761 n.1; Red River Army Depot, 39 FLRA at 1221. Unless precluded by the parties' agreement, the Arbitrator was compelled to address the merits of the Union's request, and the Arbitrator's articulated basis for denying the Union's request is inconsistent with the Back Pay Act. See Defense Distribution Region East, 47 FLRA at 794-95; Red River Army Depot, 39 FLRA at 1221. Accordingly, we remand the award to the parties for resubmission to the Arbitrator, absent settlement, to consider the Union's request for an award of attorney fees, in accordance with the Back Pay Act, 5 C.F.R. § 550.807, and applicable provisions of the parties' collective bargaining agreement. See Defense Distribution Region East, 47 FLRA at 795-96.
The award is remanded for further proceedings consistent with this decision.
Footnote # 1 for 55 FLRA No. 33