American Federation of Government Employees, Local 2054 (Union) and United States Department of Veterans Affairs, Central Arkansas, Veterans Healthcare System, North Little Rock, Arkansas (Agency)

[ v58 p163 ]

58 FLRA No. 36







October 25, 2002


Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      This matter is before the Authority on an exception to an award of Arbitrator Joe D. Woodward filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency did not file an opposition to the Union's exception.

      The Arbitrator found that the suspension of the grievant was improper, and he ordered that the grievant be made whole. The Arbitrator did not address the Union's requests for attorney fees. For the following reasons, we remand the matter to the Arbitrator for resolution.

II.     Background and Arbitrator's Award

      An employee was suspended for ten days and a grievance was filed. When the grievance was unresolved, it was submitted to arbitration, where the Arbitrator stated the issue, in pertinent part, as follows: "Did the Agency violate the Master Agreement between the parties when it disciplined the grievant . . ., and, if so, what shall the remedy be?" Award at 3.

      The Arbitrator found that the grievant's suspension was improper and, as relevant here, directed the Agency to make the grievant whole. Although the Union's post-hearing brief requested attorney fees, the Arbitrator did not mention or otherwise address that request in the award.

      Shortly after the award issued, the Union filed a motion with the Arbitrator requesting attorney fees and, approximately three weeks later, the Union filed a timely exception to the award.

III.     Union's Exception

      The Union argues that the Arbitrator erred by failing to respond to its requests for attorney fees. The Union requests that the Authority remand the issue to the parties for resubmission to the Arbitrator, or to a different arbitrator if the Arbitrator is unwilling to address it.

IV.     Analysis and Conclusions

      We construe the Union's exception as a claim that the award is contrary to the attorney fee provisions of the Back Pay Act, 5 U.S.C. §  5596(b)(1). [n2]  The Authority reviews questions of law de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

      The Authority has held that the Back Pay Act does not require an arbitrator to resolve an attorney fee request in the award resolving the merits of a grievance. See, e.g., AFGE, Local 1156, 56 FLRA 1024, 1026 (2000). In this connection, it is well established that under the Back Pay Act, arbitrators are not required to [ v58 p164 ] resolve requests for attorney fees before an award of backpay becomes final and binding. See id.; Phila. Naval Shipyard, 32 FLRA 417, 421 (1988). An arbitral award becomes final and binding when there are no timely exceptions filed or when timely-filed exceptions are denied by the Authority. See United States Dep't of the Navy, Naval Surface Warfare Ctr., Indian Head Div., Indian Head, Md., 56 FLRA 848, 852 (2000). Where an arbitrator's award resolving the merits of a grievance does not resolve a request for attorney fees, the Authority will dismiss without prejudice, as prematurely filed, an exception alleging that the failure to award such fees is deficient. See AFGE, Local 1156, 56 FLRA at 1026.

      Applying this precedent, the Union's timely-filed exception prevented the award from becoming "final and binding." Therefore, the Arbitrator has not heretofore been obligated to resolve the Union's requests.

      Despite the foregoing, this case is unusual in that it is unclear from the record whether the Arbitrator is even aware that the Union has requested attorney fees. In this regard, the initial award makes no mention of the Union's request in its post-hearing brief and, at least as of the time the Union filed its exception, there is no indication in the record that the Arbitrator had acknowledged the Union's motion for attorney fees. As the issuance of this decision renders the Arbitrator's award of backpay "final and binding," the Arbitrator must now resolve the issue of attorney fees and, in so doing, must apply the requirements set forth in the Back Pay Act for awards of attorney fees. [n3]  See, e.g., United States Dep't of Def., Def. Distrib. Region E., New Cumberland, Pa., 51 FLRA 155, 158 (1995) (setting forth requirements for attorney fee awards under Back Pay Act). Accordingly, we dismiss the Union's exception without prejudice and remand the matter to the parties for resubmission to the Arbitrator. [n4]  See AFGE, Local 1156, 56 FLRA at 1026.

V.     Decision

      The Union's exception is dismissed without prejudice. The matter of the Union's attorney fees request is remanded to the parties for resubmission to the Arbitrator.

Dissenting Opinion of Chairman Cabaniss: <