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58 FLRA No. 36
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2054
UNITED STATES DEPARTMENT OF
VETERANS AFFAIRS, CENTRAL ARKANSAS
VETERANS HEALTHCARE SYSTEM
NORTH LITTLE ROCK, ARKANSAS
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.
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:
In light of the Arbitrator's failure to respond to the Union regarding its attorney fee request, especially after the Union went back to the Arbitrator after the award on just that one issue, I see no benefit from dismissing this exception. Doing so will only force the Union to go back to the Arbitrator and make the same request again, and I wouldn't expect the Arbitrator to be any more receptive now than he already hasn't been. Thus, a dismissal will only delay matters with nothing to show for it. Therefore, I would not dismiss the exception but would grant it and remand for resubmission to the Arbitrator (or to another arbitrator if this one is unwilling to entertain the attorney fee request) if the parties do not resolve the fee issue on their own.
Footnote # 1 for 58 FLRA No. 36 - Authority's Decision
Footnote # 2 for 58 FLRA No. 36 - Authority's Decision
An employee of an agency who, on the basis of a timely appeal or an administrative determination (including a decision relating to an unfair labor practice or a grievance) is found by appropriate authority under applicable law, rule, regulation, or collective bargaining agreement, to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials of the employee--(A) is entitled, on correction of the personnel action, to receive for the period for which the personnel action was in effect--
. . . .
(ii) reasonable attorney fees related to the personnel action which . . . shall be awarded in accordance with standards established under section 7701(g) of this title[.]
Footnote # 3 for 58 FLRA No. 36 - Authority's Decision
5 C.F.R. § 550.807(a) provides, in pertinent part, that a request for attorney fees under the Back Pay Act "may be presented only to the appropriate authority that corrected or directed the correction of the unjustified or unwarranted personnel action." The Arbitrator is the "appropriate authority" to resolve those requests because he resolved the grievance concerning the unjustified or unwarranted personnel action involved in this case. See, e.g., United States Dep't of the Navy, Naval Undersea Warfare Ctr., Newport, R.I., 57 FLRA 32, 35 (2001).
Footnote # 4 for 58 FLRA No. 36 - Authority's Decision
With regard to the Union's request to direct the submission of this matter to a different arbitrator, there is no indication in the record that the Arbitrator intends to decline to address the attorney fee issue once his backpay award becomes final and binding -- i.e., once the Authority's decision in this case issues -- and therefore, there is no basis for directing the submission of this matter to a different arbitrator. Cf. Ala. Ass'n of Civilian Technicians, 56 FLRA 231, 235 (2000) (then-Chairman Wasserman dissenting) (Authority directed parties to submit attorney fee issue to a different arbitrator after original arbitrator issued series of deficient awards and expressly declined to reconsider the matter). However, because the exception is dismissed without prejudice, the Union is not precluded from filing exceptions in the event that the Arbitrator refuses to consider its attorney fee requests.