Veterans Administration and American Federation of Government Employees, Local 2610 (Authority decision, October 26, 1988)

Final FLRA decision. The Authority dismisses exceptions to an attorney fee ruling tied to an employee removal because it lacks jurisdiction under 5 U.S.C. § 7122(a). Section 7121(f) applies the judicial review provisions of 5 U.S.C. § 7703 to the arbitration award in the same manner and under the same conditions as if the Merit Systems Protection Board had decided the matter.

Plain-English summary

An arbitrator ordered the Veterans Administration to reinstate a removed claims adjudicator and provide lost pay and benefits. He later denied the union's attorney fee request as untimely and outside the interest of justice. The union filed exceptions to that supplemental ruling with the Authority. The Authority held that the fee award was part of the removal matter, which 5 U.S.C. § 7121(f) places outside its arbitration review jurisdiction. It dismissed the exceptions without deciding whether the fees should have been awarded.

Decision snapshot

• Authority: Arbitration review limits under 5 U.S.C. §§ 7121(f) and 7122(a).
• Outcome: Union's attorney fee exceptions dismissed for lack of jurisdiction.
• Key point: A supplemental attorney fee ruling remains tied to the underlying removal award for jurisdictional purposes.

Full text (FLRA public release)

[ v33 p347 ]
33:0347(44)AR

The decision of the Authority follows:

33 FLRA No. 44

FEDERAL LABOR RELATIONS
AUTHORITY

WASHINGTON, D.C.

VETERANS
ADMINISTRATION

and

AMERICAN FEDERATION OF
GOVERNMENT

EMPLOYEES, LOCAL
2610

0-AR-1540

ORDER DISMISSING
EXCEPTIONS

October 26,
1988

Before Chairman Calhoun and Member
McKee.

This case is before the Authority on exceptions to the supplementary award of Arbitrator Samuel J. Nicholas, Jr. The exceptions were filed by the American Federation of Government Employees, Local 2610 (the Union) under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. For the reasons stated below, the Authority is without jurisdiction to review the Union's exceptions and they must be dismissed.

In his original award, the Arbitrator concluded that the removal of the grievant, a GS-9 claims adjudicator, for alleged misconduct was not for just and sufficient cause. The Arbitrator ordered that the grievant be reinstated and made whole for lost backpay and benefits. The Union then filed an application for attorney fees with the Arbitrator. The Arbitrator denied the Union's request in his supplementary award on the basis that the request was not filed timely and, further, that an award of attorney fees was not in the interest of justice. The exceptions that are before us concern the Arbitrator's supplementary award.

Section 7122(a) of the Statute provides, in pertinent part:

Either party to arbitration under this chapter may file with the Authority an exception to any arbitrator's award pursuant to the arbitration (other than an award relating to a matter described in section 7121(f) of this title).

As relevant here, the matters described in section 7121(f) include adverse actions under 5 U.S.C. § 7512, such as a removal. Review of an arbitration award relating to such a matter must be obtained in accordance with 5 U.S.C. § 7703, that is, in the same manner and under the same conditions as if the matter had been decided by the Merit Systems Protection Board. See U.S. Department of Transportation, Federal Aviation Administration, Eastern Region and Professional Airways Systems Specialists, MEBA, AFL-CIO, 28 FLRA 345 (1987).

An award of attorney fees by an arbitrator in supplement to an award relating to a matter described in section 7121(f) is not separate and distinct from the award directly resolving the section 7121 matter. Therefore, an award of attorney fees relates to a matter covered under section 7121(f) over which the Authority has no jurisdiction. Veterans Administration Medical Center, Hines, Illinois and Illinois Nurses Association, Hines Local Unit, 20 FLRA 510 (1985).

Since the Arbitrator's supplementary award relates to a matter that is covered by 5 U.S.C. § 7512--the removal of the grievant--an exception to the award may not be filed with the Authority under section 7122(a) of the Statute. Therefore, the Authority is without jurisdiction to review the Union's exceptions.

Accordingly, the Union's exceptions are
dismissed.

FOOTNOTES:
(If blank, the decision does not
have footnotes.)