U.S. Department of Justice, Immigration and Naturalization Service, Baltimore, Maryland and National Immigration and Naturalization Service Council, American Federation of Government Employees (Authority decision, December 29, 1989)

Final FLRA decision. The Authority dismisses the union's exception for lack of jurisdiction because the fee award supplements an award about a suspension longer than 14 days under 5 U.S.C. §§ 7121(f) and 7512. Review of such an arbitration award may be sought in the U.S. Court of Appeals for the Federal Circuit under 5 U.S.C. § 7703. The Authority does not decide whether fees were warranted.

Plain-English summary

An arbitrator reduced an Immigration and Naturalization Service employee's 30-day suspension to a reprimand and ordered backpay, but denied the union's later request for attorney fees. The union challenged that supplemental fee award before the Authority. The Authority found the exception timely but held that the fee decision remained tied to the original long suspension. Because such suspension awards fall outside its review jurisdiction, it dismissed the exception without deciding the fee issue.

Decision snapshot

• Authority: Long suspension award review limits under 5 U.S.C. §§ 7121(f), 7122(a), and 7512.
• Outcome: Union's attorney fee exception dismissed for lack of Authority jurisdiction.
• Key point: A supplemental fee decision was part of the long suspension award for jurisdictional purposes.

Full text (FLRA public release)

[ v34 p79 ]
34:0079(19)AR

The decision of the Authority follows:

34 FLRA No. 19

FEDERAL LABOR RELATIONS
AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF
JUSTICE

IMMIGRATION AND NATURALIZATION
SERVICE

BALTIMORE, MARYLAND

and

NATIONAL IMMIGRATION AND NATURALIZATION SERVICE
COUNCIL

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

0-AR-1709

ORDER DISMISSING
EXCEPTION

December 29, 1989

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to the supplemental award of Arbitrator Arthur Eliot Berkeley. The National Immigration and Naturalization Service Council, AFGE (the Union) filed an exception under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Immigration and Naturalization Service (the Agency) filed an opposition to the exception.

For the reasons stated below, we are without jurisdiction under section 7122(a) of the Statute to review the Union's exception.

II. Background and Arbitrator's Award

In his original award, the Arbitrator concluded that the 30-day suspension of the grievant for willful, unauthorized use of a Government-owned vehicle was not for just cause. The Arbitrator ordered that the grievant be made whole for all lost wages and benefits. He directed that the 30-day suspension be replaced with a reprimand for unauthorized use of a Government-owned vehicle.

The Union then filed a motion for an award of attorney fees. In the supplemental award, the Arbitrator denied the motion for an award of attorney fees because he found that an award of fees was not in the interest of justice.

III. Positions of the Parties

The Union contends that the Arbitrator's supplemental award is deficient because an award of attorney fees is in the interest of justice. The Union also contends that the supplemental award does not relate to the suspension and that consequently, the Authority has jurisdiction to resolve the exception.

The Agency contends that the exception should be dismissed because the Authority does not have jurisdiction to resolve the exception and because the exception was not timely filed.

IV. Discussion

A. The Union's Exception was Timely
Filed

The Union's exception was hand-delivered to the
Authority's Washington, D.C. regional office on March 20, 1989. The regional office hand-delivered the exception to the Authority's docket room on March 21, 1989. In order to have been timely filed, the exception had to be filed with the Authority's docket room by March 20. On May 18, 1989, the Authority ruled that the Union's exception would be considered timely filed. The Authority waived the requirement of section 2429.24 of its Rules and Regulations requiring that the exception be filed with the Authority's docket room.

The Agency objects to the May 18 Order, claiming that the 30-day period for filing exceptions is jurisdictional and cannot be waived. The Agency's argument is misplaced. The Union's exception was timely filed with the regional office. The time limit for filing exceptions was not waived. Only the regulatory requirement on place of filing was waived in ruling that the Union's exception was timely filed. Therefore, we reject the Agency's argument.

B. We are without Jurisdiction

We are without jurisdiction under section 7122(a) of the Statute to review the Union's exception.

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

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).

The matters described in section 7121(f) include serious adverse actions covered under 5 U.S.C. § 7512, such as suspensions for more than 14 days. Review of arbitration awards relating to such matters, like review of decisions of the Merit Systems Protection Board, may be obtained by filing an appeal with the U.S. Court of Appeals for the Federal Circuit in accordance with 5 U.S.C. § 7703.

We reject the Union's claim that the award resolving the motion for attorney fees is separate from the award resolving the propriety of the 30-day suspension. In our view, an award resolving a request for attorney fees which supplements an award relating to a matter described in section 7121(f) is not separate and distinct from the award resolving the section 7121(f) matter. The award resolving a request for attorney fees relates to the matter described in section 7121(f) and, therefore, is an award over which we have no jurisdiction. For example, Veterans Administration and American Federation of Government Employees, Local 2610, 33 FLRA 347 (1988).

Because the supplemental award on attorney fees relates to the 30-day suspension of the grievant, a matter which is covered under 5 U.S.C. § 7512 and described in section 7121(f), exceptions to the award may not be filed with the Authority under section 7122(a) of the Statute. Consequently, we are without jurisdiction to review the Union's exception and it is hereby dismissed.

V. Order

The Union's exception is dismissed.

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