American Federation of Government Employees, Local 1547 and U.S. Department of the Air Force, Luke Air Force Base, Arizona (Authority decision, December 27, 1989)

Final FLRA decision. The Authority dismisses the union's exception for lack of jurisdiction because the fee award supplements an arbitration award about a removal 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 employee's removal to a six-month suspension and ordered reinstatement and some backpay. In a supplemental award, he denied the union's request for attorney fees. The union challenged that denial before the Authority. Because the fee award remained tied to the original removal, the Authority held that it lacked jurisdiction to review the exception and dismissed it without reaching the merits.

Decision snapshot

• Authority: Arbitration review limit for removals 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 award is not separate from the underlying removal award for jurisdictional purposes.

Full text (FLRA public release)

[ v34 p47 ]
34:0047(12)AR

The decision of the Authority follows:

34 FLRA No. 12

FEDERAL LABOR RELATIONS
AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

LOCAL 1547

and

U.S. DEPARTMENT OF THE AIR
FORCE

LUKE AIR FORCE BASE,
ARIZONA

0-AR-1772

ORDER DISMISSING
EXCEPTION

December 27, 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 Julius Rezler. In the supplemental award, the Arbitrator denied the application of AFGE Local 1547 (the Union) for attorney fees.

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 Department of the Air Force (the Agency) filed an opposition to the Union's exception on behalf of Luke Air Force Base (the Activity).

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

II. Background and the Arbitrator's
Award

In his original award, the Arbitrator reduced the removal of the grievant to a 6-month suspension. The Arbitrator directed the Activity to reinstate the grievant to his former position after the grievant was found to be fit for duty. The Arbitrator awarded the grievant backpay from the date the 6-month suspension expired until the date of his medical fitness for duty examination. The Arbitrator also denied the preliminary request of the Union for an award of attorney fees. The Arbitrator subsequently suspended the denial of the application for attorney fees and permitted the parties to file briefs on whether an award of attorney fees was warranted.

In the supplemental award, the Arbitrator denied the application for attorney fees because he found that an award of fees was not warranted in the interest of justice.

III. Positions of the Parties

The Union contends that the award is contrary to law because the Arbitrator erred in determining that the interest-of-justice standard had not been met. The Agency contends that the award is not deficient because an award of fees is not warranted under the interest-of-justice standard.

IV. Discussion

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. º 7512, such as removals. 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. º 7703.

In our view, an award resolving a request for attorney fees supplementing an arbitrator's earlier award relating to a matter described in section 7121(f) is not separate and distinct from the earlier award. 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 removal of the grievant, a matter which is covered under 5 U.S.C. º 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 we will dismiss it.

V. Order

The Union's exception is dismissed.

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