U.S. Department of the Army, Army Air Defense Center, Fort Bliss, Texas and National Association of Government Employees, Local R14-89 (Authority decision, April 30, 1990)

Final FLRA decision. The Authority dismissed the union's exception to a supplemental attorney fee award for lack of jurisdiction. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award is generally excluded from judicial review unless it involves an unfair labor practice under 5 U.S.C. § 7116. This decision does not decide an unfair labor practice.

Plain-English summary

An arbitrator reduced an Army employee's removal to a 30-day suspension and ordered reinstatement with backpay. He later denied the union's request for attorney fees. The union challenged that supplemental award before the Authority. The Authority held that the fee decision was part of the removal arbitration, a serious adverse action outside its jurisdiction to review arbitration exceptions. It dismissed the exception without deciding whether the fee request was timely or legally warranted.

Decision snapshot

• Authority: 5 U.S.C. §§ 7121(f), 7122(a), and 7512.
• Outcome: Union's exception dismissed for lack of jurisdiction.
• Key point: A supplemental attorney fee award arising from a removal remains part of the removal case for jurisdiction purposes.

Full text (FLRA public release)

[ v35 p970 ]
35:0970(102)AR

The decision of the Authority follows:

35 FLRA No. 102

FEDERAL LABOR RELATIONS
AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE
ARMY

ARMY AIR DEFENSE
CENTER

FORT BLISS, TEXAS

(Agency)

and

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES

LOCAL R14-89

(Union)

0-AR-1807

ORDER DISMISSING
EXCEPTION

April 30, 1990

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 Bennett S. Aisenberg.(*) In the supplemental award, the Arbitrator denied the Union's application 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 Agency filed an opposition to the Union's exception.

For the following reasons, we are without jurisdiction under section 7122(a) of the Statute to review the Union's exception. Accordingly, we will dismiss the exception.

II. Background and Arbitrator's Award

In his original award, the Arbitrator concluded that the Agency's removal of the grievant for deliberate and willful falsification of Government documents for the purposes of the defrauding the Government was unreasonable. The Arbitrator (1) reduced the removal to a 30-day suspension, and (2) directed the Agency to reinstate the grievant and provide her with appropriate backpay and other benefits. The Arbitrator retained jurisdiction over the dispute in the event the parties were unable to agree over the position to which the grievant was to be reinstated or appropriate backpay.

Subsequently, the grievant, through the Union's attorney, requested attorney fees. In the supplemental award, the Arbitrator denied the request. The Arbitrator stated that he "did not intend to rule" on the request and that he intended to "let [his] jurisdiction on this matter expire, and let
[the Union's attorney] pursue whatever means were available to him in the appeal process, if appropriate[.]" Supplemental Award at 1.

III. Positions of the Parties

The Union contends that because the request for attorney fees was submitted timely and in accordance with the requirements of the Back Pay Act, 5 U.S.C. § 5596, the supplemental award is contrary to law. The Agency contends that the Arbitrator properly denied the request for attorney fees because the request was not submitted timely to the Arbitrator.

IV. Analysis and Conclusion

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 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.
§ 7703.

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. See Veterans Administration and American Federation of Government Employees, Local 2610, 33 FLRA 347 (1988). 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. See, for example, American Federation of Government Employees, Local 1547 and U.S. Department of the Air Force, Luke Air Force Base, Arizona, 34 FLRA 47 (1990).

As the supplemental award on attorney fees relates to the removal 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 we will dismiss it.

V.Order

The Union's exception is dismissed.

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

*/
We have identified the Arbitrator's denial
of attorney fees as a "supplemental award" for purposes of our review. The denial is contained in a letter captioned "Discharge of [the grievant] (Request for Attorney Fees)."