Alabama Association of Civilian Technicians and U.S. Department of Defense, Alabama State Military Department, Alabama National Guard (Authority decision, May 3, 1996)

Final FLRA decision. The Authority denies an exception to an arbitration award about attorney fees. 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 address an unfair labor practice.

Plain-English summary

An arbitrator ordered backpay for an Alabama National Guard employee who was paid too little during a temporary promotion. The arbitrator declined the union's request to keep the case open for an attorney-fee application. The union claimed that refusal was unlawful and asked the Authority to return the award to the arbitrator. The Authority denied the exception because the Back Pay Act lets an arbitrator consider a later fee request without expressly retaining jurisdiction, and the union had not yet submitted one. It said the union could still seek fees within a reasonable time after this decision made the award final and binding.

Decision snapshot

• Authority: Arbitration exceptions under 5 U.S.C. § 7122(a) and attorney fees under the Back Pay Act, 5 U.S.C. § 5596.
• Outcome: Union exception denied; backpay award stands and a timely fee request remains possible.
• Key point: An arbitrator need not retain jurisdiction in the award to consider a later attorney-fee request.

Full text (FLRA public release)

[ v51 p1262 ]

51:1262(101)AR

The decision of the Authority follows:

51 FLRA No. 101

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

ALABAMA ASSOCIATION OF CIVILIAN TECHNICIANS

(Union)

and

U.S. DEPARTMENT OF DEFENSE

ALABAMA STATE MILITARY DEPARTMENT

ALABAMA NATIONAL GUARD

(Agency)

0-AR-2792

_____

DECISION

May 3, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator James E. Giblin filed by the Union under section 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 sustained a grievance disputing the grievant's pay rate but declined to retain jurisdiction for the purpose of addressing the Union's request for attorney fees.

We conclude that the Union has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Union's exception.

II. Arbitrator's Award

The Union filed a grievance claiming that the Agency failed to compensate the grievant at the appropriate pay rate after he had accepted a temporary promotion to a supervisory position. The Arbitrator sustained the grievance and ordered that the grievant receive backpay in an amount equal to "the unpaid portion" of the compensation he should have received during the period of his temporary promotion. Award at 14. However, the Arbitrator "decline[d] to retain jurisdiction, as requested by the Union, to allow the Union to submit its attorney fee application within 30 days" after issuance of the award. Id.

III. Positions of the Parties

The Union contends that the Arbitrator's failure to award the Union attorney fees and retain jurisdiction to permit the Union to submit a request for such fees is contrary to law and relevant Authority decisions. According to the Union, arbitrators are required by the Back Pay Act to determine claims for attorney fees once an award on the merits becomes final. The Union requests the Authority to remand the award to the Arbitrator.

IV. Analysis and Conclusions

It is well established that under the Back Pay Act, 5 U.S.C. § 5596, and implementing regulations, 5 C.F.R. Part 550, an arbitrator may retain jurisdiction after issuing an award for the purpose of considering requests for attorney fees. See U.S. Department of the Treasury, U.S. Customs Service, Nogales, Arizona and National Treasury Employees Union, Chapter 116, 48 FLRA 938, 940 (1993). However, an arbitrator is not required to do so in order to entertain a request for attorney fees. See Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 32 FLRA 417, 420-22 (1988) (Philadelphia Naval Shipyard). Instead, as the "Back Pay Act confers statutory jurisdiction on an arbitrator to consider an attorney fee request[,]" such a request may be submitted to an arbitrator after issuance of an award, provided the request is submitted within whatever time limits have been agreed upon by the parties or, in the absence of an agreement, within a "reasonable time after an award . . . becomes final and binding." Id.

As the Union has not submitted a request for attorney fees, there is no basis on which to conclude that the Arbitrator erred in failing to award such fees. See International Association of Fire Fighters, Local F-89 and U.S. Department of the Army, Headquarters, Fort Sam Houston, Fort Sam Houston, Texas, 50 FLRA 327, 329 (1995) (International Association of Fire Fighters). Moreover, as the Arbitrator was not required by law, regulation, or Authority precedent to retain jurisdiction in this case, his failure to do so does not render the award deficient under section 7122(a) of the Statute. Accordingly, we will deny the Union's exception.

Notwithstanding the foregoing, as the Union filed exceptions to the award, it did not become final and binding until the date of this decision. Philadelphia Naval Shipyard, 32 FLRA 420-422. As such, even though the Arbitrator did not retain jurisdiction, the Union may file a request for fees, within a reasonable time from this date, consistent with the Arbitrator's statutory jurisdiction over this matter. International Association of Fire Fighters, 50 FLRA at 329.

V. Decision

The Union's exception is denied.

FOOTNOTES:

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