American Federation of Government Employees, Council of Prison Locals and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Texarkana, Texas (Authority decision, February 11, 1999)

FLRA remand decision. The Authority sets aside the denial of attorney fees and returns that question to the parties for resubmission to the arbitrator absent settlement. The fee claim remains unresolved. This decision does not present a final judicial-review period under 5 U.S.C. § 7123(a).

Plain-English summary

An arbitrator found that FCI Texarkana had improperly given employees compensatory time instead of overtime pay and awarded backpay. He denied the union’s attorney fee request because it first appeared in a posthearing brief. The Authority held that the Back Pay Act allowed the arbitrator to consider a fee request at that stage unless the parties’ agreement set a valid limit. It returned the fee issue to the parties for resubmission to the arbitrator if they did not settle. The decision does not decide whether fees are owed.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a); attorney fees under the Back Pay Act.
• Outcome: Attorney fee denial set aside; fee request remanded for a merits decision.
• Key point: A fee request in a posthearing brief can be timely under the Back Pay Act absent a governing contract limit.

Full text (FLRA public release)

[ v55 p192
]

55 FLRA No. 33

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, COUNCIL OF

PRISON LOCALS

(Union)

and

U.S. DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS

FEDERAL CORRECTIONAL INSTITUTION

TEXARKANA, TEXAS

(Agency)

0-AR-3099-001

_____

DECISION

February 11, 1999

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

Decision by Member Wasserman for the Authority.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Bernard Marcus 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. [n1] The Agency did not file an opposition to the Union's exception.

The Arbitrator sustained the grievance and awarded affected employees backpay. However, the Arbitrator denied the Union's request for an award of attorney fees. We find that the denial of the Union's request is deficient, and we remand the award.

II. Background and Arbitrator's Award

The Union filed a grievance, which claimed that the Agency was assigning overtime improperly. The Arbitrator sustained the grievance to the extent that the Agency had forced employees to take compensatory time off instead of paying them overtime. He awarded backpay to all employees who had suffered a loss in overtime pay as a result of the Agency's improper actions. In addition, the Arbitrator noted that in its post-hearing brief, the Union had requested an award of attorney fees. He resolved the request as follows:

This claim for relief is not sought in the grievance
or any of the other pre-arbitration documents. Nor
was it litigated, or even referenced, at the hearing.
The claim is denied.

Award at 15 n.14. For the same reasons, he denied the
Union's request for reconsideration of the denial.

III. Union's Exception

The Union contends that the Arbitrator's denial of its request for an award of attorney fees is contrary to the Back Pay Act, 5 U.S.C. § 5596. The Union maintains that nothing in the Act or its implementing regulations (5 C.F.R. § 550.807) precluded the Arbitrator from addressing its request for fees.

IV. Analysis and Conclusions

When an exception to an award involves the consistency of the award with law, we review de novo the questions of law raised by the award and the exception. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995). In applying a de novo standard of review, we assess whether the arbitrator's legal conclusions are consistent with the applicable standard of law.

The Back Pay Act confers jurisdiction on an arbitrator to consider a request for attorney fees at any time during the arbitration or within a reasonable period of time after the arbitrator's award of backpay becomes final and binding. See, e.g., U.S. Department of the Army, Red River Army Depot, Texarkana, Texas and National Association of Government Employees, Local R14-52, 54 FLRA 759, 761 n.1 (1998) (NAGE Local R14-52); U.S. Department of the Army, Red River Army Depot, Texarkana, Texas and National Association of Government Employees, Local R14-52, 39 FLRA 1215, 1221 (1991) (Red River Army Depot) (citing Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 32 FLRA 417 (1988)).

In addition, parties can negotiate into their collective bargaining agreement time limits and other procedures to govern the filing of requests for attorney fees. See U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region East, New Cumberland, Pennsylvania and American Federation of Government Employees, Local 2004, 47 FLRA 791, 794-96 (1993) (Defense Distribution Region East).

We conclude that the Back Pay Act conferred jurisdiction on the Arbitrator in this case to consider on the merits the Union's request for attorney fees raised in [ v55 p193 ] its post-hearing brief, even though the request was not made in the grievance or any other pre-arbitration documents and was not litigated or referenced at the hearing. See NAGE Local R14-52, 54 FLRA at 761 n.1; Red River Army Depot, 39 FLRA at 1221. Unless precluded by the parties' agreement, the Arbitrator was compelled to address the merits of the Union's request, and the Arbitrator's articulated basis for denying the Union's request is inconsistent with the Back Pay Act. See Defense Distribution Region East, 47 FLRA at 794-95; Red River Army Depot, 39 FLRA at 1221. Accordingly, we remand the award to the parties for resubmission to the Arbitrator, absent settlement, to consider the Union's request for an award of attorney fees, in accordance with the Back Pay Act, 5 C.F.R. § 550.807, and applicable provisions of the parties' collective bargaining agreement. See Defense Distribution Region East, 47 FLRA at 795-96.

V. Decision

The award is remanded for further proceedings consistent with this decision.

Footnote # 1 for 55 FLRA No. 33

The Authority dismissed procedurally the Agency's
exceptions to the award by an order dated September 30, 1998.