Air Force San Antonio Air Logistics Center, Kelly AFB and AFGE Local 1617 (Authority decision, September 11, 2002)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority involving an arbitral award under 5 U.S.C. § 7122. Judicial review under 5 U.S.C. § 7123(a) generally does not extend to such an order unless the order involves an unfair labor practice under 5 U.S.C. § 7116. This decision resolves exceptions to an arbitration award and does not state that it involves an unfair labor practice.

Plain-English summary

An arbitrator issued a supplemental order requiring employee information and backpay calculations to implement an environmental differential pay award. The Authority had set aside that underlying award in a related decision. It therefore found the supplemental order moot and set it aside. The decision also held that no further proceedings on the union's statutory attorney-fee application were authorized because the basis for fees had been removed. Member Pope concurred in the mootness ruling while maintaining her disagreement with the decision setting aside the underlying award.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a).
• Outcome: Supplemental order set aside as moot; further statutory fee proceedings not authorized.
• Key point: An implementation order and related fee request lost their basis when the underlying backpay award was set aside.

Full text (FLRA public release)

[ v58 p71 ]

58 FLRA No. 14

UNITED STATES

DEPARTMENT OF THE AIR FORCE

SAN ANTONIO AIR LOGISTICS CENTER

KELLY AIR FORCE BASE

SAN ANTONIO, TEXAS

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 1617

(Union)

0-AR-3469

(Supplemental Order)

_____

DECISION

September 11, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and

Carol Waller Pope and Tony Armendariz, Members [n1]

I. Statement of the Case

This matter is before the Authority on exceptions to an award, in the form of a supplemental order, of Arbitrator Larry D. Smith filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

For the reasons that follow, we find that the Arbitrator's supplemental order is moot.

II. Background

The Arbitrator's supplemental order is related to an underlying arbitration award issued by the Arbitrator and reviewed by the Authority in United States Dep't of the Air Force, San Antonio Air Logistics Ctr., Kelly Air Force Base, San Antonio, Tex., 58 FLRA No. 13 (2002) (Member Pope dissenting) (Kelly AFB). In the underlying award, the Arbitrator ruled that employees were entitled to have received environmental differential pay and awarded them backpay. Both the Agency and the Union filed exceptions with the Authority to this award. [ v58 p72 ] In Kelly AFB, the Authority concluded that the award was deficient.

While the exceptions to the underlying award were pending before the Authority, the Arbitrator issued a "Supplemental Order to Previous Award." In order to "maximize the prospects of each employee being awarded the correct amount of backpay due[,]" he ordered the Agency to present the Union with a list of employees entitled to backpay, with the list to include their social security numbers and their last known home address and phone number. Supplemental Order at 7. He further ordered the Agency to prepare a computation of the amount of backpay owed to each eligible employee under the award. In addition, he deferred any proceedings on the Union's application for attorney fees under the Back Pay Act.

The Agency filed its exceptions to the supplemental order before the Authority's decision in Kelly AFB.

III. Positions of the Parties

The Agency contends that both portions of the supplemental order are deficient. The Agency asserts that the ordered disclosure of personal employee information is contrary to the Privacy Act and that the ordered computation of backpay exceeded the Arbitrator's authority. The Union contends that there is no merit to the Agency's exceptions and that they should be denied.

IV. Threshold Issue

Issuance of the Authority's decision in Kelly AFB raises the issue of whether the Arbitrator's supplemental order is now moot. In Kelly AFB, the Authority decided that the Arbitrator's underlying award was deficient and set it aside, including the award of backpay.

As the supplemental order was for the sole purpose of facilitating the award of the correct amount of backpay to each eligible employee, we find that the Authority's decision in Kelly AFB, which set aside the award of backpay, has mooted the Arbitrator's supplemental order. [n2] See United States Dep't of Transp., Fed. Aviation Admin., 55 FLRA 797, 802-03 (1999) (the arbitrator's supplemental award was mooted by the Authority's decision setting aside the underlying award) (FAA). Accordingly, we set the supplemental order aside. See FAA, 55 FLRA at 803; United States Dep't of the Army, Headquarters, III Corps and Fort Hood, Fort Hood, Tex., 56 FLRA 1121, 1122 n.2 (2001).

V. Decision

The supplemental order is set aside.

Member Pope, concurring:

I write separately to note that, consistent with my dissenting opinion in Kelly AFB, I believe that the Authority erred in setting aside the underlying award in this case. If the majority had not done so, then the supplemental award at issue here would not be moot. Nevertheless, there is no question that the majority decision in Kelly AFB has rendered moot the supplemental award. Accordingly, I concur.

Footnote # 1 for
58 FLRA No. 14

• Authority's Decision

Member Pope's concurring opinion is set forth at the end of this decision.

Footnote # 2 for
58 FLRA No. 14

• Authority's Decision

This decision also has mooted the Union's application for statutory attorney fees under the Back Pay Act. As the basis for an
award of attorney fees has been set aside, no further proceedings on the application are authorized. See United States Dep't of
Transp., Fed. Aviation Admin., 55 FLRA 797, 802-03 (1999) (the arbitrator's supplemental award of attorney fees was mooted by
the Authority's decision setting aside the underlying award of backpay).