Audie L. Murphy Veterans Administration Hospital and American Federation of Government Employees, Local 3511 (Authority decision, July 17, 1984)

FLRA remand decision. The Authority returns the attorney fee portion of an arbitration award for clarification by the arbitrator. That fee issue remains open, so this decision does not present a final judicial-review period under 5 U.S.C. § 7123(a).

Plain-English summary

An arbitrator found that the hospital had wrongly failed to consider an employee's completed zoology course for an upward mobility nursing position. The arbitrator ordered reimbursement of training expenses and possible lost earnings, later clarifying that the selection should be rerun and denying attorney fees. AFGE Local 3511 challenged the clarification, sought retroactive selection, and disputed the fee denial. The Authority rejected the first two challenges because the arbitrator retained authority to clarify the award and had not found that the employee would have been selected absent the violation. It remanded the fee denial for a fuller explanation under the Back Pay Act, leaving that issue unresolved.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a) and fee standards under 5 U.S.C. § 5596.
• Outcome: Clarification and retroactive selection challenges denied; fee issue remanded.
• Key point: The fee denial needed specific findings under the applicable statutory standards.

Full text (FLRA public release)

[ v15 p276 ]

15:0276(60)AR

The decision of the Authority follows:

15 FLRA No. 60

AUDIE L. MURPHY VETERANS
ADMINISTRATION HOSPITAL,
SAN ANTONIO, TEXAS
Activity

and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL NO. 3511
Union

Case No. O-AR-242

DECISION

This matter is before the Authority on exceptions to the award of Arbitrator Albert V. Carter filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition.

The parties submitted to arbitration the issue of whether management had violated the provisions of its upward mobility program in not considering the grievant's completion of Zoology 602a in filling an upward mobility nursing position. The Arbitrator determined that management had violated provisions of the upward mobility program in not considering the grievant's course completion and prescribed the following as a remedy for the violation:

The Grievant shall be reimbursed for the cost of tuition, registration, textbooks, and uniforms required, incurred by him while participating in the program at his own expense because of not being selected as a trainee by the Employer. In addition, should the Grievant have suffered a reduction in earnings as a direct result of not having been selected for the training position announced, he shall be paid the amount of such reduction sustained.

In conjunction with his award, the Arbitrator expressly provided that he would retain jurisdiction in this case "in the event the parties cannot determine and arrive at the remedy prescribed."

Pursuant to the Arbitrator's retention of jurisdiction, the Activity requested a clarification of the remedy which the Arbitrator had prescribed, and the Arbitrator clarified the remedy to specify the time frame involved and to specify that the corrective action with respect to the selection action is to reannounce the position with proper consideration given to completion of the require zoology course. In addition, he restated that should the grievant have suffered a reduction in earnings as a direct result of not having been selected for the training position announced, he shall be paid the amount of such reduction sustained. The Arbitrator subsequently further clarified the award to expressly deny attorney fees.

In its first exception the Union contends that the clarification by the Arbitrator of the remedy is invalid. Specifically, the Union argues that the Arbitrator's "clarification" is invalid because it substantially modified the award and, in any event, that the clarification is invalid because the Arbitrator was functus officio in that the clarification was issued pursuant to the ex parte request of the Activity and not the joint request of both parties.

The Authority concludes that the Union has failed to establish that the Arbitrator's clarification is invalid. The Union has not substantiated that the Arbitrator's clarification of the remedy substantially modified the award. Likewise, the Union has not substantiated that the doctrine of functus officio applies in this case since the Arbitrator expressly retained jurisdiction to resolve precisely the difficulty which arose and the Arbitrator on the basis of this retention provision simply clarified the remedy already prescribed.

In its second exception the Union maintains that the grievant was entitled to have been retroactively selected for the upward mobility position, pursuant to the Back Pay Act, 5 U.S.C. 5596.

However, it is well established that in order for the grievant to have been entitled to be retroactively selected for the upward mobility position, the Arbitrator must have expressly determined that but for the Activity's violation, the grievant originally would have been selected for the position. See, e.g., American Federation of Government Employees, Local 2811 and U.S. Government District Office, Social Security Administration, St. Paul, Minnesota, 7 FLRA 618, 620 (1982). In this case the Arbitrator specifically refused to make this determination when he clarified the corrective action prescribed with respect to the selection for the upward mobility position. Accordingly, the Union's exception is denied.

In its third exception the Union contends that the Arbitrator's denial of attorney fees is contrary to the Back Pay Act. In International Brotherhood of Electrical Workers and United States Army Support Command, Hawaii, 14 FLRA No. 90 (1984), the Authority for the first time addressed in detail the statutory requirements regarding awards of attorney fees by arbitrators. The Authority held that under the applicable standards of the Back Pay Act, an arbitrator must provide a fully articulated, reasoned decision setting forth the specific findings supporting the determination on each pertinent statutory requirement, including the basis upon which the reasonableness of the amount was determined when fees are awarded. In this case the Arbitrator's award is not in accordance with these standards. However, the Arbitrator's determination was made without the benefit of the instruction and guidance provided by United States Army Support Command, Hawaii. Consequently, the Authority shall remand the award to the parties to have them obtain a clarification and interpretation of the determination by the Arbitrator to deny an award of attorney fees.

Accordingly, pursuant to 2425.4 of the Authority's Rules and Regulations, the award is remanded to the parties with the direction that they request, jointly or separately, that the Arbitrator clarify the award. The submission to the Arbitrator is for the limited purpose of having the Arbitrator clarify and interpret his award regarding attorney fees to articulate fully specific findings on all pertinent statutory provisions.

Issued, Washington, D.C., July 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY