17:0424(67)AR - Army Corps of Engineers and NFFE Local 639 -- 1985 FLRAdec AR

 17 FLRA No. 67
 
 U.S. ARMY CORPS OF ENGINEERS 
 Activity 
 
 and 
 
 NATIONAL FEDERATION OF FEDERAL 
 EMPLOYEES, LOCAL 639 
 Union
 
                                            Case No. 0-AR-637
 
                                 DECISION
 
    This matter is before the Authority on an exception to the award of
 Arbitrator Daniel E. Matthews 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 Activity filed an
 opposition.  /1/
 
    The dispute before the Authority in this matter concerns the
 Arbitrator's denial of the Union's request for attorney fees under the
 Equal Access to Justice Act (EAJA), 5 U.S.C. 504.  In his award on the
 merits, the Arbitrator found that the Activity properly charged the
 grievant with three hours of AWOL but that it did not have just cause to
 also issue a written reprimand.  The Arbitrator therefore denied the
 grievance in part and granted it in part.  The Union subsequently filed
 a motion with the Arbitrator requesting an award of attorney fees under
 the EAJA.  The Arbitrator found that neither the disciplinary action
 procedures followed by the Activity nor the arbitration proceeding
 constituted an "adversary adjudication" within the meaning of the EAJA
 and also that he was not an "adjudicative officer of the agency" under
 the Act.  Accordingly, the Arbitrator denied the Union's motion.
 
    In its exception, the Union contends that the Arbitrator's denial of
 its motion is contrary to the EAJA primarily because the arbitration
 proceeding was an "adversary adjudication" under the EAJA.
 
    Section 504(a)(1) of the EAJA provides:  /2/
 
          An agency that conducts an adversary adjudication shall award,
       to a prevailing party other than the United States, fees and other
       expenses incurred by that party in connection with that
       proceeding, unless the adjudicative officer of the agency finds
       that the position of the agency as a party to the proceeding was
       substantially justified or that special circumstances make an
       award unjust.
 
 "Adversary adjudication" is defined in section 504(b)(1)(C) as "an
 adjudication under section 554 of (the Administrative Procedure Act) . .
 . in which the position of the United States is represented by counsel
 or otherwise." An adjudication under section 554 is one "required by
 statute to be determined on the record after opportunity for an agency
 hearing," unless the proceeding falls within one of six exceptions, none
 of which apply to this case.  5 U.S.C. 554(a).
 
    Grievance procedures under the Federal Service Labor-Management
 Relations Statute are not subject to the procedural requirements of the
 Administrative Procedure Act.  Rather, the procedures are determined by
 the parties in their collective bargaining agreements and by
 arbitrators, and the procedures vary from agreement to agreement and
 arbitrator to arbitrator.  /3/ Therefore, the Arbitrator in this case
 correctly determined that the proceeding before him was not an
 "adversary adjudication" for purposes of the EAJA and on that basis
 alone attorney fees under the EAJA were not warranted in connection with
 such proceeding.  /4/ Consequently, the Union has failed to establish
 that the Arbitrator's denial of its motion is contrary to law as
 alleged.
 
    Accordingly, the Union's exception is denied.  Issued, Washington,
 D.C., April 9, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Activity contends, among other things, that the Union's
 exception was not timely filed.  However, the Authority has determined
 that the time limits for filing the Union's instant exception commenced
 with the Arbitrator's denial of the Union's motion for attorney fees
 under the Equal Access to Justice Act, which denial was served on the
 parties after his award on the merits in this matter, and therefore that
 the Union's exception was timely filed.  E.g., United States Department
 of the Interior, Bureau of Land Management, Eugene District Office and
 National Federation of Federal Employees, Local 1911, 6 FLRA 401, 403 n.
 2 (1981).
 
 
    /2/ As to the current status of 5 U.S.C. 504(a)(1), the Authority
 notes that section 203(c) of the EAJA (Pub. L. No. 96-481, Sec. 203(c);
 94 Stat. 2325, 2327 (1980)) provides:
 
          Effective October 1, 1984, section 504, and the item relating
       to section 504 in the table of sections, of title 5, United States
       Code, as added by subsection (a) of this section, are repealed,
       except that the provisions of such section shall continue to apply
       through final disposition of any adversary adjudication as defined
       in subsection (b)(1)(C) of such section, initiated before the date
       of repeal.
 
 
    /3/ See F. Elkouri & E. Elkouri, How Arbitration Works 181-83 (3d ed.
 1973).
 
 
    /4/ In denying on this basis the Union's exception to the
 Arbitrator's decision denying attorney fees, the Authority finds it
 unnecessary to pass on the other arguments raised in the Activity's
 opposition to the Union's exception.