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48 FLRA No. 101

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE TREASURY

U.S. CUSTOMS SERVICE

NOGALES, ARIZONA

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 116

(Union)

0-AR-2429

(47 FLRA 1391 (1993))

_____

ORDER DENYING MOTION FOR RECONSIDERATION

November 24, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on a motion filed by the Agency under section 2429.17 of the Authority's Rules and Regulations seeking reconsideration of our order in 47 FLRA 1391 dismissing the Agency's exceptions to an arbitration award as untimely filed. The Union filed an opposition to the motion. For the following reasons, we conclude that the Agency has failed to establish that extraordinary circumstances exist warranting reconsideration of our order. Accordingly, we will deny the motion for reconsideration.

II. The Authority's Order in 47 FLRA 1391

In 45 FLRA 1391, we determined that the Agency's exceptions to the Arbitrator's award were untimely filed. We noted that, as the Arbitrator's award was served on the parties by mail on February 12, 1993, any exception to that award had to be postmarked by the U.S. Postal Service or delivered in person to the Authority no later than March 22, 1993, in order to be timely filed. Because the Agency' exceptions were mailed in an envelope without a postmark and received by us on April 20, 1993, we presumed, in accordance with section 2429.21(b) of the Authority's Rules and Regulations, that the exceptions were filed on April 15, 1993. Accordingly, we dismissed the exceptions as untimely filed. In so ruling, we rejected the Agency's claim that, because the Arbitrator retained jurisdiction for 30 days after issuing the award in order to resolve the Union's request for attorney fees, the award was an interim award.

III. Positions of the Parties

The Agency contends that our order in 47 FLRA 1391 is "inconsistent with relevant case law and is contrary to fundamental federal labor policies." Motion at 1. The Agency contends that the February 12 award was not a final award to which exceptions could be filed because the Arbitrator retained jurisdiction to address the Union's request for attorney fees. The Agency notes that section 2429.11 of the Authority's Rules and Regulations, which provides that the Authority ordinarily will not consider interlocutory appeals, means that "exceptions to an arbitration award will not be considered unless the award constitutes a complete determination of all issues submitted to arbitration." Id. In support, the Agency relies on American Federation of Government Employees Local 12 and U.S. Department of Labor, 38 FLRA 1240 (1990) (Department of Labor) and American Federation of Government Employees, General Committee and Department of Health and Human Services, Social Security Administration, 32 FLRA 173 (1988) (Social Security Administration). The Agency also relies on several Federal court decisions in which arbitration awards were found to be interim because issues before the arbitrator remained unresolved ⁽¹⁾ as well as on 28 U.S.C. § 1291, which concerns judicial review of certain district court judgments.

The Union contends that the Authority properly dismissed the Agency's exceptions.

IV. Analysis and Conclusions

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish extraordinary circumstances to request reconsideration of an Authority decision. We conclude that the Agency has not established such extraordinary circumstances in this case.

The grievance involved in this case concerned the propriety of a proposed 14-day suspension of an employee. The Arbitrator concluded that, although a 14-day suspension was not warranted, an official reprimand was justified. As his award, the Arbitrator ordered, among other things, the withdrawal of the proposed 14-day suspension and the issuance of a letter of reprimand in its place. The Arbitrator retained jurisdiction for 30 days in order for the parties to address the Union's request for attorney fees.

A threshold requirement for entitlement to attorney fees under the Back Pay Act is an award of backpay. See Department of Health and Human Services, Public Health Service, Region IV, Atlanta, Georgia and National Treasury Employees Union, Chapter 210, 34 FLRA 823, 829 (1990). In this regard, "Congress intended to provide for recovery of attorney fees subsequent to a successful grievance; that is, after an arbitrator has . . . awarded backpay." Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 32 FLRA 417, 420 (1988). Moreover, as "determinations as to whether . . . backpay is a legally authorized remedy cannot be made until an award becomes final and binding," parties are not required to request, and arbitrators are not required to decide requests for, attorney fees "before the award becomes final and binding." Id. An award becomes final and binding under section 7122 of the Statute when (1) the period for filing exceptions expires, (2) the Authority issues a decision resolving exceptions, or (3) exceptions are withdrawn. National Association of Government Employees, Local R4-106 and Department of the Air Force, Langley Air Force Base, Virginia, 32 FLRA 1159, 1164 (1988).

Consistent with the Authority's holding that arbitrators are not required to decide requests for attorney fees before awards of backpay become final and binding, we conclude that an arbitrator's retention of jurisdiction solely to decide requests for attorney fees does not automatically render interim an award on the merits of an underlying grievance.⁽²⁾ Accordingly, it is necessary to determine whether the February 12 award is otherwise interim.⁽³⁾

In this case, the Arbitrator did not label his February 12, 1993, award as an interim award and nothing in the award otherwise indicates that the Arbitrator intended it to be interim. Moreover, the Arbitrator did not retain jurisdiction to address any unresolved issue concerning the merits of the grievance or the proposed remedy and the Agency makes no claim that the Arbitrator failed to address any outstanding issue of liability or relief. Consequently, we conclude that the award was not an interim award and, to be timely, any exceptions to the award had to have been filed within the 30-day period after service of the award on the parties.

In this regard, we find that the Agency's reliance on Department of Labor and Social Security Administration is misplaced. In Department of Labor, the arbitrator issued an award in which he concluded that a grievant should have been given an official reprimand instead of a suspension but he retained jurisdiction to address the grievant's request for backpay. As the arbitrator postponed a determination of an essential issue in the case--backpay--the award was not reviewable under section 7122 of the Statute. In Social Security Administration, the union sought to file an interlocutory appeal from an arbitrator's decision to deny the union's request to stay the arbitration hearing. Clearly, the determination of the arbitrator was preliminary to any determination on the merits of the grievance before him. Similarly, the Agency's reliance on Wells Exterior Trim, Norfolk & Western Ky. Co., Mariform Shipping and Evans Mfg. Co. is misplaced. In each of these cases, the underlying arbitration awards were found interim because issues as to liability or remedy were unresolved. Finally, we find that 28 U.S.C. § 1291, which concerns the jurisdiction of Federal courts of appeals, is irrelevant to the question before us.

Based on the foregoing, we conclude that the Arbitrator's February 12, 1993, award was not an interim award. Consequently, any exceptions to that award had to be either postmarked by the U.S. Postal Service or delivered in person to the Authority no later than March 22, 1993, in order to be timely filed. We further conclude that the Agency has not established that extraordinary circumstances exit warranting reconsideration of our order in 47 FLRA 1391 dismissing the Agency's exceptions, filed on April 15, 1993, as untimely filed. Accordingly, we will deny the Agency's motion for reconsideration.

VI. Order

The Agency's motion for reconsideration of our order in 47 FLRA 1391 is denied.

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

1. Specifically, the Agency cites Millmen Local 550 United Brotherhood of Carpenters and Joiners of America v. Wells Exterior Trim, 828 F.2d 1373 (9th Cir. 1987) (Wells Exterior Trim); Anderson v. Norfolk & Western Ky. Co., 773 F.2d 880 (7th Cir. 1985) (Norfolk & Western Ky. Co.); Michaels v. Mariform Shipping, 624 F.2d 411 (2d Cir. 1980) (Mariform Shipping); and Sportswear, Ski-Suits & Waterproof Garment Workers' Union Local 246 v. Evans Mfg. Co., 318 F.2d 528 (3rd. Cir. 1963) (Evans Mfg. Co.).

2. We note, however, that nothing in law or regulation would preclude an arbitrator from resolving an attorney fee request as a part of an underlying award of backpay. In such circumstances, the Authority will resolve any exceptions to the underlying award before addressing attorney fees.

3. We note that an award of attorney fees is not possible in this case because the Arbitrator did not award backpay. See American Federation of Government Employees, Local 216, National Council of EEOC Locals and Equal Employment Opportunity Commission, 42 FLRA 319 (1991).

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