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  • United States, Department of the Army, Corpus Christi Army Depot, Corpus Christi, Texas (Agency) and American Federation of Government Employees, Local 2142 (Union) and National Federation of Federal Employees, Local 797 and International Association of M

United States, Department of the Army, Corpus Christi Army Depot, Corpus Christi, Texas (Agency) and American Federation of Government Employees, Local 2142 (Union) and National Federation of Federal Employees, Local 797 and International Association of Machinists and Aerospace Workers, Lodge 2049 (Unions)

[ v58 p747 ]

58 FLRA No. 177

UNITED STATES
DEPARTMENT OF THE ARMY
CORPUS CHRISTI ARMY DEPOT
CORPUS CHRISTI, TEXAS
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2142
(Union)

and

NATIONAL FEDERATION
OF FEDERAL EMPLOYEES
LOCAL 797

and

INTERNATIONAL ASSOCIATION
OF MACHINISTS AND AEROSPACE WORKERS
LODGE 2049
(Unions)

0-AR-3309

_____

ORDER
DENYING MOTION FOR CLARIFICATION
OR ADDITIONAL ORDERS

July 31, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.      Statement of the Case

      This case is before the Authority on the Unions' "Motion For Clarification or Additional Orders." [n2]  The Agency requested leave to file an opposition to the Unions' motion, and the Unions filed a reply to the Agency's opposition. [n3]  In addition, a number of grievants, identifying themselves as intervenors, filed a motion for leave to submit a response to the Unions' motion. [n4]  The Agency filed a response to the motion.

II.      Background

      In an initial award, the Arbitrator ruled that employees were entitled to have received environmental differential pay (EDP) for exposure to asbestos and awarded them backpay. In addition, the Arbitrator ordered contractual attorney fees, pursuant to a contingency fee agreement, to be segregated and paid to the Unions' attorneys at the time of the payment of the backpay award. In a supplemental award, the Arbitrator clarified which employees were eligible to receive EDP and clarified the process by which the contractual attorney fees would be distributed. The Agency filed exceptions to the initial award and the supplemental award.

      In 56 FLRA 1057 (2001), [n5]  the Authority ruled that the supplemental award was deficient to the extent that it directed the head of the Corpus Christi Army Depot to permit and make deductions from EDP to pay the contractual fees. Otherwise, the Authority denied or dismissed the Agency's exceptions. The Authority modified the supplemental award to direct that the Corpus Christi Army Depot submit a request to the head of the agency, within the meaning of 5 C.F.R. § 550.311, to consider authorizing an allotment for the payment of the contractual attorney fees.

      The Unions filed a request for reconsideration of the Authority's decision. While this request was pending, the Arbitrator, on request of the Unions, issued interim orders concerning remedies.

      In 57 FLRA 290 (2001), the Authority denied the Unions' request for reconsideration of 56 FLRA 1057. After this decision, the Arbitrator, on request of the Unions, issued additional orders concerning remedies.

      The Agency filed exceptions to the orders concerning remedies. In 58 FLRA 77 (2002) (Member Pope dissenting, in part), the Authority found that the subsequent orders superseded the interim orders and that these orders were, in part, deficient. The Authority [ v58 p748 ] modified the orders accordingly. In addition, the Authority granted the Agency's request that in any future proceedings involving this matter, either party would be authorized to request a different arbitrator.

      In another award, the Arbitrator awarded attorney fees under the Back Pay Act, 5 U.S.C. § 5596. The Agency filed exceptions to the award of statutory attorney fees. In 58 FLRA 87 (2002) (Member Pope dissenting, in part), the Authority remanded for further proceedings on the award of attorney fees for non-attorney staff. Otherwise, the Authority denied the Agency's exceptions to the award of statutory fees. However, with respect to the remand, in view of the decision in 58 FLRA 77, the Authority directed the parties to select a different arbitrator if either party objected to resubmitting this matter to the Arbitrator. See 58 FLRA at 92 n.6.

III.     The Unions' Motion and Reply

      The Unions note the Authority's direction in 58 FLRA 87 concerning the selection of a different arbitrator and move for "Clarification or Additional Orders." Motion at 1. In support of the motion, the Unions explain that the Agency "terminated" the Arbitrator and that consequently, "it is necessary that a new arbitrator be appointed to determine the remaining and subsequent matters associated with implementation and settlement of the original award." Id. at 2. The Unions maintain that the Agency has refused to participate in the selection of a new arbitrator and that the Federal Mediation and Conciliation Service (FMCS) will not issue an arbitration panel without a joint request. The Unions claim that as a result, "there is now no arbitrator to determine the remaining and subsequent disputes that exist . . . ." Id. Accordingly, the Unions request, as follows:

[T]hat the Authority clarify [58 FLRA 87] or issue further orders directing that the FMCS prepare and issue a panel of five potential arbitrators and ordering that the parties participate in the selection of a new arbitrator to serve as arbitrator in this matter until the arbitrator determines that all matters have been fully, finally, and completely resolved and finalized.

Id. at 3.

      Although the Unions claim that several matters remain outstanding, they do not dispute the Agency's assertion that the parties settled the issue of fees for non-attorney staff. See Unions' Reply. Finally, the Unions request the Authority to strike the Agency's response and supporting exhibits because they are not part of the record. [n6] 

IV.      Agency's Response

      The Agency contends that clarification of the Authority's decision and further orders are not necessary and that the Unions' motion should be denied. The Agency notes that the parties settled the issue of fees for non-attorney staff and that this was the only issue remanded for further proceedings. The Agency claims that the Unions' request is really about helping their attorneys collect their contractual attorney fees and that the Authority should dismiss the motion as an untimely request for reconsideration.

V.      Analysis and Conclusions

      The Authority has denied motions to clarify a decision of the Authority when the Authority determines that the decision requires no clarification. See, e.g., United States Dep't of the Army, Army Transp. Ctr., Fort Eustis, Va., 40 FLRA 84, 86 (1991); AFGE Nat'l Council of Soc. Sec. Admin. Field Operations Locals, AFL-CIO, 28 FLRA 736, 737 (1987). When the Authority has viewed a matter to concern the enforcement of, and compliance with, an arbitration award, the Authority has advised that the unfair labor practice procedures are the appropriate procedures for the resolution of such disputes. See, e.g., Soc. and Rehabilitation Serv., Dep't of Health, Educ., and Welfare, 12 FLRA 257, 259 (1983).

      We deny the Unions' motion. In 58 FLRA 87, we remanded for further proceedings, absent settlement, on the award of attorney fees for non-attorney staff. In the event that the parties did not settle that matter, we directed the parties to select a different arbitrator if either party objected to resubmitting this matter to the original arbitrator. However, the Agency claims, and the Unions do not dispute, that the parties have settled the matter of fees for non-attorney staff. This portion of the decision is clear and, as a result of the settlement, no clarification and no additional orders by the Authority are necessary. Moreover, this was the only matter left open for further proceedings. After the decisions in 56 FLRA 1057, 58 FLRA 77, and 58 FLRA 87, contrary to the claim of the Unions, it is clear that there are no "remaining and subsequent matters associated with [ v58 p749 ] implementation and settlement of the original award" subject to arbitration. [n7]  Unions' Motion at 2. Finally, to the extent the Unions are disputing the Agency's compliance with an award of the Arbitrator or a decision of the Authority, the Authority's unfair labor practice procedures are the appropriate procedures for the resolution of this dispute, not a motion for clarification and additional orders.

VI.     Order

      The Unions' motion is denied.

Concurring opinion of Chairman Cabaniss:

      I write separately to address the acceptance of the submissions filed in this case subsequent to the initial motion for clarification. Pursuant to § 2429.26 of the Authority's regulations, there is no inherent right to file any documents other than those already permitted. Accordingly, and regardless of whether or not a party raises § 2429.26 to the Authority's attention, I would require that a party seek leave to file matters that are not specifically authorized or required by explaining why our consideration of the filing would be appropriate. I find little dispositive benefit on the question of whether or not it is appropriate to accept an additional submission provided by the other party's failure to object since we do not require that objections be filed. I would resolve what to do with these additional submissions based upon an assessment of the moving party's explanation, or lack thereof, for why our consideration is appropriate and not upon the absence of an objection that our regulations do not require.

Footnote # 1 for 58 FLRA No. 177 - Authority's Decision

   Chairman Cabaniss' concurring opinion is set forth at the end of this decision.

Footnote # 2 for 58 FLRA No. 177 - Authority's Decision

   The motion was filed on behalf of NFFE Local 797 and IAM Lodge 2049 by their representative, Gray & Becker. It was not filed on behalf of AFGE Local 2142, as Gray & Becker no longer represents AFGE Local 2142.

Footnote # 3 for 58 FLRA No. 177 - Authority's Decision

   We grant the Agency's request to file an opposition to the Union's motion. We also find, in the circumstances of this case, that it is appropriate to consider the Unions' reply.

Footnote # 4 for 58 FLRA No. 177 - Authority's Decision

   The Authority's Regulations do not provide for grievants to intervene in arbitration cases. See AFGE Local 1017, 55 FLRA 1302, 1302 n.1 (2000). Accordingly, for the reasons set forth in AFGE Local 1017, we deny the grievants' motion.

Footnote # 5 for 58 FLRA No. 177 - Authority's Decision

   Member Pope did not participate in 56 FLRA 1057 or in 57 FLRA 290, referenced below. Member Armendariz was not a member of the Authority at the time of those decisions.

Footnote # 6 for 58 FLRA No. 177 - Authority's Decision

   No basis has been demonstrated warranting granting the Unions' request that the Authority strike the Agency's response and supporting exhibits. Accordingly, the request is denied. See United States Dep't of Justice, Immigration and Naturalization Serv., El Paso, Tex., 40 FLRA 43, 51-52 (1991).

Footnote # 7 for 58 FLRA No. 177 - Authority's Decision

   In 58 FLRA 87, the Arbitrator awarded statutory attorney fees for legal services performed through November 27, 2000. See 58 FLRA at 87. According to the parties, the Unions have incurred attorney fees since November 27, 2000. The parties also agree that the issue of these fees has not been subject to arbitration. Accordingly, the Agency asserts that the issue of these fees cannot be the basis for an additional order of the Authority, and we agree with the Agency.