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32 FLRA No. 63

UNITED STATES OF AMERICA
BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.

 

PHILADELPHIA NAVAL SHIPYARD
Activity

and

PHILADELPHIA METAL TRADES COUNCIL
Union

Case No. 0-AR-1475

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the supplemental award of Arbitrator Kinard Lang filed by Counsel for the Union (the Union) under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations.

The Arbitrator found that he lacked jurisdiction over the Union's request for attorney fees incurred in connection with the arbitration proceeding involved in Department of the Navy, Philadelphia Naval Shipyard, Philadelphia, Pennsylvania and Philadelphia Metal Trades Council, Philadelphia, Pennsylvania, 28 FLRA 574 (1987). For the reasons discussed below, we find that the Arbitrator's award is contrary to law.

We conclude that the Back Pay Act (the Act), 5 U.S.C. § 5596, confers jurisdiction on an arbitrator to consider a request for attorney fees filed within a reasonable time after an arbitrator's award becomes final and binding. We further conclude, as to this case, that the request for attorney fees was filed within a reasonable time after the award became final and binding. Therefore, the Arbitrator's supplemental award denying jurisdiction of the request for fees is contrary to the Back Pay Act.

II. Background and Arbitrator's Award

The Union filed a grievance alleging that the Activity violated the parties' agreement by not assigning three employees to participate in sea trials of certain equipment aboard a naval ship. The grievance was submitted to arbitration. The Arbitrator sustained the grievance in part as to two grievants and awarded them backpay to be computed at straight-time rates. He denied the remainder of the grievance.

The Union filed timely exceptions to the award with the Authority. On August 13, 1987, the Authority found that the portion of the Arbitrator's award which limited the backpay of the two grievants to straight-time compensation was deficient because it did not include overtime pay. Philadelphia Metal Trades Council, 28 FLRA 574 (1987). The Authority modified the award to provide that the two grievants be paid backpay at appropriate straight-time and overtime rates consistent with applicable law, regulations and the parties' contract. The Authority denied the Union's other exceptions.

On September 4, 1987, the Union filed a petition for attorney fees with the Arbitrator. On October 20, 1987, the Activity responded to the request and alleged that the Arbitrator lacked "jurisdiction over this matter, inasmuch as the issue of attorney fees was not raised prior to the close of the record." Union's Exceptions, Exhibit B.

On October 27, 1987, the Union filed a response to the Activity's submission. The Union asserted that the Back Pay Act vested the Arbitrator with jurisdiction over the issue of attorney fees, and that nothing in the Act or elsewhere required that the issue be raised before the close of the record before the Arbitrator. The Union asserted that the issue of attorney fees arises only after a successful resolution of the underlying case, and that any request for fees before that time would be premature.

By letter dated November 28, 1987, the Arbitrator stated that "[a]fter careful review of the parties['] evidence and arguments, with respect to [this matter], I find that I lack jurisdiction to decide the merits thereof." Union's Exceptions, Exhibit D.

The Union then timely filed the instant exceptions to the Arbitrator's decision of November 28, 1987.

III. Positions of the Parties

The Union requests the Authority to set aside the Arbitrator's decision of November 28 and remand the attorney fees request to the Arbitrator for a decision on the merits. The Union maintains that under the Back Pay Act, the Arbitrator has jurisdiction over the attorney fees issue and that there is no "judicial or administrative authority . . . which holds that attorney fees are to be awarded only if the issue of [attorney] fees is raised prior to the close of the record in the case in chief." Union's Exceptions at 1-2. The Union asserts that this case is similar to National Association of Air Traffic Specialists and Federal Aviation Administration, Washington Flight Service Station, 21 FLRA 169 (1986), in which the Authority approved an award of attorney fees where the request for attorney fees was made after an arbitrator had awarded a grievant backpay.

The Activity did not file an opposition to the exceptions.

IV. Discussion

The Back Pay Act provides in pertinent part as follows:

§ 5596. Back pay due to unjustified personnel action

. . . . . . .

(b)(1) An employee of an agency who, on the basis of a timely appeal or an administrative determination (including a decision relating to an unfair labor practice or a grievance) is found by appropriate authority under applicable law, rule, regulation, or collective bargaining agreement, to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials of the employee--

(A) is entitled, on correction of the personnel action, to receive for the period for which the personnel action was in effect--

. . . . . . .

(ii) reasonable attorney fees related to the personnel action which . . . shall be awarded in accordance with standards established under section 7701(g) of this title[.]

Emphasis added.

Regulations implementing the Act were promulgated by the Office of Personnel Management (OPM). The regulations define "appropriate authority" as an "entity having authority in the case at hand to correct or direct the correction of an unjustified or unwarranted personnel action, including . . . (i) an arbitrator in a binding arbitration case." 5 C.F.R. § 550.803 (1988). These regulations also state that an attorney fees request "may be presented only to the appropriate authority that corrected or directed the correction of the unjustified or unwarranted personnel action." 5 C.F.R. § 550.806(a).^(*) The regulations also provide that if attorney fees are requested, an appropriate authority "shall provide an opportunity for the employing agency to respond to [the] request[.]" 5 C.F.R. § 550.806(b).

Under law and regulation, therefore, the prerequisites for an award of attorney fees include determinations by an appropriate authority that an employee has prevailed on the merits of a grievance and has been awarded backpay. The statutory provisions demonstrate that Congress intended to provide for recovery of attorney fees subsequent to a successful grievance; that is, after an arbitrator has determined that a grievant was affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of certain pay benefits and has awarded backpay.

In our view, the Act and its implementing regulations authorize the filing of an attorney fees request after an arbitrator has issued an award of backpay. The purpose of the Act is to provide backpay and attorney fees only after certain conditions have been satisfied. To require that a request for attorney fees be filed with an arbitrator before the prerequisites for fees have been met would not further the purpose of the Act.

Moreover, determinations as to whether a grievant is a prevailing party and whether backpay is a legally authorized remedy cannot be made until an award becomes final and binding. Therefore, it would be premature for an arbitrator to decide requests for attorney fees before an award becomes final and binding. While such requests may be submitted during the course of an arbitration proceeding, nothing in the Act or OPM regulations requires that a request for attorney fees be made before an award is final and binding.

Our conclusion is consistent with the Authority's decision in Washington Flight Service Station, 21 FLRA 169 (1986). In that case, the Authority upheld an award of attorney fees where, as here, the request was filed after the arbitrator issued his award resolving the grievance. Our conclusion also accords with the practice of the Merit Systems Protection Board (MSPB), which permits attorney fees requests to be filed within specified time limits after a decision on the merits. See 5 C.F.R. § 1201.37 (1988), requiring a motion for attorney fees to be filed within 20 days of the date that an initial decision becomes final under 5 C.F.R. § 1201.113 or within 25 days of the date of a final decision under section 1201.116 (issuance of a final decision at the Board level). See also the Authority's proposed rule for Attorney Fees Under the Back Pay Act, Section 2431.5, 53 Fed. Reg. 10885 (April 4, 1988), which would permit an application for attorney fees in an unfair labor practice case to be filed after entry of a final order establishing that an applicant has prevailed in the proceeding or in a significant and discrete portion of the proceeding.

We are mindful of the functus officio doctrine, which provides that an arbitrator is without authority to proceed further in a case after completion and delivery of an award. See, for example, Overseas Federation of Teachers, AFT, AFL-CIO and Department of Defense Dependents Schools, Mediterranean Region, 32 FLRA No. 62 (1988), slip op. at 6. However, we find that where the Back Pay Act confers statutory jurisdiction on an arbitrator to consider an attorney fees request, the functus officio doctrine does not preclude an arbitrator from considering the request.

We conclude, therefore, that the Back Pay Act confers jurisdiction on an arbitrator to consider an attorney fees request filed after an arbitrator's decision awarding backpay. Parties may agree to establish a time period governing when an attorney fees request may be filed with an arbitrator. In the absence of such an agreement, a request for attorney fees must be filed within a reasonable time after an award, which includes a backpay remedy, becomes final and binding.

In this case, the Union filed timely exceptions to the award. Therefore, the award did not become final and binding until the Authority issued its decision on August 13, 1987. The request was filed with the Arbitrator within 25 days after this decision. We find that the request was filed in a timely manner.

The Arbitrator had jurisdiction to consider the Union's attorney fees request. Therefore, the Arbitrator's award is contrary to the Back Pay Act.

We will set aside the award and remand the matter to the parties. In finding that the Arbitrator has jurisdiction to consider the request of attorney fees under the Back Pay Act, we make no determination as to the merits of the request.

V. Decision

For the reasons set forth above, we find that the award is deficient. The matter is remanded to the parties, who are directed to request the Arbitrator to consider the Union's attorney fees request under applicable provisions of law and regulation.

Issued, Washington, D.C.,

__________________________
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY

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

*/ Section 550.806 was recodified as section 550.807 under Interim Rule on Back Pay. See 53 Fed. Reg. 18071-72 (May 20, 1988).

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