AFGE RESCUES ATTORNEY FEE CLAIM FROM ARBITRATOR ERROR
Arbitrators are paid to make the final decision, but nothing guarantees that they make the right decision. In a new case out of FLRA, AFGE demonstrated its intimate knowledge of attorney fee case law by convincing the Authority to order an arbitrator to reverse his initial decision denying the union fees. (See AFGE and Food Safety Inspection Service, 69 FLRA 519 (2016).) If you have followed FEDSMILL for a while you know how important we consider attorney fee claims to be for a union. A $40,000 fee brings in the same amount of cash that an additional 1,600 members does a year for a union like AFGE. (Less than two weeks ago we opened an envelope to find an arbitrator had awarded another union’s attorney over $450,000 for a simple grievance victory.)
AFGE originally went to arbitration to get a single member 40 hours of retroactive overtime pay he had been wrongly denied. We figure it was about $1,400 dollars. Twenty-two (22) days after the decision on the merits of the grievance was issued, the union filed a petition with the arbitrator asking for fees. When the arbitrator replied the same day with a one-sentence message that he did not retain jurisdiction to award fees, AFGE knew he had committed a reversible error and filed exceptions with FLRA laying out the legal logic for an order reversing the arbitrator.
Following AFGE’s lead, FLRA did precisely that. The Authority noted that the Back Pay Act confers jurisdiction on an arbitrator to consider a request for attorney fees at any time during the arbitration or within a reasonable period of time after the arbitrator’s award of back pay becomes final and binding. While the agency tried to claim the union had waited too long to file for fees, the Authority’s decision pointed out that it had allowed a union to wait as long as 40 days in another case. The parties are allowed to negotiate for a longer or shorter filing period, but whether they file after the negotiated deadline or just after a reasonable period of time, they forfeit any money owed the union.
The union now gets to argue for a specific amount of fees and include the time it spent drafting exceptions to the original award.
Our hat is off to AFGE for taking care of business when the arbitrator misread the law.