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56 FLRA No. 31
U.S. Dept. of the Air Force, Seymour Johnson Air Force Base, North Carolina and NAGE, Local R5-188 (Seltzer, Arbitrator), 0-AR-3195 (Decided April 14, 2000)
These two cases were consolidated because they emerged from the same arbitration procedure. With regards to the first case, the Authority rejected the allegations that the award did not derive its essence from the agreement, that the arbitrator exceeded his authority, and that the award was based on a nonfact. The Authority also rejected the allegation that the award was contrary to law, rule or regulation, noting that although it was true that an Agency may revoke leave when the justification for the leave no longer exists, the grievant here was not in a leave status, rather the grievant was using official time. The Authority further stated that it has held that official time does not constitute leave. The Authority added that even assuming that the principle advocated by the Agency applied in this case, the Agency failed to demonstrate that the grievant engaged in activities inconsistent with the justification for her request for official time.
With regards to case no. 0-AR-3195-001, the Authority noted that it has consistently held that, without specific retention of jurisdiction by the arbitrator, any further action by the arbitrator may only be taken at the joint request of the parties. However, where an arbitrator, in his or her original award, expressly retains jurisdiction to make further determinations regarding a particular matter, an arbitrator does not act improperly by issuing an award concerning that matter, and the Authority will address exceptions to that second award. Here, the Arbitrator expressly retained jurisdiction for the sole purpose of deciding attorney fees. Consistent with Authority precedent, the Arbitrator had jurisdiction to take subsequent action regarding the issue of attorney fees.
In this case, the Arbitrator recused himself from consideration of the attorney fee request because he was in dispute with the Agency over payment of his fees. In essence, the Arbitrator has disqualified himself from consideration of attorney fees on the ground that he was not able to consider the matter neutrally. In these circumstances, the Authority concluded that the Arbitrator was effectively unavailable to resolve the matter of attorney fees. Thus, the Arbitrator's decision to decline jurisdiction over the issue of attorney fees was not deficient. However, as the Arbitrator was no longer available to consider the matter of attorney fees, the Authority directed the parties, to jointly submit the matter to a different arbitrator for resolution.