14:0680(90)AR - IBEW and Army Support Command, HI -- 1984 FLRAdec AR



[ v14 p680 ]
14:0680(90)AR
The decision of the Authority follows:


 14 FLRA No. 90
 
 INTERNATIONAL BROTHERHOOD
 OF ELECTRICAL WORKERS
 Union
 
 and
 
 UNITED STATES ARMY SUPPORT
 COMMAND, HAWAII
 Activity
 
                                            Case No. O-AR-215
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Stuart M. Cowan filed by the Agency 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 Union filed an
 opposition.
 
    The dispute before the Arbitrator herein concerns the assessment
 under provisions of Army Regulation (AR) 735-11 (Accounting for Lost,
 Damaged and Destroyed Property) of pecuniary liability against the
 grievant for damage to a landing vehicle assertedly caused by his
 negligence.  A grievance was filed and submitted to arbitration
 protesting this assessment.
 
    The Arbitrator reviewed the investigation of the property damage
 (report of survey) on which the assessment was founded and determined
 "that there is no substantial evidence in this case to prove by a
 preponderance of evidence or otherwise that there is just cause to
 impose pecuniary liability upon Grievant." Accordingly, as his award in
 this respect, the Arbitrator granted the grievance and vacated the
 financial responsibility assessment against the grievant.  He also
 ordered in this respect "that this matter not be reopened for further
 proceedings against this Grievant." In addition, the Arbitrator awarded
 attorney fees to the grievant in the amount of $3500.
 
    In its first exception the Agency contends that the portion of the
 award granting the grievance because there was no substantial evidence
 to support a financial assessment against the grievant is based on
 nonfacts.  In support of this exception, the Agency argues that
 underlying this portion of the award are the Arbitrator's comments that
 the report of survey "was totally hearsay evidence" and that "the survey
 officer failed to provide the Grievant any opportunity to participate in
 the investigation," and the Agency maintains that these statements were
 erroneous and that but for these errors the Arbitrator would have
 reached a different result.
 
    In order for the award to be found deficient on this ground, it must
 be established that the alleged "nonfacts" involved facts that were
 objectively ascertainable, were the central facts underlying the award,
 were concededly erroneous, and that but for the arbitrator's
 misapprehension, the arbitrator would have reached a different result.
 See, e.g., United States Army Missile Materiel Readiness Command
 (USAMIRCOM) and American Federation of Government Employees, Local 1858,
 AFL-CIO, 2 FLRA 432, 438 (1980).  Without fully addressing the
 above-cited statements of the Arbitrator in terms of this ground, it is
 readily apparent that the Arbitrator based his granting of the grievance
 on inadequacies in the report of survey proceedings that were much more
 extensive than claimed by the Agency.  The Arbitrator expressly held
 that the report of survey investigation was inadequate because "it was
 cursory" (Award at 19), and because the survey officer "did not conduct
 a complete investigation, did not determine if there were other
 witnesses or evidence, but merely ceased investigating when he felt that
 the evidence he had was sufficient (and) did not make an objective,
 impartial and thorough investigation as required" (Award at 21).  In
 sum, the Arbitrator held that "there were numerous deficiencies in the
 investigation and numerous unanswered and uninvestigated factors which
 might have been either wholly or completely the proximate cause of the
 loss in this case" (Award at 27).  Consequently, the Agency has not
 established that the central facts underlying the award were that the
 report of survey proceedings were based on hearsay evidence and that the
 survey officer failed to provide the grievant an opportunity to
 participate in the proceedings.  Thus, it is not established, even if
 these statements of the Arbitrator were concededly erroneous, that this
 "is the fact on which the award is based" and that "but for the
 arbitrator's misapprehension, the arbitrator would have reached a
 different result." Id. at 438 (emphasis in original).  Accordingly, the
 exception provides no basis for finding the award deficient in this
 respect, and therefore the exception is denied.
 
    In its second exception the Agency contends that the Arbitrator's
 order that this matter not be reopened for further proceedings against
 the grievant is contrary to law and regulation.  Specifically, the
 Agency claims that the award in this respect is contrary to section
 7106(a)(1) of the Statute which authorizes the Agency to determine its
 internal security practices.  The Agency further claims that the award
 is contrary to 10 U.S.C. 4832, 4835 by effectively removing from the
 Secretary of the Army the authority provided by those statutory
 provisions to prescribe regulations for the accounting of Army property
 and the fixing of responsibility for its damage.  The Agency also argues
 that the award is contrary to AR 735-11 because it precludes the
 commander from ensuring that this matter is adequately investigated and
 from assessing pecuniary liability against the grievant if, after
 further investigation, it is determined that such an assessment is
 warranted.
 
    The Authority concludes that this exception provides no basis for
 finding the award deficient.  The Agency fails to establish that the
 award in this respect infringes in any manner on management's right
 pursuant to section 7106(a)(1) of the Statute to determine its internal
 security practices so as to prevent destruction of agency property.  The
 Agency likewise has not established that the award in this respect is
 contrary to the general statutory and regulatory provisions pertaining
 to the accounting for Army property.  The matter specifically submitted
 to and addressed by the Arbitrator was whether the Agency was justified
 in its assessment of pecuniary liability against the grievant.  In
 resolution of precisely this matter, the Arbitrator expressly determined
 that the assessment was not justified, and accordingly he vacated the
 assessment and barred further proceedings against the grievant as to
 this matter.  In vacating the assessment and barring further proceedings
 against the grievant, he essentially ruled that the issue of the
 grievant's liability was before him for final resolution.  Thus, he
 rejected the contention that this matter was limited to the adequacy of
 the report of survey and rejected the contention that in the event he
 determined that the report was inadequate, the Agency was not precluded
 from reopening the matter and proceeding until liability of the grievant
 is sustained.  In these circumstances the Authority finds that the
 general statutory and regulatory provisions pertaining to the accounting
 for Army property, including the broad right to conduct reports of
 survey as set forth in AR 735-11, cannot be used to circumvent the
 Arbitrator's resolution of the submitted dispute.  Accordingly, this
 exception is denied.  /1/
 
    In its third exception the Agency contends that the Arbitrator's
 award of attorney fees is not authorized by law, essentially relying
 upon the statutory requirements of the Back Pay Act, 5 U.S.C. 5596.  /2/
 This exception provides the Authority with an opportunity to address in
 detail for the first time the statutory requirements regarding awards of
 attorney fees by arbitrators.  As previously recognized by the
 Authority, a threshold requirement for entitlement to attorney fees
 under the Back Pay Act is a finding that the grievant has been affected
 by an unjustified or unwarranted personnel action which has resulted in
 the withdrawal or reduction of the grievant's pay, allowances, or
 differentials.  Department of Defense Dependents Schools and Overseas
 Education Association, 3 FLRA 259, 263 (1980).  Further, a reading of
 the Back Pay Act indicates that an award of attorney fees must be in
 conjunction with an award of backpay to the grievant on correction of
 the personnel action, that the award of attorney fees must be reasonable
 and related to the personnel action, and that the award of attorney fees
 must be in accordance with the standards established under 5 U.S.C.
 7701(b).  /3/ Section 7701(g) prescribes that for an employee to be
 eligible for an award of attorney fees, the employee must be the
 prevailing party.  Section 7701(g)(1), which applies to all cases except
 those of discrimination, requires that an award of attorney fees must be
 warranted "in the interest of justice," that the amount must be
 reasonable, and that the fees must have been incurred by the employee.
 Section 7701(g)(2), pertaining to cases of discrimination prohibited by
 5 U.S.C. 2302(b)(1), requires as to such cases that the award of
 attorney fees must be in accordance with the standards prescribed under
 section 706(k) of the Civil Rights Act of 1964, 42 U.S.C. 2000e - 5(k).
 
    The standards established under section 7701(g) further require a
 fully articulated, reasoned decision setting forth the specific findings
 supporting the determination on each pertinent statutory requirement,
 including the basis upon which the reasonableness of the amount was
 determined when fees are awarded.  See, e.g., Allen v. U.S. Postal
 Service, 2 MSPB 582 (1980);  Kling v. Department of Justice, 2 MSPB 620
 (1980);  see also 5 CFR 550.806 (1983).  In terms of this case, the
 Arbitrator failed to provide such an articulated decision as part of his
 award of attorney fees in the amount of $3500.  Consequently, the
 Authority shall remand the award to the parties to have them obtain a
 clarification and interpretation of the award of attorney fees by the
 Arbitrator, who shall consider the specific criteria set forth in this
 decision.
 
    Accordingly, pursuant to section 2425.4 of the Authrity's Rules and
 Regulations, the award is remanded to the parties with the direction
 that they request, jointly or separately, that the Arbitrator clarify
 the award.  The submission to the Arbitrator is for the limited purpose
 of having the Arbitrator clarify and interpret his award of attorney
 fees in the amount of $3500 and to articulate fully specific findings on
 all pertinent statutory provisions.  
 
 Issued, Washington, D.C., May 21, 1984
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ As requested by the parties, the Arbitrator also ruled on whether
 the grievance should be sustained because AR 735-11 is unconstitutional.
  However, because the Arbitrator expressly indicated that the
 inadequacies in the report of survey proceedings alone required the
 grievance to be granted and the assessment against the grievant vacated,
 it is unnecessary for the Authority to consider this question.
 
 
    /2/ 5 U.S.C. 5596 (1982) pertinently provides:
 
          (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 of which the personnel action was in
       effect--
 
                                .  .  .  .
 
          (ii) reasonable attorney fees related to the personnel action
       which, with respect to any decision relating to an unfair labor
       practice or a grievance processed under a procedure negotiated in
       accordance with chapter 71 of this title, or under chapter 11 of
       title 1 of the Foreign Service Act of 1980, shall be awarded in
       accordance with standards established under section 7701(g) of
       this title(.)
 
 
    /3/ 5 U.S.C. 7701(g) (1982) provides:
 
          (1) Except as provided in paragraph (2) of this subsection, the
       Board, or an administrative law judge or other employee of the
       Board designated to hear a case, may require payment by the agency
       involved of reasonable attorney fees incurred by an employee or
       applicant for employment if the employee or applicant is the
       prevailing party and the Board, administrative law judge, or other
       employee (as case may be) determines that payment by the agency is
       warranted in the interest of justice, including any case in which
       a prohibited personnel practice was engaged in by the agency or
       any case in which the agency's action was clearly without merit.
 
          (2) If an employee or applicant for employment is the
       prevailing party and the decision is based on a finding of
       discrimination prohibited under section 2302(b)(1) of this title,
       the payment of attorney fees shall be in accordance with the
       standards prescribed under sec