15:0281(62)AR - AFGE Local 2667 and EEO Commission -- 1984 FLRAdec AR



[ v15 p281 ]
15:0281(62)AR
The decision of the Authority follows:


 15 FLRA No. 62
 
 AMERICAN FEDERATION OF 
 GOVERNMENT EMPLOYEES, 
 LOCAL 2667
 Union
 
 and
 
 EQUAL EMPLOYMENT OPPORTUNITY
 COMMISSION
 Agency
 
                                            Case No. O-AR-292
 
                                 DECISION
 
    This matter is before the Authority on an exception to the award of
 Arbitrator James M. Harkless filed by the Union under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.  The Agency filed an opposition.
 
    The dispute in this matter concerns the grievant's 14-day suspension
 on charges of failure to obey an order, insubordination, and dereliction
 in the performance of her assigned duties.  A grievance was filed and
 submitted to arbitration protesting the suspension.  The Arbitrator
 determined that the suspension was not for sufficient cause.
 Accordingly, he sustained the grievance, set aside the suspension, and
 awarded the grievant backpay for the salary that was improperly withheld
 by reason of the suspension.  However, he denied the Union's request for
 an award of attorney fees because he determined that the grievant's
 conduct warranted an admonishment.  The Union has filed an exception to
 the Arbitrator's denial of attorney fees.
 
    In its exception the Union contends that the denial of attorney fees
 is contrary to the Back Pay Act, 5 U.S.C. 5596.  Specifically, the Union
 argues that the award is not in accordance with the standards
 established under 5 U.S.C. 7701(g) regarding awards of attorney fees.
 Specifically, the Union maintains that the Arbitrator essentially held
 that an award of attorney fees was not justified because the grievant's
 conduct warranted an admonishment and that this ruling is inconsistent
 with section 7701(g)(1), which provides other criteria for determining
 when an award of attorney fees is warranted.  Further, the Union claims
 that the refusal to grant attorney fees is inconsistent with the
 standards established under section 7701(g)(1) by the Merit Systems
 Protection Board which provide that an award of attorney fees is
 warranted when an employee is substantially innocent of charges brought
 against the employee or when a suspension was initiated in bad faith.
 
    In International Brotherhood of Electrical Workers and United States
 Army Support Command, Hawaii, 14 FLRA No. 90 (1984), the Authority for
 the first time addressed in detail the statutory requirements regarding
 awards of attorney fees by arbitrators.  The Authority held that under
 the applicable standards of the Back Pay Act, an arbitrator must provide
 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.  In this case the
 Arbitrator's award is not in accordance with these standards.  However,
 the Arbitrator's determination was made without the benefit of the
 instruction and guidance provided by United States Army Support Command,
 Hawaii.  Consequently, the Authority shall remand the award to the
 parties to have them obtain a clarification and interpretation of the
 determination by the Arbitrator to deny an award of attorney fees.
 
    Accordingly, pursuant to section 2425.4 of the Authority'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 regarding
 attorney fees to articulate fully specific findings on all pertinent
 statutory provisions.
 
    Issued, Washington, D.C., July 17, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR