21:0131(25)AR - Naval Air Development Center, Navy and AFGE, Local 1928 -- 1986 FLRAdec AR



[ v21 p131 ]
21:0131(25)AR
The decision of the Authority follows:


 21 FLRA No. 25
 
 NAVAL AIR DEVELOPMENT CENTER, 
 DEPARTMENT OF THE NAVY
 Agency
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 1928, AFL-CIO
 Union
 
                                            Case No. 0-AR-897
 
                                 DECISION
 
    This matter is before the Authority on an exception to the award, as
 clarified, of Arbitrator Peter Florey filed by the Department of the
 Navy (the Agency) under section 7122(a) of the Federal Service
 Labor-Management Relations Statute and part 2425 of the Authority's
 Rules and Regulations.
 
    Based on the separate concurring opinions below, the Agency's
 exception to the Arbitrator's award, as clarified, is denied and the
 award of attorney fees is modified by striking from the amount awarded
 all compensation for photocopying expenses.
 
    Issued, Washington, D.C. March 25, 1986
                                       Jerry L. Calhoun, Chairman
                                       Henry B. Frazier III Member
                                       FEDERATION LABOR RELATIONS
                                       AUTHORITY
 
    OPINION OF CHAIRMAN CALHOUN:
 
    I. STATEMENT OF THE CASE
 
    This case presents the question of the propriety of the Arbitrator's
 award of attorney fees pursuant to the Back Pay Act (5 U.S.C. 5596) and
 requires an articulation of the standards arbitrators should apply in
 rendering a decision to grant or deny attorney fees and in determining
 the amount of fees to be granted where warranted.
 
    II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    The grievance at issue concerned entitlement to environmental
 differential pay and involved questions of health and safety related to
 asbestos exposure.  The Arbitrator issued his original Opinion and Award
 in the underlying matter on July 1, 1982.  He found the grievance
 arbitrable;  compliance with the Agency's regulation concerning asbestos
 hazards "generally satisfactory ... but not uniformly implemented," and
 returned the case to the parties for computation of backpay.  In a
 Supplemental Award dated March 15, 1983, Arbitrator selected a
 computation of backpay favorable to the Union's position and approved
 the Union counsel's submission requesting payment of his attorney fees.
 The Agency timely filed an exception contesting only the award of
 attorney fees.  In reviewing that exception, the Authority concluded in
 14 FLRA 782 (1984) that remand was appropriate and ordered:
 
       The award is remanded to the parties with the direction that they
       request, jointly or separately, that the Arbitrator clarify award.
        The submission to the Arbitrator for the limited purpose of
       having the Arbitrator clarify and interpret his award of attorney
       fees to articulate fully specific findings on all pertinent
       statutory provisions.
 
    This short remand decision cited the Authority's decision in
 International Brotherhood of Electrical Workers and United States Army
 Support Command, Hawaii, 14 FLRA 680 (1984).  In that case the Authority
 ruled that an award of attorney fees under the Back Pay Act, 5 U.S.C.
 5596 (see Appendix), must be made in accordance with the standards
 established under 5 U.S.C. 7701(9)." The Authority cited with approval
 existing decisional Precedent of the U.S. Merit Systems Protection Board
 (MSPB) /1/ and held that in ruling on an attorney fee request, the
 arbitrator must issue a "fully articulated, reasoned decision setting
 forth the sPecific findings supporting the determination." Id. at 684.
 
    In his clarification, the Arbitrator in the present case found that
 "(a)ttorney fees are payable in this case under the Back Pay Act (5
 U.S.C. 5596) and the Civil Service Reform Act (5 U.S.C. 7701(g))- and
 that the amount of attorney fees was "reasonable." In support of these
 findings, the Arbitrator noted that the Union's grievance concerning
 entitlement to an environmental pay differential for exposure to
 asbestos involved the health and safety of a number of employees;  was
 of the highest priority;  and was sincerely pursued by the Union with
 considerable justification.  He affirmatively found that the Activity
 knew of asbestos exposure exceeding the standards of the National
 Institute of Occupational Safety and Health and that such knowledge
 required "greater attention" by Agency officials.  The Arbitrator
 concluded that the matter involved a continuing struggle for safety in
 the workplace under conditions endangering the health of emPloyees and
 constituted a situation warranting an award of attorney fees "in the
 interest of justice." /2/
 
    III.  POSITIONS OF THE PARTIES
 
    The Agency contends that the award of attorney fees is deficient as
 contrary to the Back Pay Act, as amended.  Specifically, it maintains
 that the award is not in accordance with the governing standards
 established under section 7701(g) because the Arbitrator failed to
 provide a fully articulated, reasoned decision setting forth the
 specific findings supporting the determination of each partient
 statutory requirement, including the basis on which the reasonableness
 of the amount was determined.
 
    In its opposition to the Agency's exception, the Union argues that
 the award of attorney fees is warranted "in interest of justice" because
 of the complex health and safety issues involved;  that the Activity's
 unwillingness to grant any portion of the remedy resulted in the
 expensive arbitration proceeding;  and that considerations of the
 Union's duty of fair representation and lack of resources warrant the
 award of fees.  The Union further maintains that the circumstances of
 this case support the award of attorney fees under the standards
 identified by the Merit Systems Protection Board (MSPB) in Allen v. U.S.
 Postal Service, 2 MSPB 582 (1980).
 
    IV.  ANALYSIS AND CONCLUSIONS
 
    A. Relevant Precedents and Statutory Provisions
 
    In its earlier decisions, the Authority determined that a review of
 an arbitrator's award of fees must be within its original subject matter
 jurisdiction /3/ and that the arbitrator must possess the statutory
 authority to award attorney fees.  /4/ Attorney fees may be awarded by
 arbitrators in a variety of unjustified and unwarranted personnel
 actions, including, but not limited to, actions subject to the
 negotiated grievance procedure or relating to an unfair labor practice.
 /5/ In addition, the broad category of personnel actions covered by the
 Back Pay Act includes the omission or failure to take an action or
 confer a benefit.  /6/
 
    Further, as set forth in Army Support Command Hawaii the Back Pay Act
 required that the award of fees be in conjunction with ;an award of
 backpay to the grievant on correction of the unwarranted personnel
 action /7/ that the award of 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 section 7701(g).
 
    Subsection (1) of section 7701(9), which applies to all cases except
 those involving complaints of discrimination nation, /8/ requires that
 the employee must be the prevailing party, that the fees must been
 incurred by the employee, that the award of attorney fees must be
 warranted "in the interest of justice," and that the amount must be
 reasonable.
 
    While the MSPB has had numerous cases in which to address fee awards
 for attorneys under the applicable provisions of 5 U.S.C. 7701(9), to
 date there has been a paucity of opportunities for the Authority to
 review appeals of arbitration awards contesting attorney fee findings.
 The jurisdiction of arbitrators (as well as other "appropriate
 authorities") under the Back Pay Act, however, extends to a
 significantly wider range of matters than those within the jurisdiction
 of the MSPB.  As in the instant case, many questions heard by
 arbitrators involve situations where an employee or group of employees
 affirmatively initiate the grievance procedure to seek a benefit
 allegedly improperly withheld by management.  /9/
 
    Because of the experience of the MSPB in this area and the many
 similarities between the two agencies with respect to the types of
 matters that come before they, the Authority has in the past reviewed
 MSPB attorney fee standards and, where applicable, has adopted MSPB
 rationale This inclination by the Authority to cite Board precedents
 should not, however, in my judgment, he interpreted by parties to future
 proceedings as an absolute adoption by the Authority of MSPB case law.
 Likewise, I would not limit or restrict the Authority or arbitrators to
 awarding attorney fees only in those cases that are analogous to MSPB
 appeals.
 
    In this opinion, it is my intent to provide further guidance to
 advocates and arbitrators with regard to the standards to be considered
 in making attorney fee determinations under 5 U.S.C. 5596 and 5 U.S.C.
 7701(g)(1)
 
    B. The Analytical Framework
 
    As stated above, five distinct requirements must be met for an
 arbitrator's award of attorney fees to be supportable under the
 provisions of section 7701(9)(1):
 
    1. Fees must be incurred for the services of an attorney.
 
    2. Fees may be sought only by the prevailing party.
 
    3. The award of fees must be warranted "in the interest of justice."
 
    4. The amount claimed for attorney fees must be reasonable.
 
    5. The award of fees must be set out in a fully articulated, reasoned
 decision.
 
    A detailed analysis of each of these requirements follows.
 
    1. Incurrence of Attorney Fees:  An attorney client relationship must
 exist and the attorney must have rendered legal services on behalf of
 the appellant.  O'Donnell v. Department of Interior, 2 MSPB 604 (1980).
 
    2. Prevailing Party:  An appellant is the prevailing party for the
 purposes of a fee award if he or she has obtained all or a significant
 part of the relief sought.  Sterner v. Department of the Army, 711 F2d
 1563, 1566-67 (Fed. Cir. 1983).  The party need not prevail on all
 issues;  rather, it is sufficient to prevail on a significant, separable
 claim on the merits.  Hanrahan v. Hampton, 466 U.S. 754 (1980);  Bradley
 v. Richmond School Board, 416 U.S. 696 (1974).  In reviewing a request
 for attorney fees one should look to the "substance of the litigation"
 to determine whether a party has substantially prevailed in its
 position, and not merely to the "technical disposition of the case or
 motion." Devine v. Sutermeister, 733 F.2d 892 (Fed. Cir. 1984).
 
    3. Interests of Justice:  The MSPB in Allen held that the interest of
 justice standard includes, but is not limited to, cases involving
 prohibited personnel practices, agency actions clearly without merit,
 agency actions taken in and faith to harass or exert improper pressure
 on an employee, agency gross procedural error which prolonged the
 proceeding or severely prejudiced the employee, and cases where the
 agency knew or should have known it would not prevail on the merits when
 it brought the proceeding.  I believe that in defining and applying the
 parameters of "interest of justice" standard, arbitrators should
 consider these factors as further clarified and augmented below.  This
 compilation of factors, however, is not intended to be all-inclusive;
 rather, additional considerations should applied where relevant and
 appropriate to individual cases and arbitrator;  are to be guided by
 both equity and logic.  Illustrative examples gleaned from MSPB and
 court cases are as follows:
 
    a. Instances where the agency presents little or no evidence to
 support its actions or demonstrates either a lack of or negligent
 preparation of the case.  /10/ This includes instances where the
 agency's action lacks substantial justification or is totally unfounded
 and clearly without merit.  For example, a situation where the agency's
 careful reading of the relevant statutes and regulations would have
 promptly shown that its interpretation was erroneous.
 
    b. Instances where agency ill will, or negligence, tainted the action
 against the employee to an unconscionable degree.  This may be inferred
 from agency action or inaction throughout the proceedings.  /11/
 
    c. Instances where the agency initiated action against an employer in
 disregard of Prevailing law,. regulations, or negotiated agreement
 provisions on federal policy.  Examples include actions based on
 improper denial of overtime, environmental differential pay, shift
 differentials, hazardous duty pay, annual leave, administrative leave,
 or official time for representational functions.
 
    d. Instances where the employer is ultimately found to be
 substantially innocent of the charges brought by the agency.  This
 determination is made on the basis of result of the appeal rather than
 on the evidence and information available to the agency at the time the
 agency effected the action.  /12/ This standard is not met, however,
 where the employee believes that he or she is substantially innocent,
 can prove his or her innocence, and deliberately does not communicate
 all of the facts to the agency deciding official where the employee's
 disclosure would reasonably have caused the agency official to modify or
 overturn the action.  Such an employee deliberately and improperly
 prolongs the agency's legal proceedings and cannot be regarded as an
 innocent victim who is entitled to attorney fees in the interest of
 justice.  /13/
 
    e. Instances where the agency fails to inquire into facts presented
 by the employee or fails to conduct a prudent inquiry into the
 employee's contradictory evidence.  /14/ For example, had an agency
 inquired into the facts presented by the employee, the agency would or
 should have ascertained at the outset that the charges against the
 employee were without merit or that the grievance should have been
 sustained.
 
    f. Instances where there is either a service rendered to the federal
 work force or there is a benefit to the public derived from maintaining
 the action.  /15/ For example, situations where an employee's grievance
 leads to correction of workplace problems affecting a segment of the
 workforce, as in the instant case.
 
    4. Reasonableness of the fee:  The reasonableness of the fee is to be
 considered after entitlement has been established.  /16/ In calculating
 what consitutes a reasonable fee, courts have applied a variety of
 methods and multifactor analyses.  An example of a method of computation
 acceptable to administrative adjudicatory bodies and most courts is the
 "lodestar" concept, wherein the attorney's customary hourly billing rate
 is multiplied by the number of hours reasonably devoted to the case.
 Careful review of the hourly rate and the number of hours claimed to
 have been expended is required prior to computing the lodestar.  See
 Mitchell v. Department of Health and Human Services, 19 MSPR 206 (1984).
  Reduction of the hourly rate or the number of hours must, however, be
 justified by detailed findings.  See Crumbaker v. MSPB, No. 85-1982
 (Fed. Cir. Jan. 28, 1986), slip op. at 3-9.
 
    The lodestar figure becomes the starting point for the setting of the
 fee and may be adjusted upward or downward for factors including, but
 not limited to, contingency the arrangements where there was a risk of
 nonpayment or partial payment, extreme difficulty of the case, and
 extensive expertise of counsel which is not reflected in the hourly
 rate.  The burden of justifying any adjustment to the lodestar figure
 falls on the party proposing the charge.  Copeland v. Marshall, 641 F.2D
 800 (D.C. Cir. 1980);  Lindy. Bros. Builders, Inc. v. American Radiator
 and Standard Sanitary Corp., 540 F.2d 102 (3d Cir. 1976);  Mitchell, 19
 MSPR 206.  An award of attorney fees should not, however, be reduced
 simply because a party failed to prevail on every contention raised.
 See Hensley v. Eckerhart, 461 U.S. 424 (1983);  Boese v. Department of
 the Air Force, No. 85-2357 (Fed. Cir. February 19, 1986, slip op. at 7.
 
    The computation of reasonable attorney fees differs where the award
 will ultimately be received by a union rather than a law firm.  In such
 cases, the fee must computed based upon actual expenses rather than the
 market value of the services rendered.  Further, a legal fund created by
 the union for fees does not alter the limitation to actual expenses for
 union attorneys.  Goodrich v. Department of the Navy, 733 F.2D 1578
 (Fed. Cir. 1984), Cert. denied 105 S. Ct. 958 (1985);  NTEU v.
 Department of Treasury, 656 F.2d 848 (D.C. Cir. 1981).
 
    5. Fully articulated, reasoned decision for fees:  In the application
 of the standards set out under 5 U.S.C. 5596 and 5 U.S.C. 7701(g), the
 Arbitrator is to provide a fully articulated, reasoned decision granting
 or denying the request for attorney fees.  Army Support Command, Hawaii,
 at 684.  The decision must contain independent and specific analysis,
 findings, and conclusions on each pertinent statutory requirement
 including the reasonableness of the amount of fees when fees are
 awarded.
 
    An arbitrator's reference to one party's brief as support for a
 finding of attorney fees, or a cursory statement that the arbitrator
 considered the necessary elements of analysis does not meet this test.
 Rather, such defects create an analytical void which serves to confuse
 the parties, the public and the reviewing bodies.  As an arbitrator's
 award must draw its essence from the parties' collective bargaining
 agreement, /17/ so too must an arbitrator's award of attorney fees draw
 its essence from a demonstrable, pragmatic analysis of the factors set
 out in the applicable statutes.  /18/
 
    V. THE ANALYTIC FRAMEWORK APPLIED TO THIS CASE
 
    Having clarified the analytic framework I believe should be applied
 in attorney fee cases under the Back Pay Act, the question to be
 addressed is whether the award of attorney fees in the instant case is
 consistent with the requirements of the Back Pay Act.  Based upon the
 following analysis, I conclude as follows:
 
    1. Incurrence of Fees:  The record shows that an obligation to pay
 attorney fees was incurred by the Union on the employees' behalf.
 
    2. Prevailing Party:  There is no dispute that the employees in this
 case were prevailing parties.
 
    3. Interest of Justice:  A careful review of the initial decision by
 Arbitrator Florey establishing right;  and remedies under the collective
 bargaining agreement, and his subsequent Report to the Authority,
 supports a finding that the award of attorney fees is in the "interest
 of justice." The Arbitrator specifically found that "in an installation
 striving for zero asbestos exposure, forty full days each year of
 exposure exceeding NIOSH standards (in case of pipefitters) reflected
 hazardous conditions requiring greater attention" on the part of the
 Agency.  Further, he noted the "complexity and magnitude" of the case
 and the "feigned cooperation" of the Agency.  He specifically noted that
 the asbestos problem is clear cut and thoroughly documented and presents
 a continuing struggle for safety in the workplace";  and that the
 "health and safety of the employees ... was pursued by the Union ... as
 reflected in the decision, with considerable justification." Finally,
 the Arbitrator concluded that "the case presented by Union in the
 present proceedings, particularly the evidence of pipefitters and other
 craftsmen, contained ... elements damning justifiably the professed
 sincerity, competence and good faith of operating supervisors below the
 Command Level" /19/ These statements by the Arbitrator are construed to
 be tantamount to a finding that the Agency should have known of the
 hazard and should have taken affirmative action to remedy the hazard.
 It is further concluded that the record supports findings that the
 magnitude of the injustice done to the employees in exposing them to
 asbestos and the public benefit derived from maintaining the action are
 substantial.
 
       d. Reasonableness of the Amount of the Award:
 
    The hourly billing rate of $65 requested by the Union's attorney is
 well within the range routinely approved by MSPB and the courts and is
 not challenged by the Agency.  It is less than the rather conservative
 rate allowed under the, Equal Access to Justice Act, 5 U.S.C. 504.  The
 detailed time records submitted to the Arbitrator conform to the
 requirements of MSPB decisions and established practice in personnel
 Cases.  See, e.g., Mitchell, 19 MSPR 206.  One necessary adjustment must
 be made, however, Counsel's fee statement includes photocopying
 expenses.  MSPB and the courts no longer permit photocopying expenses to
 be awarded as attorney fees under section 7701(g)(1).  Bennett v.
 Department of the Navy, 699 F.2d 1140, 1144 (Fed. Cir. 1983);. Koch v.
 Department of Commerce, MSPB Docket No. 0C03518110733ADD (Jan. 25,
 1984).
 
    5. Fully articulated, reasoned decision:  The Arbitrator's
 clarification was rendered pursuant to Authority's order that he
 -articulate fully specific findings on all pertinent statutory
 provisions." The Arbitrator's decision primarily incorporates by
 reference the arguments of the Union and does not meet the requirement
 for a fully articulated and reasoned decision containing independent
 analysis, findings and conclusions.  Because of the extended proceedings
 in this matter and because the record adequately permits resolution of
 the Agency's exception, the decision in this case is not to remand for
 further proceedings.  This decision, however, in no manner sanctions the
 practice of incorporation of a party's arguments by reference as a means
 of setting forth the specific findings supporting the determination of
 attorney fees as required by 5 U.S.C. 5596 and 5 U.S.C. 7701(g).
                                       Jerry L. Calhoun, Chairman
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
    MEMBER FRAZIER CONCURRING:
 
    I concur in the Chairman's decision that the arbitrator's award of
 attorney fees herein meets the basic statutory requirements under the
 Back Pay Act /20/ and I agree with his conclusion that the amount of
 fees must be modified for the reasons he gives.
 
    However, I feel that it is incumbent upon me to explain the manner in
 which I reached my conclusion that the arbitrator's award of attorney
 fees in this case meets the requirement for a "fully articulated,
 reasoned decision" setting forth the specific findings supporting the
 determination on each pertinent statutory requirement for an award of
 attorney fees and hence is not deficient in this regard.  Further, I
 believe it is necessary to explicate the manner in which I have reached
 my conclusion that the arbitrator's award establishes that an award of
 attorney fees in this case is "warranted in the interest of justice" and
 hence is not deficient in this regard.
 
    I. BACKGROUND AND SUMMARY OF THE ARBITRATION AWARD
 
    The arbitrator, in his initial opinion and award in this case, stated
 that the grievance was filed on behalf of pipefitters who were alleged
 to be "assigned duties which expose them to a Category 16 hazard as set
 forth in Appendix "J' of the FPM Supplement 532-1, i.e., Asbestos Dust
 and Article XVIII, Section "G' of the Negotiated Agreement.  ..."
 Management had denied the requested 8% payment because, as stated by the
 arbitrator in his initial opinion and award, "(m)anagement was providing
 protective equipment and that, in Management's opinion, the protective
 equipment was practically eliminating the potential for personal illness
 and injury." The reference to the elimination of the potential for
 personal illness and injury was a reference to the provisions of FPM
 Supplement 532-1, Appendix J, which provides for a differential pay rate
 of 8% to employees "(w)orking in an area where airborne concentrations
 of asbestos fibers may expose employees to potential illness or injury
 and protective devices or safety measures have not practically
 eliminated the potential for such personal illness or injury."
 
    The arbitrator went on to say in his initial opinion and award, that:
 
       ... the parties have incorporated Navy regulations into their
       negotiated agreement with respect to the payment of Appendix J
       hazard allowances, and OPNAVINST 6260 deals specifically with the
       control of asbestos exposure.  The wording of the contract does
       not permit an inquiry into the reasonableness of the regulation in
       the grievance procedure, but the Center's compliance with the
       regulation is at issue and determines its liability for payment of
       the asbestos allowance.
 
    Award at 9. The arbitrator further stated:
 
       (T)he question of the concentration of asbestos which exposes
       employees to potential illness has been pre-empted by Naval
       regulations which the parties have incorporated in their
       negotiated agreement.  The Center itself has stated without
       reservation that it will apply safety procedures to asbestos
       levels below the limits set by OSHA:  "Realizing that working with
       asbestos may be hazardous, Ref (b) (unspecified document) was
       written which promulgated specific procedures and equipment
       requirements when employees worked with asbestos exposures equal
       to or greater than two fibers per cubic centimeter.  NADC has gone
       a step further in requiring these safety precautions to be taken
       whenever working with asbestos no matter what the airborne
       concentration of asbestos and these procedures are in strict
       compliance with Ref (b) and all equipment utilized conforms to
       NIOSH standards." ... (T)he issue in this case narrows to the
       question of the safety precautions taken by the Center to avoid
       exposure to asbestos.
 
    Award at 15-16.  (Emphasis added.)
 
    The arbitrator found that "(t)o protect the health of its employees
 effectively against the asbestos hazard, all the procedures mandated by
 OPNAVINST 6260 have to be followed." (Emphasis in original.) He also
 found that:
 
       (i)n theory, the Center has set up an admirable procedure for the
       protection of its employees against the asbestos hazard following
       the directive of OPNAVINST 6260.  ... However, the affected
       employees related at the hearing that, in practice, they
       encountered considerable difficulties and shortcomings such as
       poorly fitting respirators, ripping suits and considerable
       deficiency in the instructional programs.
 
    Award at 16.  The arbitrator found that "(t)his state of affairs is
 reflected in the NIOSH report" which he attached to his opinion and
 award.  The arbitrator found that this report had "labeled several
 practical protective measures, including the wearing of respirators, as
 "not at all satisfactory." He "stressed that providing protective gear,
 in and by itself, does not constitute a complete safety measure within
 the meaning of Article (sic) J." Award at 15.  The arbitrator concluded
 that:
 
       ... it can be reasonably expected that the parties themselves will
       work out the type of practical implementation of OPNAVINST 6260.1B
       which will eliminate the asbestos hazard within reasonable limits
       and, thereby, the need to pay the hazard differential.  It should
       be noted that institution of an effective asbestos control program
       was treated as the terminal point of back pay in most of the cited
       arbitration decisions.
 
    Award at 17.  The arbitrator then made the following award:  that the
 Center's program for coping with asbestos hazards was generally in
 satisfactory compliance with OPNAVINST 5260 but not uniformly
 implemented as a practical matter;  that the case was returned to the
 parties for further proceedings in the light of the arbitrator's
 decision and for the computation of backpay;  and that payment of the
 Union attorney fees by the Center would be triggered by retroactive
 payments made under the award.  With respect to the award of attorney
 fees, the arbitrator noted that the grievance:
 
       . . . was pursued by the Union sincerely and, as reflected in the
       decision, with considerable justification.  Preparation for a case
       of this complexity and magnitude requires considerable time and
       reflection, and the situation is clearly one to which the enabling
       legislation is addressed by awarding attorney's fees as "warranted
       by the interests of justice," as long as back pay becomes payable.
 
    Award at 8.
 
    The parties were unable to reach agreement on how to implement the
 initial award, and the matter was referred once more to the arbitrator.
 Thereafter, the arbitrator issued a Supplemental Award.  In this
 Supplemental Award, the arbitrator made the following findings and
 award:
 
       After careful review, it appears that the positions of the parties
       are not far apart, but that the approach taken the Union comes
       closer to effectuating the findings of the July 1, 1982 award than
       the proposal by the Center.  For this reason, backpay shall be
       computed and paid as outlined in the Union's letter of December
       15, 1982, and counsel fees should be adjusted accordingly.
 
    Supplemental Award at 1.
 
    Thereafter, pursuant to section 7122(a) of the Federal Service
 Labor-Management Relations Statute (the Statute) and part 2425 of the
 Authority's Rules and Regulations, the Agency filed an exception to the
 award of the arbitrator with the Authority.  Specifically, the Agency
 excepted to the award of attorney fees, arguing that the award of
 attorney fees was contrary to the provisions of the Back Pay Act, 5
 U.S.C. 5596, and the standards established under 5 U.S.C. 7701(g) which
 govern the award of attorney fees under the Back Pay Act.
 
    The Authority, in Naval Air Development Center, Department of the
 Navy and American Federation of Government Employees, Local 1928,
 AFL-CIO, 14 FLRA 782 (1984), concluded that the arbitrators award of
 attorney fees in this case was not in accordance with the applicable
 standards and statutory requirements of the Back Pay Act and remanded
 the case to the parties.  The remand included direction that the
 parties, jointly or separately, request the arbitrator to clarify and
 interpret his award of attorney fees so as to articulate fully specific
 findings on all pertinent statutory provisions.  The Authority decided
 to remand the case because, as the Authority then pointed out, the award
 of attorney fees herein was issued on a date prior to the issuance by
 the Authority of its decision in International Brotherhood of Electrical
 Workers and United States Army Support Command, Hawaii, 14 FLRA 68O
 (1984) and hence, the Arbitrator's determination was made without the
 benefit of the instruction and guidance provided by United States Army
 Support Command, Hawaii."
 
    In Army Support Command, Hawaii, the Authority for the first time,
 had addressed in detail the statutory requirements regarding awards of
 attorney fees.  In that case, the Authority said, in pertinent part:
 
       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 had 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 of 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(g).  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.  ... 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).
 
    Therefore, to summarize, because in this case the award was issued on
 a date prior to the issuance of Army Support Command, Hawaii, and thus
 without the benefit of the instruction and guidance provided by Army
 Support Command, Hawaii, it determined to remand for the purpose of
 allowing the arbitrator to clarify and interpret his award in the light
 of the standards articulated by the Authority therein.  /21/ In the
 remand the attention of the parties and the arbitrator was directed to
 the guidance in Army Support Command, Hawaii, by a specific citation to
 the case.
 
    Thereafter, the arbitrator issued a clarification and interpretation
 of his award of attorney fees, stating that such "fees are payable in
 this case under the Back Pay Act, 5 U.S.C. Para. 5595, and the Civil
 Service Reform Act, 5 U.S.C. Para. 7701(g) as fully explained in the
 Union's brief which is incorporated into this decision" and that the
 attorney fees being sought "are reasonable and shall be paid forthwith."
 In this clarification and interpretation of his award of attorney fees
 the arbitrator found that "(a)ny reasonable person would agree that even
 one dollar of 8% Hazardous Duty Payment for asbestos exposure cries out
 for Attorney Fees in the interest of justice.  ..." Clarification at 5.
 In reaching this conclusion, in his clarification and interpretation,
 the arbitrator noted, inter alia:
 
       Initially, I was not prepared to defend or explain my prior
       decision in this case.  The Union has done it brilliantly and
       extensively in its brief which I am incorporating into this Report
       as a part thereof.  As (the Union's counsel's) brief points out,
       there is not a single standard for the payment of Attorney Fees
       that is not reflected in my decisions.
 
    Clarification at 4-5.  The arbitrator went on to say that:
 
       (t)he case presented by the Union in the present proceedings,
       particularly the evidence of pipefitters and other craftsmen,
       contained ... elements damning justifiably the professed
       sincerity, competence and good faith of operating supervisors
       below the Command Level.  ... It (the Agency) knew that, in an
       installation striving fur zero asbestos exposure, forty full days
       each year of exposure exceeding NIOSH standards (in the case of
       pipefitters) reflected hazardous conditions requiring greater
       attention.  ... The asbestos problem is clear cut and thoroughly
       documented and presents a continuing struggle for safety in the
       work place.
 
    Clarification at 6-7.
 
    The arbitrator found that the policies of top management were not
 followed diligently by subordinate supervisors, loading to unwarranted
 exposure to asbestos hazards on the part of the employees involved in
 the arbitration.  As noted above, the arbitrator incorporated the brief
 filed by the Union counsel into his report of clarification and
 interpretation, adopting that analysis as his own.  The arbitrator
 affirmed the award of attorney fees.
 
    The Agency has filed an exception to the arbitrator's award as
 interpreted and clarified.  The Agency, in essence, again contends that
 the award of attorney fees is contrary to the Back Pay Act, 5 U.S.C. 2
 5596, and more specifically that it is not made in accordance with the
 standards established under 5 U.S.C. 7701(g).  In the latter regard the
 Agency contends that the arbitrator did not provide a fully articulated,
 reasoned decision setting forth specific findings that support the
 determination to award attorney fees.  Accordingly, the issue presented
 to the Authority by the exceptions filed by the Agency is whether or not
 the award of attorney fees by the arbitrator is contrary to law.
 
    II.  ATTORNEY FEES UNDER THE CIVIL SERVICE REFORM ACT
 
    Under the "American Rule," attorney fees are not ordinarily
 recoverable by the prevailing litigant in federal litigation Order
 Granting Request for Reconsideration in that case because the arbitrator
 and the parties were not explicitly apprised that the Authority would
 set aside an award of attorney fees that was not fully supported as
 required.  In that Order parties and arbitrators were put on explicit
 notice that deficient awards of attorney fees issued hereafter will be
 set aside (or modified as appropriate) rather than being remanded absent
 statutory authorization to award such fees.  Alaska pipeline Service Co.
 v. Wilderness Society, 421 U.S. 240, 247 (1975).  Moreover, an award of
 attorney fees against an agency of the United States Government is not
 permitted unless there, is an explicit statutory provision authorizing
 such an award which may serve as a waiver of traditional sovereign
 immunity enjoyed by the United States.  Scarborough v. Office of
 Personnel Management, 723 F.2d 801, 808 (11th Cir. 1984);  Spencer v.
 NLRB, 712 f.2d 539, 543-44 (D.C. Cir. 1983).  Accordingly, a careful
 review of an award of attorney fees against the United States is
 necessary to assure that it is made within the explicit terms of the
 statute which authorizes such award.
 
    The Back Pay Act authorizes an appropriate authority such as the
 Federal Labor Relations Authority or an arbitrator to award attorney
 fees to an employee under certain specific circumstances.  /22/
 Specifically, the Act requires that in order to be eligible for attorney
 fees, the employee must 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
 resulted in the withdrawal or reduction of the employee's pay,
 allowances, or differentials.  Additionally, the fee award must be in
 conjunction with an award of backpay of the correction of the
 unjustified or unwarranted personnel action;  the fee award must be
 reasonable and related to the personnel action;  and, the fee award must
 be in accordance with the standards established under 5 U S C 7701(g)
 /23/
 
    Section 7701(g) provides that for an employee to be eligible for an
 award of attorney fees in a case which does not involve discrimination,
 the employee must be the prevailing party;  that the award must be
 warranted "in the interest of justice";  the amount must be reasonable
 and the fees must be incurred by the employee.  In addition, it has been
 held that 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.  /24/ Thus, it is
 clear that in determining whether to award attorney fees under the Back
 Pay Act, an arbitrator must be careful to conform to the standards
 established under the Civil Service deform Act (CSRA) authorizing such
 awards.
 
    In resolving exceptions to awards of attorney fees, as in this case,
 it falls to the Authority to assure that the award is not contrary to
 law and hence is not deficient.  In order for the Authority to properly
 perform its role in resolving exceptions to such awards, it is necessary
 to review the award under the Back Pay Act to assure that it meets the
 statutory requirements.
 
    The provisions of the Back Pay Act which allow awards of attorney
 fees in certain specified circumstances were produced as the result of
 legislative compromise.  The legislative history of those provisions can
 be instructive in their interpretation and application to the facts of
 the case.
 
    .2640, the version of the CSRA passed by the Senate contained
 amendments to the Back Pay Act but made no provision for the payment of
 attorney fees therein.  However, section 7701(j) of S.2640, respecting
 the appellate procedures of the Merit Systems Protection Board (MSPB),
 provided, for cases not involving discrimination, that the MSPB:25/
 
       ... may require payment by the agency which is the losing party to
       a proceeding before the Board, of reasonable attorney fees
       incurred by an employee, if the employee is the prevailing party
       and the deciding official or officials determine that payment by
       the agency is warranted on the grounds that the agency's action
       was taken in bad faith.  ...
 
    H.R. 11280, the version of the CSRA passed by the House of
 representatives, in proposing to amend the Back Pay Act, provided that
 the affected employee was entitled on correction of the personnel action
 to receive:  /26/
 
       ... reasonable attorney fees and reasonable costs and expenses of
       litigation 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, shall be awarded in accordance with standards
       established under section 7105(h) of this title.  ...
 
    Section 7105 of H.d. 11280 which described the powers and duties of
 the Federal Labor Relations Authority would have assigned the Authority
 some degree of discretion in establishing the standards to be applied in
 determining when attorney fees should be awarded in unfair labor
 practice cases and grievance arbitration awards.  Section 7105(h),
 provided as follows:  /27/
 
       The Authority shall, by regulation, establish standards which
       shall be applied in determining the amount and circumstances in
       which reasonable attorney fees and reasonable costs and expenses
       of litigation may be awarded under section 7118(a)(5)(C) or
       5596(b)(1)(B) of this title in connection with any unfair labor
       practice or any grievance processed under a procedure negotiated
       in accordance with this chapter.
 
    The section of H.R. 11280 concerning MSPB pertinently provided, for
 cases not involving discrimination, that the Board may require:  /28/
 
       ... 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 the case may be,
       determines that payment by the agency is warranted.
 
    The Conference Committee resolved these conflicting versions by a
 series of compromises.  As one compromise, section 7105(h) in H.d. 11280
 was dropped, thereby eliminating the provision which would have allowed
 the Authority to fashion standards to be applied in determining the
 amount and circumstances in which attorney fees may be awarded in unfair
 labor practice cases and grievance arbitration cases.  Instead, the
 Conference Committee decided to permit the award of attorney fees in
 unfair labor practice cases and arbitration cases only where backpay is
 awarded and only under the standards set forth in 5 U.S.C. 7701(g).
 Thus, at the meeting of the Conference Committee on September 18, 1978,
 Congressman Udall stated:  /29/
 
       My proposal is a compromise.  It would adopt the Senate provision
       eliminating attorney's fees in the unfair labor practice area.  It
       would allow the appropriate authority-- FLRA or the arbitrator or
       whoever in any grievance decision-- to award fees in conformity
       with standards to be applied in the MSPB cases.  Those standards
       would be a middle ground between the Senate's bad faith.  It would
       be pretty hard to prove bad faith, we think, in most cases, and
       the House's very loose standard which is simply "as warranted";
       and when the employee wins the case on the merits and the Board
       finds that the fees are warranted in the interest of fairness and
       justice and so on.
 
    The final compromise as to attorney fees for cases not involving
 discrimination is reflected in the Conference Report on the Civil
 Service Reform Act of 1978, H.R. 95-1717, 95th Cong., 2d Sess. (1978),
 which stated at p. 142:  /30/
 
       The Senate bill authorizes attorneys' fees to be awarded in
       appeals cases by a hearing officer whenever the employee prevails
       and the officer determines that the agency's action was taken in
       bad faith.  ... The House amendment authorizes attorneys' fees in
       any case where the officer determines that payment "is warranted".
        ... The conference substitute (section 7701(g) and
       5596(b)(1)(A)(ii)) authorizes attorneys' fees in cases where (an)
       employee prevails on the merits and the deciding official
       determines that attorneys' fees are warranted in the interest of
       justice, including a case involving a prohibited personnel
       practice or where the agency's action was clearly without merit.
       The reference to these two types of cases is illustrative only and
       does not limit the official from awarding attorneys' fees in other
       kinds of cases.
 
    In light of this legislative history, it is clear that under the
 Civil Service Reform Act of 1978, the Federal Labor Relations Authority
 and arbitrators issuing awards under the provisions of section 7121 of
 the Statute may award attorney fees, but only in the limited, specified
 circumstances outlined above.  Thus, in order to be eligible for the
 award of attorney fees in unfair labor practice cases and in grievance
 arbitration awards, it is not sufficient merely to be the prevailing
 party.  There must also be an award of backpay.  In an earlier case,
 Department of Defense, Dependents Schools and Overseas Education
 Association, Inc., 3 FLRA 259 (1980), the Authority denied a union's
 exceptions to an arbitrator's denial of its request for attorney fees on
 the ground that in that case there had been "no determination that an
 unjustified or unwarranted personnel action had resulted in the
 withdrawal or reduction of the grievant's pay, a necessary threshold
 determination for entitlement to attorney fees under the Back Pay Act,
 as amended." 3 FLRA at 263.
 
    Moreover, in cases where discrimination is not involved, prevailing
 in an arbitration award which calls for backpay, even the retroactive
 payment of environmental differentials, is not, standing alone, a
 sufficient basis for an award of attorney fees.  It is only the first
 step in meeting the requirements under the Back Pay Act.  The award of
 attorney fees must also meet the applicable requirements of 5 U.S.C.
 7701(g) and the standards established thereunder.
 
    In Sterner v. Department of the Army, 711 F.2d 1563, 1571 (Fed. Cir.
 1983), the U.S. Court of Appeals for the Federal Circuit summarized the
 prerequisites to an award of attorney fees under section 7701(g)(1) of
 CSRA as follows:
 
       To summarize, there are two prerequisites to an award of
       attorney's fees under section 7701(g)(1) which the board must
       address in each case:  whether the employee is the prevailing
       party and whether an award is warranted in the interest of
       justice.  Determination of prevailing party should be a simple
       task of deciding whether the employee succeeded in obtaining all
       or a significant part of the relief sought.  The question of
       substantial innocence is not germane to this initial inquiry.  ...
       The board has considerable discretion in determining when an award
       is warranted in the interest of justice.  The non-exclusive
       guidelines (established by the MSPB in its decision in Allen which
       is discussed infra) are a valid starting point.  The board may
       also consider the extent of the employee's success.  Economic
       hardship per se is not a proper consideration as it would tend to
       undermine the statutory intent, but the board may wish to consider
       extraordinary hardships in appropriate cases ...
 
    Clearly then, in the context of the present case, the mere
 conclusions that an environmental differential is payable, and is
 payable retroactively, are not sufficient to "trigger" an award of
 attorney fees, or to support the award in the face of a challenge that
 the award is contrary to law.  Rather, as pointed out above, it must be
 shown, among other things, that such award is in the interest of justice
 in accordance with standards established under section 7701(g) Moreover,
 the Authority is without discretion to ignore this requirement, or to
 fashion its own standards upon which an award of attorney fees may be
 made.  Indeed, as noted in the above discussion of the legislative
 history, the Authority would have had a great deal of discretion had the
 provisions of H.R. 11280, including especially section 7105(h), been
 adopted by the Congress and enacted into law.  However, under the CSRA
 as enacted, the Authority is constrained to apply the requirements set
 forth in 5 U.S.C. 5596 and 5 U.S.C. 7701(g), including the standards
 established under section 7701(g), in determining whether an award of
 attorney fees by an arbitrator is contrary to law.
 
    The MSPB in Allen v. U.S. Postal Service, 2 MSPB 582 (1980),
 developed standards for ascertaining when an award of attorney fees "is
 warranted in the interest of justice" as well as other standards for
 such an award under 5 U.S.C. 7701(g)(1) The Court of Appeals for the
 Federal Circuit has confirmed the validity of MSPB's standards for
 determining whether attorney fees are warranted in the interest of
 justice.  /31/ As the court stated in Sterner, 711 F.2d at 1570:
 
       The Allen guidelines are reasonable and are firmly based in the
       statute and the legislative history;  we therefore have no basis
       for altering the Allen guidelines, noting itself emphasized that
       the examples given were "not exhaustive."
 
    As to the guidelines, the court stated in Yorkshire, 746 F.2d at
 1456:
 
       The parties correctly cite Allen v. U.S. Postal Service, 2
       M.S.P.B. 582 (1980), as embodying the MSPB's prevailing standard
       for interpretation of the "warranted in the interest of justice"
       part of 7701(g)(1).  Allen began with the proposition that the two
       examples in the statute concerning when an award would be
       warranted in the interest of justice are illustrative and not
       exclusive.  Id. at 587.  The Board then reviewed the legislative
       history of the statute to glean other instances in which an award
       would be appropriate.
 
    The Board in Allen found very illuminating the comments of Senator
 Mathias, author of the "interest of Justice" language and member of the
 Reform Act's conference committee.  Senator Mathias described four
 situations in which the Board might appropriately award attorney's fees:
 
       (W)here he (the employee) is substantially innocent of the charges
       that are leveled against him, or where the agency acted in bad
       faith, or where there was some gross procedural error, or where
       the agency knew or should have known that it couldn't prevail on
       the merits when it brought the proceeding.
 
    Id. at 589, quoting Transcript of Senate Committee on Governmental
 Affairs' Mark-up Session on S. 2640, 95th Cong., 2d Sess. 124-25 (1978).
  With the statutory examples and Senator Mathias' illustrations as a
 base, the Board developed a set of five broad categories of cases in
 which an award of attorney's fees fits within the statutory framework:
 
       1. Where the agency engaged in a "prohibited personnel practice"
       (7701(g)(1));  2. Where the agency's action was "clearly without
       merit" (7701(g)(1)), or was "wholly unfounded," or the employee is
       "substantially innocent"' of the charges brought by the agency;
       3. Where the agency initiated the action against the employee in
       "bad faith," including:  a. Where the agency's action was brought
       to "harass" the employee;  b. Where the agency's action was
       brought to "exert improper pressure on the employee to act in
       certain ways";  4. Where the agency committed a "gross procedural
       error" which "prolonged the proceeding" or "severely prejudiced"
       the employee;  5. Where the agency "knew or should have known that
       it would not prevail on the merits" when it brought the
       proceeding.  Id. at 593 (footnotes omitted).  The Board dubbed
       these headings "directional markers toward "the interest of
       justice" rather than conclusive or fixed definitions.  Id.  We
       confirmed the validity of the Allen guidelines in Sterner, supra,
       711 F.2d at 1570.
 
    Thus, in determining whether an award of attorney fees is within the
 explicit terms of the provisions of the CSRA, both the requirements of
 the Back Pay Act and section 7701(g) must be assessed.  To summarize, in
 order for an award of attorney fees to be authorized, the award of fees
 must be in conjunction with an award of backpay to the grievant on the
 correction of the unjustified or unwarranted personnel action, must be
 reasonable and related to the personnel action, and must be in
 accordance with the standards established under section 7701(g).  That
 section prescribes that the employee must be the prevailing party and
 section 7701(g)(1), which applies to all cases except those of
 discrimination, prescribes that the award of 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.  With respect to the
 interest of justice standard, the requirements and guidelines
 established by the Merit Systems Protection Board in the Allen case and
 approved by the U.S. Court of Appeals for the Federal Circuit are the
 starting point in determining when an award of fees is warranted in the
 interest of justice.  Finally, there must be a "fully articulated,
 reasoned decision" setting forth the specific findings supporting the
 determination on each pertinent statutory requirement.  It is the role
 of the Authority here to determine whether the arbitrator's award of
 attorney fees meets the statutory requirements noted above.
 
    I wish to emphasize here that the Authority's function under the
 Statute generally is to review the awards of the arbitrators to insure
 that they are not deficient on grounds described in section 7122(a).
 Under the Statute, grievance arbitration awards are final and binding so
 long as they are not contrary to law, rule, or regulation or are
 otherwise deficient on grounds applied by federal courts private sector
 labor-management relations.  The Authority does not judge the merits of
 the dispute before the arbitrator.  Thus, with respect to exceptions to
 awards of attorney fees, the Authority's role is to insure that the
 arbitrator has met the statutory requirements.  It is not the role of
 the Authority to substitute its judgment for that of the arbitrator.
 
    III.  APPLICATION OF THE STATUTORY REQUIREMENTS IN THIS CASE
 
    As I indicated in the introduction to this concurring opinion, I wish
 to discuss my conclusions regarding two of the requirements in this
 case-- the requirement for a fully articulated, reasoned decision and
 the requirement that an award of attorney fees be warranted in the
 interest of justice.
 
    I will first address the Agency's contentions that the arbitrator has
 failed and refused to provide the parties and the Authority with a fully
 articulated, reasoned decision setting forth the specific findings
 supporting the determinations on each pertinent statutory requirement.
 As noted in Part I of this concurring opinion, the arbitrator, in his
 clarification and interpretation of the award of attorney fees, found
 that they were payable "as fully explained in the Union's brief which is
 incorporated into this decision." I cannot endorse this practice,
 especially where the requirements under section 7701(g) as described by
 the Authority in Army Support Command, Hawaii, call for "a fully
 articulated, reasoned decision setting forth the specific findings
 supporting the determinations on each pertinent statutory requirement,
 including the basis upon which the reasonableness of the amount was
 determined when fees are awarded."
 
    After the matter was remanded by the Authority, the counsel for the
 Union submitted to the arbitrator a 28-page, double-spaced typewritten
 brief on the issue of attorney fees.  The Agency submitted a 12-page,
 single-spaced typewritten brief with 17 attachments.  As Judge J. Skelly
 Wright has noted in connection with a somewhat similar circumstance,
 "(t)hese lawyers and properly so, in their zeal and advocacy and their
 enthusiasm are going to state the case for their side ... as strongly as
 they possibly can." /32/ Moreover, where attorneys contest points of law
 and offer persuasive arguments on both sides of an issue, it falls to
 the decision maker to resolve those points of law and those issues.  In
 the circumstances here, a fully articulated, reasoned decision setting
 forth the specific findings supporting the determination on each
 pertinent statutory requirement for an award of attorney fees calls for
 an analysis of the parties' differing positions and an independent,
 objective explanation for the arbitrator's conclusions.  To instead
 adopt in to the brief of one side and to incorporate that brief into his
 decision, and to describe the brief of the opposing side simply as "a
 lengthy citation of authorities which are largely inappropriate and
 irrelevant" comes perilously close to an abdication of this
 responsibility.  The arbitrator said in his clarification and
 interpretation that "I know how to spell out justification for attorney
 fees, when needed." He should have done so in this case.
 
    As the U.S. Court of Appeals for the District of Columbia Circuit
 recently said in addressing a somewhat similar problem:  /33/
 
       ... (W)e wish to make clear that we cannot endorse the District
       Judge's action in extensively copying the proposed findings of
       fact and conclusions of law prepared by counsel for (one of the
       parties).  As the Supreme Court noted in El Paso Natural Gas Co.,
       this practice "is an abandonment of the duty and the trust that
       has been placed in the judge." 376 U.S. at 657 n. 4, 84 S. Ct. at
       1047 n. 4 (quoting J. Skelly Wright, Seminars for Newly Appointed
       United States District Judges 156 (1963)).  As the present case
       illustrates, the parties, the public and the reviewing court can
       never be certain that the judge actually decided the case on the
       grounds given in the copied Memorandum Opinion.  Confidence in the
       integrity of the judicial process inevitably suffers when judges
       succumb wholesale to this practice.
 
    Similarly, I cannot endorse the action of the arbitrator here in
 merely incorporating the contentions and arguments of counsel
 representing one of the parties before him.  A fully articulated,
 reasoned opinion is required by the Authority in these cases because it
 is a requirement for authorizing attorney fees under the Back Pay Act.
 If the arbitrator fails to perform his function in this regard, he fails
 his duty under law and fails to meet his obligation to the parties who
 selected him to resolve their grievance.
 
    Certainly, therefore, it would have been far preferable had the
 arbitrator not succumbed to the temptation of incorporating one side's
 position and instead spelled out the justification for the award himself
 is he admits he knows how to do.  Because such a fully articulated,
 reasoned justification is not expressly set forth by the arbitrator, in
 my opinion his entire award. as supplemented and later clarified, must
 be examined to determine whether sufficient findings can be gleamed
 which would support his conclusion that an award of attorney fees is
 warranted in the interest of justice.  In my view, it is appropriate to
 adopt such a course of action in this case in light of the arbitrator's
 explicit references to his initial and supplemental awards in his
 clarification here under review.  I wish again to underscore that in
 examining the entire award, I will not be placing myself in the
 arbitrator's shoes to judge the merits of the dispute the parties placed
 before him, .i.e., whether attorney fees are warranted in this case.
 Instead, I will, consistent with the Authority's statutory function in
 arbitration cases, examine the arbitrator's entire award to see whether
 his decision to grant fees is supported by the specific findings
 required by law.
 
    As an initial matter, I would observe that in Allen the MSPB was
 applying the provisions of section 7701(g)(1) in an adverse action
 appeal under 5 U.S.C. chapter 77.  Consequently, most of the MSPB's
 Allen guidelines relate an award of attorney fees to some action taken
 by an agency against an employee, which action is being overturned or
 modified.
 
    In the instant case we are not examining an award of attorney fees in
 similar circumstances.  There has been no "adverse action" taken against
 an employee;  clearly it is not a matter covered by 5 U.S.C. 7512.  /34/
 We are not dealing with an action based on unacceptable performance
 covered by 5 U.S.C. 4303.  /35/ Instead, we are here faced with a
 grievance arbitration award wherein the arbitrator has found in effect
 that employees had been improperly denied a benefit, namely,
 environmental differential pay, and the question is whether an award of
 attorney fees is warranted in the interest of justice in these
 circumstances.
 
    Even though these circumstances differ from those in Allen, some of
 the Allen guidelines could apply to a situation wherein agency
 management has improperly denied benefits to an employee, e.g., where
 the agency's action was "clearly without merit' or where the agency
 "knew or should have known that it would not prevail on the merits."
 
    Furthermore, the MSPB and the courts have been faced with a somewhat
 analogous situation, in a case in which employees' applications for
 disability retirement have been denied.  In Scarborough v. Office of
 Personnel Management, 723 F.2d 801 (11th Cir. 1984), the U.S. Court of
 Appeals for the Eleventh Circuit noted that section 7701(g) provides
 that it applies to "any case in which a prohibited personnel practice
 was engaged in by the agency or in any case in which the agency's action
 was clearly without merit." In concluding that the underlined words
 created a "second classification" of cases in which an award of attorney
 fees would be warranted in the interest of justice, the court stated:
 "An unreasonable denial of retirement benefits could easily be
 encompassed under this second classification." /36/ For the reasons
 similar to those articulated in this respect in Scarborough, I would
 conclude under the Back Pay Act that a denial of environmental
 differential pay "could easily be encompassed" under the same
 classification, i.e., a case in which the agency's action was clearly
 without merit, if such denial of environmental differential pay were
 found to be "unreasonable."
 
    Therefore, in this case, in order to decide whether the award of
 attorney fees is warranted in the interest of justice, I believe it is
 necessary to examine the arbitrator's findings to see whether there is a
 sufficient basis to conclude that the Agency knew or should have known
 it would not prevail on the merits or that the Agency's denial of
 environmental differential pay was unreasonable and thus clearly without
 merit.  My analysis is thus based on relevant Allen factors and on the
 related approach taken in this respect in Scarborough.  Since the Allen
 factors are guidelines and not intended to be exhaustive, I see no need
 to apply the other factors set forth in Allen.
 
    I have concluded that the arbitrator's findings support a
 determination that management's denial of the environmental differential
 pay in the circumstances of this case was unreasonable and that
 management should have known that it would not prevail on the merits of
 the grievance.  Therefore, the arbitrator's award of attorney fees as
 being warranted in the interest of justice is supported and must stand.
 As noted in Part I of this concurring opinion, the arbitrator found in
 pertinent part that:
 
          (A) Management had stated without reservation that it would
       apply safety procedures to asbestos levels below the limits set by
       OSHA.
 
          (B) Management had gone a step further in requiring these
       safety precautions to be taken whenever working with asbestos no
       matter what the airborne concentration of asbestos and that all
       equipment utilized must conform to NIOSH standards.
 
          (C) While the procedure which management had set up was, in
       theory, admirable for the protection of employees against the
       hazard involved, a NIOSH report, introduced at the hearing and
       attached to the arbitrator's initial award, "labeled several
       practical protective measures, including the wearing of
       respirators, as "not at all satisfactory."
 
          (D) Management knew that, in an installation striving for zero
       asbestos exposure, forty full days each year of exposure exceeding
       NIOSH standards (in the case of pipefitters) reflected hazardous
       conditions requiring greater attention.
 
          (E) The asbestos problem was clear cut and thoroughly
       documented and presented a continuing struggle for safety in the
       workplace.
 
    Therefore, the arbitrator rejected management's contention that it
 was providing protective equipment which was practically eliminating the
 potential for personal illness and injury.  As a result the affected
 employees were awarded environmental differential pay for "(w)orking in
 an area where airborne concentrations of asbestos fibers may expose
 employees to potential illness or injury and protective devices or
 safety measures have not practically eliminated the potential for such
 personal illness or injury."
 
    In light of the arbitrator's findings concerning the high standards
 that management had set for itself, the documented failure to meet those
 standards and to provide satisfactory practical protective measures, and
 management's knowledge of forty full days each year of employee exposure
 exceeding NIOSH standards, it was unreasonable for management to take
 the position that it was providing protective equipment which was
 practically eliminating the potential for personal illness and injury
 and for that reason to deny the employees the benefit of environmental
 differential pay.  Furthermore, because management knew that its
 measures did not provide satisfactory protection and because it knew
 that it had failed to meet the standards which it set for itself,
 management should have known that it would not prevail on the merits in
 this grievance.  Therefore, I conclude that the arbitrator made
 sufficient findings to support the conclusion that attorney fees were
 warranted in the interest of justice.
 
    In summary on this point, in these circumstances, in my opinion, it
 is clear that the arbitrator's award contains a sufficient basis to
 conclude that the Agency's denial of the environmental differential pay
 was unreasonable and hence without merit and that the Agency knew or
 should have known they would not prevail on the merits of the grievance/
 arbitration proceeding, and that the award of attorney fees in this case
 therefore is "warranted in the interest of justice."
                                       (s)---
                                       Henry B. Frazier III, Member
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
 
    /1/ See, e.g., Allen v. U.S. Postal Service, 2 MSPB 582 (1980);
 Kling v. Department of Justice, 2 MSPB G20 (1980).
 
 
    /2/ Arbitrator's Report to the Authority, dated December 5, 1984.
 
 
    /3/ National Weather Service Employees Organization (MEBA AFL-CIOS
 and National Weather Service, Western Region, 17 FLRA No. 91 (1985).
 
 
    /4/ U.S. Army Corps of Engineers and National Federation of Federal
 Employees, Local 639, 17 FLRA No. 67 (1985).
 
 
    /5/ 5 U.S.C. 5596(b)(1)(A)(ii).
 
 
    /6/ 5 U.S.C. 5596(b)(3).
 
 
    /7/ See also Audie L. Murphy VA Hospital, San Antonio, Texas and
 American Federation of Government Employees, AFL-CIO, Local No. 3511, 16
 FLRA 1079 (1984).
 
 
    /8/ 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).
 
 
    /9/ See Simmons v. MSPB, 768 F.2d 323 (Fed. Cir. 1985) and
 Scarborough v. OPM, 723 F.2d 801 (11th Cir. 1984) (attorney fees awarded
 in connection with disability retirement applications under 5 U.S.C.
 8347).
 
 
    /10/ Compton v. Department of Energy, 9 MSPB 91 (1982);  Trowell v.
 United States Postal Service, 3 MSPB 117 (1980).
 
 
    /11/ O'Donnell v. Department of Interior, 2 MSPB 604 (1980).
 
 
    /12/ See Boese v. Department of the Air Force, No. 85-2327 (Fed. Cir.
 Feb. 19, 1986);  Yorkshire v. Merit Systems Protection Board, 746 F.ed
 1454 (Fed. Cir. 1984).
 
 
    /13/ Wise v. MSPB, No. 85-1974 (Fed. Cir. Dec. 30, 1985).
 
 
    /14/ Steger v. Defense Investigative Service, 717 F.2d 1402 (D.C.
 Cir. 1983).
 
 
    /15/ Wells v. Harris, 2 MSPB 572 (1980).
 
 
    /16/ Sterner v. Department of the Army, 711 F.2d 1563, 1568-69 (Fed.
 Cir. 1983).
 
 
    /17/ E.g. American Federation of Government Employees, National
 Border Patrol Council and U.S. Immigration and Naturalization Service,
 Southern Region, Dallas, Texas, 3 FLRA 540 (1980).
 
 
    /18/ I note the Authority's concurrent action in rescinding its
 decision setting aside the award of attorney fees in 20 FLRA No. 37 and
 remanding the case to the parties with direction that they request the
 arbitrator to clarify his award be providing the requisite fully
 articulated, reasoned decision setting forth specific findings on all
 pertinent statutory requirements.
 
 
    /19/ Arbitrator's Report to the Authority, December 5, 1984, at 3-7.
 
 
    /20/ Back Pay Act of 1966, P.L. 89-380, 80 Stat. 94 (codified as
 amended at 5 U.S.C. 5595 (1982)).  See Appendix.
 
 
    /21/ In contrast, an award of attorney fees issued more than one year
 subsequent to the issuance of Army Support Command, Hawaii, and thus
 with the benefit of the instruction and guidance provided therein, which
 did not provide a fully articulated, reasoned decision, was found
 deficient by the Authority and the award was set aside.  See National
 Association of Air Traffic Specialists and Federal Aviation
 Administration, Washington;  light Service Station, 20 FLRA No. 87
 (1985).  However, on this date the Authority has issued an
 
 
    /22/ 5 U.S.C. 5596 (1982).  See Appendix.
 
 
    /23/ 5 U.S.C. 7701(g) (1982).  See Appendix.
 
 
    /24/ 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
 (1985).
 
 
    /25/ Legislative History of the Civil Service Reform Act of 1978,
 Comm. on Post Office and Civil Service, House of representatives, 96th
 Cong., 1st Sess., 1762 (Comm. Print No. 96-2 1979).
 
 
    /26/ Legislative History of the Federal Service Labor- Management
 Relations Statute, Title VII of the Civil Service Reform Act of 1978,
 Comm. on Post Office and Civil Service, House of Representatives, 96th
 Cong., 1st Sess. 981 (Comm. Print No. 96-7 1979).
 
 
    /27/ Id. at 971.
 
 
    /28/ Section 7701(G)(1), 124 Cong. Rec. 29,229 (1978).
 
 
    /29/ As reported at page 404 of the transcript of proceedings of the
 House-Senate Conference on S. 2340, the Civil Service Reform Act of
 1978.
 
 
    /30/ Legislative History of the Federal Service Labor-Management
 Relations Statute, supra note 26, at 810.
 
 
    /31/ Sterner v. Department of the Army, 711 F.2d 1563, 1570 (Fed.
 Cir. 1983);  Sims v. Department of the Navy 711 F.2d 1578 1581 (Fed.
 Cir. 1983);  Yorkshire v. Merit Systems Protection Board, 746 F.2d 1454,
 1455 (Fed. Cir. 1984).
 
 
    /32/ Remarks of Judge J. Skelly Wright in Seminars for Newly
 Appointed United States District Judge;  (1963), p. 166.  See also
 United States v. El Paso Natural Gas Company, 376 U.S. 1044, 1047 n.4
 (1964).
 
 
    /33/ Southern Pacific Communication Co. v. American Telephone and
 Telegraph Co., 740 F.2d 980, 995 (D.C. Cir. 1984), cert. denied 105
 S.Ct. 1359 (1985).
 
 
    /34/ 5 U.S.C. 7512 provides:
 
       7512.  Actions covered This subchapter applies to-- (1) a removal;
        (2) a suspension for more than 14 days;  (3) a reduction in
       grade;  (4) a reduction in pay;  and (5) a furlough of 30 days or
       less;  but does not apply to-- (A) a suspension or removal under
       section 7532 of this title, (B) a reduction-in-force action under
       section 3502 of this title, (C) the reduction in grade of a
       supervisor or manager who has not completed the probationary
       period under section 3321(a)(2) of this title if such reduction is
       to the grade held immediately before becoming such a supervisor or
       manager, (D) a reduction in grade or removal under section 4303 of
       this title, or (E) an action initiated under section 1206 or 7521
       of this title.
 
 
    /35/ As to the types of actions covered, 5 U.S.C. 4303 provides in
 pertinent part:
 
       4303.  Actions based on unacceptable performance
 
    (a) Subject to the provisions of this section, an agency may reduce
 in grade or remove an employee for unacceptable performance.
 
       (f) This section does not apply to--
 
          (1) the reduction to the grade previously held of a supervisor
       or manager who has not completed the probationary period under
       section 3321(a)(2) of this title,
 
          (2) the reduction in grade or removal of an employee in the
       competitive service who is serving a probationary or trial period
       under an initial appointment or who has not completed 1 year of
       current continuous employment under other than a temporary
       appointment limited to 1 year or less, or
 
          (3) the reduction in grade or removal of an employee in the
       excepted service who has not completed 1 year of current
       continuous employment in the same or similar positions.
 
 
    /36/ 723 F.2d at 814.
 
    APPENDIX
 
    5 U.S.C. 5596 (1982) pertinently provides:
 
    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--
 
          (i) an amount equal to all or any part of the pay, allowances,
       or differentials, as applicable which the employee normally would
       have earned or received during the period if the personnel action
       had not occurred, less any amounts earned by the employee through
       other employment during that period;  and
 
          (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(.)
 
    5. U.S.C. Section 7701(g) (1982) provides:
 
          (1) Except as provided in paragraph (2) of his subsection, the
       Boa