21:0169(26)AR - NAATS and FAA, Washington Flight Service Station -- 1986 FLRAdec AR



[ v21 p169 ]
21:0169(26)AR
The decision of the Authority follows:


 21 FLRA No. 26
 
 NATIONAL ASSOCIATION OF 
 AIR TRAFFIC SPECIALISTS
 Union
 
 and
 
 FEDERAL AVIATION ADMINISTRATION, 
 WASHINGTON FLIGHT SERVICE STATION
 Activity
 
                                            Case No. 0-AR-1029
                                             (20 FLRA No. 87)
 
                ORDER GRANTING REQUEST FOR RECONSIDERATION
 
    I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on a request filed by the Union
 seeking reconsideration of the Authority's decision of November 25,
 1985, setting aside the Arbitrator's award of attorney fees.
 
    II.  BACKGROUND
 
    The Arbitrator determined that there was not just cause to suspend
 the grievant and awarded him backpay and benefits for the period of the
 suspension.  The grievant subsequently requested an award of attorney
 fees and the Arbitrator, after quoting the relevant provisions of the
 Back Pay Act, 5 U.S.C. 5596, summarily concluded that application of the
 statutory requirements resulted in a determination that the grievant was
 entitled to the fees requested.  The Arbitrator therefore awarded the
 grievant attorney fees in the amount of $6,790.  In its exceptions to
 the award of attorney fees, the Agency contended, among other things,
 that the award was contrary to the Back Pay Act because it was not in
 accordance with the standards established under 5 U.S.C. 7701(g).
 Specifically, the Agency argued on the basis of the Authority's decision
 in International Brotherhood of Electrical Workers and United States
 Army Support Command, Hawaii, 14 FLRA 680 (1984), that the Arbitrator
 failed to provide a fully articulated, reasoned decision as required.
 The Authority agreed with the Agency.  The Authority found that the
 Arbitrator's decision and award of fees was not in accordance with
 standards established under section 7701(g) as expressly required by the
 Back Pay Act.  The Authority found that Arbitrator failed to provide a
 fully articulated, reasoned decision setting forth his specific findings
 supporting the determination on each pertinent statutory requirement,
 including the bases on which he had determined that $5,790 was a
 reasonable amount of attorney fees.  Accordingly, the Authority
 concluded that the award of attorney fees was deficient as contrary to
 the Back Pay Act and therefore set aside the award.  The Authority also
 found that it was not necessary to address the Agency's other exceptions
 to the attorney fees award.
 
    III.  REQUEST FOR RECONSIDERATION
 
    In its request for reconsideration, the Union essentially contends,
 on legal and equitable grounds, that rather than set the award aside the
 Authority should have remanded the case to the parties and directed them
 to seek a fully articulated determination from the Arbitrator as to
 basis for his award.  In support of its contention that a remand order
 was appropriate, the Union argues that in Army Support Command, Hawaii,
 where the Authority also found that the award of attorney fees was not
 properly supported, the authority remanded that case to the parties.
 The Union further argues that while the Arbitrator's award of attorney
 fees in this case was rendered subsequent to the Army Support Command
 decision, that fact alone does not provide a sufficient basis for a
 different result in the essentially similar circumstances of this case.
 The Agency filed opposition to the Union's request for reconsideration,
 contending that the Union had not demonstrated extraordinary
 circumstances.
 
    IV.  ANALYSIS AND CONCLUSIONS
 
    Section 2429.17 of the Authority's Rules and Regulations permits a
 party that can establish "extraordinary circumstances" to move for
 reconsideration of a final decision of the Authority.  Upon careful
 consideration of the Union's request and the Agency's opposition, the
 Authority concludes that reconsideration is warranted.
 
    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 on correction of the personnel action, that the award of
 attorney fees must be reasonable and related to the personnel action,
 and 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).
 
    The Authority found that the arbitrator in Army Support Command,
 Hawaii had failed to provide such an articulated decision and remanded
 the award to the parties with the direction that they request, jointly
 or separately, that the arbitrator clarify and interpret his award and
 to articulate fully specific findings on all pertinent statutory
 provisions.  Likewise, in several subsequent decisions in which the
 Authority found that the arbitrator's determinations were not properly
 supported, the Authority remanded the cases to the parties and in each
 case directed them to request the arbitrator to articulate fully
 specific findings on all pertinent statutory requirements.  E.g., Naval
 Air Development Center, Department of the Navy and American Federation
 of Government Employees, Local 1928, AFL-CIO, 14 FLRA 782 (1984);  Audie
 L. Murphy Veterans Administration Hospital, San Antonio, Texas and
 American Federation of Government Employees, AFL-CIO, Local No. 3511, 15
 FLRA 276 (1984);  American Federation of Government Employees, Local
 2667 and Equal Employment Opportunity Commission, 15 FLRA 281 (1984);
 U.S. Army Missile Readiness Command and American Federation of
 Government Employees, Local 1858, 15 FLRA 286 (1984).
 
    In each of those cases the award had been issued on a date prior to
 the issuance of Army Support Command, Hawaii, and as specifically noted
 in each decision "without the benefit of the instruction and guidance
 provided by Army Support Command, Hawaii." For that reason, the
 Authority remanded each of those awards to the parties 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 relating thereto.
 
    In contrast, the award of attorney fees in this case was 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.  Since it did not provide a fully articulated,
 reasoned decision, it was found deficient by the Authority and the award
 was set aside.  In considering the request for reconsideration of this
 case, we note that the Authority did not explicitly announce in Army
 Support Command, Hawaii, or in the subsequent remands of awards of
 attorney fees which were issued prior to Army Support Command, Hawaii,
 that deficient awards of attorney fees issued thereafter despite the
 benefit of that guidance would be set aside rather than remanded.  The
 Authority finds that arbitrators and parties, including the Arbitrator
 and parties in this case, were not explicitly apprised by the Authority
 in any of its published decisions that the Authority would set aside an
 award of attorney fees that was not fully supported as required.  Nor
 were parties fully apprised by the Authority of their responsibility and
 interest in ensuring that arbitrators make the requisite determinations.
  In these specific circumstances, the Authority has concluded that
 reconsideration of the decision of November 25, 1985, in this case is
 warranted and that this case should also be remanded to the parties for
 the purpose of having the arbitrator clarify his award.
 
    In the future, however, consistent with our general practice
 concerning deficient arbitration awards, if the Authority finds that an
 award granting attorney fees is deficient because it is not fully
 supported as required, the Authority will set aside or modify the award
 as appropriate.
 
    V. ORDER
 
    Accordingly, for the reasons set forth above, the Union's request for
 reconsideration is granted. the Authority's