24:0117(15)AR - Local 1749, AFGE and Commander, 47FTW, Laughlin AFB, TX -- 1986 FLRAdec AR



[ v24 p117 ]
24:0117(15)AR
The decision of the Authority follows:


 24 FLRA No. 15
 
 LOCAL 1749, AMERICAN FEDERATION 
 OF GOVERNMENT EMPLOYEES
 Union
 
 and
 
 COMMANDER, 47FTW, LAUGHLIN 
 AIR FORCE BASE, TEXAS
 Agency
 
                                            Case No. 0-AR-1209
 
                                 DECISION
 
                         I.  Statement of the Case
 
    This case is before the Authority on an exception to the award of
 Arbitrator Charles W. Tyer filed by the Agency under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.
 
                  II.  Background and Arbitrator's Award
 
    The issue submitted to arbitration was whether the 14-day suspension
 of the grievant, a government procurement agent, for alleged deliberate
 misrepresentation and concealment of a material fact in the purchase of
 certain merchandise, was for just cause under the terms of the parties'
 collective bargaining agreement and applicable regulations.  The
 Arbitrator found that the suspension was not for just cause and ordered
 that the grievant be made whole for all backpay and other benefits lost
 due to the adverse action.  The Arbitrator further ordered that the
 grievant be reimbursed for all attorney fees and other expenses releated
 to this case which are appropriate under prevailing Federal regulations.
 
                          III.  Agency Exception
 
    In its exception, the Agency contends that the Arbitrator's award of
 attorney fees is contrary to 5 U.S.C. Section 7701(g)(1).  In support of
 its exception, the Agency argues that the Arbitrator failed to supply a
 fully articulated decision to support the award of attorney fees and
 that the awrad "rests upon a cursory statement by the (A)rbitrator" and
 is without the "required demonstrable pragmatic analysis of the facts
 set out in applicable statutes."
 
                           IV.  Union Opposition
 
    The Union asserts in its opposition to the Agency's exception that
 the Arbitrator's written response to the Union's Request for
 Supplemental Decision, in which the Arbitrator made additional and
 specific determinations relating to his award, satisfies the
 requirements for sustaining the Arbitrator's award of attorney fees.
 Alternatively, the Union requests that the Authority remand the case to
 the Arbitrator if the Authority finds that the award does not meet the
 requirements of 5 U.S.C. Section 7701(g).
 
                        V.  Analysis and Conclusion
 
    As we discussed in Naval Air Development Center, Department of the
 Navy and American Federation of Government Employees, Local 1928,
 AFL-CIO, 21 FLRA No. 25 (1986), a threshold requirement for entitlement
 to attorney fees under the Back Pay Act, 5 U.S.C. Section 5596, 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.  Further,
 an award of attorney fees must be in conjunction with an award of
 backpay to the grievant on correction of the unwarranted or unjustified
 personnel action.  The award of attorney fees must be reasonable and
 related to the personnel action, and in accordance with the standards
 established under 5 U.S.C. Section 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), applicable 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.  An arbitrator's cursory statement
 that the arbitrator considered the necessary elements of analysis does
 not meet the requirement under 5 U.S.C. Section 7701(g) for a fully
 articulated, reasoned decision.  An arbitrator's award of attorney fees
 must draw its essence from a demonstrable, pragmatic analysis of the
 factors set out in the applicable statutes.  Naval Air Development
 Center, slip op. at 10-11.
 
    In this case, the Arbitrator's statement concerning the award of
 attorney fees does not meet the requirements just discussed.  In
 National Association of Air Traffic Specialists and Federal Aviation
 Administration, Washington Flight Service Station, 21 FLRA No. 26
 (1986), the Authority explicitly stated that in future cases, "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," rather than remand the award
 to the parties for clarification and interpretation.  Slip op. at 5.  In
 this case, as evidenced in management's brief before the Arbitrator, the
 Agency specifically informed the Arbitrator that "should the
 (a)rbitrator consider such (attorney) fees appropriate, the award must
 comply with the requirements of 5 U.S.C. Section 7701(g) and the Federal
 Labor Relations Authority as established in 21 FLRA No. 35."
 (Management's Brief Before the Arbitrator, at 5, attached to Petition
 for Exception.) The Arbitrator, therefore, was aware of his obligation
 with applicable requirements.  The failure of the parties to provide the
 Arbitrator with a copy of the Authority's applicable rulings does not,
 as the Union asserts, cure the deficiency, nor does it warrant a remand
 of the case for clarification.  Similarly, the Arbitrator's denial of
 the Union's request for a Supplemental Decision, where he states that he
 "has no further authority in this matter(,)" does not satisfy the
 requirements for sustaining the Arbitrator's award of attorney fees.
 
    The Arbitrator's award of attorney fees is deficient since it was not
 made in accordance with the required standards.
 
                               VI.  Decision
 
    For the above reasons, the Arbitrator's award is modified by setting
 aside the award of attorney fees.  /*/
 
    Issued, Washington, D.C., November 21, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (*) In view of the Author