24:0885(84)CA - HUD Region VI and HUD Region VI, San Antonio Area Office and AFGE Local 3320 -- 1986 FLRAdec CA



[ v24 p885 ]
24:0885(84)CA
The decision of the Authority follows:


 24 FLRA No. 84
 
 UNITED STATES DEPARTMENT OF HOUSING 
 AND URBAN DEVELOPMENT, REGION VI 
 AND UNITED STATES DEPARTMENT OF 
 HOUSING AND URBAN DEVELOPMENT 
 REGION VI, SAN ANTONIO AREA OFFICE
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 3320
 Charging Party
 
                                            Case No. 6-CA-20311
 
         DECISION AND ORDER ON MOTION FOR PAYMENT OF ATTORNEY FEES
 
                         I.  Statement of the Case
 
    This matter is before the Authority on exceptions filed by the
 Charging Party (the Union) to the attached Decision of the
 Administrative Law Judge.  A response was filed by the General Counsel
 and an opposition was filed by the Respondent.  The issue concerns a
 Motion For Payment Of Attorney Fees filed by Steven M. Angel, Counsel
 for the Union, in connection with a previously decided unfair labor
 practice case.  The motion was filed under the Back Pay Act, 5 U.S.C.
 Section 5596.
 
                   II.  Background and Judge's Decision
 
    In the underlying unfair labor practice proceeding, it was alleged
 that the Respondent had initiated and taken disciplinary action against
 an employee because of his membership in and activities on behalf of the
 Union, in violation of section 7116(a)(1) and (2) of the Federal Service
 Labor-Management Relations Statute (the Statute).  The employee, Phillip
 Aguirri, had posted letters on the Union's bulletin board, in his
 capacity as Union President.  The letters contained statements which
 accused certain of the Respondent's management officials of lying at a
 previous unfair labor practice hearing.  Based on this conduct, Aguirri
 was suspended for five work days.
 
    In his Decision involving the suspension, the Judge found that
 Aguirri was acting for the Union when he posted the letters and that, as
 such, Aguirri's actions were protected from discipline and threats of
 discipline unless it were shown that he had engaged in flagrant
 misconduct.  The Judge further found that under the facts of the case
 and relevant precedent, the actions did not constitute flagrant
 misconduct.  He thus concluded that the Respondent's action in
 threatening discipline against Aguirri and in suspending him from
 employment violated section 7116(a)(1) and (2) of the Statute as alleged
 in the complaint.  To remedy the violation, he recommended that the
 Respondent rescind the suspension and make Aguirri whole for any losses
 in pay he may have suffered as a result of the suspension.
 
    No exceptions were filed to this Decision and the Authority issued an
 Order which adopted the Judge's Decision and recommended Order as the
 resolution of the case.  FLRA Administrative Law Judge Decisions Report
 No. 36 (April 12, 1984).
 
    In the attached Decision on the motion for attorney fees the Judge
 found that the Back Pay Act authorized an award of attorney fees in
 unfair labor practice proceedings but that the motion for fees in this
 case did not meet the "interest of justice" standard of 5 U.S.C. Section
 7701(g).  Therefore, without considering what amount of attorney fees
 would be reasonable, he recommended that the motion be denied.
 
                       III.  Position of the Parties
 
    Counsel for the Union argues that the Judge erred in concluding that
 an award of attorney fees was not warranted in the interest of justice
 and in denying its motion for fees.  The Respondent and the General
 Counsel support the Judge's conclusion.
 
                       IV.  Analysis and Conclusions
 
    In International Brotherhood of Electrical Workers and United States
 Army Support Command, Hawaii, 14 FLRA 680, 683-84 (1984), cited by the
 Judge, and Naval Air Development Center, Department of the Navy and
 American Federation of Government Employees, Local 1928, AFL-CIO, 21
 FLRA No. 25 (1986), the Authority detailed the considerations which
 apply to awards of attorney fees under the Back Pay Act, 5 U.S.C.
 Section 5596.  /1/ As further discussed in those decisions, the Back Pay
 Act authorizes awards of attorney fees against the Government where an
 appropriate authority has found:  (1) that an employee has been affected
 by an unwarranted or unjustified personnel action which results in the
 withdrawal or reduction in pay, allowances, or differentials;  and (2)
 that this action be remedied by an award of backpay.
 
        A.  Unwarranted or unjustified personnel action and backpay
 
                award
 
    As decided by the Judge, the motion for attorney fees in this case
 meets these threshold requirements.  The effect of the Authority's final
 Order, which adopted the Judge's Decision in the underlying case, was to
 determine that Aguirri had been affected by an unjustified or
 unwarranted personnel action which resulted in the withdrawal of pay.
 Further, the Authority's Order corrected this action with a remedy which
 included an award of backpay.
 
             B.  The requirements of 5 U.S.C. Section 7701(g)
 
    If a motion meets the unwarranted personnel action and backpay
 requirements, section 5596(b)(1)(A)(ii) of the Back Pay Act provides
 that fee requests must be judged under the standards for awarding
 attorney fees provided in 5 U.S.C. Section 7701(g).
 
    1.  Incurrence of attorney fees:  It must be shown that an
 attorney-client relationship existed and that the attorney rendered
 legal services on behalf of the employee.  O'Donnell v. Department of
 Interior, 2 MSPB 604 (1980).  Because the record shows that an
 obligation to pay attorney fees was incurred by Aguirri both as an
 individual and as Union President and that Counsel rendered legal
 services in the case, we conclude in agreement with the Judge, that this
 requirement has been met.
 
    2.  Prevailing party:  The employee must be a prevailing party in the
 proceeding for which an award is sought.  This requirement is met if the
 employee has obtained all or a significant part of the relief which was
 sought.  Sterner v. Department of the Army, 711 F.2d 1563, 1566-67 (Fed.
 Cir. 1983).
 
    The Judge found that the General Counsel had prevailed because it had
 prosecuted the case and represented the public interest and that the
 Union had prevailed because it had acted to protect its institutional
 interests.  Since Aguirri received the relief he sought, the Judge
 decided that he should be considered as having been a prevailing party.
 We agree with the Judge's reasoning and conclusion.
 
    We further agree with his conclusion that the arguments concerning
 the General Counsel's primary role in prosecuting the case should be
 considered in relation to the reasonableness of the amount of the award,
 and not in relation to whether the employee was a prevailing party.
 
    3.  Interest of justice:  If an obligation to pay fees has been
 incurred and the employee is a prevailing party, an award can be made if
 it is warranted in the interest of justice.  Applying the guidelines
 established by the Merit Systems Protection Board (MSPB) in Allen v.
 U.S. Postal Service, 2 MSPB 582, 593 (1980), the Judge determined that
 the requested award was not warranted in the interest of justice.  We
 disagree.
 
    After the Judge's recommended denial of attorney fees in this case,
 the United States Circuit Court of Appeals for the Federal Circuit /2/
 clarified the application of the interest of justice standard enunciated
 in Allen.  Yorkshire v. MSPB, 746 F.2d 1454 (Fed. Cir. 1984);  Thompson
 v. MSPB, 772 F.2d 879 (Fed. Cir. 1985);  Boese v. Department of the Air
 Force, 784 F.2d 388 (Fed. Cir. 1986);  Van Fossen v. MSPB, 788 F.2d 748
 (Fed. Cir. 1986).
 
    The court explained that a decision on whether an agency's personnel
 action was "clearly without merit" or was "wholly unfounded," or whether
 the employee was "substantially innocent," should be based on the result
 of the appeal, not on the evidence and information which was available
 to the agency prior to the hearing.  Pointing out that the purpose of
 providing for awards of fees is not punitive, but is intended to reduce
 employees' costs in defending against unsubstantiated agency actions,
 the court explained that an award of fees is warranted in the interest
 of justice if on appeal any of these elements is present.  See Yorkshire
 and Van Fossen.  The court has also explained that this determination,
 based on the result of the appeal, should be separate from and not
 qualified by, determinations regarding the agency's motivation when it
 initiated the action.  See Boese.  The court has specifically found that
 "all 'factually close' cases do not automatically fall in the class in
 which fees are not available in the interest of justice." See Thompson
 v. MSPB, 772 F.2d at 881.
 
    Applying the Federal Circuit's approach, we conclude that the result
 in the underlying unfair labor practice proceeding shows that an award
 of attorney fees is warranted in the interest of justice.  The
 Respondent suspended Aguirri because he had engaged in certain conduct
 while acting for the Union.  This action was found to be a violation of
 section 7116(a)(1) and (2) of the Statute.  The violations related to a
 disciplinary action against an individual who was the Union President.
 
    The Judge found that Aguirri had posted the statements with a good
 faith belief that they were true.  He rejected the Respondent's
 assertion that they were posted with knowledge that they were false or
 in reckless disregard for the truth.  He further found that the
 statements represented a legitimate concern of a union representative
 regarding labor relations matters and that Aguirri had posted the
 statements in accordance with the Union's established practice of
 keeping employees informed of the Union's activities.  It is also
 significant that Counsel for Aguirri and the Union brought each of these
 matters to Respondent's attention in his responses to the charges
 leveled against his client.  The Judge further detailed the existing
 legal precedent which the Judge ultimately found to warrant a finding
 that Aguirri was engaging in protected activity.
 
    From all this we conclude that Aguirri was "substantially innocent"
 and that the Respondent's actions in threatening discipline against
 Aguirri and in suspending him from employment for five days were
 "clearly without merit," "wholly unfounded," and violative of law.
 Based on the result, we conclude that an award of attorney fees has been
 shown to be warranted in the interest of justice under the Allen
 standards as interpreted by the Federal Circuit.  /3/
 
    4.  Reasonableness of the amount of the award:  The Judge did not
 consider whether the amount of the award was reasonable, as he concluded
 that an award was not warranted in the interest of justice.  We have
 considered whether the matter should be remanded to the Judge for such
 findings and decided that this is not necessary.  Counsel for Aguirri
 and the Union has provided the documentation necessary to support his
 motion for attorney fees and all parties have had the opportunity to
 address any arguments concerning the motion.
 
    Turning to the specifics of the instant motion, Counsel billed four
 (4) hours for work done in representing the employee in Respondent's
 disciplinary proceedings.  Because these proceedings arose from and
 concerned the same facts which were at issue in the subsequent Authority
 proceedings, and an award has been determined to be warranted for the
 latter, we conclude that the award should cover this work.  The billing
 of these four hours is reasonable.  See Young v. Department of the Air
 Force, 86 FMSR 5007 (1986) and Brown v. U.S. Coast Guard, 85 FMSR 5362
 (1985).
 
    Counsel billed one-quarter (1/4) hour for the drafting and submission
 of the unfair labor practice charge which gave rise to the General
 Counsel's complaint in this case.  Although the services of an attorney
 are not necessary for this function, charges which are drafted and
 submitted with such assistance often are of value to the General Counsel
 in preparing and conducting an investigation.  The billing of this
 one-quarter hour is reasonable.  See Wells v. Schweiker, 12 MSPB 329,
 330 (1982) (fees awarded for work done in bringing necessary underlying
 facts to the attention of the MSPB Special Counsel).
 
    Counsel billed (15) hours for work in preparing for the hearing
 before the Judge, counsel's participation at the hearing, and the
 submission of a post-hearing brief.  The Authority's Regulations provide
 that a party to an unfair labor practice case has the right to appear at
 any hearing with counsel, to examine and cross-examine witnesses, and to
 introduce evidence, all subject to a decision by the Judge that such
 participation should be limited.  5 CFR Section 2423.15.  They also
 provide that a party has the right to make an oral argument before the
 Judge at the end of the hearing and to file a brief on the issues raised
 for the Judge's consideration in deciding the case.  5 CFR Sections
 2423.24, 2423.25.
 
    Since these aspects of participation are entitlements under the
 Authority's Rules and Regulations, we will not second-guess a party's
 decision to seek legal representation for such purposes in an unfair
 labor practice proceeding.  Nor will we conclude, absent a specific
 showing, that participation by outside counsel was either duplicative
 of, or failed to make a substantial contribution to, the General
 Counsel's efforts in prosecuting the case.  Cf. Donovan v. CSEA Local
 Union 1000, 784 F.2d 98, 106 (2d Cir. 1986), cert. denied sub nom. CSEA
 Local Union 1000, American Federation of State, County and Municipal
 Employees, AFL-CIO v. Brock, . . . U.S. . . . , 107 S.Ct. 74 (1986);
 Ribel v. Eastern Associated Coal Corp., 63 Admin. L. 2d (P&F) 145, 147,
 149-50 (FMSHRC 1985), appeal filed Nos. 86-3832, 86-3833 (4th Cir.
 1986).  Although such fee requests must be carefully scrutinized, the
 mere presence of an administrative prosecutor does not per se preclude
 an award for contributions to the proceedings made by outside counsel.
 See Donovan v. CSEA Local Union 1000, supra.  The specific inclusion of
 a fee award provision for unfair labor practice proceedings in the Back
 Pay Act further negates such an interpretation.
 
    In the instant case the record does not provide any basis for finding
 that the efforts of Counsel for Aguirri and the Union were either
 duplicative of or failed to make a substantial contribution to the
 prosecution of the case.  To the contrary, Counsel participated actively
 and pursued pertinent lines of questioning of witnesses different from
 those of Counsel for the General Counsel.  The Authority is cognizant of
 the sometimes differing roles and interests of the General Counsel and
 charging parties or individuals on behalf of whom a charge is filed.
 This distinction in large part provides the basis for the right of a
 charging party to participate and be represented by counsel.  The
 billing of 15 hours for services relating to preparation and
 participation at the hearing is granted.
 
    Counsel billed five (5) hours for investigation of the unfair labor
 practice.  Although the investigation of an unfair labor practice charge
 and a decision on whether a complaint should issue based on the
 investigation are responsibilities of the General Counsel, like work
 performed during the Respondent's disciplinary proceedings, the ultimate
 success of Aguirri's case demonstrates that the investigation materially
 advanced that effort.  There is no showing that the five hours spent in
 assisting the investigation were duplicative of, or failed to make a
 substantial contribution to the General Counsel's efforts.
 
    Counsel billed two (2) hours for the preparation of the papers in
 support of the motion for attorney fees.  This is customarily considered
 appropriate for inclusion as part of an award of fees.  The billing of
 this two hours is granted.
 
    The total number of hours of service thus approved is 26.25 hours.
 Since these fees are to be paid to the attorney, Steven M. Angel, and
 not to the Union's treasury for reimbursement to the Union for costs of
 services it provided out of its funds, a market rate rather than a
 "salary-plus-overhead" or "cost-plus" rate is appropriate.  See National
 Treasury Employees Union v. U.S. Department of Treasury, 656 F.2d 848,
 850 (D.C. Cir. 1981);  Wells v. Schweiker, 12 MSPB 329, 331-32 (1982).
 
    The requested billing rate is $90.00 per hour.  Counsel's affidavit
 states, without dispute by Respondent or the General Counsel, that this
 represents his customary billing rate and reflects a rate awarded him in
 other personnel cases.  The requested billing rate is not unreasonable
 on its face nor does it greatly exceed the rate permitted under the
 Equal Access to Justice Act.  5 CFR Section 2430.4.  We will allow a
 billing rate of $90.00 per hour in this case.  The total number of
 allowed hours (26.25) at $90.00 per hour totals $2372.50 for services of
 counsel.  See Naval Air Development Center, Department of the Navy and
 American Federation of Government Employees, Local 1928, AFL-CIO, 21
 FLRA No. 25 (1986).
 
    Counsel also requested $82.35 for the cost of the trial transcript.
 This request must be denied because the transcript constitutes a
 "taxable cost" under 28 U.S.C. Section 1920(2).  There is no statutory
 right of recovery for stenographic fees for transcripts in an
 administrative proceeding under the Civil Service Reform Act of 1978.
 Bennett v. Department of the Navy, 699 F.2d 1140 (Fed. Cir. 1983).
 
                                   ORDER
 
    Pursuant to the Back Pay Act, 5 U.S.C. Section 5596, and the Civil
 Service Reform Act of 1978, 5 U.S.C. Section 7701(g), the Authority
 grants an award in the amount of $2372.50, and orders the United States
 Department of Housing and Urban Development, Region VI, and United
 States Department of Housing and Urban Development, Region VI, San
 Antonio Area Office to pay that amount to Attorney Steven M. Angel.
 
    Issued, Washington, D.C., December 29, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 6-CA-20311
 
 UNITED STATES DEPARTMENT OF HOUSING AND 
 URBAN DEVELOPMENT, REGION VI, AND UNITED STATES 
 DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, 
 REGION VI, SAN ANTONIO AREA OFFICE
    Respondent
 
                                    and
 
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, 
 AFL-CIO, LOCAL 3320
    Charging Party
 
    Donald Grant, Esquire
    For the Respondent
 
    Steven M. Angel, Esquire
    For the Charging Party
 
    Susan E. Jelen, Esquire
    For the General Counsel, FLRA
 
    Before:  GARVIN LEE OLIVER
    Administrative Law Judge
 
      DECISION AND ORDER DENYING MOTION FOR PAYMENT OF ATTORNEY
 FEES
 
    This proceeding under the Back Pay Act, 5 U.S.C. Section 5596, and 5
 C.F.R. Section 550.801 (1984) et seq. of the Office of Personnel
 Management's (OPM's) Rules and Regulations was instituted by the filing
 of a Motion for Payment of Attorney's Fees by Steven M. Angel, attorney
 for the Charging Party, on January 31, 1984.  On July 6, 1984, the
 Authority remanded the motion for appropriate disposition.
 
    Pursuant to section 550.806(b) of OPM's Rules and Regulations, the
 Respondent was provided an opportunity to respond to the motion.  By
 order dated July 13, 1984 counsel, including counsel for the General
 Counsel, were asked to respond to certain issues.  All of the parties
 filed an appropriate response, and counsel for Charging Party filed a
 further response to the General Counsel's submission.  No party
 requested an evidentiary hearing, and such hearing appears unnecessary
 based on the various submissions.  Upon consideration of the entire
 record, I make the following findings and conclusions.
 
                         Findings and Conclusions
 
    On November 10, 1983 the undersigned Administrative Law Judge issued
 a decision in the above-entitled proceeding finding that Respondent had
 violated sections 7116(a)(1) and (2) of the Federal Service
 Labor-Management Relations Statute, 5 U.S.C. Section 7101 et seq. (the
 Statute) by issuing a notice and decision to suspend Phillip Aguirri.
 Aguirri, the president of Local 3320, was suspended for posting on the
 Union bulletin board three letters accusing management officials of
 lying under oath during an unfair labor practice hearing.  The decision
 found, inter alia, that there was no showing that Aguirri's statements
 were disloyal toward the agency's services or operations, likely to
 produce misconduct or disrupt discipline, or that the statements were
 not made by Aguirri with knowledge of their falsity or with reckless
 disregard of whether they were true or false.  It was concluded in the
 circumstances of the case that the statements for which Aguirri was
 suspended for posting represented the legitimate concern of a union
 representative regarding labor relations matters and did not represent
 the kind of flagrant conduct which was beyond the ambit of protected
 activity.  It was recommended that Respondent be ordered to cease and
 desist from discriminating against Aguirri for protected union activity
 and take certain affirmative action by, inter alia, expunging the
 suspension from its files and making Aguirri whole for any loss of
 income.
 
    No exceptions were filed, and the findings, conclusions, and
 recommendations in the Decision of the Administrative Law Judge became
 the findings, conclusions, decision and order of the Authority, without
 precedential significance, on March 16, 1984.
 
    The Back Pay Act, 5 U.S.C. Section 5596 (1982), pertinently provides:
 
          (b)(1) An employee of an agency who, on the basis of a timely
       appeal or an administrative determination (including a decision
       relating to an unfair labor practice or a grievance) is found by
       appropriate authority under applicable law, rule, regulation, or
       collective bargaining agreement, to have been affected by an
       unjustified or unwarranted personnel action which has resulted in
       the withdrawal or reduction of all or part of the pay, allowances,
       or differentials of the employee --
 
          (A) is entitled, on correction of the personnel action, to
       receive for the period of which the personnel action was in effect
       --
 
                       . . . . . . . .
 
 
          (ii) reasonable attorney fees related to the personnel action
       which, with respect to any decision relating to an unfair labor
       practice or a grievance processed under a procedure negotiated in
       accordance with chapter 71 of this title, or under chapter 11 of
       title 1 of the Foreign Service Act of 1980, shall be awarded in
       accordance with standards established under section 7701(g) of
       this title(.)
 
    Section 550.806(c) and (d) of OPM's implementing Rules and
 Regulations provide:
 
          (c) Except as provided in paragraph (e) of this section, when
       an appropriate authority corrects or directs the correction of an
       unjustified or unwarranted personnel action that resulted in the
       withdrawal, reduction, or denial of all or part of the pay,
       allowances, and differentials otherwise due an employee, the
       payment of reasonable attorney fees shall be deemed to be
       warranted only if --
 
          (1) Such payment is in the interest of justice, as determined
       by the appropriate authority in accordance with standards
       established by the Merit Systems Protection Board under section
       7701(g) title 5, United States Code;  and
 
          (2) There is a specific finding by the appropriate authority
       setting forth the reasons such payment is in the interest of
       justice.
 
          (d) When an appropriate authority determines that such payment
       is warranted, it shall require payment of attorney fees in an
       amount determined to be reasonable by the appropriate authority.
       When an appropriate authority determines that such payment is not
       warranted, no such payment shall be required.
 
    In addition, in International Brotherhood of Electrical Workers and
 United States Army Support Command, Hawaii, 14 FLRA No. 90, 14 FLRA 680
 (1984), the Authority addressed in detail for the first time the
 statutory requirements regarding awards of attorney fees.
 
    In considering these various requirements, the Authority, as noted
 above, has found under applicable law that Aguirri was affected by an
 unjustified or unwarranted personnel action which resulted in the
 withdrawal or reduction of all or part of the pay of the employee.  This
 is the required determination under the Back Pay Act and not whether the
 employee is "the prevailing party" as under 5 U.S.C. Section 7701(g).
 /4/ However, to the extent the Authority deems "the prevailing party"
 element applicable, as it indicated in the International Brotherhood
 case, the General Counsel and the Charging Party were the prevailing
 parties.  The General Counsel, representing the public interest in
 preventing unfair labor practices, met the burden of proof established
 by section 7118(a)(7) of the Statute and section 2423.18 of the Rules
 and Regulations.  The Charging Party prevailed in that it obtained a
 significant part of the relief sought -- a posting and relief for its
 local president.  To the extent Aguirri also prevailed as an individual,
 it was in his representative capacity as president of the local Union.
 Aguirri signed the charge as the representative of the Charging Party.
 As a result of the proceeding, the discipline imposed upon him was
 reversed and he recovered back pay.  The employee obtained a significant
 part of the relief sought and has clearly prevailed for purposes of
 establishing eligibility for an award of attorney fees.  See Hodnick v.
 Federal Mediation and Conciliation Service, 4 MSPB 431, 434 (1980);
 Sterner v. Department of the Army, 711 F.2d 1563, 1566-67 (Fed. Cir.
 1983) (approving the Board's decision in Hodnick);  Carpenter v. Bureau
 of Alcohol, Tobacco and Firearms, 5 MSPB 432, 433 (1981).  The fact that
 the employee was voluntarily represented by private counsel while a
 public official, the General Counsel, had the statutory mandate to
 investigate the alleged unfair labor practice and to file and prosecute
 the complaint will be considered in determining whether the fee request
 of the employee's counsel is reasonable if the other basic statutory
 requirements are met.  /5/
 
    In Allen v. U.S. Postal Service, 2 MSPB 582, 593 (1980) the Merit
 Systems Protection Board set forth for prospective guidance some of the
 circumstances in which attorney fees may be warranted in "the interest
 of justice," as follows:
 
          (1) Where the agency engaged in a "prohibited personnel
       practice" (Section 7701(g)(1));
 
          (2) Where the agency's actions 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 "harrass" 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.
       (Footnotes omitted).
 
    The Charging Party contends that attorney fees in this case are
 warranted in the interests of justice because the agency action was (1)
 a prohibited personnel practice, as defined in 5 U.S.C. Section
 2302(b)(8), (9), and (11), and (2) the agency's action was clearly
 without merit, (3) the agency knew or should have known that it could
 not prevail on the merits, and (4) the agency initiated the action
 against the employee in bad faith in order to both harass the employee
 and to exert improper pressure on the employee.
 
    The Authority is without jurisdiction to adjudicate a prohibited
 personnel practice allegation.  /6/ Therefore, I do not consider this
 factor, which is properly considered by the Merit Systems Protection
 Board in determining attorney fee requests under 5 U.S.C. Section
 7701(g)(1), to be applicable to attorney fee requests made of the
 Authority in unfair labor practice cases under 5 U.S.C. Section 5596(b).
 
    In contending that the agency's action was clearly without merit and
 that the agency knew or should have known that it could not prevail on
 the merits when it brought the proceeding, and that the agency's action
 was initiated in bad faith, Mr. Angel, counsel for the Charging Party,
 has submitted an affidavit detailing his actions and the chronology of
 events.  This affidavit reflects that after receipt by Mr. Aguirri of
 the notice of proposed suspension on June 15, 1982, Mr. Angel met with
 management officials and responded on June 24, 1982 with a detailed
 discussion of the right of union officers to publicize certain opinions
 during a labor dispute.  Despite this exposition of the law, Respondent
 proceeded to suspend Aguirri.  The Union's unfair labor practice charge
 followed.  Angel points out that the final decision finding the
 suspension to be an unfair labor practice was based upon the same right
 of protection of speech in labor disputes which was highlighted in his
 response to Aguirri's proposed removal.  Angel contends that Respondent
 proceeded with the suspension without any apparent concern for well
 established law.  He also claims that the very finding of discrimination
 because of union activity establishes bad faith.
 
    Respondent does not take issue with this portion of Angel's affidavit
 or argument.  /7/ Respondent concedes that, "Assuming arguendo that
 attorney fees are authorized, the three reasons advanced by the fee
 applicant may be the basis for the payment of attorney fees." While the
 Respondent has failed to address these issues, the Merit Systems
 Protection Board has made it clear that the presiding official must make
 a "reasoned assessment on that issue (whether attorney fees are
 warranted in the interest of justice) in light of the entire record."
 Allen, supra.
 
    At the hearing, Respondent presented evidence from its witnesses, the
 supervisors and its attorney, that they most certainly did not lie under
 oath, or suborn perjury;  that they were embarrassed and humiliated by
 Aguirri's charges;  that the charges could have been seen by employees
 outside the agency;  and that one of the officials possibly included by
 implication in Aguirri's charge was not even in the office on the days
 in question, thus indicating some recklessness on Aguirri's part.  The
 record also indicated that management, as part of the same controversy,
 had filed a grievance against the Union for violation of a provision of
 the parties' collective bargaining agreement prohibiting the posting of
 scurrilous or libelous material and had won that grievance.
 
    Aguirri testified concerning his actions and the reasons for his
 actions.  His testimony was credited.  Except for a determination of and
 application of the applicable law, the credibility issue was very
 important.  This issue could not have been resolved by further agency
 action.
 
    Even as to the application of the law to the facts, page nine of the
 initial decision noted, "The question of whether Mr. Aguirri's posted
 statements were so defamatory that they lost the protection of the
 Statute does not lend itself to an easy resolution." The decision
 required, as initially contended by the Respondent, a careful balancing
 of the employee's light to engage in protected activity against the
 employer's right to maintain order and respect for its supervisory
 staff.  As also noted on page nine of the decision, it also required a
 careful examination of all the circumstances in order to determine
 whether the employee had engaged in flagrant conduct beyond the ambit of
 protected activity.
 
    Such an examination was conducted and resulted in a decision in the
 employees favor.  However, I can not conclude from the entire record
 that Respondent's action was clearly without merit, that the agency knew
 or should have known that it would not prevail on the merits, or that
 the action against the employee was initiated in bad faith.
 
    Accordingly, it is concluded that an attorney fee award is not
 warranted in this case in the interest of justice.  In view of this
 disposition, it is unnecessary to reach the issues posed with respect to
 the reasonable amount determination.  Allen v. U.S. Postal Service,
 supra.  It is recommended that the Authority adopt the following Order:
 
                                   ORDER
 
    IT IS HEREBY ORDERED that the Motion for Payment of Attorney Fees be,
 and it hereby is, DENIED.
 
                                       /s/ Garvin Lee Oliver
                                       Administrative Law Judge
 
 
    Dated:  October 16, 1984, Washington, DC
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
    (1) Those decisions specifically concerned attorney fee awards in
 connection with arbitration proceedings.  The same basic considerations
 apply, with certain adjustments discussed below, to awards in unfair
 labor practice cases under the Back Pay Act.
 
    (2) The Federal Circuit is the court vested with exclusive review of
 decisions of the Merit Systems Protection Board.  5 U.S.C. Section
 7703(b)(1).
 
    (3) In so concluding, we find it unnecessary to address whether a
 prohibited personnel practice as defined in 5 U.S.C. Section 2302(b)
 occurred.
 
    (4) 5 U.S.C. Section 7701(g) (1982) provides:
 
          (1) Except as provided in paragraph (2) of this subsection, the
       Board, or an administrative law judge or other employee of the
       Board designated to hear a case, may require payment by the agency
       involved of reasonable attorney fees incurred by an employee or
       applicant for employment if the employee or applicant is the
       prevailing party and the Board, administrative law judge, or other
       employee (as case may be) determines that payment by the agency is
       warranted in the interest of justice, including any case in which
       a prohibited personnel practice was engaged in by the agency or
       any case in which the agency's action was clearly without merit.
 
          (2) If an employee or applicant for employment is the
       prevailing party and the decision is based on a finding of
       discrimination prohibited under section 2302(b)(1) of this title,
       the payment of attorney fees shall be in accordance with the
       standards prescribed under section 706(k) of the Civil Rights Act
       of 1964 (42 U.S.C. 2000e-5(k)).
 
    (5) The General Counsel and Respondent took the position that once
 the charge and amended charge were filed with the Authority,
 substantially all of the legal effort from that point by the Charging
 Party's counsel appeared duplicative of work done by counsel for the
 General Counsel.  The Charging Party's counsel disagreed vociferously
 and submitted an affidavit regarding his independent preparation and
 work.  He also detailed his work in the pre-charge phase of the
 personnel action.
 
    (6) Similarly, the Merit Systems Protection Board has held that while
 the board is without jurisdiction to adjudicate an unfair labor practice
 allegation based on anti-union animus, evidence of such animus may be
 relevant and material in establishing a retaliatory motive for an
 otherwise appealable adverse action taken in alleged reprisal for the
 exercise of appeal rights in violation of 5 U.S.C. Section 2302(b)(9).
 Bodinus v. Department of the Treasury, 7 MSPB 385 (1981);  Triplett v.
 Defense Logistics Agency, Docket No. ATO 7528110871 (Jan. 19, 1984).
 
    (7) In Allen v. U.S. Postal Service, supra