35:0390(51)AR - - Army HQ, XVIII Airborne Corps, Fort Bragg, NC and AFGE Local 1770 - - 1990 FLRAdec AR - - v35 p390



[ v35 p390 ]
35:0390(51)AR
The decision of the Authority follows:


35 FLRA No. 51

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

UNITED STATES ARMY HEADQUARTERS, XVIII AIRBORNE CORPS

FORT BRAGG, NORTH CAROLINA

(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1770

(Union)

0-AR-1698

DECISION

April 3, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the supplemental arbitration award of Arbitrator James P. Whyte filed by the Union. The Activity did not file an opposition to the Union's exceptions.

The Arbitrator denied the Union's motion for attorney fees in connection with an arbitration proceeding. The Union contends that the denial of the request for attorney fees is erroneous and contrary to law.

For the reasons discussed below, we conclude that the Arbitrator's denial of the Union's motion is deficient. We remand the matter of the Union's request for attorney fees to the parties for further proceedings consistent with this decision.

II. Background and Supplemental Arbitration Award

The Activity discontinued payment of environmental differential pay (EDP) to certain Forestry, Directorate of Engineering and Housing (DEH) wage grade employees who operate heavy equipment in designated danger areas. The Union filed a grievance over the Activity's decision to discontinue payment of the EDP and the grievance was submitted to arbitration.

On the basis of the evidence and testimony presented, the Arbitrator concluded that DEH wage grade employees who operate heavy equipment in designated danger areas were exposed to severe hazards that had not been eliminated by safety controls. Consequently, the Arbitrator sustained the Union's grievance and awarded retroactive EDP to the affected employees.

The attorney representing the Union then filed a motion for an award of attorney fees with the Arbitrator. The Arbitrator's supplemental award resolving the request for attorney fees is in dispute in this case.

In the supplemental award, the Arbitrator denied the request for attorney fees. The Arbitrator noted the Union's argument that its request for fees was warranted "in the interest of justice" under three of the five illustrative criteria set forth in Allen v. United States Postal Service, 2 MSPR 420 (1980) (Allen) based on the Union's assertions that (1) the Activity's actions were "clearly without merit," (2) the Activity committed "a gross procedural error" that resulted in "unduly prolonging the proceedings," and (3) the Activity "knew or should have known that it would not prevail on the merits." Arbitrator's Supplemental Award at 1.

The Arbitrator determined that there was no basis for concluding that the Activity knew or should have known that it would not prevail on the merits when it discontinued the EDP. In support of this determination, the Arbitrator found that the conflicting "views" concerning hazards in the work area presented questions of fact "to be resolved by neutral analysis." Id. at 2-3.

The Arbitrator further determined that the Activity did not commit gross procedural error by unduly prolonging proceedings. The Arbitrator recognized that the Activity's decision to discontinue EDP was erroneous. However, the Arbitrator stated that even harmful error does not constitute gross procedural error. The Arbitrator further found that the Activity's investigation of the work areas was timely conducted and utilized pertinent resources. Id. at 2.

The Arbitrator also determined that the Activity's discontinuance of the EDP was not clearly without merit. The Arbitrator, however, provided no explanation for this determination. Id. at 1.

Accordingly, the Arbitrator ruled that an award of attorney fees was not warranted in the interest of justice. Therefore, the Arbitrator denied the Union's motion for attorney fees. Id. at 2-3.

III. Union's Exceptions

The Union did not except to the Arbitrator's determination that the Activity did not commit a gross procedural error by prolonging the proceedings. The Union, however, contends that the Arbitrator erred by determining that the other two Allen criteria that the Union relied on to support the request for fees had not been met. The Union argues that the findings the Arbitrator cited as a basis to sustain the grievance and make an award of retroactive EDP also support an award of attorney fees.

IV. Analysis

When exceptions are filed to arbitration awards resolving requests for attorney fees under the Back Pay Act, the Authority's role is to ensure that the arbitrator complies with applicable statutory standards. A threshold requirement for entitlement to attorney fees under the Back Pay Act is a finding that the grievant was affected by an unjustified or unwarranted personnel action which resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials. The Back Pay Act further requires that an award of attorney fees must be: (1) in conjunction with an award of backpay to the grievant on correction of the personnel action; (2) reasonable and related to the personnel action; and (3) in accordance with the standards established under 5 U.S.C. § 7701(g). United States Department of the Navy, Norfolk Naval Shipyard and American Federation of Government Employees, Local 4015, 34 FLRA 725, 728 (1990) (Norfolk Naval Shipyard); U.S. Patent and Trademark Office and Patent Office Professional Association, 32 FLRA 375, 378 (1988) (U.S. Patent and Trademark Office).

The prerequisites for an award of attorney fees under 5 U.S.C. § 7701(g)(1), which applies to all cases except those involving allegations of discrimination, are as follows: (1) the employee must be the prevailing party; (2) the award of fees must be warranted in the interest of justice; (3) the amount of the fees must be reasonable; and (4) the fees must have been incurred. The standards established under 5 U.S.C. § 7701(g) further require a fully articulated, reasoned decision setting forth the arbitrator's specific findings supporting the determination on each pertinent statutory requirement, including the basis on which the reasonableness of the amount was determined when fees are awarded. Norfolk Naval Shipyard, 34 FLRA at 728; U.S. Patent and Trademark Office, 32 FLRA at 378.

In the instant case the Union excepts to the Arbitrator's failure to find that attorney fees were warranted in the interest of justice. It is apparent from the Arbitrator's award of retroactive EDP that the appropriate prerequisites of the Back Pay Act have been met in this case. Thus, the issue to be addressed by the Authority is whether an award of attorney fees "is warranted in the interest of justice" under 5 U.S.C. § 7701(g)(1).

The Merit Systems Protection Board listed five illustrative examples which "provide a useful indication of circumstances considered to reflect the 'interest of justice.'" Allen, 2 MSPR at 434. The Authority applies the Allen standards, as interpreted by the U.S. Court of Appeals for the Federal Circuit, in determining whether an award of attorney fees is warranted in the interest of justice. See, for example, Norfolk Naval Shipyard, 34 FLRA at 730; Federal Aviation Administration, National Aviation Facilities Experimental Center and National Federation of Federal Employees, Local 1340, 32 FLRA 750, 752 (1988).

An award of fees is warranted in the interest of justice if any of the Allen criteria are met. Norfolk Naval Shipyard, 34 FLRA at 730. The Allen criteria are as follows:

1. [T]he agency engaged in a "prohibited personnel practice" (§ 7701(g)(1));

2. [T]he 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. [T]he 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. [T]he agency committed a "gross procedural error" which "prolonged the proceeding" or "severely prejudiced" the employee;

5. [T]he agency "knew or should have known that it would not prevail on the merits" when it brought the proceeding.

2 MSPR at 434-35 (footnote omitted).

In the instant case, there is no contention that attorney fees are warranted on the basis of criterion 1, 3, or 4. Our decision addresses whether attorney fees are warranted under criterion 2 or 5.

It is important to recognize that criterion 5 and criterion 2 have different focal points. Criterion 5 requires a showing that the agency, by making a reasonable inquiry, should have determined that its action was without merit but nevertheless persisted in its action. Yorkshire v. Merit Systems Protection Board, 746 F.2d 1454, 1457 (Fed. Cir. 1984) (Yorkshire); Sprenger v. Department of the Interior, 34 MSPR 664, 667 (1987). Under criterion 5, therefore, the analysis on appeal (in this case before the arbitrator) focuses on whether the agency "possessed trustworthy, admissible evidence, or . . . was negligent in its conduct of the investigation." Yorkshire, 746 F.2d at 1457. Criterion 2, on the other hand, refers to the result of the appeal, not to the evidence and information available prior to the hearing. Yorkshire; 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, 24 FLRA 885, 888-89 (1986). Thus, under criterion 2, the focus of the arbitrator's analysis should be based on the decision he or she has rendered, that is, the extent to which the grievant has prevailed or the agency's action is found to be without merit or unfounded. Yorkshire, 746 F.2d at 1457.

1. Denial of the Union's Request Based on the Criterion "The Activity Knew or Should Have Known It Would Not Prevail on the Merits"

Under criterion 5, an award of attorney fees is warranted in the interest of justice where the activity "knew or should have known that it would not prevail on the merits." The Arbitrator determined that criterion 5 had not been met, that is, that there was no basis to conclude that the Activity knew or should have known that it would not prevail on the merits when it discontinued the EDP. Arbitrator's Supplemental Award at 2. The Union maintains that the findings the Arbitrator cites as a basis to sustain the grievance and award retroactive EDP also support a finding that fees are warranted under this criterion. We conclude that the Arbitrator's determination that criterion 5 had not been met is consistent with the requirements of 5 U.S.C. § 7701(g).

We find that the Arbitrator's award articulates specific findings supporting the determination that an award of attorney fees was not warranted in the interest of justice under this criterion set forth in Allen. In support of his determination, the Arbitrator found that the conflicting "views" concerning hazards in the work area presented questions of fact "to be resolved by neutral analysis." Arbitrator's Supplemental Award at 2-3. Therefore, the Arbitrator did not find that the Activity knew or should have known it would not prevail on the merits. In our view, the Union fails to establish that the denial of fees in these circumstances is contrary to law. Rather, the Union merely disagrees with the Arbitrator's conclusion. The Union's exception in this regard provides no basis for finding the award deficient. See, for example, U.S. Patent and Trademark Office, 32 FLRA at 375.

2. Denial of the Union's Request Based on the Criterion "The Activity's Actions Were Clearly Without Merit"

Under criterion 2, an award of attorney fees is warranted in the interest of justice where the result of the appeal (here the arbitration proceeding) shows the agency's actions were clearly without merit. We conclude that the Arbitrator's determination that the Activity's discontinuance of the EDP was not clearly without merit is not consistent with the requirements of 5 U.S.C. § 7701(g). By concluding, without explanation, that Allen criterion 2 was not met, the Arbitrator's award does not articulate specific findings supporting the determination that an award of attorney fees was not warranted in the interest of justice.

As discussed above, under criterion 2 the Arbitrator should have focused on the merits of the grievance before him. We note in this regard that the underlying award fully sustained the grievance. On the basis of the evidence and testimony presented, the Arbitrator concluded "that DEH wage grade employees operating heavy equipment in buffer areas work in close proximity to explosives having a potential for personal injury and that Agency (Employer) action has not overcome the unusually severe nature of such hazards." Arbitrator's Original Award at 8. Consequently, the Arbitrator sustained the Union's grievance and awarded retroactive EDP to the affected employees. Id. We note that the Arbitrator must still decide the Union's request under the Allen criteria and, notwithstanding his findings as to the grievance, he can and may determine that the Activity's action was not unfounded or clearly without merit. Because the Arbitrator did not provide an articulated decision concerning the "clearly without merit" criterion in finding that an award of fees was not warranted in the interest of justice, we conclude that the Arbitrator's denial of the Union's request for an award of attorney fees on this basis is deficient.

V. Conclusions

For these reasons, we will set aside the award and remand the matter of the Union's motion for attorney fees to the parties. We will not, however, order attorney fees to be paid. This is a matter to be decided by the Arbitrator who must resolve the Union's motion for attorney fees in a fully articulated, reasoned decision that addresses the interest-of-justice requirement under the "clearly without merit" criterion, and if fees are awarded, determine the reasonableness of the amount.

VI. Decision

We find that the award is deficient. The matter is remanded to the parties to request the Arbitrator to consider the Union's motion for an award of attorney fees under applicable provisions of law and regulation.




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