38:0258(28)AR - - Army, Missile Range, White Sands, NM and NFFE Local 2049 - - 1990 FLRAdec AR - - v38 p258

[ v38 p258 ]
The decision of the Authority follows:

38 FLRA No. 28









LOCAL 2049




November 21, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Sanford Cohen filed by the Department of the Army (the Agency) under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations on behalf of the Activity. The Union did not file an opposition to the Agency's exceptions.

The Arbitrator found that the Activity did not violate the parties' collective bargaining agreement when it suspended the grievant for being involved in a physical altercation. However, the Arbitrator ordered the Activity to reimburse the grievant for attorney fees incurred as a result of a criminal assault charge instituted against him by the Activity and to purge the grievant's personnel record of documents related to the grievant's removal from the Activity's "Internal Reliability Program" (IRP). The Agency excepts only to the part of the award that requires the reimbursement of attorney fees.

For the following reasons, we find that the Arbitrator's award as to the reimbursement of attorney fees is deficient because it is contrary to law.

II. Background and Arbitrator's Award

The grievant, a security guard at the Activity, was involved in a physical altercation with his supervisor. The Activity immediately assigned the grievant to a temporary detail to non-guard duty work, suspended the grievant's access to classified information and material, and commenced an investigation of the incident. Thereafter, the grievant received notice of a proposed 10-day suspension. The grievant was also advised that he was temporarily disqualified from the IRP, a program which assessed the reliability of personnel assigned to police and security guard positions. In addition, the Activity filed an assault charge against the grievant in the U.S. Magistrate Court. About 3 months after the altercation, the grievant was notified of the Activity's decision to suspend him for 10 days. The Activity then moved for dismissal of the assault charge and the court granted the motion.

The Union filed a grievance regarding the suspension. During the processing of the grievance, the suspension was reduced to 5 days in duration. Because the parties did not completely resolve the grievance, it was submitted to arbitration.

At the arbitration hearing, the parties stipulated that the Arbitrator could frame the issue on the basis of the full record. The Arbitrator stated the issues as follows:

1) Did the Agency violate the Collective Bargaining Agreement between the Parties when it suspended [the grievant] for five days without pay?

2) Does [the grievant] have a valid claim for remedy due to the Agency's instituting and, subsequently, dropping a criminal charge against him?

Award at 1-2.

The Arbitrator first determined that the Agency had made a timely response to the Union's Step 3 grievance.

The Arbitrator concluded, on the merits, that the 5-day suspension was appropriate under the circumstances. However, relying on Adamek v. U.S. Postal Service, 13 MSPR 224 (1982), the Arbitrator found that the Agency committed a harmful error when it placed "[the] [g]rievant in double jeopardy by instituting collateral adverse actions against him for the same offense" by both suspending the grievant and filing a criminal charge against him. Award at 20. The Arbitrator noted that, although the criminal charge was later dismissed at the request of the Activity, the grievant "incurred attorney fees as a result of the Agency's resort to legal action". Id. The Arbitrator found that "[u]nder the 'interest of justice' test specified in the Civil Service Reform Act, 5 USC 7701 . . . [the] grievant is entitled to remedy." Id.

Finally, the Arbitrator concluded that a remedy would be appropriate for the grievant's removal from the IRP because "his removal was directly linked to the criminal charge and [g]rievant was denied his day in court to defend against the charge when the Agency moved to have the charge dismissed." Id.

Accordingly, the Arbitrator decided and awarded as follows:

1. The Agency did not violate the Agreement when it suspended [the grievant] for five days without pay.

2. The Agency will reimburse [the grievant] for reasonable attorney fees incurred directly as a result of the criminal charge of assault placed against him by the Agency.

3. The Agency will purge [the grievant's] personnel record of any and all documents related to his removal from the Individual Reliability Program.

Id. at 21.

III. The Agency's Exceptions

The Agency excepts only to the second part of the Arbitrator's award. The Agency contends that, insofar as the award requires the Activity to pay the attorney fees incurred by the grievant in the court proceeding, the award conflicts with the Back Pay Act, 5 U.S.C. º 5596, and with 5 U.S.C. º 7701.

IV. Analysis and Conclusions

It is well established that the expenditure of funds by a Federal Government agency to reimburse litigation costs must be pursuant to a specific statutory authorization. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975) and cases cited therein.

It is not clear from the Arbitrator's decision what the statutory basis was for his award of reimbursement of attorney fees incurred in the grievant's defense in the court proceeding. In the case cited by the Arbitrator, Adamek v. U.S. Postal Service, 13 MSPR 224 (1982), the Merit Systems Protection Board (MSPB) held that "[w]here an agency has imposed disciplinary or adverse action because of an employee's misconduct, it is barred from subsequently taking another adverse action for the same reason." 13 MSPR at 226. Under 5 U.S.C. º 7512, the statutory provision enforced by the MSPB, the term "adverse action" has a precise meaning. However harsh a criminal charge might be, it is not considered an "adverse action," within the meaning of 5 U.S.C. º 7512. Department of the Navy v. Egan, 108 S. Ct. 818, 825 (1988) (the term "adverse action" is narrowly defined and is limited to the administrative actions of a removal, a suspension for more than 14 days, a reduction in grade or pay, and a furlough of 30 days or less). The Arbitrator's conclusion that the Activity "committed a harmful error" when it placed the grievant in "double jeopardy by instituting collateral adverse actions against him for the same offense" is not supported by the case cited and is clearly unfounded. See Anderson v. U.S. Postal Service, 14 MSPR 442 (1983).

In support of his reimbursement remedy, the Arbitrator also cited 5 U.S.C. º 7701, which allows for payment of attorney fees to an employee in certain circumstances. However, an arbitrator may not award fees under 5 U.S.C. º 7701 independent of the terms of the Back Pay Act, 5 U.S.C. º 5596. United States Army Aviation Systems Command and National Federation of Federal Employees, Local 405, 22 FLRA 379 (1986). 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 differential. 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 personnel action; (2) reasonable and related to the personnel action; and (3) in accordance with the standards established under 5 U.S.C. º 7701(g). Department of Health and Human Services, Public Health Service, Region IV, Atlanta, Georgia and National Treasury Employees Union, Chapter 210, 34 FLRA 823, 829 (1990).

In this case the Arbitrator did not make the requisite finding that the grievant was affected by an unwarranted personnel action that resulted in the withdrawal or reduction of the grievant's pay, allowances or differential and did not award backpay to the grievant. Rather, the Arbitrator concluded that the 5-day suspension of the grievant was appropriate. Even if the grievant's removal from the IRP were found to be an unwarranted personnel action, there was no withdrawal or reduction of the grievant's pay, allowances or differentials as a result of such action and no backpay was awarded in connection with the grievant's removal from the IRP. Based upon the foregoing, the Arbitrator's award of attorney fees in connection with the court proceedings is not authorized under the Back Pay Act.

The Arbitrator has not indicated, nor is it otherwise apparent, that there is any statutory authority permitting the Activity to reimburse the attorney fees in the circumstances of this case. Thus, to the extent the Arbitrator's award requires the Activity to expend funds in the absence of statutory authority, it is deficient because it is contrary to law. See National Association of Government Employees, Local R7-23 and U.S. Department of the Air Force, Scott Air Force Base, Illinois, 35 FLRA 638 (1990); National Federation of Federal Employees, Local 1300 and General