38:1240(100)AR - - AFGE Local 12 and Labor, Washington, DC - - 1990 FLRAdec AR - - v38 p1240



[ v38 p1240 ]
38:1240(100)AR
The decision of the Authority follows:


38 FLRA No. 100

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 12

(Union)

and

U.S. DEPARTMENT OF LABOR

WASHINGTON, D.C.

(Agency)

0-AR-1689

DECISION

December 31, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the interim and supplemental awards of Arbitrator Joseph M. Stone filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's exceptions.

Grievances were filed disputing a 5-day suspension imposed on the grievant for tardiness and 10 hours of absence without leave (AWOL) charged to the grievant for working on an appeal to the Comptroller General. In his interim award, the Arbitrator denied the grievance with respect to the latter issue but determined, with respect to the former, that the Agency should have given the grievant an official reprimand instead of a suspension. In his supplemental award, the Arbitrator (1) awarded the grievant 5 days' backpay, with interest, for the improper suspension; and (2) denied the Union's request for attorney fees.

For the following reasons, we conclude that the Union has failed to establish that either the interim award or the supplemental award is deficient. Accordingly, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

A. Interim Award

The grievant, the Union's chief steward, is a Disclosure Reports Specialist in the Agency's Pension, Welfare and Benefits Administration (PWBA). The grievant works a flexible work schedule which enables him to adjust his work schedule on a daily basis provided that he is present for work, or on approved leave, during the core hours of 10 a.m. to 3 p.m.

The grievant was charged with AWOL, for reporting late for work, without advance approval, on September 2 and 3, October 3, and November 14 and 24, 1986. On December 14, 1986, the grievant was placed on leave restriction because he had been tardy, without advance approval, on 59 days during the previous 11 months. The grievant also was warned that failure to receive advance supervisory approval would result in disciplinary action.

On February 3, 1987, the grievant reported for work at 10:12 a.m., without requesting approval in advance, and was placed on AWOL. On the following day, the grievant was informed that if he continued to report for work after 10 a.m., he would be placed on AWOL. Despite these warnings, the grievant arrived for work after 10 a.m., without advance approval, and was placed on AWOL on February 17, 18, 19, 20 and 24, March 23, and April 3, 1987.

On April 17, 1987, the grievant's supervisor proposed a 5-day suspension based on tardiness for September 2 and 3, October 3, and November 24, 1986, as well as February 3, 17, 18, 19, 20 and 24, March 23, and April 3, 1987. The proposed suspension was sustained by the Agency on May 20, 1987.

After the 5-day suspension was imposed, the grievant was charged with 10 hours' AWOL on July 16 and 17, 1987, for working on an appeal to the Comptroller General without requesting official time to work on the appeal. The Agency maintained that the grievant was not entitled to official time under the parties' collective bargaining agreement to work on the appeal and that the grievant did not request leave, in advance, to prepare the appeal.

The grievant filed separate grievances over the suspension and the 10 hours' AWOL charged for working on the appeal to the Comptroller General. When the grievances were not resolved, they were submitted to arbitration. The Arbitrator did not specifically state the issues before him.

With respect to the first grievance, the Arbitrator found that the grievant was on notice that his arrivals for work after 10 a.m. would be considered grounds for AWOL. In addition, the Arbitrator noted that eight of the incidents of AWOL on which the suspension was based occurred on or after February 17, 1987, the date on which the grievant, by his own admission, was informed that late arrivals would be considered grounds for AWOL.

The Arbitrator rejected the Union's contention that a rule existed enabling unit employees to report for work, without penalty, up to 10:07 a.m. The Arbitrator concluded that the "record [did] not reflect that the Union ha[d] met its burden of establishing a Department rule to that effect." Interim award at 42. Further, the Arbitrator found that even if the grievant's supervisor adhered to such a rule prior to February 17, 1987, the rule could not "be regarded as still in effect after that date when the Grievant was informed by his supervisor that arrivals after 10:00 a.m. would be considered 'late' and AWOL." Id. at 43. The Arbitrator stated that the alleged past practice could not limit the Agency's "right to determine when employees should work, particularly when the PWBA Agreement unambiguously require[d] that the Grievant report to work by 10:00 a.m. unless he receive[d] advance supervisory approval to arrive late." Id. at 43.

The Arbitrator also rejected the Union's argument that, on several instances, the grievant requested leave or was delayed by heavy traffic. The Arbitrator concluded that even if these instances were discounted, the other instances on which the grievant reported to work after 10 a.m., despite his supervisor's warning to the contrary, constituted conduct for which the grievant could be disciplined. Id.

In determining the appropriateness of the penalty, however, the Arbitrator discounted the incidents of tardiness prior to February 17, 1987. The Arbitrator stated, in this regard, that "the propriety" of the suspension should be determined in "light of the Grievant being a first offender . . . after February 17, 1987, when he was clearly informed that his reporting after 10:00 a.m. but before 10:07 a.m. would be regarded as 'late' and AWOL." Id. at 44. The Arbitrator concluded that the Agency should have given the grievant an official reprimand rather than a 5-day suspension and that the grievant's personnel record should be modified accordingly.

With respect to the second grievance, the Arbitrator found that there was "no sound basis for sustaining the grievance concerning the ten AWOL hours with which the Grievant was charged for preparing a brief for the Comptroller General." Id. at 41. The Arbitrator found that the parties' collective bargaining agreement "contemplates and requires prior, not subsequent, supervisory 'permission' to engage in 'authorized Union-Management business.'" Id. at 40. The Arbitrator concluded that as the grievant requested official time nearly a month after he prepared the appeal, the Agency properly placed the grievant on AWOL for 10 hours.

Finally, the Arbitrator noted that the Union's claims that the grievant was entitled to backpay, with interest, as well as attorney's fees had not been addressed by the parties. The Arbitrator retained jurisdiction in order to consider these issues.

B. Supplemental Award

As relevant here, the Arbitrator found that the grievant was entitled to backpay, with interest, for the improper 5-day suspension. Supplemental Award at 16. The Arbitrator rejected the Agency's argument that the grievant's numerous late arrivals rendered backpay inappropriate.

The Arbitrator concluded, however, that an award of attorney fees to the Union was unwarranted. Id. at 23. The Arbitrator found that "the Grievant did not prevail on a significant, separable claim on the merits[]" and that "all of the claims made by the Grievant were denied, despite the modification of the quantum of discipline imposed." Id. at 20. The Arbitrator concluded that, as the grievant failed to establish that he was innocent of all wrongdoing and as in a substantial number of instances the grievant acted improperly, the Grievant could not "reasonably be regarded as the 'prevailing party.'" Id. at 21.

The Arbitrator concluded further that "even if . . . the Grievant had prevailed, . . . the 'in the interest of justice' requirement" had not been met. Id. The Arbitrator found that because the Agency concluded correctly that discipline was warranted, it could not be found that "the Agency's action was 'clearly without merit' or that a prohibitive [sic] personnel practice was involved." Id. at 22. The Arbitrator further found that there was no "indication of bad faith or ill will" by the Agency and that the grievant was not "'substantially innocent' of the charges against him." Id.

In these circumstances, the Arbitrator stated that it could not "reasonably be concluded that . . . either a service ha[d] been rendered to the [F]ederal work force or [that] there [was] a benefit to the public derived from maintaining the action." Id. at 22. In the Arbitrator's view, the Agency's erroneous decision to suspend, rather than reprimand, the grievant could "hardly be said to warrant an award of attorney's fees under the Back Pay Act 'in accordance with the standards established under 5 U.S.C. º 7701(g).'" Id.

III. Exceptions

The Union's exceptions relate to both the interim and the supplemental awards.

With respect to the interim award, the Union contends that the Arbitrator erred in finding that a past practice of allowing unit employees to report for work up to 7 minutes after 10 a.m. did not exist. The Union argues that it met its burden of establishing that the practice existed and that the practice modified the parties' collective bargaining agreement with respect to arrival at work.

Next, the Union claims that the Arbitrator's finding that, even if a past practice existed, the grievant's supervisor could rescind it, is in error. The Union argues that an essential characteristic of a past practice is that it cannot be changed unilaterally without notice and bargaining.

In addition, the Union alleges that the Arbitrator's finding that the grievant could be disciplined even when his lateness was caused by traffic delays is inconsistent with the plain language of the parties' collective bargaining agreement. The Union claims that the parties' agreement contains no limitations on how often administrative leave may be given when lateness is attributable to such matters as traffic conditions.

Finally, the Union alleges that the grievant's supervisor's decision to charge the grievant with AWOL, despite the fact that, on some occasions, the grievant had telephoned his office in advance of his reporting time to request leave, is illegal. The Union concludes that discipline imposed under these circumstances is not for such cause as promotes the efficiency of the service and, as such, is inconsistent with the parties' agreement. The Union contends that it provided sufficient evidence to prove that the grievant and other Union stewards were treated in a discriminatory fashion and argues, in this regard, that the disciplining of a union steward for conduct also engaged in by others is a violation of section 7116(a)(1) and (2) of the Statute.

With respect to the supplemental award, the Union contends that the Arbitrator's failure to award attorney fees and costs is inconsistent with the Back Pay Act. The Union claims that it is entitled to attorney fees under Merit Systems Protection Board (MSPB) decisions in Lambert v. Department of the Air Force, 34 MSPR 501 (1987) (Lambert) and Sprenger v. Department of the Interior, 34 MSPR 664 (1987) (Sprenger). The Union claims first that the Arbitrator's finding that the Union was not a "prevailing party" is erroneous because an employee who receives an award of backpay has prevailed for the purposes of the Back Pay Act, even if the basis for the award is mitigation, as opposed to complete reversal, of discipline. Second, the Union claims that the Arbitrator erred in requiring the Union to prove that the Agency's action was improper, baseless or motivated by bad faith. According to the Union, the Back Pay Act does not require these showings for an award of attorney fees.

IV. Opposition

The Agency contends first that the Union's exceptions to the Arbitrator's interim award were untimely filed under section 2425.3 of the Authority's Rules and Regulations.

The Agency also contends that the Union's exceptions constitute nothing more than disagreement with the Arbitrator's award. According to the Agency, the Arbitrator properly found that the alleged past practice with regard to the time when unit employees were required to report to work did not exist. In addition, the Agency claims that the Authority has reversed arbitrators who enforced past practices which interfered with management's right to determine when work would be performed.

Finally, the Agency asserts that the Arbitrator correctly found that an award of attorney fees was not warranted. The Agency argues that the grievant was not the prevailing party and that, as the Agency was correct in concluding that discipline was warranted, it is not in the interest of justice to grant attorney fees.

V. Analysis and Conclusions

A. Procedural Matters

We reject the Agency's contentions that the Union's exceptions to the Arbitrator's interim award were untimely filed.

Section 2429.11 of the Authority's Rules and Regulations provides: "The Authority . . . ordinarily will not consider interlocutory appeals." In arbitration cases, this provision means that the Authority ordinarily will not resolve exceptions filed to an arbitration award unless the arbitration award constitutes a complete determination of all issues submitted to arbitration. See American Federation of Government Employees, General Committee and Department of Health and Human Services, Social Security Administration, 32 FLRA 173 (1988). Accord Millmen Local 550 United Brotherhood of Carpenters and Joiners of America v. Wells Exterior Trim, 828 F.2d 1373 (9th Cir. 1987) (an arbitration award that postpones the determination of an issue submitted does not constitute a final and binding arbitration award reviewable under section 301 of the Labor Management Relations Act).

In this case, the Arbitrator found, in his interim award, that the Agency should have given the grievant an official reprimand instead of a suspension. He also found that the Union's claims that the grievant was entitled to backpay, with interest, and attorney fees had not been addressed by either party. Accordingly, he requested both parties to submit briefs on the Union's claims and he retained jurisdiction in order to consider the parties' views on the Union's claims for relief.

In view of the foregoing, it is clear that the Arbitrator's interim award did not constitute a final award on all the matters which had been raised by the grievances under his consideration. Therefore, the Union was not required to file exceptions to that award under section 7122 of the Statute to safeguard its rights. See U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, SSA General Committee, 34 FLRA 373 (1990). As such, and as the Union's exceptions were timely filed after the Arbitrator issued his supplemental award, we find that the Union's exceptions addressing the Arbitrator's interim award were timely filed.

B. Exceptions to Interim Award

The Union claims that the Arbitrator erred in finding that: (1) the past practice whereby unit employees could report for work up to 7 minutes after 10 a.m. did not, and could not, exist; (2) the grievant could be disciplined for arriving late even though he had telephoned in advance to request leave; and (3) the Agency did not discriminate against the grievant because of his Union activities.

We conclude that these exceptions do not establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute. In particular, with respect to the alleged past practice of allowing unit employees to report for work up to 7 minutes after 10 a.m., the Arbitrator found that "the record [did] not reflect that the Union . . . met its burden of establishing a Department rule to that effect." Interim Award at 42. As for the times when the grievant called in advance to request leave, the Arbitrator found that discipline was warranted "[e]ven if these instances [were] discounted[.]" Id. at 43. Finally, the Arbitrator rejected the Union's contention that the grievant was treated discriminatorily. In response to the Union's request that the Arbitrator reconsider his rejection of this argument, the Arbitrator stated, in his supplemental award, that:

[W]ith respect to the charge of discriminatory treatment, the Union has the burden of demonstrating that such discriminatory treatment occurred, and it failed to do so . . . .

Supplemental Award at 2.

It is clear, from the foregoing arbitral findings, that the Union failed to prove at the arbitration hearing that the disputed past practice existed, or that the grievant was subjected to discriminatory treatment. Moreover, the Arbitrator found that the grievant appropriately was subject to discipline even without considering those instances when the grievant called to request approval of leave. In view of these findings, we conclude that the Union's exceptions constitute nothing more than an attempt to relitigate the merits of the grievance and disagreement with the Arbitrator's evaluation of the evidence, as well as his reasoning and conclusions. As such, these exceptions provide no basis for finding the award deficient. See, for example, Naval Aviation Depot, Department of the Navy, Norfolk, Virginia and International Association of Machinists and Aerospace Workers Local 39, 34 FLRA 544 (1990); Veterans Administration Medical Center, Richmond, Virginia and American Federation of Government Employees, Local 2145, 34 FLRA 524 (1990).

The Union has failed to establish that the interim award is contrary to any law, rule, or regulation or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor relations cases. Accordingly, we will deny the exceptions to the interim award.

C. Exceptions to Supplemental Award

No exceptions were filed to the Arbitrator's finding that the grievant was entitled to 5 days' backpay, with interest. The Union's exceptions, other than those discussed above, relate to the Arbitrator's failure to award attorney fees.

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 award 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. º 7701(g). For example, U.S. Patent and Trademark Office and Patent Office Professional Association, 32 FLRA 375, 378 (1988).

The prerequisites for an award of attorney fees under section 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 by the employee. The standards established under section 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. Id.

For the following reasons, we conclude that the Arbitrator erred in finding that the grievant was not a prevailing party. However, we conclude also that the Arbitrator's finding that an award of attorney fees was not in the interest of justice is not contrary to any law, rule or regulation. Therefore, the Arbitrator's award denying attorney fees is not deficient under section 7122(a) of the Statute.

1. Prevailing Party

In order to be eligible for attorney fees under 5 U.S.C. º 7701(g), an employee must be a prevailing party in the proceeding. This requirement is met if the employee has obtained all or a significant part of the relief which was sought. For example, United States Department of the Navy, Norfolk Naval Shipyard and American Federation of Government Employees, Local 4015, 34 FLRA 725, 728-29 (1990) (Department of Navy). The "prevailing party" requirement was examined in detail by the U.S. Court of Appeals for the Federal Circuit, which stated:

In applying this standard, it should be borne in mind that determining who prevails is really no more than a totaling up of who won and who lost. It is a practical matter: for example, if a penalty is imposed against an employee and, as a result of his appeal, it is reduced, then that employee may be deemed to have prevailed.

Sterner v. Department of the Army, 711 F.2d 1563, 1567 (Fed. Cir. 1983) (footnote omitted) (Sterner).

Under the definition of "prevailing party" set forth in Sterner, a grievant may be the prevailing party in the proceeding if he or she obtains mitigation of discipline, even though he or she may have committed the offense which is the basis for that discipline. See Department of the Navy, 34 FLRA at 728-29. See also Van Fossen v. Merit Systems Protection Board, 788 F.2d 748, 749 n.5 (Fed. Cir. 1986).

The Arbitrator in this case found that although the grievant properly was subject to discipline, the 5-day suspension should be mitigated. We conclude, consistent with Sterner and Department of the Navy, that the mitigation is sufficient to make the grievant the prevailing party for the purpose of determining eligibility for attorney fees. Therefore, we agree with the Union that the Arbitrator erred by finding that the grievant was not the prevailing party. See Department of the Navy, at 728-29.

2. Interest of Justice

As the grievant was the prevailing party, it is necessary to determine whether the Arbitrator's denial of fees is proper under the "interest of justice" requirement. The court stated in Sterner that "[t]he determination of who prevailed is, after all, only a threshold test of eligibility; the more difficult question of entitlement is reserved for the second prerequisite, 'warranted in the interest of justice.' Eligibility is broad but the entitlement standard operates to limit it." Sterner, 711 F.2d at 1567 (emphasis in original, footnote omitted).

In Allen v. United States Postal Service, 2 MSPR 420 (1980) (Allen), the MSPB listed five illustrative examples which "provide a useful indication of circumstances considered to reflect 'the interest of justice.'" Id. at 434. The Authority applies the Allen standards, as interpreted by the U.S. Court of Appeals for the Federal Circuit (See, for example, Boese v. Department of the Air Force, 784 F.2d 388 (Fed. Cir. 1986) (Boese)), in determining whether an award of attorney fees is warranted in the interest of justice. See, for example, Department of the Navy, 34 FLRA at 730.

An award of fees is warranted in the interest of justice if any of the Allen criteria are met. For example, Department of Navy. The Allen criteria are as follows:

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

2. [T]he agency's action was "clearly without merit" (º 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.

Allen, 2 MSPR at 434-35 (footnote omitted).

As there is no contention that attorney fees are warranted on the basis of criterion 1, 3, or 4, we will address only criterion 2 and 5.

a. Criterion 2

Under criterion 2, an award of fees is warranted in the interest of justice where the result of the appeal--here the arbitration award--shows that (1) the agency's action was "clearly without merit" or was "wholly unfounded"; or (2) the employee is "substantially innocent" of the charges brought by the agency. See Department of Navy, 34 FLRA at 731-32. In determining whether fees are warranted under criterion 2, "the competing interests to be examined are the degree of fault on the employee's part and the existence of any reasonable basis for the agency's action." Lokos v. Equal Employment Opportunity Commission, 44 MSPR 115, 120 (1990). With respect to the latter point, we note that in Sims v. Department of the Navy, 711 F.2d 1578 (Fed. Cir. 1983) (Sims), the court determined that an employee whose removal was mitigated to a 10-day suspension was not entitled to attorney fees under criterion 2, because the grievant admitted the wrongdoing. The court held that "[t]he agency's adverse action was not 'clearly without merit,' and it concerned indisputably improper conduct." Id. at 1582.

In this case, the Arbitrator noted the grievant's long history of late arrivals and stated that if the grievant had been warned by his supervisor at an earlier date about his late arrivals, he "would have had no difficulty whatsoever in accepting the propriety of a five day suspension." Interim Award at 46. As some of the grievant's late arrivals preceded the official warning from his supervisor, however, the Arbitrator mitigated the discipline to an official reprimand.

The Arbitrator found both that the grievant acted improperly and that "the Agency was correct in concluding that discipline was warranted[.] . . ." Supplemental Award at 22. In view of these findings, and the court's decision in Sims, we have no basis on which to conclude that the Arbitrator's finding that the Agency's action was not clearly without merit is contrary to law. Therefore, we conclude that the Union has failed to show that the Agency's action was "clearly without merit" or "wholly unfounded" so as to warrant an award of attorney fees under the first factor of criterion 2.

As to whether the grievant was "substantially innocent" of the Agency's charges, the U.S. Court of Appeals for the Federal Circuit has stated that "the substantially innocent standard means that . . . an employee is essentially without fault for the charges alleged, and was needlessly subjected to attorney fees in order to vindicate himself." Massa v. Department of Defense, 833 F.2d 991, 993 (Fed. Cir. 1987) (Massa). See also Jones v. Department of Defense, 42 MSPR 35, 43 (1989) (MSPB found that "the appellant was not without fault and was therefore not substantially innocent.").

In our view, the Arbitrator's findings that the charges against the grievant were sustained support a conclusion that the grievant was not without fault and was not needlessly subjected to attorney fees. See Massa 833 F.2d 991. Compare Boese, 784 F.2d at 391, in which the court overruled the MSPB's denial of attorney fees because the grievant was shown to be "substantially innocent" of the charges; and Federal Aviation Administration, National Aviation Facilities, Experimental Center and National Federation of Federal Employees, Local 1340, 32 FLRA 750 (1988), in which the Authority found that the arbitrator failed to apply the correct "interest of justice" standard when he denied attorney fees to an employee against whom charges were not proven. Because the Arbitrator in this case found that the grievant was not "substantially innocent" and the Union fails to show that this finding is contrary to law, attorney fees are not warranted under the second factor of criterion 2. See Department of Navy, 34 FLRA at 731-32.

b. Criterion 5

Under criterion 5, an award of attorney fees is warranted in the interest of justice where the agency "knew or should have known that it would not prevail on the merits" when it brought the proceeding. Allen, 2 MSPR at 435. The Arbitrator found that this criterion was not met because "[t]o say that the Agency did not succeed in suspending the [grievant] is not to say that it did not prevail on the merits. Clearly, the Agency was correct in concluding that discipline was warranted[.]" Supplemental Award at 22.

The Union contends that attorney fees are warranted under this criterion, as interpreted by the MSPB in Lambert and Sprenger. In Lambert, the MSPB ruled that an employee was not substantially innocent, but that attorney fees were warranted in the interest of justice because the agency knew or should have known that it would not prevail on the discipline imposed--a removal which was mitigated by the MSPB to a 60-day suspension. The MSPB held "that the penalty is part of the merits of the case, and that attorney fees are warranted in the interest of justice where the agency knew or should have known that its choice of penalty would be reversed." Lambert, 34 MSPR at 505. In Sprenger, 34 MSPR 664, the MSPB awarded attorney fees to an employee whose reduction in grade was mitigated to a 30-day suspension. The MSPB concluded that, under Lambert, the appellant had "carried his burden of showing that the agency 'knew or should have known that it could not prevail' on its selection of the penalty, which is part of the merits of the case, when it brought the adverse action." Sprenger, 4 MSPR at 668.

Based on the foregoing, it is clear that, with respect to criterion 5, attorney fees may be warranted based on mitigation of a penalty even when the charges underlying the penalty are sustained. See Lambert, 34 MSPR at 505. See also Ciarla v. United States Postal Service, 43 MSPR 240, 244 (1990) (Ciarla) ("attorney fees are warranted in the interest of justice under the knew-or-should-have-known category where all of the charges of misconduct against an appellant are sustained but the Board still mitigates the agency-imposed penalty because it exceeds the bounds of reasonableness."). In this regard, the "critical point" is that "an agency should not act irresponsibly or unreasonably in imposing a penalty if it either knows or should have known that the penalty would not withstand . . . scrutiny, even if all of the charges are sustained." Id. at 245. It is also clear that this criterion is applied based on whether the agency knew or should have known that it would not prevail at the time it took the disputed action. See Yorkshire v. Merit Systems Protection Board, 746 F.2d 1454, 1457-59 (Fed. Cir. 1984) (Yorkshire).

In the instant case, the Arbitrator concluded that the grievant committed the offense and that disciplinary action was warranted. The Arbitrator stated, in addition, that if the grievant had been warned about his late arrivals at an earlier date, the Arbitrator "would have had no difficulty whatsoever in accepting the propriety of a five day suspension." Interim Award at 46. Based on these findings, the Arbitrator stated that "[t]o say that the Agency did not succeed in suspending the [grievant] is not to say that it did not prevail on the merits." Supplemental Award at 22. The Arbitrator stated also, in this regard, that the suspension could not be characterized as an "avoidable [A]gency action." Id.

In these circumstances, and based on the record