40:1112(99)AR - - Navy, Philadelphia Naval Shipyard, Philadelphia, PA and Philadelphia Metal Trades Council, Local 93 - - 1991 FLRAdec AR - - v40 p1112
[ v40 p1112 ]
The decision of the Authority follows:
40 FLRA No. 99
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Daniel F. Brent filed by 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. The Union filed an opposition to the Agency's exception.
In his initial award, the Arbitrator reduced the grievant's suspension from 5 days to 2 days. In a supplemental award, the Arbitrator awarded the Union attorney fees in the amount of $5,350.50.
We conclude that the award of attorney fees is contrary to the Back Pay Act, and we will set the award aside.
II. Background and Arbitrator's Award
The grievant injured his knee while alighting from a scaffold during the refurbishing of a ship. The Agency suspended him for 5 days claiming that his injury was caused by his negligence. The grievant filed a grievance over the suspension. The grievance was not resolved and was submitted to arbitration.
The Arbitrator determined that the Agency improperly suspended the grievant for 5 days. However, the Arbitrator found that the grievant had contributed to his injury. Accordingly, as his initial award, the Arbitrator reduced the suspension from 5 days to 2 days and ordered that the grievant be made whole for all lost wages attributable to the mitigation of the suspension.
Thereafter, the Union submitted a motion for attorney fees to the Arbitrator. "[U]pon due consideration of the applicable statutory criteria for the granting of attorney's fees," the Arbitrator in a supplemental award ordered the payment by the Agency of attorney fees to the Union in the amount of $5,350.50. Supplemental award at 1.
III. Positions of the Parties
A. The Agency's Exception
The Agency contends that the award of attorney fees is contrary to the Back Pay Act, 5 U.S.C. § 5596. The Agency notes that the Authority has held that arbitrators must provide a fully articulated, reasoned decision setting forth the specific findings supporting the determination on each pertinent statutory requirement, including the basis upon which the reasonableness of the amount was determined when fees are awarded. The Agency further notes that the Authority has held that awards granting attorney fees without the proper support will be set aside or modified, as appropriate. The Agency argues that, in this case, the Arbitrator summarily awarded fees without any discussion or rationale and that, consequently, the award is deficient and must be set aside.
B. The Union's Opposition
The Union agrees that the Arbitrator awarded fees without any rationale to support the award. However, the Union argues that the award should not be set aside unless it can be shown that the Union was the cause for the Arbitrator's failure to properly support the award. The Union claims that, instead of being set aside, the award should be remanded in accordance with the Authority's decision in National Association of Government Employees, Local R4-106 and Department of the Air Force, Langley Air Force Base, Virginia, 32 FLRA 1159 (1988) (Langley Air Force Base).
IV. Analysis and Conclusions
We have repeatedly held that an award of attorney fees under the Back Pay Act requires a fully articulated, reasoned decision setting forth the specific findings supporting the determination on each pertinent statutory requirement. For example, U.S. Department of the Navy, Naval Aviation Depot, Norfolk, Virginia and National Association of Government Employees, Local R4-83, 40 FLRA 154, 158 (1991) (Naval Aviation Depot); U.S. Department of the Army, Army Transportation Center, Fort Eustis, Virginia and National Association of Government Employees, Local R4-6, 38 FLRA 186, 191 (1990) (Fort Eustis), request for clarification denied, 40 FLRA 84 (1991). Moreover, we have further held that an award of attorney fees without the proper support will be found deficient and the provision for attorney fees will be struck. We will not remand the issue of attorney fees to the parties for further proceedings. Naval Aviation Depot, 40 FLRA at 158; Fort Eustis, 38 FLRA at 191; Denial of Request for Clarification, 40 FLRA at 87.
In this case, the Arbitrator awarded attorney fees without the proper support. Accordingly, we find that the award of fees is contrary to the Back Pay Act, and we will set the award aside.
We reject the contention of the Union that the award cannot be found deficient because the Union was not at fault in the Arbitrator's failure to properly support his award. To be sure, we have repeatedly indicated that it is in the best interests of the parties to assure that their arbitrators are advised of pertinent statutory requirements in rendering awards and that the parties bear some responsibility for making those requirements known to their arbitrators. U.S. Department of the Army, Army Transportation Center, Fort Eustis, Virginia and National Association of Government Employees, Local R4-6, 40 FLRA No. 28, slip op. at 8 (1991); Naval Aviation Depot, 40 FLRA at 158-59. Nevertheless, we have specifically held that, when arbitrators fail to provide a fully articulated decision, whether or not they have been informed of the requirements, we will find the award deficient, and we will set the award aside. Naval Aviation Depot, 40 FLRA at 159.
We further reject the Union's reliance on Langley Air Force Base. Langley Air Force Base did not involve an award of attorney fees without the proper support. In Langley Air Force Base, the arbitrator denied the union's request for an award of attorney fees, and the Authority found that neither basis on which the arbitrator denied the request constituted a proper basis on which a request for attorney fees could be denied. Accordingly, the Authority found that the award was deficient and remanded the matter to the parties to request that the arbitrator appropriately consider the union's request for fees. Contrary to the Union's claim that Langley Air Force Base is controlling, the decision is inapposite and provides no basis for remanding this matter rather than setting aside the award.
The Arbitrator's award