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