44:1205(97)AR - - Red River Army Depot, Texarkana, TX and NAGE Local R14-52 - - 1992 FLRAdec AR - - v44 p1205
[ v44 p1205 ]
The decision of the Authority follows:
44 FLRA No. 97
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE ARMY
RED RIVER ARMY DEPOT
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
May 12, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to a supplemental award of Arbitrator Donald Austin Woolf 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 did not file an opposition to the Union's exception.
The issue before the Arbitrator in this case was whether the Union was entitled to attorney fees under the Back Pay Act in connection with an earlier arbitration award. The parties submitted the issue to the Arbitrator pursuant to a remand by the Authority in U.S. Department of the Army, Red River Army Depot, Texarkana, Texas and National Association of Government Employees, Local R14-52, 39 FLRA 1215 (1991) (Red River Depot). In that decision, the Authority found that the Arbitrator's supplemental award concerning attorney fees was deficient.
The Arbitrator, in his supplemental award pursuant to the remand, denied the Union's motion for attorney fees. For reasons discussed below, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
A grievance was filed by the Union alleging that the grievant was improperly denied a pay increase under the terms of the parties' collective bargaining agreement. The Arbitrator sustained the grievance and directed the Agency to make a cash award. The Agency was also directed to pay all costs of the arbitration under a "loser pays all" provision of the parties' agreement.
Subsequent to the Arbitrator's award, the Union filed a motion for attorney fees. The Arbitrator denied the motion in a supplemental award. Thereafter, the Union filed exceptions to the Arbitrator's denial of its motion for attorney fees. In Red River Depot the Authority found the Arbitrator's supplemental award deficient because the award did not contain a fully articulated, reasoned decision, as required by 5 U.S.C. § 7701(g), concerning the criteria for attorney fees under the Back Pay Act set forth in Naval Air Development Center, Department of the Navy and American Federation of Government Employees, Local 1928, AFL-CIO, 21 FLRA 131 (1986) (NADC). Specifically, the Authority remanded the matter to the parties "to request the Arbitrator to consider the Union's motion for an award of attorney fees under the criterion set forth in NADC concerning instances where there is either a service rendered to the Federal work force or there is a benefit to the public derived from maintaining the action." 39 FLRA at 1224. The parties filed briefs with the Arbitrator pursuant to the remand.
In its brief to the Arbitrator and its response to the Agency's brief to the Arbitrator, the Union claimed that other employees benefited from the Arbitrator's award sustaining the grievance. The Union did not supply any supporting information that identified other employees who had the same complaint as the grievant or any employee who benefited from the award. Instead, the Union supplied an affidavit by the Union's president, which stated that the grievance was a "test case" under the parties' agreement and that the Union had processed the grievance "because it would impact other employees and would serve to insure consistency of treatment among employees and thereby render a valuable service to the Federal work force." Award on Remand at 4.
The Arbitrator concluded that the information supplied by the Union did not disclose whether anyone other than the grievant was entitled to any benefits from the arbitration award, or whether anyone actually received a cash award in addition to the grievant. The Arbitrator further stated that the affidavit appeared to be untimely in that it should have accompanied the motion for attorney fees rather than an appeal from a ruling on that motion.
The Arbitrator noted that the Agency, in its brief, stated categorically that no other employees benefited from the Arbitrator's award and, therefore, that no service was rendered to the Federal work force and that there was no benefit to the public derived from maintaining this action.
The Arbitrator found that the burden of proof in this matter rested with the Union and that the Union had failed to meet its burden of demonstrating its claim that a service was rendered to the Federal work force. The Arbitrator also concluded that neither party offered convincing proof regarding the portion of the criterion referring to the benefit to the public.
The Arbitrator also found that a grant of attorney fees is an extraordinary remedy that is not warranted where, as here, the grievance was of a routine nature and not precedent-setting. Further, he rejected the argument "that attorney fees should be paid by the losing party to the prevailing party because the Back Pay Act or the Civil Service Act permits it . . . ." Id. at 6.
The Arbitrator then turned his attention to a letter dated May 9, 1991, from the Union's counsel to the Arbitrator, which stated in part:
This letter will . . . serve to advise that the Union declines to pay any additional arbitration fees based on a remand of the decision. As a policy matter, it would be inappropriate for the Union to pay additional fees connected with a decision which is returned to an Arbitrator by the FLRA. If you disagree please contact the Union so that we can make a decision as to whether to proceed; we would also request return of our prior payment.
Id. at 7. The Arbitrator stated that in response to the "invitation" in the last sentence of the Union's letter he had called the counsel for the Union, as well as the Agency, in accordance with FMCS procedure. Id. The Arbitrator stated that the Union apparently had decided not to pay because the remand, and, consequently, the additional fee and expenses, had been caused by the Arbitrator's failure to issue a fully articulated, reasoned decision. The Arbitrator rejected that premise, stating that he had appropriately based the earlier attorney fees determination on the parties' agreement rather than external law. The Arbitrator also disagreed with the Union's suggestion that arbitrators should not be paid in any instance where their awards are not fully supported on appeal.
Finally, the Arbitrator found, based on parties' agreement, that the Union, as the losing party in its motion for attorney fees, should bear the Arbitrator's fee and expenses. He stated that the failure of the Union to meet that obligation under the agreement "could be construed as a refusal to bargain in good faith, an unfair labor practice." Id. at 9. The Arbitrator further stated that the Union's position that it should be required to pay the fee and expenses only if it prevailed "approaches the outrageous" and "[a]t best, it would appear to be an impermissible attempt to bias the Arbitrator, hence the Award." Id. at 10.
Accordingly, the Arbitrator denied the Union's motion for attorney fees and directed the Union, as the losing party under the parties' agreement, to pay the fees and expenses of the Arbitrator.
III. Union's Exceptions
The Union first contends that the Arbitrator was biased against the Union. The Union claims that the evidence clearly demonstrates that the Arbitrator lost his neutrality because he suggested to the Agency that the Union's proposal not to pay Arbitrator's fees and expenses "should be considered" an unfair labor practice. Exceptions at 2. The Union contends that the issue of whether the Union was going to pay the Arbitrator's fee and expenses was not an issue in the case and should not have figured so prominently in the Arbitrator's award. The Union contends that the Arbitrator wrongly interpreted the Union's counsel's May 9, 1991, letter, which according to the Union, "merely suggests the Union does not want to incur additional expenses and [sic] to be advised if additional fees will be incurred." Id. at 3. The Union contends that the Arbitrator's resulting "written expression of hostility clearly establishes [that] his decision was prejudiced." Id.
The Union also contends that the Arbitrator's prejudice adversely affected his decision not to award attorney fees. The Union claims that the Arbitrator erroneously compared the Union's evidence with the "non-evidentiary argument" of the Agency with respect to whether other employees benefited from the award. Id. The Union asserts that the Arbitrator failed to properly evaluate the evidence that a number of employees were positively affected by the grievance and that "[t]he grievance was a 'test case' which corrected a workplace problem." Id. at 5. The Union argues that the case "easily met the criteria for a fee award under [NADC]." Id.
The Union further contends that the Arbitrator erred in issuing his supplemental award on remand. The Union asserts that it advised the Arbitrator that it wanted to proceed only after learning whether there would be additional Arbitrator fees, and that the Arbitrator never responded to this request. The Union argues that the Arbitrator works at the pleasure of the parties and has no independent right to proceed without the parties' permission. The Union contends that it was "entitled to an answer before the Arbitrator proceeded." Id.
IV. Analysis and Conclusions
We conclude that the Union fails to establish that the Arbitrator's supplemental award is deficient. Accordingly, we will deny the exceptions.
The Union contends that the Arbitrator erred in not awarding attorney fees. In Red River Depot, the Authority remanded this case to the parties for the Arbitrator to address in a fully articulated, reasoned decision the Union's claim that an award of attorney fees is warranted under the criterion set forth in NADC concerning instances where there is either a service rendered to the Federal work force or there is a benefit to the public derived from maintaining the action.
We have examined the supplemental award and find that it is supported by a fully articulated decision and contains the specific findings required by law. In particular, the Arbitrator fully articulated his reasons for determining that this case did not involve a service rendered to the Federal work force or a benefit to the public derived from maintaining the action so as to warrant an award of fees. The Arbitrator concluded that the Union had not met its burden of proof of establishing either of those grounds. The Arbitrator found that there was no evidence presented that anyone other than the grievant benefited from the award and further concluded that the grievance was of a routine nature and not precedent-setting. In our view, the Union fails to establish that the denial of fees in these circumstances was contrary to law. Accordingly, the Union's exception provides no basis for finding the award deficient. See, for example, U.S. Patent and Trademark Office and Patent Office Professional Association, 32 FLRA 375 (1988) (Authority denied the exceptions, concluding in relevant part that the arbitrator had fully articulated his reasons for determining that the case did not involve a service rendered to the Federal work force or a benefit to the public derived from maintaining the action so as to warrant an award of fees).
To the extent that the Union is alleging that the Arbitrator required it to meet an improper burden of proof, such an allegation provides no basis for finding the award deficient. Unless a specific burden of proof is required, which was not the case here, an arbitrator may establish and apply whatever burden the arbitrator considers appropriate. U.S. Department of the Air Force, Headquarters Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 40 FLRA 88, 93 (1991).
We also reject the Union's assertion that the Arbitrator was biased against the Union. To demonstrate that an award is deficient because of bias on the part of an arbitrator, it must be shown, for example, that the award was procured by improper means, that there was partiality or corruption on the part of the arbitrator, or that the arbitrator engaged in misconduct that prejudiced the rights of a party. See, for example, U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals and American Federation of Government Employees, Local 3615, 39 FLRA 407, 415 (1991). The Union has not demonstrated that the Arbitrator was biased under any of the above criteria. The Arbitrator, as noted above, fully articulated his reasons for determining that this case did not involve a service rendered to the Federal work for