44:1287(108)AR - - AFGE Local 1770 and Army, HQ, XVIII Airborne Corps, Fort Bragg, NC - - 1992 FLRAdec AR - - v44 p1287
[ v44 p1287 ]
The decision of the Authority follows:
44 FLRA No. 108
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE ARMY
HEADQUARTERS, XVIII AIRBORNE CORPS
FORT BRAGG, NORTH CAROLINA
May 22, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to a supplemental award of Arbitrator Millard Cass 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.
In the supplemental award, the Arbitrator denied the Union's motion for attorney fees in connection with a previous award. For the following reasons, we conclude that the Arbitrator's supplemental award is deficient and we will set aside the award.
II. Background and Supplemental Award
The underlying grievance concerned the Agency's refusal to grant the grievant 2 hours of overtime pay for attending a grievance meeting scheduled on the grievant's day off. In denying the grievance, the Arbitrator determined that applicable law and regulation did not permit advance blanket authorization of overtime, but required case-by-case determination regarding the payment of overtime. The Arbitrator held that the scheduling of the grievance meeting did not constitute the necessary case-by-case prior approval of overtime.
The Union filed exceptions to the award with the Authority. In U.S. Department of the Army, Headquarters, XVIII Airborne Corps, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 41 FLRA 62 (1991), we concluded that the Arbitrator incorrectly found that applicable law and regulation required case-by-case determinations regarding the payment of overtime. However, we were not able to determine whether, or to what extent, the award was based on the incorrect finding. We remanded the case to the parties for resubmission to the Arbitrator to determine whether the Agency had violated the parties' agreement and, if so, what remedy was appropriate.
On remand, the Arbitrator determined, in his first supplemental award, that the parties agreed to a blanket authorization of overtime pay for attendance at grievance meetings. Consequently, the Arbitrator awarded the grievant 2 hours of overtime pay.
Subsequently, the Union submitted a motion for attorney fees to the Arbitrator in connection with his award of the overtime pay. The Arbitrator denied the motion, finding that fees were not warranted "'in the interest of justice.'" Second Supplemental Award at 6. The Arbitrator stated that his
own decisions on October 1, 1990 and July 16, 1991 negate the Union's claims that the Agency's actions were "clearly without merit"; that there was a "gross procedural error"; and/or that the Agency "knew or should have known that it would not prevail on the merits of the action." The decision of October 1, 1990 denied [the grievant's] grievance, which is an answer to all three of those allegations.
Id. at 5. The Arbitrator concluded that "[n]othing in [the] history of the case meets the standards . . . for awarding attorney fees 'in the interest of justice.'" Id. at 6.
III. Positions of the Parties
A. Union's Exceptions
The Union asserts that the Arbitrator erred "as a matter of law" in failing to grant the Union's request for attorney fees. Exceptions at 1. Referring to the various factors for award of fees that were set forth by the Merit Systems Protection Board in Allen v. U.S. Postal Service, 2 MSPR 420, 434-35 (1980) (Allen), the Union claims that fees are warranted because: (1) the Agency's denial of overtime pay was clearly without merit or wholly unfounded; (2) a previous determination by the Arbitrator that an Agency witness was not credible establishes that the Agency knew or should have known that it would not prevail in arbitration; and (3) the Agency committed gross procedural error in attempting to justify its failure to provide overtime pay. The Union argues that, because the Arbitrator "did not provide a detailed, specific . . . [a]ward as to why . . . he would not allow attorney fees[,]" the Authority should overrule the Arbitrator or remand the case for proper resolution. Exceptions at 2.
B. Agency's Opposition
The Agency claims that the Arbitrator correctly found that attorney fees were not warranted in the interest of justice under standards set forth in Allen. The Agency maintains that its position was not clearly without merit because it presented "'trustworthy, admissible evidence'" by the Agency witness who drafted and negotiated the parties' agreement. Opposition at 4. The Agency also states that "[s]imply because the evidence . . . was ultimately rejected by the Arbitrator does not lead to the conclusion that the Agency knew or should have known that it would not prevail" on the merits. Id. Finally, the Agency argues that a dispute over the meaning of a collective bargaining agreement does not constitute gross procedural error.
IV. Analysis and Conclusions
The Authority has held repeatedly that, in resolving a request for attorney fees under the Back Pay Act, an arbitrator must provide a