44:1301(110)AR - - OEA and DOD Dependents Schools - - 1992 FLRAdec AR - - v44 p1301
[ v44 p1301 ]
The decision of the Authority follows:
44 FLRA No. 110
FEDERAL LABOR RELATIONS AUTHORITY
OVERSEAS EDUCATION ASSOCIATION
U.S. DEPARTMENT OF DEFENSE
May 27, 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 Fred Blackwell 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. The Union filed a response to the Agency's opposition, and the Agency moved to dismiss the Union submission and filed a response.(1)
In the supplemental award, the Arbitrator denied the Union's application for attorney fees. For the following reasons, we deny the exceptions in part and set aside the award in part.
II. Background and Supplemental Arbitration Award
In his initial award, the Arbitrator determined that, under the parties' agreement, employees were entitled to payment for travel and transportation expenses incurred when the Agency granted employees certain transfers from one geographic location to another. The Arbitrator ordered the Agency to reimburse the employees for those expenses. Subsequently, the Union requested the Arbitrator to award attorney fees under the Back Pay Act, 5 U.S.C. § 5596.
In his supplemental award, the Arbitrator found, as relevant here, that two interest of justice standards, whether the Agency knew or should have known that it would not prevail on the merits and whether the Agency's action was shown to be clearly without merit, were applicable. However, the Arbitrator concluded that the Union had not established that fees were warranted under these standards. The Arbitrator also concluded that fees were not warranted on the basis that there was a benefit to the Federal work force or to the public as a result of the grievance. Accordingly, the Arbitrator denied the Union's application for fees.
III. Union's Exceptions
The Union asserts that the Arbitrator's supplemental award is deficient because the Arbitrator did not provide a fully reasoned, articulated decision. According to the Union, it is entitled to fees because, based on the record: (1) the Agency knew or should have known that its denial of the disputed transportation expenses would not prevail; and (2) the Agency's actions were clearly without merit. The Union also asserts that the Authority should remand the supplemental award to permit the Arbitrator to find that fees are warranted because the grievance provided a service to the Federal work force or a benefit to the public.
IV. Agency's Opposition
The Agency contends that the Arbitrator's award of transportation expenses does not constitute an award of backpay and that, in the absence of a backpay award, attorney fees cannot be awarded under the Back Pay Act. The Agency also asserts that the Arbitrator's ruling is consistent with his findings and that the Union is trying "to relitigate the merits of the case . . . ." Opposition at 1.
V. 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 fully articulated, reasoned decision setting forth specific findings supporting determinations on each pertinent statutory requirement. See, for example, U.S. Department of the Army, Red River Army Depot, Texarkana, Texas and National Association of Government Employees, Local R14-52, 39 FLRA 1215, 1222 (1991) (Red River Army Depot). An award of attorney fees is warranted in the interest of justice if any of the statutory requirements are met.(2) Id.
We reject the Union's assertion that attorney fees are warranted in the interest of justice because the Agency knew or should have known that it would not prevail on the merits when it denied the disputed expenses. Initially, we find that, on this point, the Arbitrator's supplemental award is a fully reasoned, articulated decision. In his opinion, the Arbitrator found that the Agency "took into account in a positive manner the law/regulations/agreement provisions that were pertinent" to its denial. Supplemental Award at 8 (emphasis in original). Further, the Arbitrator found that the Agency "presented meaningful evidence to support the action that was grieved, including decisions by the Comptroller General[.]" Id.
Turning to the question of whether the award is deficient because, as a matter of law, the Agency knew or should have known that it would not prevail on the merits, we conclude, contrary to the Union, that the record does not support such a finding. Accordingly, we deny the Union's exception to the Arbitrator's finding that fees were not warranted on this basis. See, for example, American Federation of Government Employees, Local 12 and U.S. Department of Labor, Washington, D.C., 38 FLRA 1240, 1254 (1990) (DOL) (union failed to demonstrate that attorney fees were warranted because the agency knew or should have known that it would prevail). Compare Department of Health and Human Services, Public Health Service, Region IV, Atlanta, Georgia and National Treasury Employees Union, Chapter 2