45:0971(96)AR - - Army, Fort Polk, LA and NAGE Local R5-168 - - 1992 FLRAdec AR - - v45 p971
[ v45 p971 ]
The decision of the Authority follows:
45 FLRA No. 96
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on a motion for reconsideration of 44 FLRA 1548 (1992), filed by the Union under section 2429.17 of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's motion.(1)
We conclude that the Union fails to establish that extraordinary circumstances exist warranting reconsideration of our decision in 44 FLRA 1548. Accordingly, we will deny the Union's motion.
II. The Decision in 44 FLRA 1548
In 44 FLRA 1548, as relevant here, we found that the Arbitrator's denial of the Union's motion for attorney fees was contrary to the Back Pay Act, 5 U.S.C. ° 5596. Accordingly, we modified the award to strike the denial of fees.
In denying the Union's motion for attorney fees, the Arbitrator had concluded that an award of fees was not warranted in the interest of justice because the Agency's position was "decided by litigating the issue" and was not in "bad faith." 44 FLRA at 1550 (quoting Award at 7). In the Arbitrator's view, "[t]he fact that the Grievance was sustained does not justify in itself the award of attorney's fees and costs." Id. (quoting Award at 7).
We found that the Arbitrator's denial of fees was deficient because the Arbitrator had failed to provide a fully articulated, reasoned decision as required by the Back Pay Act. In finding the denial deficient, we noted our decision in American Federation of Government Employees, Local 1770 and U.S. Department of the Army, Headquarters, XVIII Airborne Corps, Fort Bragg, North Carolina, 44 FLRA 1287 (1992) (Ft. Bragg). In Ft. Bragg, we had reexamined our approach to arbitration awards denying requests for attorney fees without providing the required fully articulated, reasoned decision. We held in Ft. Bragg that as with awards granting fees without the proper support, we would find these awards deficient, and we would strike the portion of the award denying the fees. Id. at 1290. We advised that in such cases, we would no longer remand the issue of attorney fees to the parties for further proceedings. Accordingly, consistent with the approach set forth in Ft. Bragg, we modified the award in 44 FLRA 1548 to strike the denial of fees.
III. Positions of the Parties
The Union requests that the Authority reconsider its decision "to a small degree" to provide for a remand of the attorney fee issue to the Arbitrator. Motion for Reconsideration at 2. The Union maintains that the decision does not make clear what steps are necessary for the Union to obtain a decision on the requested attorney fees. The Union submits that it would be "more prudent for the Authority to follow the course of federal and state courts and other administrative bodies of remanding cases in which Arbitrators incorrectly address the issues presented." Id.
The Agency cont