48:1055(114)AR - - AFGE, SSA General Committee and HHS, SSA - - 1993 FLRAdec AR - - v48 p1055



[ v48 p1055 ]
48:1055(114)AR
The decision of the Authority follows:


48 FLRA No. 114

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

SSA GENERAL COMMITTEE

(Union)

and

DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

(Agency)

0-AR-2450

_____

DECISION

December 7, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Henry L. Segal 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 exceptions.

In a supplemental award, the Arbitrator denied the Union's application for attorney fees for legal services provided in connection with the Union's opposition to the Agency's exceptions to his original award. For the following reasons, we will deny the Union's exceptions to the Arbitrator's supplemental award.

II. Background and Arbitrator's Award

In Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, SSA General Committee, 46 FLRA 1118 (1993) (DHHS, SSA), we considered the Agency's exceptions to the Arbitrator's award resolving the Union's grievance, which alleged that the Agency violated the parties' collective bargaining agreement and memoranda of understanding by refusing to grant official time for Union representatives for, among other things, attendance at the national convention of the American Federation of Government Employees. The Arbitrator sustained the grievance in part and denied it in part. The Agency filed exceptions alleging that the award was deficient because it failed to draw its essence from the parties' agreement and was contrary to law. We denied the Agency's exceptions in our decision in DHHS, SSA, which was issued on January 8, 1993.

On January 29, 1993, the Union's attorney filed with the Arbitrator an application for attorney fees for services rendered to the Union in connection with the filing of its opposition to the Agency's exceptions in DHHS, SSA. The Agency filed an opposition to the application.

The Arbitrator found that the application for attorney fees, which was filed 21 days after the Authority's decision denying the Agency's exceptions, was timely filed. The Arbitrator noted that under the Back Pay Act, 5 U.S.C. § 5596, attorney fees are awarded in accordance with the standards set forth in 5 U.S.C. § 7701(g), which require that: (1) the fees must have been incurred for the services of an attorney; (2) fees may be sought only by the prevailing party; (3) the award of fees must be warranted in the interest of justice; and (4) the amount claimed for attorney fees must be reasonable.

After finding that the fees were incurred for the services of an attorney and the grievant was the prevailing party, the Arbitrator considered the requirement that fees be warranted in the interest of justice. Citing Naval Air Development Center, Department of the Navy and American Federation of Government Employees, Local 1928, AFL-CIO, 21 FLRA 131, 136 (1986) (NADC), the Arbitrator stated that, in determining whether fees were warranted in the interest of justice, he was guided by the criteria set forth in NADC, including the factors established in Allen v. U.S. Postal Service, 2 MSPR 420 (1980) (Allen).

Applying the criteria set forth in NADC, including the Allen factors, to the Agency's action in the underlying personnel action, the Arbitrator rejected the Union's claims that: (1) the Agency's action lacked substantial justification or was totally unfounded and clearly without merit; (2) the Agency initiated the action in disregard of prevailing law, regulation, or the collective bargaining agreement; (3) the Agency failed to inquire into the facts presented by the Union or to conduct a prudent examination of the Union's contradictory evidence; or (4) the arbitration rendered a service to the Federal work force or a benefit to the public. With respect to this last finding, the Arbitrator stated the following:

The FLRA[,] as an example of a service rendered to the [F]ederal work force, or where there is a benefit to the public by maintaining the action, refers to the situation in the NADC case itself where maintaining the action corrected a work place problem (environmental hazard involving asbestos) affecting a segment of the work force. But, in this case there is no comparable service rendered. Although the grievance action herein led to interpretation of law, regulation and the collective bargaining agreement, the Arbitrator is unable to conclude that the grievance action which resulted in a finding that a mere handful of employees (considering the thousands of employees employed by SSA) selected as delegates to a [U]nion convention are entitled to official time for certain activities when attending a convention during normal work time would constitute a service to the [F]ederal work force or a benefit to the public so as to warrant attorney fees in the "interest of justice."

Supplemental Award at 7-8.

The Arbitrator went on to consider the Union's arguments concerning the application of the NADC criteria, including the Allen factors, to the Agency's exceptions to the underlying award. In this regard, the Arbitrator found that the Agency's interpretations of the Statute and the parties' collective bargaining agreement "were not without plausibility." Id. at 8. The Arbitrator found, therefore, that there was "no basis for characterizing the exceptions as being 'frivolous,' 'malicious' or 'arbitrary'" or for finding that they were "filed in 'bad faith'. . . ." Id. The Arbitrator concluded that there was "no way the Agency would know or should have known whether or not it would prevail" in its exceptions. Id.

Accordingly, based on his application of the criteria set forth in NADC, including the Allen factors, to the Agency's actions in the underlying personnel action and in filing exceptions with the Authority, the Arbitrator determined that an award of attorney fees was not warranted in the interest of justice.

III. Union's Exceptions

The Union contends that the Arbitrator's supplemental award is contrary to applicable statutes, regulations, and case law. Specifically, the Union asserts that the Arbitrator incorrectly found that fees were not warranted in the interest of justice. According to the Union, the Arbitrator erred by: (1) using the underlying grievance arbitration award, rather than examining the Agency's exceptions, the opposition thereto, and the Authority's decision in DHHS, SSA, as the basis for determining whether any of the interest of justice criteria had been met; and (2) finding that a service was not rendered to the Federal workforce and that there was no benefit to the public as a result of the arbitration, and that, therefore, this interest of justice criterion was not met. The Union requests that the award be set aside as to these specific aspects and that the matter be remanded to the Arbitrator to make all required findings and to grant attorney fees to the Union.

IV. Analysis and Conclusions

For the following reasons, we conclude that the Union's exceptions provide no basis for finding that the Arbitrator's supplemental award is deficient and we will deny the exceptions.

In U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1923, 48 FLRA No. 113 (1993) (SSA), we stated:

In determining whether an employee who prevails in challenging an agency's personnel action is entitled to attorney fees in the interest of justice for any phase of the litigation, an arbitrator must focus his or her examination on the agency's action in the underlying case--that is, the agency's personnel action that was at issue in the arbitrator's initial award. In this connection, the Back Pay Act allows the recovery of attorney fees if the request for fees is "related to the personnel action" giving rise to the dispute. 5 U.S.C. § 5596(b)(1)(A)(ii). In addition, the purpose of the Back Pay Act is to "facilitate the retention[] of counsel by . . . employees who are the victims of wrongful personnel actions. When such actions are successfully overcome, the [G]overnment is required to pay lost income to the employee and to reimburse the costs of litigation." Naekel v. Department of Transportation, Federal Aviation Administration, 845 F.2d 976, 980 (Fed. Cir. 1988). Accordingly, under the attorney fees provision of the Back Pay Act, the Agency's personnel action is central to analyzing a request for fees.

If the arbitrator determines that the agency's conduct in the underlying case meets any of the interest of justice criteria so as to warrant attorney fees, then the arbitrator's determination that fees are warranted in the interest of justice applies to all subsequent phases of litigation involving the case if the grievant prevails in the subsequent litigation. See, for example, United States Department of Justice, Bureau of Prisons, Washington, D.C. and Bureau of Prisons Federal Correctional Institution, Ray Brook, New York, 32 FLRA 20, 27 (1988) (Authority considered agency's action in the underlying arbitration case as focal point for determining that fees were warranted in the interest of justice in subsequent litigation where the grievant was the prevailing party), reversed in part and remanded as to other matters, American Federation of Government Employees, AFL-CIO, Local 3882 v. FLRA, 944 F.2d 922 (D.C. Cir. 1991) (AFGE v. FLRA), decision on remand as to other matters, 46 FLRA 1002 (1992). See also AFGE v. FLRA, 944 F.2d at 934.

However, if the arbitrator determines that the agency's conduct in the underlying case does not meet any of the interest of justice criteria needed to support an award of attorney fees, then the arbitrator should extend his or her examination beyond an agency's action in the underlying personnel action to determine whether fees are warranted in the interest of justice for subsequent phases of litigation. Specifically, an arbitrator should assess whether the agency's exceptions to the Authority meet any of the interest of justice criteria so as to warrant attorney fees in connection with the adjudication of those exceptions. If the arbitrator determines that the agency's action in filing the exceptions meets any of the interest of justice criteria, the arbitrator could award fees for work related to the union's opposition to the agency's exceptions, notwithstanding the fact that the agency's conduct in the underlying personnel action did not meet any of the interest of justice criteria. This approach is supported by the court's decision in Keely v. MSPB, 760 F.2d 246, 249 (Fed. Cir. 1985) (Keely) (the court held that "notwithstanding the merits of the agency's initial action, under the section 7701(g)(1) 'interest of justice standard' an award of attorney fees is proper" for work related to an appeal before the MSPB "where the agency brings an appeal that is clearly without merit").

SSA, slip op. at 10-11.

In this case, the Arbitrator properly considered and applied the interest of justice criteria to the Agency's conduct in the underlying case and found that the Agency's conduct did not meet any of the interest of justice criteria. Consistent with the standard in SSA set forth above, the Arbitrator then examined the Agency's action in the underlying personnel action. Upon consideration of the Agency's exceptions to the underlying award, the opposition thereto, the Authority's decision in DHHS, SSA, and the Agency's actions in filing the exceptions with the Authority, the Arbitrator determined that an award of attorney fees was not warranted in the interest of justice in connection with the adjudication of those exceptions. In our view, the Union fails to show that the Arbitrator's award in this respect is deficient under the Statute and provide no basis for finding the Arbitrator's supplemental award deficient. See SSA.

We also find that the Union's contention that the Arbitrator erred in finding that a service was not rendered to the Federal workforce and that there was no benefit to the public as a result of the arbitration, and that, therefore, this interest of justice criterion was not met, provides no basis for finding the award deficient. The Arbitrator discussed this criterion and found that, compared to the example set forth in NADC where maintaining the action corrected an environmental hazard affecting a segment of the workforce, there was no comparable service rendered in the instant case. The Arbitrator further noted that inasmuch as the grievance action resulted in a finding that "a mere handful of employees . . . selected as delegates to a [U]nion convention are entitled to official time for certain activities when attending a convention during normal work time[,]" he could not conclude that the action constituted a service to the Federal work force or a benefit to the public so as to warrant attorney fees in the interest of justice. Supplemental Award at 8.

In our view, the Arbitrator fully articulated his reasons for determining that this case did not involve a service rendered to the Federal