48:1264(134)AR - - Navy, HQ., Naval District, Washington, DC and Fraternal Order of Police, U.S Navy Yard Labor Committee - - 1993 FLRAdec AR - - v48 p1264
[ v48 p1264 ]
The decision of the Authority follows:
48 FLRA No. 134
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE NAVY
HEADQUARTERS, NAVAL DISTRICT
FRATERNAL ORDER OF POLICE
U.S. NAVY YARD LABOR COMMITTEE
December 30, 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 Robert J. Ables 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.
A grievance was filed over the Agency's 14-day suspension of the grievant for being absent without leave (AWOL). The Arbitrator sustained the grievance. As remedy, the Arbitrator ordered the Agency to rescind the suspension and make the grievant whole for any loss of pay or benefits. However, the Arbitrator denied the Union's request for attorney fees.
For the following reasons, we conclude that the Arbitrator's award, insofar as it denies the Union's request for attorney fees is deficient and we will set aside that portion of the award. However, we conclude that the Union's remaining exceptions provide no basis for finding the award deficient. Accordingly, we will deny the remaining exceptions.
II. Background and Arbitrator's Award
The grievant was suspended for 14 days for being absent without leave (AWOL). The Union filed a grievance over the matter and, when the grievance was not resolved, it was submitted to arbitration. The issue as framed by the Arbitrator was as follows:
[W]hether the employer had cause to suspend the grievant for 14 days and [to] [issue] a 'letter of requirement', under charges the grievant was absent without leave (AWOL) on seven scheduled workdays, for a total of 56 hours, between October 12 and October 21, 1992.
Award at 1-2 (footnote omitted).
The Agency argued that it was justified in suspending the grievant because he "failed to produce specific documentation supporting his absences, . . . despite repeated oral and written instructions to do so." Id. at 2. The Union argued that the Agency was not justified in suspending the grievant because the grievant "did, in fact, provide the requested documentation." Id. at 3 (footnote omitted).
The Arbitrator found, as relevant here, that the grievant provided sufficient medical documentation to justify the absences for which he was charged AWOL. The Arbitrator concluded that "the grievant's absences . . . were excusable and the [Agency] unreasonably withheld excusing those absences." Id. at 15. The Arbitrator also concluded that the Agency did not unreasonably deny the grievant's request for advance sick leave and the Union did not establish that the Agency suspended the grievant as a reprisal for the grievant's union activity.
As his award, the Arbitrator ordered, as relevant here, the Agency to (1) expunge the 14-day suspension from the grievant's official personnel record; (2) credit the grievant with any benefits lost; and (3) pay the grievant backpay. However, the Arbitrator denied the Union's request for attorney fees, stating:
Attorney's fees to [the] union's counsel would not be authorized if the question were presented and considered during any extended period of jurisdiction, if retained. No novel, difficult, or important policy question was involved in this dispute on a 14-day suspension. The decision turned on the facts. Union['s] counsel's reward for presenting a superb argument at trial, and on post-hearing brief, must come from the client.
Id. at 16.
III. Positions of the Parties
The Union claims that the Arbitrator should have found that the Agency improperly denied the grievant's request for advance sick leave because, according to the Union, the grievant provided medical documentation. The Union also argues that the Arbitrator erred in concluding that the Union did not establish that the Agency suspended the grievant as a reprisal for the grievant's union activity. Finally, the Union claims that the Arbitrator's denial of its request for attorney fees is deficient because, in the Union's view, the Arbitrator did not address "issues that are [c]ustomarily considered in determining whether to [a]ward [a]ttorney's [f]ee's . . . ." Exceptions at 3.
The Agency claims that the Union has not demonstrated that the award is deficient.
IV. Analysis and Conclusions
When exceptions are filed to arbitration awards resolving requests for attorney fees under the Back Pay Act, the Authority's role is to ensure that the award complies with applicable statutory standards. U.S. Patent and Trademark Office and Patent Office Professional Association, 32 FLRA 375 (1988). A threshold requirement for entitlement to attorney fees under the Back Pay Act is a finding that the grievant was affected by an unjustified or unwarranted personnel action which resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials. The Back Pay Act further requires that an award of attorney fees must be: (1) in conjunction with an award of backpay to the grievant on correction of the personnel action; (2) reasonable and related to the personnel action; and (3) in accordance with the standards established under 5 U.S.C. § 7701(g). Id. at 378. The prerequisites for an award of attorney fees under section 7701(g)(1) are as follows: (1) the employee must be the prevailing party; (2) the award of fees must be warranted in the interest of justice; (3) the amount of the fees must be reasonable; and (4) the fees must have been incurred by the employee. American Federation of Government Employees, Local 12 and U.S. Department of Labor, Washington, D.C., 38 FLRA 1240, 1248 (1990).
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. For example, U.S. Department of the Army, Army Transportation Center, Fort Eustis, Virginia and National Association of Government Employees, Local R4-6, 38 FLRA 186, 191 (1990), request for clarification denied, 40 FLRA 84 (1991). We will set aside awards involving attorney fees that are not fully articulated and reasoned. See, for example, 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, 1290 (1992). In addition, we again remind the parties of their responsibilities and interests in assuring that arbitrators are advised of pertinent requirements in rendering awards of attorney fees. See, for example, U.S. Department of the Navy, Naval Aviation Depot, Norfolk, Virginia and National Association of Government Employees, Local R4-83, 43 FLRA 80, 83 (1991).
In this case, we conclude that the Arbitrator's conclusionary statement that attorney fees were not warranted does not meet the requirement of a fully articulated, reasoned decision setting forth specific findings on each pertinent statutory requirement. In particular, we find that the Arbitrator did not properly determine whether the Union's request was warranted in the interest of justice.(*) Accordingly, the Arbitrator's award denying attorney fees is deficient, and we will set aside that portion of the award.
We find no merit to the Union's remaining exceptions. In our view, the Union's assertions that the Agency improperly denied the grievant's request for advance sick leave and suspended the grievant as a reprisal for the grievant's union activity constitute mere disagreement with the Arbitrator's evaluation of the evidence and his findings and conclusions based on that evaluation. It is well established that such disagreement provides no basis for finding an award deficient. See, for example, U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, Local 1336, 37 FLRA 766, 774 (1990). Accordingly, these exceptions do not demonstrate that the award is deficient.
The Arbitrator's award denying attorney fees is set aside. The Union's exceptions to the remainder of the award are denied.
(If blank, the decision does not have footnotes.)
*/ An award of fees is warranted in the interest of justice if any of the following criteria are met: (1) the agency engaged in a prohibited personnel practice; (2) the agency actions are clearly without merit or wholly unfounded, or where the employee is substantially innocent of charges brought by the agency; (3) the agency actions are taken in bad faith to harass or exert improper pressure on an employee; (4) the agency committed gross procedural error which prolonged the proceeding or severely prejudiced the employee; (5) the agency knew or should have known it would not prevail on the merits when it brought the proceeding; or (6) there is either a service rendered to the Federal workforce or there is a benefit to the public derived from maintaining the action. U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Washington, D.C. and American Fed