49:0820(76)AR - - Navy, Mare Island Naval Shipyard, Vallejo, CA and Federal Employees Metal Trades Council - - 1994 FLRAdec AR - - v49 p820



[ v49 p820 ]
49:0820(76)AR
The decision of the Authority follows:


49 FLRA No. 76

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE NAVY

MARE ISLAND NAVAL SHIPYARD

VALLEJO, CALIFORNIA

(Agency)

and

FEDERAL EMPLOYEES METAL TRADES COUNCIL

(Union)

0-AR-2538

DECISION

April 21, 1994

_____

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 Charles A. Askin 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.

For the following reasons, we conclude that the Union has not established that the Arbitrator's supplemental award, granting in part and denying in part the Union's request for attorney fees, is deficient. Accordingly, we will deny the Union's exceptions.

II. Background and Arbitrator's Supplemental Award

The underlying grievance challenged the separation of three employees during a reduction-in-force (RIF). The Arbitrator found that any one of the grievants, all of whom were veterans, was entitled to displace a non-veteran sheet metal mechanic. In addition, the Arbitrator found that the grievants were improperly denied the right to displace three non-veteran maintenance mechanics. The Arbitrator sustained the grievance and, as a remedy, ordered the Agency to cancel the grievants' separations and award the grievants backpay and benefits. Subsequently, the Union requested attorney fees under the Back Pay Act, 5 U.S.C. § 5596, in the amount of $5,000.00.

In a supplemental award, the Arbitrator found that the grievants were the prevailing parties, that fees were incurred by the grievants, and that the amount of the fees requested was reasonable. However, the Arbitrator concluded that the interest of justice criteria as set forth in Allen v. United States Postal Service, 2 MSPR 420 (1980) (Allen), "require[d] an award of attorney fees for one-third of the fees incurred herein because one of the three cases should have been resolved without a hearing . . . ." Supplemental Award at 6.(*)

Applying the Allen criteria to this case, the Arbitrator found that, prior to the hearing, the Agency admitted that certain of its initial determinations regarding the grievants' competitive level and qualifications were incorrect. In addition, the Arbitrator noted testimony of an Agency witness that "if the [g]rievants had been placed in a single competitive level, one of them would have been able to displace the non-veteran [sheet metal worker]." Id. at 5. The Arbitrator concluded that the Agency's "own testimony established that one of the [g]rievants was entitled to that position," and, as such, the Agency's "insistence upon proceeding to hearing on all three cases was 'clearly without merit.'" Id. at 6. In particular, the Arbitrator concluded that after the Agency "realized that an error had been made, the subsequent arbitration hearing . . . should have been limited to two of the three [g]rievants, which would have reduced the scope and length of the hearing (and the amount of legal services incurred by the Union)." Id. The Arbitrator further found that the issue of whether the grievants were improperly denied their right to displace non-veteran maintenance mechanics presented a "difficult legal issue" and that, although the "[U]nion's position was eventually sustained . . . the [Agency's] position . . . was [not] 'clearly without merit' or 'wholly unfounded.'" Id.

The Arbitrator concluded that the interest of justice would be served by awarding the Union one-third of the fees it requested because "one of the three cases should have been resolved without a hearing . . . ." Id. Accordingly, the Arbitrator awarded the Union attorney fees in the amount of $1,666.00.

III. Positions of the Parties

The Union contends that the Arbitrator's decision to limit the award of attorney fees to one third of those requested is based on the nonfact that the "arbitration should have[,] at most[,] been for two of the three grievants." Exceptions at 2. The Union contends that it should be awarded full attorney fees in the interest of justice, because "all three cases should have been settled without going to arbitration." Id.

The Union also contends that the award is contrary to law. In this connection, the Union claims that, in the original award, the Arbitrator found that the Agency's "contentions that the three grievants were not qualified for the maintenance mechanic position [were] wholly without merit." Id. at 2.

The Agency claims that the Union's exceptions constitute disagreement with the Arbitrator's findings and do not establish that the supplemental award is deficient.

IV. Analysis and Conclusions

A. The Award Is Not Based on a Nonfact

To establish that an award is based on a nonfact, the party making the allegation must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. See U.S. Department of Defense, Dependents Schools and Overseas Education Association, 48 FLRA 1379, 1384 (1994).

Even assuming that the Arbitrator's determination that the arbitration hearing should have been limited to two of the three grievants was the central fact underlying the award, the Union has not established that this finding is clearly erroneous. In our view, this exception constitutes nothing more than disagreement with the Arbitrator's findings of fact and evaluation of the evidence, and does not otherwise provide a basis for finding an award deficient under the Statute. See, for example, Overseas Education Association, West Point Elementary School Teachers and U.S. Department of Defense, United States Military Academy, West Point, New York, 48 FLRA 213, 218 (1993). Accordingly, we will deny this exception.

B. The Award Is Not Contrary to Law

The Union claims that, in the original award, the Arbitrator found that the Agency's position regarding the grievants' qualifications for the maintenance mechanic positions was clearly without merit. However, the Union has not provided a citation as to where in that award that finding appears, and no such finding is apparent to us. Moreover, in the supplemental award, the Arbitrator specifically found that this matter involved a difficult legal issue and that, although the Union prevailed on the issue, the Agency's position was not clearly without merit. The Union has not demonstrated that the Arbitrator's finding is contrary to law. We find that the Union's claim constitutes nothing more than disagreement with the Arbitrator's findings of fact and evaluation of the evidence and provides no basis for finding the award deficient. See, for example, American Federation of Government Employees, Local 2128 and U.S. Department of Defense, Defense Logistics Agency, Defense Contract Management District South, 47 FLRA 962, 967 (1993).

Moreover, neither 5 U.S.C. § 7701(g) nor the Allen criteria preclude an arbitrator from granting part of a request for attorney fees based on a determination that only part of the fees are warranted under the applicable legal requirements. See Internal Revenue Service, Baltimore District Office and National Treasury Employees Union and NTEU Chapter 62, 21 FLRA 918, 922 (1986). In this regard, we find that the Arbitrator's determination that the Union is entitled to only one-third of the requested attorney fees is fully articulated and consistent with applicable legal requirements as set forth in Allen and 5 U.S.C. § 7701(g). See id. at 924. Accordingly, we will deny this exception.

V. Decision

The Union's exceptions are denied.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

*/ In Allen, the Merit Systems Protection Board held that an award of attorney fees is warranted in the interest of justice in cases: involving prohibited personnel practices; where agency actions are clearly without merit or wholly unfounded, or where the employee is substantially innocent of charges brought by the agency; when agency actions are taken in bad faith to harass or exert improper pressure on an employee; when gros