49:0820(76)AR - - Navy, Mare Island Naval Shipyard, Vallejo, CA and Federal Employees Metal Trades Council - - 1994 FLRAdec AR - - v49 p820
[ v49 p820 ]
The decision of the Authority follows:
49 FLRA No. 76
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE NAVY
MARE ISLAND NAVAL SHIPYARD
FEDERAL EMPLOYEES METAL TRADES COUNCIL
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 'clearl