53:1697(151)AR - - IRS, Philadelphia Service Center, Philadelphia, PA and NTEU Chapter 53 - - 1998 FLRAdec AR - - v53 p1697



[ v53 p1697 ]
53:1697(151)AR
The decision of the Authority follows:


53 FLRA No. 151

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

PHILADELPHIA SERVICE CENTER

PHILADELPHIA, PENNSYLVANIA

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 53

(Union)

0-AR-2862

_____

DECISION

March 31, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Robert A. Creo filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator granted, in part, the Union's request for attorney fees. For the reasons that follow, we vacate the award and remand for further proceedings on whether an award of fees is in the interest of justice. In all other respects, we deny the Agency's exceptions.

II. Background and Arbitrator's Awards

In his initial award, the Arbitrator resolved 65 grievances over the Agency's refusal to grant the grievants administrative leave. The Arbitrator sustained 4 grievances in full and 31 grievances in part. In each of these cases, the Arbitrator found that the Agency violated Article 36, Section 3B of the parties' collective bargaining agreement, which pertains to administrative leave.

Thereafter, the Union filed a request for an award of attorney fees in the amount of $20,181. In a supplemental award, the Arbitrator reduced the requested fees to $9,127.40 to reflect the ratio of successful to unsuccessful grievants.

In awarding fees, the Arbitrator found that the Union was entitled to fees pursuant to the Back Pay Act, 5 U.S.C. § 5596, and the standards established under 5 U.S.C. § 7701(g)(1). In particular, the Arbitrator found that the Agency had committed an unjustified or unwarranted personnel action by its violation of Article 36, Section 3B of the parties' collective bargaining agreement. He also found that the 35 successful grievants were prevailing parties because they obtained full or partial relief from the award. The Arbitrator further found, without any additional comment, that "[a]n Award of attorney fees is warranted in the interest of justice." Attorney Fee Award at 5.

III. Positions of the Parties

A. Agency's Exceptions

The Agency contends that the Arbitrator's award of fees is contrary to the Back Pay Act and section 7701(g). The Agency argues that the Arbitrator's finding that the Agency committed an unjustified or unwarranted personnel action is deficient and cannot support an award of attorney fees. The Agency maintains that the Arbitrator's explanation is too conclusory and is inconsistent with his merits award.

The Agency further argues that the Arbitrator's finding that the 35 grievants were prevailing parties is contrary to section 7701(g)(1). The Agency maintains that the proper standard for this determination is whether the party obtained all or a significant part of the requested relief. The Agency claims that the 31 grievants who received partial relief do not qualify as prevailing parties.

The Agency also argues that the award is deficient because the Arbitrator failed to provide a fully articulated, reasoned decision setting forth the specific findings supporting his determination that an award of fees was warranted in the interest of justice.

B. Union's Opposition

The Union contends that the award contains all the requisite findings and conclusions and that an award of fees is appropriate in this case. The Union argues that the Arbitrator correctly determined that the Agency committed an unjustified or unwarranted personnel action because the Arbitrator specifically found that it had violated the agreement. The Union also argues that the Arbitrator correctly found that the 35 grievants were prevailing parties. The Union notes that in U.S. Department of Defense, Defense Distribution Region East, New Cumberland, Pennsylvania and American Federation of Government Employees, Local 2004, 51 FLRA 155 (1995) (DDRE), the Authority redefined what constitutes a prevailing party. The Union maintains that under DDRE, the 35 grievants were prevailing parties because they received an enforceable judgment that directly benefited them at the time of the judgment. With respect to the interest-of-justice requirement, the Union argues that the facts of this case support an award under applicable standards.

IV. Analysis and Conclusions

The Agency's exceptions involve the consistency of the arbitration award with law. Thus, we review the questions of law raised by the Agency's exceptions and the Arbitrator's award de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995).

A. Statutory Requirements for Attorney Fees

The threshold requirement for entitlement to attorney fees under the Back Pay Act, 5 U.S.C. § 5596, 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. See DDRE, 51 FLRA at 158. Once such a finding is made, the Act further requires that an award of 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), which pertains to attorney fee awards by the Merit Systems Protection Board (MSPB). See id.

Section 7701(g)(1) applies to all cases except those involving allegations of employment discrimination and applies in this case. 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. See id. The standards established under section 7701(g) further require a fully articulated, reasoned decision setting forth the arbitrator's specific findings supporting the determination on each pertinent statutory requirement, including the basis on which the reasonableness of the amount was determined when fees are awarded. See id.

Because the Agency only challenges the Arbitrator's determinations on whether it committed an unjustified or unwarranted personnel action, whether the 31 grievants who obtained partial relief were prevailing parties, and whether an award of fees was warranted in the interest of justice, we need not consider the other requirements of the Back Pay Act. See U.S. Department of Veterans Affairs Medical Center, North Chicago, Illinois and American Federation of Government Employees, Local 2107, 52 FLRA 387, 398 n.9 (1996).

B. The Arbitrator Properly Found and Sufficiently Supported His Determination that the Agency Committed an Unjustified or Unwarranted Personnel Action

It is well established that a violation of a collective bargaining agreement that results in the loss of leave constitutes an unjustified or unwarranted personnel action within the meaning of the Back Pay Act. See 5 U.S.C. § 5596(b)(1); National Association of Government Employees, Local R4-6 and U.S. Department of the Army, Fort Eustis, Virginia, 52 FLRA 1522, 1528 (1997). In this case, it is clear that the Arbitrator found that the Agency violated Article 36, Section 3B when it denied the 35 successful grievants administrative leave. The Arbitrator reiterated that finding in determining that the 35 grievants were eligible for an award of attorney fees under the Back Pay Act. Thus, he correctly found and sufficiently supported his determination that the Agency committed an unjustified or unwarranted personnel action.

Moreover, the Agency's argument that the Arbitrator allegedly described the basis for the violation in different terms in the supplemental award provides no basis for finding that he did not properly determine that the Agency committed an unjustified or unwarranted personnel action and that the 35 grievants were eligible for an award of attorney fees. Accordingly, we deny this exception.

C. The Arbitrator Properly Found and Sufficiently Supported His Determination that the 31 Grievants Who Received Partial Relief Were Prevailing Parties

As noted by the Union, the Agency's asserted definition of prevailing party is incorrect. In Ray v. Department of Health and Human Services, 64 MSPR 100 (1994), the MSPB overruled its prior case law that defined a prevailing party as one who obtains all or a significant part of the relief that was sought. Relying on U.S. Supreme Court decisions interpreting other attorney fee statutes, the MSPB held that the prevailing-party requirement in section 7701(g)(1) is met when the employee receives an enforceable judgment which directly benefits the employee at the time of the judgment. 64 MSPR at 105. The Authority adopted that definition in DDRE, 51 FLRA at 160 n.5.

Although the Arbitrator did not explain his determination specifically in terms of the definition in DDRE, his explanation and his award on the merits clearly support his determination that the 35 grievants who received relief were prevailing parties within the meaning of section 7701(g)(1) and were eligible for an award of attorney fees. See id. at 160. Accordingly, we deny this exception.

D. The Arbitrator Did Not Adequately Articulate His Interest-of-Justice Determination

The Arbitrator's cursory finding as to the interest-of-justice standard fails to satisfy the requirement under section 7701(g) of a fully articulated, reasoned decision. The award does not demonstrate any analysis of the applicable requirements. See, e.g., Local 1749, American Federation of Government Employees and Commander, 47FTW, Laughlin Air Force Base, Texas, 24 FLRA 117, 119 (1986). Consequently, the award is insufficient under the Back Pay Act.

In U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine and National Association of Agriculture Employees, 53 FLRA No. 150 (1998), we recently reexamined the Authority's approach to deficient attorney fee awards. We decided, for the reasons set forth therein, that in cases where the record does not reveal the proper resolution of the disputed matter, we will remand the award for further proceedings.

In this case, we disagree with the Union that the Arbitrator's merits award and the record before us sufficiently supports, as a matter of law, that an award