54:0229(31)AR - - AL Association of Civilian Technicians & AL State Military Department, AL NG - - 1998 FLRAdec AR - - v54 p229

[ v54 p229 ]
The decision of the Authority follows:

54 FLRA No. 31














May 29, 1998


Before the Authority: Phyllis N. Segal, Chair; Donald S.

Wasserman and Dale Cabaniss, Members.

Decision by Member Cabaniss for the


I. Statement of the Case

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

The Arbitrator's award denied, without explanation, the Union's request for attorney fees. For the following reasons, we remand the case to the parties for resubmission to the Arbitrator.

II. Background and Arbitrator's Award

This is the third time that the issue of the Union's entitlement to attorney fees in this case has been before the Authority.(1) In the underlying award on the merits of the grievance, the Arbitrator found that the Agency failed to compensate the grievant at the appropriate rate of pay after he had accepted a temporary promotion to a supervisory position. The Arbitrator ordered that the grievant receive backpay. The Arbitrator declined to retain jurisdiction to award attorney fees or to allow the Union to file its request for attorney fees.

The Union excepted to the Arbitrator's failure to award it attorney fees or to retain jurisdiction to allow it to submit a request for such fees. The Authority denied the Union's exception on the ground that, as the Union had not submitted a request for fees, the Arbitrator did not err in failing to award them. Noting that the award in the case had not become final and binding until the Authority ruled on the Union's exceptions, the Authority stated that "even though the Arbitrator did not retain jurisdiction, the Union may file a request for fees, within a reasonable time from [the date of the Authority's decision], consistent with the Arbitrator's statutory jurisdiction over [the matter of attorney fees under the Back Pay Act]." Alabama ACT I, 51 FLRA at 1264, citing International Association of Firefighters, Local F-89 and U.S. Department of the Army, Headquarters, Fort Sam Houston, Fort Sam Houston, Texas, 50 FLRA 327 (1995).

Approximately 4 weeks after the Authority's decision in Alabama ACT I, the Union submitted to the Arbitrator a request for an award of attorney fees. The Arbitrator declined to exercise jurisdiction over the fee request on the ground that he was functus officio. The Union excepted to the award on the ground that it was inconsistent with the Authority's decision in Alabama ACT I. The Authority held that where, as in this case, the Back Pay Act confers authority on an arbitrator to consider an attorney fee request, "the functus officio doctrine does not preclude [the] arbitrator from considering the request." Alabama ACT II, 52 FLRA at 1388, citing Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 32 FLRA 417, 421 (1988). Accordingly, the Authority set aside the Arbitrator's award and remanded the attorney fee question to the parties "for joint resubmission to the Arbitrator." Id. at 1389.

Upon resubmission by the parties, the Arbitrator issued an award stating in its entirety as follows: "This Arbitrator has thoroughly reviewed the Arbitration, Exhibits, Decisions, and Correspondence in this case and finds[] [that] [t]he Union's request for Attorney's fees in [this case] is herewith denied." Award at 5.

III. Positions of the Parties

A. Union's Exceptions

According to the Union, the Arbitrator "denied the fee request without making any findings of fact, without discussing applicable law, and without stating any reason." Exceptions at 2. The Union claims that the denial of attorney fees is contrary to law because, based on the Arbitrator's findings and the backpay award in the underlying grievance, the Union is entitled to such fees under the Back Pay Act.

The Union contends that, under applicable statutory standards, it is entitled to attorney fees because: (1) the Arbitrator sustained the grievance and awarded backpay to the grievant; and (2) given the Arbitrator's finding that all errors were committed by the Agency and that the Agency's legal position was "incredible," the Agency's action was clearly without merit under the interest of justice standard. Id. at 3. The Union asserts that it "is entitled to recover market-rate fees for counsel's preparation of the [U]nion's post-hearing brief, and market-rate fees for time spent seeking a fee award." Id.

The Union claims that it appropriately retained the law firm in this case, arguing that: (1) "since no evidentiary hearing was required, geographic location was not important for selection of appropriate counsel"; (2) "the principal legal issue raised by the grievance . . . was a question with which the firm already was familiar"; and (3) the firm "has an established relationship with" the Union. Id. at 4.

The Union presents evidence establishing the market rate for the services of the attorney in this case and notes that the Agency submitted no evidence in this regard. The Union also submits evidence establishing the time spent by the attorney in preparing the Union's brief to the Arbitrator in connection with the underlying grievance and in preparing the fee request.

B. Agency's Opposition

The Agency claims that the Union has not demonstrated that the award is inconsistent with law or regulation or deficient on any other grounds. The Agency contends that the Arbitrator's findings in the underlying award in this case do not support a determination that attorney fees are warranted in this case.

The Agency also contends that, even if the award is deficient, the Authority is not an "appropriate authority" under law to award attorney fees and could not grant the Union's request for such fees. According to the Agency, the most that the Authority could do is remand the issue to the Arbitrator.

IV. Analysis and Conclusions

The Union's exceptions involve the consistency of the Arbitrator's award with law. Thus, the Authority will review the questions of law raised by the Union'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 U.S. Department of Defense, Defense Distribution Region East, New Cumberland, Pennsylvania and American Federation of Government Employees, Local 2004, 51 FLRA 155, 158 (1995) (Defense Distribution Region East). 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. An arbitrator's award resolving a request for attorney fees under section 7701(g)(1) must set forth specific findings supporting determinations on each pertinent statutory requirement. See id. In the absence of such findings, the Authority will be unable to assess the legal sufficiency of the award. See National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). If an award fails to contain the findings necessary to enable the Authority to assess the arbitrator's legal conclusions, and those findings cannot be derived from the record, the case will be remanded to the parties for submission to the arbitrator so that the requisite findings can be made. Id.

The Union excepts to the Arbitrator's award on the ground that the Arbitrator failed to make any findings of fact or law and failed to articulate any reasons for denying the Union's request for attorney fees. The Union thus challenges the Arbitrator's award with respect to each of the statutory requirements.

B. Whether the Arbitrator's award contains specific findings supporting his decision denying the Union's request for attorney fees.

The Arbitrator's one-sentence award fails to set forth specific findings supporting the denial of the Union's request for attorney fees consistent with section 7701(g)(1). Specifically, the award does not contain any analysis of any of the pertinent statutory requirements. See, e.g., U.S. Department of the Treasury, Internal Revenue Service, Philadelphia Service Center, Philadelphia, Pennsylvania and National Treasury Employees Union, Chapter 53, 53 FLRA 1697, 1701-02 (1998) (Philadelphia Service Center).

The findings necessary for the Authority to assess the legal sufficiency of the Arbitrator's award denying attorney fees cannot be derived from the record in this case. In the absence of any findings by the Arbitrator with respect to any of the statutory requirements, the Authority would be in the position of having initially to make all of the necessary determinations itself, based only on the Union's exceptions, which include a copy of the underlying award, and the Agency's opposition. In these circumstances, the Authority would, in effect, be functioning as the arbitrator. As the Agency points out, the Authority has consistently held that, in connection with an arbitration award correcting an unjustified or unwarranted personnel action, the arbitrator, not the Authority, is the "appropriate authority" under 5 C.F.R. § 550.807(a) for resolving a union request for attorney fees. See, e.g., American Federation of Government Employees, Local 3310 and U.S. Department of the Army, Army Corps of Engineers, Waterways Experiment Station, Vicksburg, Mississippi, 53 FLRA 1595, 1600-01 (1998).

For the foregoing reasons, the matter of attorney fees for the Union in this case must be remanded to the parties for resubmission to the Arbitrator. See Philadelphia Service Center, 53 FLRA at 1701-02. Upon resubmission, the Arbitrator should set forth specific findings resolving the Union's request for attorney fees under the pertinent statutory requirements. If either of the parties should subsequently file exceptions to the legal sufficiency of the award on remand, such findings should afford the Authority an adequate basis upon which to review those exceptions de novo.

V. Decision

This case is remanded to the parties for resubmission, absent settlement, to the Arbitrator for specific findings resolving the Union's request for attorney