54:0700(73)AR - - Laborer's International Union of North America, Local 1376 and HHS, Public Health Service, Navajo Area Indian Health Service - - 1998 FLRAdec AR - - v54 p700



[ v54 p700 ]
54:0700(73)AR
The decision of the Authority follows:


54 FLRA No. 73

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

LABORERS' INTERNATIONAL UNION OF NORTH AMERICA

LOCAL 1376

(Union)

and

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

PUBLIC HEALTH SERVICE

NAVAJO AREA INDIAN HEALTH SERVICE

(Agency)

0-AR-3006

_____

DECISION

July 31, 1998

_____

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

Wasserman and Dale Cabaniss, Members.

Decision by Member Wasserman for the Authority.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Gerry L. Fellman 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 Regulations. The Agency filed an opposition to the Union's exception.

The Arbitrator denied the Union's request for an award of attorney fees. We find that the Union fails to establish that the award is deficient. Accordingly, we deny the Union's exception.

II. Background and Arbitrator's Awards

In the underlying matter, the Arbitrator resolved the grievance over whether 15 employees were entitled to standby pay. Examining the facts and circumstances of each employee's claim, the Arbitrator sustained the grievance as to 8 of the 15 employees and awarded those employees backpay.

Thereafter, the Union filed a request for an award of attorney fees. The Arbitrator denied the Union's request. He concluded that an award of fees was not warranted in the interest of justice, as asserted by the Union. He determined that the Agency did not know and should not have known that it would not prevail on the merits. He found that this case was heavily fact intensive such that the Agency could not be reasonably certain what the determinative facts would be and to what extent they might differ from those found in a similar arbitration case between the parties.

The Arbitrator also determined that the grievance did not render a service to the Federal workforce or a benefit to the public so as to warrant an award of fees under either of these criteria, as set forth in Naval Air Development Center, Department of the Navy and American Federation of Government Employees, Local 1928, AFL-CIO, 21 FLRA 131 (1986) (NADC). He compared this case to NADC, where fees were warranted on the basis of a grievance to correct an environmental hazard affecting a segment of the workforce, and American Federation of Government Employees, SSA General Committee and Department of Health and Human Services, Social Security Administration, 48 FLRA 1055 (1993) (SSA), where fees were not warranted because the grievance only benefited a small group of employees. He determined that this case was more like SSA. He found that as a result of a new collective bargaining agreement, it was unlikely that similar disputes would arise between the parties. He also explained that the results in this case were very fact and case specific and that the benefits of the grievance were limited to the prevailing grievants. Consequently, he was not persuaded that the grievance served the Federal workforce or benefited the public sufficiently to justify the award of fees in the interest of justice within the meaning of NADC.

III. Positions of the Parties

A. Union's Exception

The Union contends that the award is contrary to law. The Union maintains that an award of attorney fees is warranted in the interest of justice in this case.

The Union argues that an award of fees is warranted in the interest of justice because the Agency knew or should have known that it would not prevail on the merits of the claims sustained by the Arbitrator because of the previous arbitration award between the parties finding employees in similar circumstances entitled to standby pay.

The Union also argues that an award of fees is warranted in the interest of justice because the grievance provided a service to the Federal workforce and a benefit to the public by establishing precedent that delineates basic issues in standby cases.

Finally, the Union claims that this is the type of case in which attorney fees ought to be awarded as a matter of equity in the public interest.

B. Agency's Opposition

The Agency contends that the Union's exception should be denied. The Agency argues that the Arbitrator's determinations on the interest of justice are fully consistent with law.

IV. Analysis and Conclusions

A. Standard of Review

When an exception to an award involves the consistency of the award with law, we review the questions of law raised by the award and the exception de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, we assess whether the arbitrator's legal conclusions are consistent with the applicable standard of law. 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). In making that assessment, we defer to the arbitrator's underlying factual findings. See id.

B. Interest-of-Justice Standard

The Back Pay Act, 5 U.S.C. § 5596, requires that an award of attorney fees must be in accordance with the standards established under 5 U.S.C. § 7701(g). Section 7701(g)(1), which applies in this case, requires that an award of fees must be warranted in the interest of justice. When exceptions concern the interest-of-justice standard under section 7701(g)(1), we look to the decisions of the Federal Circuit and the Merit Systems Protection Board (MSPB) for guidance in determining whether the award is deficient. See U.S. Department of Defense, Defense Distribution Region East, New Cumberland, Pennsylvania and American Federation of Government Employees, Local 2004, 51 FLRA 155, 160 n.5 (1995).

In Allen v. U.S. Postal Service, 2 MSPR 420 (1980) (Allen), the MSPB listed five broad categories of cases in which an award of fees would be warranted in the interest of justice. The Authority applies the Allen criteria in resolving exceptions to an arbitrator's determination under the interest-of-justice standard. See American Federation of Government Employees, Local 12 and U.S. Department of Labor, Washington, D.C., 38 FLRA 1240, 1250 (1990). An award of fees is warranted in the interest of justice when any of the Allen criteria are met. See id.

1. Allen Criterion 5--Knew or Should Have Known

Under Allen criterion 5, an award of fees is warranted in the interest of justice when the agency knew or should have known that it would not prevail on the merits. This determination requires evaluation of the nature and weight of the evidence available to the agency at the time of its disputed action. This criterion essentially requires an arbitrator to determine the reasonableness of an agency's actions and positions in light of what information was available to it in the case. See National Treasury Employees Union, Chapter 50 and U.S. Department of the Treasury, Internal Revenue Service, Carolina District, Charlotte, North Carolina, 54 FLRA 250, 254 (1998) (IRS, Carolina District). The assessment of whether an agency knew or should have known it would not prevail is primarily factual because the arbitrator evaluates the evidence and the agency's handling of the evidence. Consequently, when the factual findings support the arbitrator's legal conclusion, we deny the exceptions to the arbitrator's determination. See id. at 254-55.

2. Interest of Justice under the Statute

In addition to the Allen criteria, an award of fees is warranted in the interest of justice in a case under the Statute based on service to the Federal workforce or benefit to the public in bringing the grievance. See NADC, 21 FLRA at 139. In NADC, the Authority concluded that these criteria were satisfied by a grievance brought to correct an environmental hazard affecting a segment of the workforce. In NADC, the Authority also cited Wells v. Harris, 2 MSPR 409 (1980). In Wells, the MSPB awarded attorney fees to a union under the Back Pay Act because the union's action in challenging regulations of the Office of Personnel Management rendered a substantial service to the integrity of the merit system and the Federal workforce. See id. at 413. The MSPB concluded that the union had acted as a private attorney general and that its action served the purpose of a class action and permitted a single determination on the propriety of the regulations without the burdensome drain of multiple proceedings. See id. at 413-14.

C. The Arbitrator's Determination Under Allen 5 is not Deficient

The Arbitrator set forth specific factual findings on which he based his legal conclusion that an award of fees was not warranted because the Agency did not know and should not have known that it would not prevail on the merits of the eight grievances he sustained. Specifically, he found that the grievances were heavily fact intensive such that the Agency could not be reasonably certain what the determinative facts would be and to what extent they might differ from those in a previous arbitration between the parties.

In view of these underlying factual findings to which we defer, the Arbitrator's legal conclusion is consistent with the applicable standard of law. See IRS, Carolina District, 54 FLRA at 255. Accordingly, no basis is provided for finding the Arbitrator's determination deficient.

D. The Arbitrator's Determination Under NADC is not Deficient

The Arbitrator set forth specific factual findings on which he based his legal conclusion that the grievance did not provide a service to the Federal workforce or a benefit to the public so as to warrant an award of fees in the interest of justice under these criteria, as set forth in NADC. He found that as a result of a new collective bargaining agreement, it was unlikely that similar disputes would arise between the parties, which limited the benefits of the grievance. He also found that the results of this case were very fact and case specific and that the benefits of the grievance were limited to the prevailing grievants.

In view of these underlying factual findings to which we defer, the Arbitrator's legal conclusion is consistent with the applicable standard of law. Cf. SSA, 48 FLRA at 1060-61 (union failed to establish that arbitrator's denial of fees under NADC was deficient where the grievance benefited only a small group of employees). Accordingly, no basis is provided for finding the Arbitrator's determination deficient.

E. Fees are not Awardable as a Matter of Equity in the Public Interest

The expenditure of funds by a Federal agency to pay attorney fees must be pursuant to specific statutory authorization. See U.S. Department of the Army Missile Range, White Sands, New Mexico and National Federation of Federal Employees, Local 2049, 38 FLRA 258, 261 (1990) (citing Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975)). In support of its claim that fees are awardable in this case as a matter of equity in the public interest, the Union cites only private sector cases that did not involve an award of attorney fees to be paid by the Federal Government. As these cases are not based on a specific statutory authorization for an arbitrator to award attorney fees to be paid by a Federal agency, the Union's reliance on equity in the public interest as a basis of an award of attorney fees to be paid by the Ag