National Association of Government Employees, Local R4-6 (Union) and United States Department of the Army, Army Transportation Center, Fort Eustis, Virginia (Agency)

[ v56 p1092 ]

56 FLRA No. 193

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R4-6
(Union)

and

UNITED STATES DEPARTMENT OF THE ARMY
ARMY TRANSPORTATION CENTER
FORT EUSTIS, VIRGINIA
(Agency)

0-AR-3207-REM
(55 FLRA 1298 (2000))

_____

DECISION

January 31, 2001

_____

Before the Authority: Donald S. Wasserman, Chairman; Dale Cabaniss and Carol Waller Pope, Members.

Decision by Member Pope for the Authority

I.     Statement of the Case

      This matter is before the Authority on an exception to an award of Arbitrator H. Morton Rosen filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute). The Agency filed an opposition to the Union's exception.

      Following remand from the Authority, the Arbitrator found that the Union's requested award of attorney fees was not warranted in the interest of justice. Accordingly, he denied the Union's motion for such fees.

      For the reasons that follow, we find that the Union has failed to show that the award is deficient under § 7122(a) of the Statute. Therefore, we deny the exception.

II.     Background and Arbitrator's Awards

A.     Initial Arbitrator's Award

      The grievant, employed as a program assistant at a child care center operated by the Agency, informed the father of a child at the center that she believed his child was being abused. The father was subsequently arrested following a confrontation with the child's mother and her spouse. After the grievant was subpoenaed to testify at the father's trial, Agency counsel instructed the grievant regarding the scope of permissible testimony under [ v56 p1093 ] Agency regulations. Following the trial, the Agency charged the grievant with: (1) misrepresenting the Agency by testifying that she had been instructed not to testify and that she had records indicating that the child had been abused; (2) misrepresenting the Agency by disclosing to the child's father confidential information; and (3) acting insubordinately by testifying about the center despite instructions not to testify.

      The Arbitrator sustained the charge of insubordination, but dismissed the charges of misrepresentation and reduced the grievant's suspension from 14 days to 1 day. However, he rejected the Union's motion for attorney fees. In this regard, the Arbitrator determined that the grievant was not a "prevailing party" under the Back Pay Act because the grievant "clearly and flagrantly committed a punishable offense." Initial Award at 12.

      Resolving the Union's exception to the award, the Authority concluded that the Arbitrator erred in finding that the grievant was not a "prevailing party" under the Back Pay Act and in denying attorney fees on that basis. The Authority remanded the award to the Arbitrator to assess whether the additional requirements for an award of fees were met.

B.     Arbitrator's Award Following Remand

      On remand, the Arbitrator found that an award of attorney fees was not warranted in the interest of justice. Accordingly, he again denied the Union's motion for attorney fees. In making this determination, the Arbitrator examined two of the several criteria established by the Merit Systems Protection Board (MSPB), and used by the FLRA, to determine whether an award of fees is in the "interest of justice." See 5 U.S.C. § 7701(g)(1); Allen v. United States Postal Serv., 2 M.S.P.R. 420, 434-35 (1980) (Allen); United States Dep't of Defense, Dep't of Defense Dependents Schools, 54 FLRA 773, 790 (1998).

      The Arbitrator first addressed Allen criterion 2, which establishes that attorney fees are warranted in the interest of justice when "the agency's action was clearly without merit . . . or was wholly unfounded, or the employee is substantially innocent of the charges." Allen at 434-35. The Arbitrator stated that "[f]ar from vindicating [the grievant, he had] found her culpable for testifying, contrary to Agency instructions, about an issue of which she had no knowledge, and for misinforming a court of law about those instructions." Award on Remand at 5. According to the Arbitrator, he "did not mitigate [the grievant's] fourteen-day suspension to one day for substantive reasons," but because the charge of "misrepresentation" under the Agency's regulations is limited to cases in which the employee misrepresents to the Agency, not a court or other third party. Id. at 6. In this regard, the Arbitrator noted that, in his initial award, he had advised the Agency as to alternative charges it could have brought to sustain discipline against the grievant for her misrepresentation to the court and the child's father. Accordingly, the Arbitrator concluded that the grievant was not "substantially innocent" of the charges brought against her. Id. at 8.

      The Arbitrator next addressed Allen criterion 5, which establishes that attorney fees are warranted in the interest of justice when "the agency knew or should have known that it would not prevail on the merits when it brought the proceeding." Allen, 2 M.S.P.R. at 434-35. In support of his conclusion with regard to this criterion, the Arbitrator stated that "[the grievant] presented no evidence that the Agency negligently conducted its investigation or knew that any of its charges would be unsustainable." Award on Remand at 8. In addition, the Arbitrator found that the Agency had carefully investigated the facts of the case before charging the grievant and choosing a penalty.

III.     Positions of the Parties

A.     Union's Exception

      Focusing on the two charges of misrepresentation, the Union argues that since the Arbitrator dismissed "the most significant charge" against the grievant, the charge was "invalid" and "incorrectly brought." Exception at 3. As a result, the Union contends, the grievant was "substantially innocent" and thus entitled to attorney fees under Allen criterion 2. In this regard, the Union argues that the Arbitrator failed to take into account the Union's obligation to represent employees who have valid grievances, whether their defense is procedural or substantive, and that the Union might not have submitted the grievance to arbitration if the Agency had only pursued the ultimately sustained charge of insubordination. The Union also asserts that the Arbitrator found the charge of misrepresentation to be "without merit." Memorandum in Support of Motion for Attorney Fees at 6. [n1] 

      With regard to Allen criterion 5, the Union argues that the Agency's imposition of a 14-day suspension was clearly excessive and unwarranted for the only sustained charge of insubordination. The Union contends that it is entitled to attorney fees because the Agency [ v56 p1094 ] `knew or should have known' its deviation from its own regulations in imposing too harsh a penalty would not be sustained." Id. at 6-7.

B.     Agency's Opposition

      The Agency asserts that the Arbitrator has considerable discretion in determining when an award is warranted in the interest of justice. With regard Allen criterion 2, the Agency asserts that the Arbitrator found the grievant "substantially guilty" and determined that she deserved the strictest penalty available for her misrepresentation to the court. Opposition at 6. The Agency contends that the Arbitrator dismissed the charge of misrepresentation, and mitigated the penalty accordingly, "based on a technicality in that misrepresentation to the Circuit Court by the grievant was not specifically included in the agency's charge." Id. at 5.

      With regard to Allen criterion 5, the Agency points to the Arbitrator's finding that the grievant "presented no evidence that the Agency negligently conducted its investigation or knew that any of its charges would be unsustainable." Id. at 10. The Agency further notes that the Arbitrator found that the Agency's Inspector General conducted a thorough investigation in recommending discipline and that the Agency properly weighed the relevant factors in determining the appropriate penalty.

IV.     Analysis and Conclusions

      The Authority reviews questions of law raised by an arbitrator's award and an exception to it de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority assesses whether the Arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. United States Dep't of the Air Force, Warner Robins Air Force Base, Ga., 56 FLRA 541, 543 (2000) (Robins) (citation omitted). In making such a determination, the Authority defers to the arbitrator's underlying factual findings. Id.

      Under the Back Pay Act, 5 U.S.C. § 5596, an award of attorney fees must be in accordance with the standards established under 5 U.S.C. § 7701(g). The prerequisites for an award of attorney fees under § 7701(g) are that: (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. United States Dep't of the Treasury, IRS, Phila. Serv. Ctr., Phila., Pa., 53 FLRA 1697, 1699 (1998).

      As noted above, the Authority evaluates whether an award of attorney fees is warranted in the interest of justice by applying the criteria established by the Merit Systems Protection Board in Allen. Laborers' Int'l Union of N. Am., Local 1376, 54 FLRA 700, 702-03 (1998). The Union argues that fees are warranted under Allen criteria 2 and 5.

A.     Criterion 2

1.     Substantial Innocence

      An employee is substantially innocent as a matter of law under criterion 2 when he or she "prevail[s] on substantive rather than technical grounds on the major charges." NAGE, Local R5-188, 54 FLRA 1401, 1407 (1998) (citations omitted) (Member Wasserman dissenting on other grounds). Substantial innocence is further described to mean that "an employee is essentially without fault for the charges alleged, and was needlessly subjected to attorney fees in order to vindicate himself." Id. (citation omitted).

      While the grievant prevailed on the two major charges against her, the Arbitrator did not dismiss those charges for substantive reasons. Rather, he determined that the charge of "misrepresentation" under the Agency's regulation is limited to misrepresentation to the Agency, not a court or other third party. Moreover, he found that the grievant clearly and flagrantly committed a punishable offense for which she merited the strictest penalty available. These findings support the Arbitrator's conclusion that the substantial innocence standard was not met. See Ciarla v. United States Postal Serv., 43 M.S.P.R. 240, 243-44 (1990) (Ciarla) (arbitrator's conclusion that grievant not substantially innocent upheld where he dismissed charge for "technical defect," there was "ample evidence" to support similar charge, and other charges were upheld).

      The Union cites no authority in support of its assertion that its duty to represent employees affects the evaluation of the substantial innocence of an employee. Accordingly, given that the Arbitrator dismissed the charges of misrepresentation for technical reasons and that he did not find the grievant to be without fault, the Union has provided no reason to reverse the Arbitrator's award based on his determination that the grievant is not substantially innocent.

2.     Clearly Without Merit and Wholly Unfounded

      In evaluating Allen criterion 2, the issue of whether the Agency's actions were "clearly without merit [and] wholly unfounded" is addressed independently from the grievant's "substantial[] innocen[ce]." NAGE, 54 [ v56 p1095 ] FLRA at 1407 (citation omitted); AFGE, Local 12, 38 FLRA 1240, 1252 (1990). An agency charge is clearly without merit or wholly unfounded if it is "based on incredible or unspecific evidence fully countered by the appellant." Ala. Ass'n of Civilian Technicians, 56 FLRA 231, 232 (2000) (citation omitted) (Member Wasserman dissenting on other grounds). In determining whether fees are required under this criterion, "the competing interests to be examined are the degree of fault on the employee's part and the existence of any reasonable basis for the [A]gency's action." AFGE, Local 12, 38 FLRA at 1251; Uhlig v. Dep't of Justice, 86 M.S.P.R. 660, 669 (2000).

      The Arbitrator's findings establish that the grievant committed the conduct alleged by the Agency in its charges of misrepresentation. See Initial Award at 3-5. He found that the grievant "clearly and flagrantly committed a punishable offense" for which she merited the strictest penalty available. Id. at 12. The Arbitrator thus determined that the grievant was at fault. The Arbitrator also dismissed the charges of misrepresentation solely because "misrepresentation" technically covers lying to the Agency only and not lying to a court or a third party. Thus, the Arbitrator's legal conclusion that fees are not warranted under criterion 2 is consistent with the clearly without merit or wholly unfounded standard. See Ciarla, 43 M.S.P.R. at 242-45 (fees not warranted under criteria 2 or 5 where agency established underlying misconduct, discipline was mitigated due to a misstatement of the grounds for the specific charge, and the agency was not negligent in the presentation of its case). See also AFGE, Local 12, 38 FLRA at 1251-52 (arbitrator's conclusion that agency penalty not clearly without merit or wholly unfounded supported by finding that grievant acted improperly and that agency correctly concluded that discipline was warranted).

B.     Criterion 5: Knew or Should Have Known

      Allen Criterion 5 "requires an arbitrator to determine the reasonableness of an agency's actions and positions in light of what information was available to it [at the outset of] the case." NTEU, Chapter 50, 54 FLRA 250, 254 (1998). This assessment "is primarily factual, because the arbitrator evaluates the evidence and the agency's handling of the evidence." Id. The analysis "focuses on whether the agency `possessed trustworthy, admissible evidence, or if the agency was negligent in its conduct of the investigation.'" United States Army Headquarters, XVIII Airborne Corps, Fort Bragg, N.C., 35 FLRA 390, 394 (1990) (quoting Yorkshire v. MSPB, 746 F.2d 1454, 1457 (Fed. Cir. 1984)). The "standard . . . is based upon proof that the agency never possessed any credible, probative evidence to support the action taken." Gensburg v. Dep't of Veterans Affairs, 80 M.S.P.R. 187, 191 (1998) (Gensburg). In addition to the charges themselves, an agency's choice of penalty for employee misconduct is part of the "merits" of a decision and, thus, attorney fees will be warranted when an agency knew or should have known that its choice of penalty would not be upheld on review. Matthews v.