U.S. Department of the Navy, Naval Undersea Warfare Center, Newport, Rhode Island (Agency) and National Association of Government Employees, Federal Union of Scientists and Engineers (Union)

[ v57 p32 ]

57 FLRA No. 11

U.S. DEPARTMENT OF THE NAVY
NAVAL UNDERSEA WARFARE CENTER
NEWPORT, RHODE ISLAND
(Agency)

and

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, FEDERAL UNION OF SCIENTISTS
AND ENGINEERS
(Union)

0-AR-3253
(56 FLRA 477 (2000))

_____

DECISION

March 29, 2001

_____

Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, 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 Roberta Golick filed by the Agency under § 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 exception.

      The Arbitrator awarded the Union attorney fees in the amount of $3,225. The Agency fails to establish that the award is deficient. Accordingly, we deny the Agency's exception.

II.     Background and Arbitrator's Awards

      The Agency has filed exceptions to the Arbitrator's award of attorney fees in the amount of $3,225, which fees were incurred in opposing exceptions that the Agency filed to the underlying award resolving a grievance. In that award, the Arbitrator found that the grievant was entitled to overtime pay and ordered the Agency to pay the grievant accordingly. The Authority denied the Agency's exceptions in 54 FLRA 1495 (1998). Thereafter, the Union filed a petition with the Arbitrator for attorney fees in the amount of $4,387.50. The Agency filed a motion with the Arbitrator that opposed the request. The Arbitrator did not hold a hearing on the matter. In a supplemental award without any [ v57 p33 ] explanation, the Arbitrator awarded the Union attorney fees in the amount of $3,225.

      The Agency filed exceptions to the supplemental award and contended that the award of attorney fees was contrary to the Back Pay Act. In part, the Agency claimed that an award of fees was not warranted in the interest of justice and that the amount of fees awarded was not reasonable. In 56 FLRA 477 (2000), the Authority ruled that "the Arbitrator's cursory supplemental award did not make any findings as to these statutory requirements." 56 FLRA at 479. As the record did not permit the Authority to make these determinations, the Authority remanded "the supplemental award to the parties for resubmission to the Arbitrator . . . for a determination of these attorney fee requirements." Id. (footnote and citation omitted).

      The Arbitrator determined that her responsibility on remand was to determine whether an award of fees was warranted in the interest of justice and whether the amount of fees requested was reasonable. On the issue of whether the award of fees was warranted in the interest of justice, the Arbitrator determined and explained, as follows:

[W]hile an argument might be advanced that prior to the arbitration award reasonable minds could differ on the merits of the case, once the matter was decided and fully explained in the written decision, the Agency knew or should have known that the arbitration award was not deficient. The Agency showed ill will and/or negligence in proceeding to the FLRA on exceptions. These exceptions were wholly unfounded and were properly dismissed, but not before the Union expended time and resources preparing a defense.

Award at 2. In addition, the Arbitrator determined that the fees that the Union had initially requested were reasonable. However, the Arbitrator determined that the Union's request for fees covering 7.75 hours in preparing the motion for fees was not reasonable. Accordingly, as her award on remand, she awarded the Union $3,225 in attorney fees.

III.     Positions of the Parties

      The Agency contends that "[t]he award does not meet the requirements of law, rule, or regulation." Exception at 1. First, the Agency argues that an award of fees is improper because it was awarded with respect to the Agency's filing of exceptions and not "with respect to the agency personnel action which resulted in the underlying arbitration award." Id. at 2. Second, the Agency maintains that the Union never argued to the Arbitrator that the award of fees was warranted in the interest of justice on the basis of the Agency's filing exceptions, but that the Arbitrator ruled that fees were warranted in the interest of justice on that basis. The Agency claims that as a result, it "was not afforded its right to respond." Id. Third, the Agency argues that a sufficient award "would have included some reference to the timeliness issue which was presented in the Agency's initial reply to the petition for attorney fees." Id. at 3. The Agency claims that the Union's fee request that was filed "18 months late . . . clearly exceeded any existing standard for being considered timely" and that the Arbitrator has never explained why it was not untimely. Finally, the Agency argues that the Arbitrator's "mere conclusion without evidence that the Agency `showed ill will and/or negligence in proceeding to the FLRA' is also wholly inadequate." Id. at 4 (quoting the award).

      The Union contends that the award is clearly in compliance with the requirements of the Back Pay Act. The Union argues that the Agency's conduct in this case supports the Arbitrator's determination that fees were warranted in the interest of justice. In addition, the Union claims that the Agency's continued effort to avoid the payment of attorney fees warrants an upward modification of the award of fees. Thus, while maintaining that it "does not characterize its request for additional fees as an exception" to the award on remand, the Union requests that "the Authority grant the Union $4,387.50 in attorney's fees or an amount determined to be appropriate by the Authority." Opposition at 2.

IV.     Analysis and Conclusions

A.     The Agency fails to establish that the award is deficient

      The Agency contends that the award is contrary to law. When a party's exception challenges an arbitration award as contrary to law, we review the questions of law raised in the exception and arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995). When applying a de novo standard of review, we assess whether an arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. See NFFE Local 1437, 53 FLRA 1703, 1709 (1998). In addition, when exceptions concern an award of attorney fees by an arbitrator under the Back Pay Act, the Authority looks to the decisions of the Merit Systems Protection Board (MSPB) and the U.S. Court of Appeals for the Federal Circuit for guidance, as appropriate. See, e.g., NAGE, Local R5-188, 54 FLRA 1401, 1406 (1998). [ v57 p34 ]

      The Agency's first argument is that the Arbitrator's award of attorney fees is improper because it relates to the Agency's filing of exceptions to the merits award and not to the Agency's personnel action that resulted in the underlying merits award. In United States Dep't of Health and Human Services, Social Sec. Admin., 48 FLRA 1040, 1050 (1993), the Authority ruled that arbitrators should extend their

examination beyond an agency's action in the underlying personnel action to determine whether fees are warranted in the interest of justice for subsequent phases of litigation. Specifically, an arbitrator should assess whether the agency's exceptions to the Authority meet any of the interest of justice criteria so as to warrant attorney fees in connection with the adjudication of those exceptions.

See also Keely v. MSPB, 760 F.2d 246, 249 (Fed. Cir. 1985) (the court held that "notwithstanding the merits of the agency's initial action, under § 7701(g)(1) `interest of justice' standard an award of attorney fees is proper" for attorney fees incurred as a result of an appeal to MSPB "where the agency brings an appeal that is clearly without merit"). Accordingly, this argument provides no basis for finding the award deficient.

      The Agency's second argument is that the Union never argued to the Arbitrator that an award of fees was warranted in the interest of justice based on the Agency filing exceptions to the original award. However, in its memorandum in support of its motion for attorney fees, the Union expressly addressed its position on why an award of attorney fees was warranted in the interest of justice. The Union specifically argued that "the Agency knew or should have known that it would not prevail on its exceptions" and that "[t]he Agency showed ill will or negligence in proceeding to the Federal Labor Relations Authority." Memorandum at 4. In addition, the Union argued that the Agency's exceptions "were clearly without merit and, if not taken in bad faith, were wholly unfounded or advanced with the knowledge that they would not prevail." Id. Accordingly, this argument provides no basis for finding the award deficient.

      The Agency's third argument is that the Arbitrator should have addressed in the award on remand the issue of the timeliness of the Union's motion for attorney fees. In its opposition to the Union's motion for an award of attorney fees, the Agency claimed that the motion for fees was untimely. However, the Arbitrator's first supplemental fee award granted the Union fees without any discussion. In its exceptions to the supplemental award, the Agency did not contend that the award of fees was deficient because the Union's motion was untimely.

      Instead, the Agency claimed that the award of fees was deficient on other grounds, including that it was not warranted in the interest of justice and that the amount was not reasonable. As noted, the Authority ruled that the Arbitrator had failed to make the necessary findings as to these two attorney fee requirements. Accordingly, the Authority's remand to the Arbitrator was specifically to have the Arbitrator make the necessary findings as to these two requirements. Because the Agency had failed to raise the issue of timeliness of the Union's motion for fees in its exceptions to the supplemental award and because the remand was for the specific purpose of determining whether an award of fees was warranted in the interest of justice and whether the amount of fees requested was reasonable, the Arbitrator's award on remand did not operate to renew the time period for filing exceptions raising the issue of the timeliness of the Union's motion for fees. See United States Dep't of Health and Human Services, Navajo Area Indian Health Serv., Window Rock, Ariz, 56 FLRA 1035 (2000) (arbitrator's award on remand did not permit attack on findings of the original award as to which no exceptions were filed). Accordingly, this argument is untimely and can provide no basis for finding the award deficient.

      The Agency's last argument is that the Arbitrator's conclusion that the Agency showed ill will and/or negligence is inadequate. However, the Arbitrator based her determination that an award of fees was warranted in the interest of justice on more than the conclusion that the Agency showed ill will and/or negligence. She also specifically concluded that the Agency knew or should have known that its exceptions would be denied and that the exceptions were wholly unfounded. In Allen v. United States Postal Serv., 2 M.S.P.R. 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, including cases where the agency's actions were clearly without merit or wholly unfounded (criterion 2) and cases where the agency knew or should have known it would not prevail on the merits (criterion 5). The Authority applies the Allen criteria in resolving exceptions to an arbitrator's determination of whether fees are warranted in the interest of justice and recognizes that an award of fees is warranted in the interest of justice if any of the Allen criteria are met. See, e.g., NAGE, Local R5-188, 54 FLRA at 1406. The Agency does not contest the Arbitrator's determinations that fees are warranted in the interest of justice under Allen criteria 2 and 5 for the Agency's filing of exceptions to the merits award. Consequently, without addressing the [ v57 p35 ] merits of these determinations, we conclude that the Agency's argument as to the ill will and/or negligence determination by the Arbitrator provides no basis for finding the award deficient.

B.     The Union's request that the Authority award the Union attorney fees is denied

      In opposition to the Agency's exception to the Arbitrator's award of $3,225 in fees, the Union has requested that "the Authority grant the Union $4,387.50 in attorney's fees or an amount determined to be appropriate by the Authority." Opposition at 2. The Union does not fully explain the basis for its request, but we note that the amount of $4,387.50 is the same amount of fees that the Union requested the Arbitrator to award. Consequently, we view the Union's request as a request that the Authority award fees for the 7.75 hours spent preparing the fee petitio