United States Department of the Army, United States Army Dental Activity Headquarters, XVIII Airborne Corps & Fort Bragg, Fort Bragg, North Carolina (Agency) and American Federation of Government Employees, AFL-CIO, Local 1770 (Union)

[ v62 p70 ]

62 FLRA No. 20

UNITED STATES
DEPARTMENT OF THE ARMY
UNITED STATES
ARMY DENTAL ACTIVITY HEADQUARTERS
XVIII AIRBORNE CORPS & FORT BRAGG
FORT BRAGG, NORTH CAROLINA
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
AFL-CIO, LOCAL 1770
(Union)

0-AR-4028

_____

DECISION

April 23, 2007

_____

Before the Authority: Dale Cabaniss, Chairman, and
Wayne C. Beyer and Carol Waller Pope, Members [n1] 

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Robert G. Williams 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 did not file an opposition to the Agency's exceptions.

      In the original award, the Arbitrator sustained, in part, the grievances over the 5-day suspensions of the grievants and ordered that they receive written reprimands. In a supplemental award, the Arbitrator explained that the reprimands were ordered to conform to the progressive discipline requirements of 5 U.S.C. § 7503(a) and awarded the Union $15,516.60 in attorney fees. For the reasons that follow, we conclude that the ordered reprimands are deficient, and we remand the award.

II.      Background and Arbitrator's Award

      The Arbitrator sustained, in part, the grievances over the 5-day suspensions of the three grievants. He sustained the charges of absence without leave (AWOL) and failing to follow call-in procedures, but rejected the charge of falsifying time cards. He ordered that each grievant receive a written reprimand for being AWOL and for failing to follow call-in procedures on the day in dispute. He further ordered that the 5-day suspension of each grievant be deleted from their records and that they receive backpay. He retained jurisdiction to resolve any dispute arising out of the award and to consider a request for an award of attorney fees.

      The Union filed a request that the Arbitrator "clarify/reconsider" his finding that the grievants did not follow call-in procedures. Union Motion at 1. The Union also filed a petition for an award of attorney fees.

      In a supplemental award, the Arbitrator refused to reconsider his ruling on the failure to follow call-in procedures. In addition, the Arbitrator addressed the basis for his order of a written reprimand. He held that the reprimands were ordered "to conform to the progressive discipline required by [5 U.S.C. § 7503(a)]." Supplemental Award at 12. He ruled that under § 7503(a), "employees may be suspended or incur less discipline for cause[.]" Id. at 11 (emphasis original). He maintained that the term "cause," as used in § 7503(a), "clearly recognizes a written reprimand as at least the first step in progressive discipline." Id. Accordingly, he explained that the reprimands were not ordered as "mitigat[ion][.]" Id. at 12. Because of his view of the statutory requirements of § 7503(a), he also held that the Agency did not have the authority to enforce a different penalty on the basis of its table of penalties.

      Prior to ruling on the Union's petition for attorney fees, the Arbitrator directed the Union to submit any fee agreement between it and its counsel. In a supplemental petition for fees, the Union submitted the fee agreement only to the Arbitrator, and not to the Agency. The Union alleged that the agreement contained confidential information and requested that the Arbitrator review the agreement in camera and issue an order protecting the terms of the agreement from disclosure.

      The Arbitrator granted the request. He ordered that except for the hourly rate set forth in the agreement and the proviso that a reduced fee may be charged in the public interest, "the other terms and conditions of counsel's retainer agreement with the Union shall remain confidential." Supplemental Award at 21. In addition, the Arbitrator awarded the Union $15,516.60 in attorney fees.

III.      Exceptions

      The Agency contends that both the Arbitrator's award that the grievants receive written reprimands and the Arbitrator's award of attorney fees are deficient. [ v62 p71 ] The Agency also maintains that its exceptions pertaining to the Arbitrator's award that the grievants receive a written reprimand were timely filed because the supplemental award modified the basis on which the Arbitrator ordered that the grievants receive written reprimands.

      As to the Arbitrator's award that the grievants receive written reprimands, the Agency argues that the award fails to draw its essence from the parties' collective bargaining agreement. The Agency claims that "[n]o where [sic] in the [collective bargaining agreement] is management limited to issuing a written reprimand for a first time offense." Exceptions at 6. The Agency also argues that nothing in § 7503(a) or management's right to discipline under § 7106(a)(2)(A) of the Statute "requires a written reprimand for a first time AWOL offense together with a first time offense of failure to follow established leave procedures[.]" Id. at 7. The Agency claims that under § 7503(a), arbitrators are permitted to mitigate penalties, but are not required to impose a particular punishment. The Agency also notes that the Authority has held that restrictions on an agency's ability to choose the specific penalty to impose in a disciplinary action affect management's right under § 7106(a)(2)(A).

      The Agency further argues that the Arbitrator's conclusion that § 7503(a) preempted its table of penalties is contrary to law. The Agency asserts that this conclusion essentially holds "that management does not have any discretion when it decides to exercise its statutory management right under 5 [U.S.C.] § 7106(a)(2)(A) to discipline its employees." Id. at 8. Accordingly, "the Agency respectfully requests the Authority rule de novo that the Agency's Table of Penalties is consistent with 5 [U.S.C.] § 7503(a), and that the 5-day suspension that management directed for a proven first time AWOL offense and a proven first time offense for failure to follow established leave procedures offense was not unreasonable and should be sustained." Id.

      As to the award of attorney fees, the Agency asserts that the award of fees is contrary to the Back Pay Act and 5 U.S.C. § 7701(g) because the grievants are not prevailing parties and an award of fees is not warranted in the interest of justice. The Agency further asserts that if the Authority determines that fees were properly awarded, then the amount of fees awarded by the Arbitrator is deficient because it is not reasonable. The Agency claims that the hourly rate is unreasonable because when an attorney discounts a rate for a union, the presumptive reasonable rate is the discounted rate. The Agency notes that it does not know what that discounted rate is because the Arbitrator conducted an in camera inspection of the fee agreement and did not disclose the discounted rate.

      Finally, the Agency asserts that the Arbitrator's decision to conduct an in camera inspection of the fee agreement and to release to the Agency only the hourly rate set forth in the agreement and the proviso for a reduced fee is deficient. The Agency argues that under 5 C.F.R. § 1201.203(a)(2), [n2]  a request for attorney fees must include a fee agreement when one exists. The Agency also argues that the claim of confidentiality cannot protect the terms of the agreement from disclosure. Consequently, the Agency requests that the Authority vacate the Arbitrator's order and order a copy of the agreement served on the Agency.

IV.      Analysis and Conclusions

A.      The Agency's exceptions were timely filed.

      Under § 2425.1(b) of the Authority's Regulations, the time limit for filing exceptions to an arbitrator's award is 30 days beginning on the date the award is served on the filing party. When no exceptions are filed within the 30-day period, the award becomes final and binding and compliance is required. E.g., United States Dep't of the Navy, Mare Island Naval Shipyard, Vallejo, Calif., 52 FLRA 1471, 1474 (1997). However, when a party seeks clarification of the original award and the arbitrator issues a supplemental award that addresses the original award, exceptions pertaining to the original award in certain circumstances can be timely if they are filed within 30 days of the date of service of the supplemental award. See, e.g., United States Dep't of Labor, Washington, D.C., 59 FLRA 131, 132 (2003) (Chairman Cabaniss concurring as to other matters). For such exceptions to be timely, the supplemental award must modify or address the original award "in such a way as to give rise to the deficiencies alleged in the exceptions[.]" NAGE Local R4-45, 55 FLRA 789, 793 (1999).

      In this case, it was not until the supplemental award that the Arbitrator addressed the basis of the order in the original award that the grievants receive written reprimands by explaining that the reprimands were ordered to conform to the progressive discipline requirements of § 7503(a), and not as mitigation. Because the asserted deficiencies in the Agency's exceptions to the ordered reprimands did not arise until this explanation in the supplemental award, the exceptions were timely filed. See id. [ v62 p72 ]

     

B.      The Arbitrator's order that the grievants receive a written reprimand is contrary to § 7503.

      In ordering that each grievant receive a written reprimand, the Arbitrator held that the reprimands were ordered "to conform to the progressive discipline required by [§ 7503(a)]." Supplemental Award at 12. He ruled that under § 7503(a), "employees may be suspended or incur less discipline for cause[.]" Id. at 11 (emphasis original). He maintained that the term "cause," as used in § 7503(a), "clearly recognizes a written reprimand as at least the first step in progressive discipline." Id. Accordingly, he explained that the reprimands were not ordered as "mitigat[ion][.]" Id. at 12. On this basis, he ordered that the suspensions be deleted from each grievant's records and that they receive backpay.

      The Agency contends that this basis for the ordered reprimands is contrary to law. Consequently, we review de novo questions of law raised by the Agency's exception to the Arbitrator's award. E.g., NFFE Local 1437, 53 FLRA 1703, 1709 (1998). In applying a standard of de novo review, we determine whether the Arbitrator's legal conclusions are consistent with the applicable standard of law. Id. at 1710. For the reasons that follow, we find that the award is not consistent with § 7503. [n3] 

      The Arbitrator's conclusion that § 7503(a) sets forth requirements of progressive discipline is without support in the language of § 7503(a), on which the Arbitrator relied. Likewise, § 7503(b), which sets forth the entitlements of an employee against whom a suspension of 14 days or less is proposed, makes no provision for progressive discipline. Moreover, § 7503(a) provides that employees may be suspended under regulations provided by the Office of Personnel Management, which are set forth at 5 C.F.R. part 752, subpart B. Subpart B makes no provision for progressive discipline.

      Authority precedent also provides no support for the award. In this regard, the Authority has recognized that the "cause" language of § 7503(a) means only that an agency must establish a nexus or connection between employee conduct and the efficiency of the service in order to support a suspension. E.g., AFGE, AFL-CIO, Council of Marine Corps Locals, Council 240, 35 FLRA 108, 110-11 (1990). The Authority has also recognized that grievances over suspensions under § 7503 present arbitrators with two issues: (1) whether disciplinary action was warranted; and (2) if so, whether the penalty assessed was reasonable. Dep't of Justice, Fed. Prisons Sys., El Reno Fed. Corr. Inst., El Reno, Okla., 35 FLRA 329, 336 (1990). Consequently, the issue of the appropriateness of the penalty was an issue for the Arbitrator, not a matter dictated by the requirements of § 7503(a). As recognized by the Agency and as repeatedly held by the Authority, arbitrators have the power to mitigate suspensions under § 7503(a). Id. at 337.

C.      The award must be remanded.

1.      Merits

      The award is deficient by ordering that each grievant receive a written reprimand to conform to the progressive discipline requirements of § 7503. Because the ordered reprimands are specifically based on a misinterpretation of § 7503, we vacate the ordered reprimands and the make-whole award of backpay. In addition, we find that the Arbitrator's conclusion that the Agency's table of penalties was preempted by the statutory requirements for progressive discipline was also based on a misinterpretation of § 7503(a). Because we vacate the award of backpay, we likewise vacate the award of attorney fees, but without prejudice to the Union petitioning the Arbitrator for an award of fees should the Arbitrator on remand again award backpay.

      The record does not permit a determination of how the Arbitrator would have resolved the grievances if he had properly applied § 7503. Consequently, we remand the award to the parties for resubmission to the Arbitrator, absent settlement, to have the Arbitrator appropriately determine whether the 5-day suspensions of the grievants were proper. Soc. Sec. Admin., 32 FLRA 712, 716 (1988) (award remanded for determination of whether the agency had cause to suspend the grievant).

      Because we have found the reprimands contrary to § 7503 and vacated the order that the grievants receive written reprimands, it is unnecessary to address and resolve the Agency's exceptions contending that the ordered reprimands are also contrary to § 7106(a) of the Statute and fail to draw their essence from the parties' collective bargaining agreement. Also consistent with these conclusions, we reject the Agency's request that we sustain the suspensions. It is for the Arbitrator on remand to determine what penalty is appropriate for the charges he sustained. As to the Agency's table of penalties, the Agency concedes that the table "is only a guide[.]" Exceptions at 8. Consequently, it is also for the Arbitrator to determine what consideration to give the table. [ v62 p73 ]

2.      Attorney fees

      The Agency contends that the award of fees is contrary to the Back Pay Act and § 7701(g) because the grievants were not prevailing parties, an award of fees is not warranted in the interest of justice, and the amount of fees is not reasonable. Because we have vacated the award of attorney fees and will remand the award to the parties for resubmission to the Arbitrator, it is unnecessary to address and resolve these issues. [n4]  However, because the Agency's contention regarding the Arbitrator's handling of the fee agreement raises an issue that could affect the Agency's ability to respond to a future request for fees, we address it here.

      In this regard, the Agency argues that under § 1201.203(a)(2), a request for attorney fees must include a fee agreement when one exists and that a claim of confidentiality cannot protect the terms of a fee agreement from disclosure. In addition, the Agency claims that it was unable to adequately respond to the Union's requested hourly rate because the discounted rate was never disclosed to the Agency.

      We reject the Agency's arguments. Although the Agency is correct that the MSPB requires that fee agreements be disclosed to its judges, the MSPB will not disturb an award of fees if a failure to disclose the agreement does not prejudice the employing agency. 5 C.F.R. § 1201.203(a)(2); Miller v. Dep't of Veterans Affairs, 84 MSPR 692, 695-96 (2000) (Miller). Even assuming that this same rule applies in arbitration, the Union's motion for attorney fees filed with the Arbitrator did include a copy of the terms of the fee agreement consistent with § 1201.203(a)(2). Moreover, in the Union's supplement to its petition for attorney fees submitted to the Arbitrator and served on the Agency, the Union's attorney disclosed the relevant portion of the fee agreement as follows:

Legal Fees. Client agrees to pay for legal services . . . at the following rates . . . :
$423.00 per hour for attorney; $239 per hour for associate; $130 per hour for law clerk and paralegal. These rates will be adjusted every June 1, and will be consistent with the Adjusted Laffey Matrix. Client may be charged a reduced fee in the public interest, but agrees to pay the full fee upon receipt of a successful decision.

Exceptions, Attachment D, at 2 (citation omitted).

      As the fee agreement was provided to the Arbitrator and disclosed, in relevant part, to the Agency, the Agency was not prejudiced or prevented from adequately responding to whether the requested hourly rate was reasonable. See Miller, 84 MSPR at 696 (administrative judge's decision set aside only if prejudice to the agency). Thus, the Agency has failed to establish that the Arbitrator's refusal to release the entire fee agreement is contrary to law.

      Our vacating the award of fees is without prejudice to the Union petitioning the Arbitrator for an award of fees should the Arbitrator on remand again award backpay. In such circumstances, the Agency remains free to challenge the reasonableness of any amount requested, including the reasonableness of the requested hourly rates. As noted, the amount of any future award of fees must be reasonable, e.g., United States Dep't of Agriculture, Animal and Plant Health Inspection Serv., Plant Protection and Quarantine, 53 FLRA 1688, 1692-93 (1998) (discussing determination of the reasonable rate), and the Arbitrator must set forth specific findings supporting his determinations on the reasonableness of the requested rates and the amount, e.g., AFGE Council 220, 61 FLRA 582, 585 (2006).

V.      Decision

      The award that each grievant receive a written reprimand is deficient. We vacate the ordered reprimands, the award of backpay, and the award of attorney fees. The vacating of the award of attorney fees is without prejudice to a petition for fees should the Arbitrator on remand again award backpay.

      We remand the award to the parties for resubmission to the Arbitrator, absent settlement, to have the Arbitrator properly determine under § 7503)(a) whether the 5-day suspensions of the grievants were for such cause as will promote the efficiency of the service. [ v62 p74 ]


Appendix

5 U.S.C. § 7503(a)-(b) pertinently provides:

      (a) Under regulations prescribed by the Office of Personnel Management, an employee may be suspended for 14 days or less for such cause as will promote the efficiency of the service . . . .

      (b) An employee against whom a suspension for 14 days or less is proposed is entitled to --

     (1) an advance written notice stating the specific reasons for the proposed action;
     (2) a reasonable time to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer;
     (3) be represented by an attorney or other representative; and
     (4) a written decision and the specific reasons therefore at the earliest practicable date.

5 C.F.R. § 1201.203(a)(2) provides:

     (a) Form and content of request. A request for attorney fees must be made by motion, must state why the appellant or respondent believes he or she is entitled to an award under the applicable statutory standard, and must be supported by evidence substantiating the amount of the request. Evidence supporting a motion for attorney fees must include at a minimum:
. . . .
     (2) A copy of the terms of the fee agreement (if any)[.]



Footnote # 1 for 62 FLRA No. 20 - Authority's Decision

   Member Pope did not participate in this decision.


Footnote # 2 for 62 FLRA No. 20 - Authority's Decision

   The provisions of § 1201.203(a)(2) are set forth in the appendix to this decision.


Footnote # 3 for 62 FLRA No. 20 - Authority's Decision

   The provisions of § 7503(a)-(b) are set forth in the appendix to this decision.


Footnote # 4 for 62 FLRA No. 20 - Authority's Decision