American Federation of Government Employees, Local 3105 (Union) and United States Department of Homeland Security, Customs and Border Protection (Agency)

[ v63 p128 ]

63 FLRA No. 49

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 3105
(Union)

and

UNITED STATES
DEPARTMENT OF HOMELAND SECURITY
CUSTOMS AND BORDER PROTECTION
(Agency)

0-AR-4085

_____

DECISION

March 13, 2009

_____

Before the Authority:
Carol Waller Pope, Acting Chairman and
Thomas M. Beck, Member

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Leonard C. Bajork filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and 5 C.F.R. part 2425. The Agency filed an opposition to the Union's exceptions. [n1] 

      In the merits award, the Arbitrator ruled that the 1-day suspension of the grievant was not for just cause and awarded the grievant backpay. Subsequently, the Union filed an application for an award of attorney fees, which the Arbitrator denied in the fee award.

      For the following reasons, we conclude that the award is contrary to law because the grievant is the prevailing party and an award of fees is warranted in the interest of justice on the ground that the grievant is substantially innocent.

II.      Background and Arbitrator's Awards

      The grievant, a firearms instructor, asked another officer to point the grievant's unloaded firearm at the grievant so that the grievant could demonstrate to the officer proper firearm take-away procedure. The Agency suspended the grievant for 1 day for a failure to perform his duties in a safe manner. The grievant filed a grievance that was submitted to arbitration on the stipulated issues of whether the Agency had just cause to suspend the grievant for failure to perform his duties in a safe manner and, if not, what is the proper remedy. Merits Award at 4.

      The Arbitrator sustained the grievance. Id. at 12. The Arbitrator acknowledged that the Agency's firearms policy prohibits officers from pointing their weapons unless they intend to discharge the weapon. However, he found that the Agency failed to reference this policy in the suspension of the grievant and that, instead, the discipline was "the result of a lack of authorization" to undertake training." Id. at 9. Because the grievant had not been charged with performing training without authorization, the Arbitrator concluded that there was no just cause for the suspension. At the same time, the Arbitrator determined that the grievant was not "blameless." Id. at 12. Accordingly, as a remedy, the Arbitrator first ordered that the grievant not conduct any firearms training that is not approved and that he communicate this in a letter to the supervisory border patrol officer. The Arbitrator further ordered that the letter be posted in the Agency's office for 30 days following which the Agency was to make the grievant whole for the 1-day suspension and to purge his records of all reference to this matter. Id. at 12-13.

      Subsequently, the Union submitted an application for an award of attorney fees in the amount of $9,863.30 under the Back Pay Act and 5 U.S.C. § 7701(g)(1). [n2]  In particular, the Union claimed that the grievant was entitled to an award of fees under § 7701(g)(1) because the grievant was the prevailing party and because an award of fees was warranted in the interest of justice. Fee Award at 3. As for the interest of justice, the Union asserted under Allen v. United States Postal Serv., 2 MSPR 420 (1980), that the Agency knew or should have known that it would not prevail and that the grievant was substantially innocent of the charge brought by the Agency. Id. In response, the Agency "concede[d] for purposes of determining the propriety of an award of [ v63 p129 ] attorney fees both that the [g]rievant should be considered the prevailing party, and that he incurred attorney fees." Union's Exceptions, Exhibit 4 (Agency's Response at 6 (footnote omitted)). However, the Agency disputed that an award of fees was warranted in the interest of justice and that the Union's requested amount was reasonable. Fee Award at 3-4.

      In resolving the Union's application, the Arbitrator concluded that "the [g]rievant was neither substantially innocent of the charges brought nor was he the prevailing party." Id. at 8. The Arbitrator stated that "it is incorrect to argue that the [g]rievant `succeeded on the greater and more important charges' and for `substantive reasons" and that "[t]he [g]rievant was far from being `substantially innocent.'" Id. at 5-6. In the Arbitrator's view, the only matter on which the grievant prevailed was the issue of "due process." Id. at 7. He explained that he based the merits award on the finding that the charge forming the basis of the discipline was ambiguous and that, as a result, the grievant was deprived of "clarity of notice." Id. He also noted that the fact that the training was "inspired" by the other employee, who was not disciplined, reduced the grievant's culpability. Id. In addition, the Arbitrator emphasized that the order that the grievant write a letter to be posted for 30 days inured to the benefit of the Agency and diminished his success. Id. at 8.

      Based on the foregoing, the Arbitrator denied the fee request. Id. at 6, 8.

III.      Positions of the Parties

A.      Union's Exceptions

      The Union contends that the award is contrary to law to the extent that the Arbitrator concluded that: (1) the grievant is not the prevailing party; (2) the grievant is not substantially innocent; and (3) the Agency could not reasonably have known that it would not prevail on the merits.

      The Union argues that the issue of prevailing party was not before the Arbitrator because the Agency conceded that the grievant is the prevailing party. Exceptions at 5. In addition, the Union argues that the Arbitrator's conclusion is contrary to Authority precedent, which, according to the Union, holds that employees are prevailing parties when they receive an enforceable judgment that directly benefits them at the time of the judgment. Id. at 6 (citing United States Gen. Servs. Admin., Northeast & Caribbean Region, N.Y., N.Y., 61 FLRA 68 (2005) (GSA)). The Union asserts that the merits award establishes that the grievant is the prevailing party. Id. at 7.

      As to substantial innocence, the Union argues that an employee is substantially innocent when the employee prevails on the "greater and more important" of an agency's charges for substantive reasons. Id. at 8 (citing NAGE Local R5-188, 54 FLRA 1401, 1407 (1998)). The Union emphasizes that the grievant is not required to be "completely innocent or morally blameless" to be substantially innocent. Id. In the Union's view, the Arbitrator's factual findings demonstrate that the grievant is substantially innocent. As to whether the Agency knew or should have known that it would not prevail on the merits, the Union argues that the award is without any support. Id. at 11.

B.      Agency's Opposition

      As set forth above, the Authority directed the Agency to show cause why its opposition should be considered timely filed. Consistent with our conclusion below, the substance of the opposition is not described here.

IV.      Preliminary Issue

      The time period for filing an opposition to exceptions to an arbitrator's award with the Authority is 30 days after the date of service of the exceptions on the opposing party. 5 C.F.R. § 2425.1(c). When the exceptions are served by mail, 5 days are added to the time period for filing an opposition. § 2429.22. The date on which an opposition is filed with the Authority is the date the opposition is deposited in the United States mail, the date the opposition is delivered to the Authority in person, or the date the opposition is received by the Authority by commercial delivery. § 2429.21(b).

      The Union served its exceptions on the Agency by certified mail on May 8, 2006. Accordingly, the Agency's opposition had to be filed with the Authority no later than June 12, 2006. The Agency filed its opposition with the Authority by commercial delivery on June 14, 2006. As a result, the Authority ordered the Agency to show cause why the Authority should consider the opposition.

      In its response to the show-cause order, the Agency claims that it timely served the opposition on the Union and the Arbitrator by placing it in the United States mail on June 12, 2006. The Agency notes that it could have timely filed its opposition with the Authority at the same time by also placing the opposition in the United States mail. The Agency asserts that, instead, it used commercial delivery to deliver the opposition to the Authority more quickly. The Agency maintains that, in these circumstances, the Authority should conclude that the opposition was timely filed or waive the [ v63 p130 ] expired time limit on the grounds that: (1) its choice of commercial delivery for filing was intended to benefit the Authority; (2) noncompliance with the time limit was inadvertent; (3) the Union would not be prejudiced by granting a waiver; and (4) granting a waiver would permit the Authority to resolve this case on the basis of a complete record. Response to Show-Cause Order at 2-4.

      Authority regulations clearly provide that the date of filing by commercial delivery is the date on which the filing is received by the Authority. § 2429.21(b). The Agency concedes that it could have timely filed its opposition by placing the opposition in the United States mail at the same time it timely served the Union and the Arbitrator. Response to Show-Cause Order at 3. Without regard to the Agency's motivations for doing so, the Agency chose, instead, to file with the Authority by commercial delivery. In these circumstances, the Agency fails to establish that a waiver of the expired time limit is warranted. See, e.g., United States Dep't of Veterans Affairs Med. Ctr., Kansas City, Mo., 52 FLRA 282, 284 (1996) (request for waiver of an expired time limit denied when party failed to show that it was unable to timely file with the Authority).

      Based on the foregoing, we conclude that the opposition was not timely filed and that the Agency fails to establish extraordinary circumstances warranting a waiver of the expired time limit for filing its opposition to the Union's exceptions to the Arbitrator's award. Accordingly, we do not consider the opposition.

V.      Analysis and Conclusions

A.      The award is deficient to the extent that the Arbitrator concluded that the grievant is not the prevailing party.

      When an exception involves an award's consistency with law, the Authority reviews any question of law raised by the exception and the award de novo. E.g., NTEU Chapter 24, 50 FLRA 330, 332 (1995). In applying the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusion is consistent with the applicable standard of law. E.g., GSA, 61 FLRA at 69.

      The standards for an award of attorney fees under § 7701(g)(1) include, among other things, that the employee must be the prevailing party. The Authority applies the definition of "prevailing party" adopted by the Merit Systems Protection Board (MSPB), under which an employee is the prevailing party within the meaning of § 7701(g)(1) when the employee "received an enforceable judgment or settlement which directly benefitted [the employee] at the time of the judgment or settlement." GSA, 61 FLRA at 70 (quoting DiGiulio v. Dep't of the Treasury, 66 MSPR 659, 663 (1995)).

      The Arbitrator's merits award vacated the suspension of the grievant, awarded him backpay, and ordered his record purged of all reference to the suspension. As a result of this award, the grievant clearly benefited from an enforceable judgment and, consistent with both the foregoing precedent and the Agency's concession, Exceptions, Exhibit 4, the grievant is the prevailing party. See id. (the grievant was the prevailing party because the award rescinded the grievant's suspension). Consequently, the award is deficient to the extent that the Arbitrator concluded to the contrary.

      Accordingly, we conclude that the fee award is contrary to law because the grievant is the prevailing party.

B.      The award is deficient to the extent that the Arbitrator concluded that the grievant is not substantially innocent.

      The Union relies on NAGE Local R5-188, in contending that the award is contrary to law to the extent that the Arbitrator concluded that the grievant is not substantially innocent. In that case, the arbitrator denied an award of attorney fees on the ground that the grievant was not substantially innocent even though, in the prior merits award, the arbitrator had found that the 13-day suspension of the grievant was not for such cause as would promote the efficiency of the service. In concluding that the grievant was not substantially innocent, the arbitrator explained that the grievant had been "dangerously close to facing serious discipline." 54 FLRA at 1404 (quoting Merits Award at 19).

      Reviewing exceptions to the fee award, the Authority found that that the substantially innocent criterion of Allen refers to the result on the merits at MSPB or arbitration. Id. at 1406. In addition, the Authority cited Federal Circuit precedent describing "substantially innocent" as "innocence of the more important and greater part of the original charges when that innocence is not based on some technical defect." Id. at 1407 (citing Boese v. Dep't of the Air Force, 784 F.2d 388, 391 (Fed. Cir. 1986) (Boese)). The Authority held that "an employee who has prevailed on substantive rather than technical grounds on the major charges is substantially innocent as a matter of law, unless the employee deliberately withheld exculpat[ory] information from the agency during its investigation." Id. Applying this standard, the Authority concluded that the grievant was substantially innocent because the arbitrator found that [ v63 p131 ] the grievant was innocent of the sole charge on which discipline was based. Id. at 1407-08.

      As in NAGE Local R5-188, the Arbitrator here specifically found that there was no just cause for discipline on the charge for which the Agency suspended the grievant. Merits Award at 12. That is, on the basis of the Arbitrator's factual findings, the grievant prevailed on the sole charge against him. Also, the grievant prevailed on the ground that he was denied "due process." Fee Award at 7. This is not a technical ground. See Hanley v. Dep't of Transp., 90 MSPR 43, 50 (2001) (a failure of due process because of a lack of clear notice of the grounds on which discipline was based does not constitute a technical defect). As such, and as there is no contention that the grievant withheld information, precedent supports a conclusion that the grievant is substantially innocent within the meaning of § 7701(g)(1). See NAGE Local R5-188, 54 FLRA at 1407-09.

      Also as in NAGE Local R5-188, the Arbitrator's fee award does not support a contrary conclusion. In this regard, the Arbitrator found that the grievant was not substantially innocent because of uncharged misconduct and because his order that the grievant communicate in a letter that he would not conduct unapproved firearms training inured to the benefit of the Agency. Fee Award at 7-8. However, under § 7701(g)(1), uncharged misconduct is immaterial to a determination of substantial innocence. E.g., Siedle v. Dep't of the Interior, 44 MSPR 211, 215-16 (1990) (in determining substantial innocence, the MSPB relies only on the charge against the employee as the agency framed it in its notice of discipline). Likewise, the ordered letter does not alter the facts that the award vacated the suspension, provided backpay, and required the Agency to purge the grievant's record of references to the suspension. See Boese, 784 F.2d 388 (employee was substantially innocent even though removal was only mitigated to a 90-day suspension).

      For these reasons, we conclude that the fee award is contrary to law because an award of fees is warranted in the interest of justice on the ground that the grievant is substantially innocent of the charge brought by the Agency. [n3] 

C.      We remand the issue of the reasonableness of the amount.

      As the Authority has consistently held, the arbitrator, not the Authority, is the "appropriate authority" under 5 C.F.R. § 550.807(a) for resolving a request for an award of attorney fees. E.g., NAGE Local R5-188, 54 FLRA at 1410 n.8. Moreover, the reasonableness of the requested amount cannot be resolved on the basis of the record in this case. There are no findings by the Arbitrator on the reasonableness of the amount and the reasonableness of the amount was specifically contested by the Agency before the Arbitrator. Accordingly, we remand the issue of what amount of fees would be reasonable to the parties for resubmission to the Arbitrator, absent settlement. See id. at 1410.

VI.      Decision

      We conclude that the fee award is contrary to law and remand the issue of what amount of fees would be reasonable to the parties for resubmission to the Arbitrator, absent settlement.



Footnote # 1 for 63 FLRA No. 49 - Authority's Decision

   After the Agency filed its opposition, the Authority's office of Case Intake and Publications (CIP) issued an order directing the Agency to correct a procedural deficiency and to show cause why its opposition should not be rejected as untimely filed. The Agency filed a timely response to the order and corrected the procedural deficiency. The timeliness of the opposition is discussed in Part IV, infra.


Footnote # 2 for 63 FLRA No. 49 - Authority's Decision

   Section 7701(g)(1) provides, in part, for an award of "reasonable attorney fees incurred by an employee" provided "the employee . . . is the prevailing party" and payment "is warranted in the interest of justice[.]"


Footnote # 3 for 63 FLRA No. 49 - Authority's Decision