American Federation of Government Employees, Local 3020 (Union) and Untied States Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Minersville, Pennsylvania (Agency)

MEMORANDUM

64 FLRA No. 106                                         

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3020

 (Union)

and

UNTIED STATES DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS

FEDERAL CORRECTIONAL INSTITUTION

MINERSVILLE, PENNSYLVANIA

 (Agency)

0-AR-4318

_____

DECISION

March 24, 2010

_____

Before the Authority:  Carol Waller Pope, Chairman, and

Thomas M. Beck and Ernest DuBester, Members

I.          Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Charles J. Coleman filed by the Union under § 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 exceptions.

            The Arbitrator sustained the Union’s grievance on the ground that the Agency did not have just cause to impose a three-day suspension upon the grievant for a failure to follow instructions.  While the Arbitrator awarded the grievant back pay for the days he was improperly suspended, the Arbitrator did not award the $17,335.84 in attorney fees sought by the Union.  The Union contends that the failure to award the requested attorney fees is contrary to law.  For the following reasons, we remand the portion of the award regarding attorney fees to the parties, absent settlement, for resubmission to the Arbitrator for clarification of the award.

II.        Background and Arbitrator’s Award

            In May 2005, the Chief Correctional Officer (CCO) sent the grievant a letter, informing him that he was on sick leave restriction and that all subsequent use of sick leave would require medical certification upon his return to duty.  Award at 2, 4.  The CCO specified that the required documentation was to be provided to him.  Id. at 5-6. 

A few weeks later, the grievant requested sick leave for July 3.  The request was granted.  When he returned to work on July 6, the grievant did not present any medical documentation because the CCO was not working on that date.  Id. at 2, 5.  When the CCO returned to work on July 11, the CCO informed the grievant that he had not submitted the required documentation and gave him until July 15 to do so.  Id. at 2.  The grievant provided the documentation within that time period.  Id. at 2.      

Ten months later, the grievant was notified that the CCO was proposing a five day suspension for failing to follow the instructions given in the May 2005 letter and for being absent without leave (AWOL) on July 3.  Id. at 2.  After reviewing the proposed disciplinary action, the Warden dropped the AWOL charge and reduced the penalty for failing to follow instructions to a three-day suspension.  Id. at 2, 3.  A grievance was then filed, and the matter was submitted to arbitration.  Just prior to the arbitration hearing, a new warden reduced the grievant’s penalty to a one-day suspension.  Id. at 3.  The Arbitrator framed the issue as “whether management had just cause to suspend the grievant for failing to turn in medical documentation on the day that he returned to work from one day of sick leave.”  Id. at 4.    

Although characterizing the grievant’s arguments as “specious and hair splitting,” the Arbitrator found that, because the grievant had followed the instructions that he had been given, the Agency did not have just cause to discipline him.  Id. at 5-6.  The Arbitrator concluded that the grievant had followed these instructions “to the letter” because, prior to his use of sick leave on July 3, the grievant was told to give his medical certification to the CCO; that individual was not present when the grievant returned to duty on July 6; the CCO informed the grievant that he had not submitted the requested certification and gave him until July 15 to do so; and the grievant provided the material to the CCO by that date.  Id. at 6.  The Arbitrator denied the attorney fees requested by the Union without analysis.  Id.

III.       Positions of the Parties

            A.        Union’s Exceptions

            The Union contends that the award is deficient because the failure to award attorney fees is contrary to the Back Pay Act, 5 U.S.C. § 5596.  According to the Union, the Arbitrator’s cursory conclusion on this issue failed to comply with Authority precedent that requires an arbitrator to set forth specific findings supporting his or her determinations regarding each of the statutory requirements of 5 U.S.C. § 7701(g).  Exceptions at 6-7. 

The Union claims that the grievant was affected by an unjustified or unwarranted agency personnel action, which resulted in the withdrawal of his pay for the term of the suspension.  The Union also asserts that the grievant was the prevailing party and that an award of fees is in the interest of justice because the factors set forth in Allen v. U.S. Postal Serv., 2 M.S.P.R. 420 (1980) (Allen) have been met.*  Id. at 5-7.

The Union contends that the record is sufficient to allow a determination that it was entitled to the attorney fees expended on the grievant’s behalf without a remand to the Arbitrator because the facts of the case demonstrate that the fee request was reasonable and that the interest of justice requirement was satisfied.  The Union asserts that two of the Allen factors were met because the Agency committed a prohibited personnel action and the grievant was substantially innocent of the charge, and argues that either is sufficient to make an award of attorney fees proper under § 7701(g).  Id. at 7-13.  Finally, the Union contends that, if the Authority finds the record insufficient for a determination on the attorney fees question, the award should be remanded to the Arbitrator for further clarification.  Id. at 13-14.

 

B.        Agency’s Opposition

The Agency contends that the award is not contrary to the Back Pay Act.  The Agency contends that the Arbitrator was acting within his discretion in denying the Union’s fee petition.  Opp’n at 4.  In addition, the Agency argues that the Union’s argument must fail because the record does not demonstrate “that the Agency knew, or should have known, it would not prevail at hearing, or that the Agency acted in bad faith in its actions against [the] [g]rievant.”  Id. at 4.  According to the Agency, without this evidence, the Union cannot establish that an award of attorney fees would be warranted in “the interest of justice.”  Id.  The Agency also contends that the existing record does not provide a sufficient basis on which to determine whether the requested fees are reasonable.  Id. at 4-5.   

IV.       Analysis and Conclusions

The Union contends that the Arbitrator's denial of attorney fees is contrary to the Back Pay Act.  When a party's exceptions involve an award's consistency with law, the Authority reviews the question of law and the arbitrator's award de novo.   NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing U.S. Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)).  In applying a de novo standard of review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law.  See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998).  In making that assessment, the Authority defers to the arbitrator’s findings of fact because it was the arbitrator’s evaluation of the record for which the parties bargained and not the Authority’s evaluation.  See AFGE Nat’l Council of HUD Locals