[ v14 p680 ]
The decision of the Authority follows:
14 FLRA No. 90 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS Union and UNITED STATES ARMY SUPPORT COMMAND, HAWAII Activity Case No. O-AR-215 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Stuart M. Cowan filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition. The dispute before the Arbitrator herein concerns the assessment under provisions of Army Regulation (AR) 735-11 (Accounting for Lost, Damaged and Destroyed Property) of pecuniary liability against the grievant for damage to a landing vehicle assertedly caused by his negligence. A grievance was filed and submitted to arbitration protesting this assessment. The Arbitrator reviewed the investigation of the property damage (report of survey) on which the assessment was founded and determined "that there is no substantial evidence in this case to prove by a preponderance of evidence or otherwise that there is just cause to impose pecuniary liability upon Grievant." Accordingly, as his award in this respect, the Arbitrator granted the grievance and vacated the financial responsibility assessment against the grievant. He also ordered in this respect "that this matter not be reopened for further proceedings against this Grievant." In addition, the Arbitrator awarded attorney fees to the grievant in the amount of $3500. In its first exception the Agency contends that the portion of the award granting the grievance because there was no substantial evidence to support a financial assessment against the grievant is based on nonfacts. In support of this exception, the Agency argues that underlying this portion of the award are the Arbitrator's comments that the report of survey "was totally hearsay evidence" and that "the survey officer failed to provide the Grievant any opportunity to participate in the investigation," and the Agency maintains that these statements were erroneous and that but for these errors the Arbitrator would have reached a different result. In order for the award to be found deficient on this ground, it must be established that the alleged "nonfacts" involved facts that were objectively ascertainable, were the central facts underlying the award, were concededly erroneous, and that but for the arbitrator's misapprehension, the arbitrator would have reached a different result. See, e.g., United States Army Missile Materiel Readiness Command (USAMIRCOM) and American Federation of Government Employees, Local 1858, AFL-CIO, 2 FLRA 432, 438 (1980). Without fully addressing the above-cited statements of the Arbitrator in terms of this ground, it is readily apparent that the Arbitrator based his granting of the grievance on inadequacies in the report of survey proceedings that were much more extensive than claimed by the Agency. The Arbitrator expressly held that the report of survey investigation was inadequate because "it was cursory" (Award at 19), and because the survey officer "did not conduct a complete investigation, did not determine if there were other witnesses or evidence, but merely ceased investigating when he felt that the evidence he had was sufficient (and) did not make an objective, impartial and thorough investigation as required" (Award at 21). In sum, the Arbitrator held that "there were numerous deficiencies in the investigation and numerous unanswered and uninvestigated factors which might have been either wholly or completely the proximate cause of the loss in this case" (Award at 27). Consequently, the Agency has not established that the central facts underlying the award were that the report of survey proceedings were based on hearsay evidence and that the survey officer failed to provide the grievant an opportunity to participate in the proceedings. Thus, it is not established, even if these statements of the Arbitrator were concededly erroneous, that this "is the fact on which the award is based" and that "but for the arbitrator's misapprehension, the arbitrator would have reached a different result." Id. at 438 (emphasis in original). Accordingly, the exception provides no basis for finding the award deficient in this respect, and therefore the exception is denied. In its second exception the Agency contends that the Arbitrator's order that this matter not be reopened for further proceedings against the grievant is contrary to law and regulation. Specifically, the Agency claims that the award in this respect is contrary to section 7106(a)(1) of the Statute which authorizes the Agency to determine its internal security practices. The Agency further claims that the award is contrary to 10 U.S.C. 4832, 4835 by effectively removing from the Secretary of the Army the authority provided by those statutory provisions to prescribe regulations for the accounting of Army property and the fixing of responsibility for its damage. The Agency also argues that the award is contrary to AR 735-11 because it precludes the commander from ensuring that this matter is adequately investigated and from assessing pecuniary liability against the grievant if, after further investigation, it is determined that such an assessment is warranted. The Authority concludes that this exception provides no basis for finding the award deficient. The Agency fails to establish that the award in this respect infringes in any manner on management's right pursuant to section 7106(a)(1) of the Statute to determine its internal security practices so as to prevent destruction of agency property. The Agency likewise has not established that the award in this respect is contrary to the general statutory and regulatory provisions pertaining to the accounting for Army property. The matter specifically submitted to and addressed by the Arbitrator was whether the Agency was justified in its assessment of pecuniary liability against the grievant. In resolution of precisely this matter, the Arbitrator expressly determined that the assessment was not justified, and accordingly he vacated the assessment and barred further proceedings against the grievant as to this matter. In vacating the assessment and barring further proceedings against the grievant, he essentially ruled that the issue of the grievant's liability was before him for final resolution. Thus, he rejected the contention that this matter was limited to the adequacy of the report of survey and rejected the contention that in the event he determined that the report was inadequate, the Agency was not precluded from reopening the matter and proceeding until liability of the grievant is sustained. In these circumstances the Authority finds that the general statutory and regulatory provisions pertaining to the accounting for Army property, including the broad right to conduct reports of survey as set forth in AR 735-11, cannot be used to circumvent the Arbitrator's resolution of the submitted dispute. Accordingly, this exception is denied. /1/ In its third exception the Agency contends that the Arbitrator's award of attorney fees is not authorized by law, essentially relying upon the statutory requirements of the Back Pay Act, 5 U.S.C. 5596. /2/ This exception provides the Authority with an opportunity to address in detail for the first time the statutory requirements regarding awards of attorney fees by arbitrators. As previously recognized by the Authority, a threshold requirement for entitlement to attorney fees under the Back Pay Act is a finding that the grievant has been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials. Department of Defense Dependents Schools and Overseas Education Association, 3 FLRA 259, 263 (1980). Further, a reading of the Back Pay Act indicates that an award of attorney fees must be in conjunction with an award of backpay to the grievant on correction of the personnel action, that the award of attorney fees must be reasonable and related to the personnel action, and that the award of attorney fees must be in accordance with the standards established under 5 U.S.C. 7701(b). /3/ Section 7701(g) prescribes that for an employee to be eligible for an award of attorney fees, the employee must be the prevailing party. Section 7701(g)(1), which applies to all cases except those of discrimination, requires that an award of attorney fees must be warranted "in the interest of justice," that the amount must be reasonable, and that the fees must have been incurred by the employee. Section 7701(g)(2), pertaining to cases of discrimination prohibited by 5 U.S.C. 2302(b)(1), requires as to such cases that the award of attorney fees must be in accordance with the standards prescribed under section 706(k) of the Civil Rights Act of 1964, 42 U.S.C. 2000e - 5(k). The standards established under section 7701(g) further require a fully articulated, reasoned decision setting forth the specific findings supporting the determination on each pertinent statutory requirement, including the basis upon which the reasonableness of the amount was determined when fees are awarded. See, e.g., Allen v. U.S. Postal Service, 2 MSPB 582 (1980); Kling v. Department of Justice, 2 MSPB 620 (1980); see also 5 CFR 550.806 (1983). In terms of this case, the Arbitrator failed to provide such an articulated decision as part of his award of attorney fees in the amount of $3500. Consequently, the Authority shall remand the award to the parties to have them obtain a clarification and interpretation of the award of attorney fees by the Arbitrator, who shall consider the specific criteria set forth in this decision. Accordingly, pursuant to section 2425.4 of the Authrity's Rules and Regulations, the award is remanded to the parties with the direction that they request, jointly or separately, that the Arbitrator clarify the award. The submission to the Arbitrator is for the limited purpose of having the Arbitrator clarify and interpret his award of attorney fees in the amount of $3500 and to articulate fully specific findings on all pertinent statutory provisions. Issued, Washington, D.C., May 21, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ As requested by the parties, the Arbitrator also ruled on whether the grievance should be sustained because AR 735-11 is unconstitutional. However, because the Arbitrator expressly indicated that the inadequacies in the report of survey proceedings alone required the grievance to be granted and the assessment against the grievant vacated, it is unnecessary for the Authority to consider this question. /2/ 5 U.S.C. 5596 (1982) pertinently provides: (b)(1) An employee of an agency who, on the basis of a timely appeal or an administrative determination (including a decision relating to an unfair labor practice or a grievance) is found by appropriate authority under applicable law, rule, regulation, or collective bargaining agreement, to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials of the employee-- (A) is entitled, on correction of the personnel action, to receive for the period of which the personnel action was in effect-- . . . . (ii) reasonable attorney fees related to the personnel action which, with respect to any decision relating to an unfair labor practice or a grievance processed under a procedure negotiated in accordance with chapter 71 of this title, or under chapter 11 of title 1 of the Foreign Service Act of 1980, shall be awarded in accordance with standards established under section 7701(g) of this title(.) /3/ 5 U.S.C. 7701(g) (1982) provides: (1) Except as provided in paragraph (2) of this subsection, the Board, or an administrative law judge or other employee of the Board designated to hear a case, may require payment by the agency involved of reasonable attorney fees incurred by an employee or applicant for employment if the employee or applicant is the prevailing party and the Board, administrative law judge, or other employee (as case may be) determines that payment by the agency is warranted in the interest of justice, including any case in which a prohibited personnel practice was engaged in by the agency or any case in which the agency's action was clearly without merit. (2) If an employee or applicant for employment is the prevailing party and the decision is based on a finding of discrimination prohibited under section 2302(b)(1) of this title, the payment of attorney fees shall be in accordance with the standards prescribed under section 706(k) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(k)).