24:0117(15)AR - Local 1749, AFGE and Commander, 47FTW, Laughlin AFB, TX -- 1986 FLRAdec AR
[ v24 p117 ]
The decision of the Authority follows:
24 FLRA No. 15 LOCAL 1749, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES Union and COMMANDER, 47FTW, LAUGHLIN AIR FORCE BASE, TEXAS Agency Case No. 0-AR-1209 DECISION I. Statement of the Case This case is before the Authority on an exception to the award of Arbitrator Charles W. Tyer filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. II. Background and Arbitrator's Award The issue submitted to arbitration was whether the 14-day suspension of the grievant, a government procurement agent, for alleged deliberate misrepresentation and concealment of a material fact in the purchase of certain merchandise, was for just cause under the terms of the parties' collective bargaining agreement and applicable regulations. The Arbitrator found that the suspension was not for just cause and ordered that the grievant be made whole for all backpay and other benefits lost due to the adverse action. The Arbitrator further ordered that the grievant be reimbursed for all attorney fees and other expenses releated to this case which are appropriate under prevailing Federal regulations. III. Agency Exception In its exception, the Agency contends that the Arbitrator's award of attorney fees is contrary to 5 U.S.C. Section 7701(g)(1). In support of its exception, the Agency argues that the Arbitrator failed to supply a fully articulated decision to support the award of attorney fees and that the awrad "rests upon a cursory statement by the (A)rbitrator" and is without the "required demonstrable pragmatic analysis of the facts set out in applicable statutes." IV. Union Opposition The Union asserts in its opposition to the Agency's exception that the Arbitrator's written response to the Union's Request for Supplemental Decision, in which the Arbitrator made additional and specific determinations relating to his award, satisfies the requirements for sustaining the Arbitrator's award of attorney fees. Alternatively, the Union requests that the Authority remand the case to the Arbitrator if the Authority finds that the award does not meet the requirements of 5 U.S.C. Section 7701(g). V. Analysis and Conclusion As we discussed in Naval Air Development Center, Department of the Navy and American Federation of Government Employees, Local 1928, AFL-CIO, 21 FLRA No. 25 (1986), a threshold requirement for entitlement to attorney fees under the Back Pay Act, 5 U.S.C. Section 5596, is a finding that the grievant had 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. Further, an award of attorney fees must be in conjunction with an award of backpay to the grievant on correction of the unwarranted or unjustified personnel action. The award of attorney fees must be reasonable and related to the personnel action, and in accordance with the standards established under 5 U.S.C. Section 7701(g). 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), applicable 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. 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. An arbitrator's cursory statement that the arbitrator considered the necessary elements of analysis does not meet the requirement under 5 U.S.C. Section 7701(g) for a fully articulated, reasoned decision. An arbitrator's award of attorney fees must draw its essence from a demonstrable, pragmatic analysis of the factors set out in the applicable statutes. Naval Air Development Center, slip op. at 10-11. In this case, the Arbitrator's statement concerning the award of attorney fees does not meet the requirements just discussed. In National Association of Air Traffic Specialists and Federal Aviation Administration, Washington Flight Service Station, 21 FLRA No. 26 (1986), the Authority explicitly stated that in future cases, "if the Authority finds that an award granting attorney fees is deficient because it is not fully supported as required, the Authority will set aside or modify the award as appropriate," rather than remand the award to the parties for clarification and interpretation. Slip op. at 5. In this case, as evidenced in management's brief before the Arbitrator, the Agency specifically informed the Arbitrator that "should the (a)rbitrator consider such (attorney) fees appropriate, the award must comply with the requirements of 5 U.S.C. Section 7701(g) and the Federal Labor Relations Authority as established in 21 FLRA No. 35." (Management's Brief Before the Arbitrator, at 5, attached to Petition for Exception.) The Arbitrator, therefore, was aware of his obligation with applicable requirements. The failure of the parties to provide the Arbitrator with a copy of the Authority's applicable rulings does not, as the Union asserts, cure the deficiency, nor does it warrant a remand of the case for clarification. Similarly, the Arbitrator's denial of the Union's request for a Supplemental Decision, where he states that he "has no further authority in this matter(,)" does not satisfy the requirements for sustaining the Arbitrator's award of attorney fees. The Arbitrator's award of attorney fees is deficient since it was not made in accordance with the required standards. VI. Decision For the above reasons, the Arbitrator's award is modified by setting aside the award of attorney fees. /*/ Issued, Washington, D.C., November 21, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (*) In view of the Authority's decision, the Agency's request for a stay is denied as moot.