32:0750(107)AR - - FAA, National Aviation Facilities Experimental Center and NFFE Local 1340 - - 1988 FLRAdec AR - - v32 p750
[ v32 p750 ]
The decision of the Authority follows:
32 FLRA No. 107
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
FEDERAL AVIATION ADMINISTRATION
NATIONAL AVIATION FACILITIES
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1340
Case No. 0-AR-1492
I. Statement of the Case
This matter is before the Authority on an exception to the arbitration award of Arbitrator Ernest Weiss. The Arbitrator denied the Union's request for an award of attorney fees.
The Union filed an exception to the award 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 Agency filed an opposition.
We conclude that the award is contrary to law. As explained below, the Arbitrator failed to apply the correct standard under 5 U.S.C. § 7701(g)(1) for determining whether the Union's request is warranted in the interest of justice. We remand the award to the parties for further proceedings consistent with this decision.
In a prior grievance award, the Arbitrator vacated the 3-day suspension of the grievant and awarded the grievant 3 days of backpay. The grievant had been charged with negligent work performance and giving false information to his supervisor. On the basis of the evidence and testimony, the Arbitrator found that the Activity had not proved the two charges. Arbitrator's Decision at 6. Accordingly, the Arbitrator ruled that the suspension "was not taken for such cause as will promote the efficiency of the service." Award of Arbitrator.
The Union then filed a request for an award of attorney fees with Arbitrator Weiss under 5 U.S.C. §§ 5596 and 7701(g). The Arbitrator's award resolving the request for attorney fees is in dispute in this case.
III. Arbitrator's Award
The Arbitrator denied the Union's request for an award of attorney fees on the grounds that the Activity (1) had reason for bringing charges against the employee and (2) could not have known in advance that it would "lose the case in arbitration."
IV. Positions of the Parties
The Union contends that its request for fees is warranted in the interest of justice. The Union argues that the Authority, the Merit Systems Protection Board, and the U.S. Court of Appeals for the Federal Circuit have all recognized that an award of attorney fees under 5 U.S.C. §§ 5596, 7701(g) is warranted in the interest of justice when an appeal of the agency's charges against an employee shows that the employee is substantially innocent. The Union maintains that based on the result of the case before the Arbitrator, the grievant was substantially innocent of the charges. Accordingly, the Union claims that its request is warranted in the interest of justice and that the arbitrator's ruling to the contrary is deficient. The Union also claims that all other statutory requirements have been met and that fees should have been awarded in the amount of its request.
The Agency contends that the Arbitrator's determination is fully consistent with applicable legal requirements.
V. Analysis and Conclusions
The Arbitrator failed to apply the correct standard for determining whether the Union's request is warranted in the interest of justice. In United States Department of Housing and Urban Development, Region VI and United States Department of Housing and Urban Development, Region VI, San Antonio Area Office, 24 FLRA 885, 888-89 (1986), based on decisions of the United States Court of Appeals for the Federal Circuit, we explained that requests for attorney fees under 5 U.S.C. §§ 5596 and 7701(g)(1) are warranted in the interest of justice when the result of the appeal shows that (1) an agency's action against an employee was "clearly without merit" or "wholly unfounded," or (2) the employee was "substantially innocent" of the Agency's charges. We also explained that when the result of the appeal shows that the agency's action was in error on any of these grounds, an award of reasonable attorney fees is warranted in the interest of justice. Yorkshire v. MSPB, 746 F.2d 1454 (Fed. Cir. 1984).
If the result of the appeal shows that (1) an agency's action was "clearly without merit" or "wholly unfounded," or (2) the employee was "substantially innocent," a determination as to whether the attorney fees are warranted in the interest of justice should not be made by references to the agency's motivation at the time it initiated its action. Boese v. Department of the Air Force, 784 F.2d 388 (Fed. Cir. 1986). See also, Naval Air Development Center, Department of the Navy and American Federation of Government Employees, Local 1928, AFL-CIO, 21 FLRA 131, 138, 158 (1986)(NADC).
The "substantially innocent" standard is not satisfied by an employee who deliberately fails to communicate facts which would lead the deciding official to decide to modify or overturn the disciplinary action. Wise v. MSPB, 780 F.2d 997, 1000 (Fed. Cir. 1985); NADC, 21 FLRA at 138. However, a decision that an employee is "substantially innocent" of the agency charges requires a determination that reasonable attorney fees are warranted in the interest of justice.
The Arbitrator did not apply the "substantially innocent" standard in the instant case. Therefore, the Arbitrator's award conflicts with the requirements of 5 U.S.C. § 7701(g).
This award differs from the award in U.S. Patent and Trademark Office and Patent Office Professional Association, 32 FLRA 375 (1988). In Patent Office and Trademark Office the arbitrator applied the correct standard in deciding that the union's fee request was not warranted in the interest of justice. We concluded that the arbitrator's determination was not contrary to law. Therefore, we denied the union's exception to the award because the union simply disagreed with the arbitrator's conclusions u