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44:1287(108)AR - - AFGE Local 1770 and Army, HQ, XVIII Airborne Corps, Fort Bragg, NC - - 1992 FLRAdec AR - - v44 p1287

[ v44 p1287 ]
The decision of the Authority follows:

44 FLRA No. 108




LOCAL 1770









May 22, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to a supplemental award of Arbitrator Millard Cass filed by the Union 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 to the Union's exceptions.

In the supplemental award, the Arbitrator denied the Union's motion for attorney fees in connection with a previous award. For the following reasons, we conclude that the Arbitrator's supplemental award is deficient and we will set aside the award.

II. Background and Supplemental Award

The underlying grievance concerned the Agency's refusal to grant the grievant 2 hours of overtime pay for attending a grievance meeting scheduled on the grievant's day off. In denying the grievance, the Arbitrator determined that applicable law and regulation did not permit advance blanket authorization of overtime, but required case-by-case determination regarding the payment of overtime. The Arbitrator held that the scheduling of the grievance meeting did not constitute the necessary case-by-case prior approval of overtime.

The Union filed exceptions to the award with the Authority. In U.S. Department of the Army, Headquarters, XVIII Airborne Corps, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 41 FLRA 62 (1991), we concluded that the Arbitrator incorrectly found that applicable law and regulation required case-by-case determinations regarding the payment of overtime. However, we were not able to determine whether, or to what extent, the award was based on the incorrect finding. We remanded the case to the parties for resubmission to the Arbitrator to determine whether the Agency had violated the parties' agreement and, if so, what remedy was appropriate.

On remand, the Arbitrator determined, in his first supplemental award, that the parties agreed to a blanket authorization of overtime pay for attendance at grievance meetings. Consequently, the Arbitrator awarded the grievant 2 hours of overtime pay.

Subsequently, the Union submitted a motion for attorney fees to the Arbitrator in connection with his award of the overtime pay. The Arbitrator denied the motion, finding that fees were not warranted "'in the interest of justice.'" Second Supplemental Award at 6. The Arbitrator stated that his

own decisions on October 1, 1990 and July 16, 1991 negate the Union's claims that the Agency's actions were "clearly without merit"; that there was a "gross procedural error"; and/or that the Agency "knew or should have known that it would not prevail on the merits of the action." The decision of October 1, 1990 denied [the grievant's] grievance, which is an answer to all three of those allegations.

Id. at 5. The Arbitrator concluded that "[n]othing in [the] history of the case meets the standards . . . for awarding attorney fees 'in the interest of justice.'" Id. at 6.

III. Positions of the Parties

A. Union's Exceptions

The Union asserts that the Arbitrator erred "as a matter of law" in failing to grant the Union's request for attorney fees. Exceptions at 1. Referring to the various factors for award of fees that were set forth by the Merit Systems Protection Board in Allen v. U.S. Postal Service, 2 MSPR 420, 434-35 (1980) (Allen), the Union claims that fees are warranted because: (1) the Agency's denial of overtime pay was clearly without merit or wholly unfounded; (2) a previous determination by the Arbitrator that an Agency witness was not credible establishes that the Agency knew or should have known that it would not prevail in arbitration; and (3) the Agency committed gross procedural error in attempting to justify its failure to provide overtime pay. The Union argues that, because the Arbitrator "did not provide a detailed, specific . . . [a]ward as to why . . . he would not allow attorney fees[,]" the Authority should overrule the Arbitrator or remand the case for proper resolution. Exceptions at 2.

B. Agency's Opposition

The Agency claims that the Arbitrator correctly found that attorney fees were not warranted in the interest of justice under standards set forth in Allen. The Agency maintains that its position was not clearly without merit because it presented "'trustworthy, admissible evidence'" by the Agency witness who drafted and negotiated the parties' agreement. Opposition at 4. The Agency also states that "[s]imply because the evidence . . . was ultimately rejected by the Arbitrator does not lead to the conclusion that the Agency knew or should have known that it would not prevail" on the merits. Id. Finally, the Agency argues that a dispute over the meaning of a collective bargaining agreement does not constitute gross procedural error.

IV. Analysis and Conclusions

The Authority has held repeatedly that, in resolving a request for attorney fees under the Back Pay Act, an arbitrator must provide a fully articulated, reasoned decision setting forth specific findings supporting determinations on each pertinent statutory requirement. For example, U.S. Department of the Army, Army Transportation Center, Fort Eustis, Virginia and National Association of Government Employees, Local R4-6, 38 FLRA 186, 191 (1990) (Fort Eustis), request for clarification denied, 40 FLRA 84 (1991). An award granting attorney fees without the proper support is set aside. For example, id.

Previously, the Authority has remanded to the parties awards denying attorney fees which were not fully articulated and reasoned. For example, U.S. Department of the Treasury, Internal Revenue Service, Oklahoma City District, Lawton, Oklahoma and National Treasury Employees Union, Chapter 45, 37 FLRA 775, 783 (1990). On review, we find no basis for resolving unarticulated denials of fees differently from unarticulated grants. Accordingly, we will set aside all unarticulated awards involving attorney fees under the Back Pay Act and previous inconsistent decisions will no longer be followed. We will continue to remand or modify other fee awards, as necessary. For example, Federal Aviation Administration, Washington Flight Service Station and National Association of Air Traffic Specialists, 27 FLRA 901 (1987) (portion of articulated award denying fees remanded; other portion modified). In so holding, we again remind the parties of their responsibilities and interests in assuring that arbitrators are advised of pertinent requirements in rendering awards.

In this case, we conclude that the Arbitrator denied attorney fees without providing a fully reasoned and articulated decision. In particular, we find that the Arbitrator's conclusions that attorney fees were not warranted do not satisfy the requirements of the Back Pay Act and that the Arbitrator made no specific findings and did not otherwise support his decision to deny fees. Accordingly, we will set aside the award.

V. Decision

The Arbitrator's award denying attorney fees is set aside.

(If blank, the decision does not have footnotes.)