[ v45 p214 ]
The decision of the Authority follows:
45 FLRA No. 16
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 Lawrence W. Kennelly filed on behalf of 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 to the Agency's exceptions.
In the supplemental award, the Arbitrator awarded the Union attorney fees in connection with an earlier award. The Agency contends that the Arbitrator's award of attorney fees is contrary to law.
For the reasons discussed below, we conclude that the Agency has failed to establish that the supplemental award is deficient. Therefore, we will deny the exceptions.
II. Background and Supplemental Arbitration Award
The underlying grievance challenged the Agency's refusal to add a "third longevity step" to its teachers' salary schedule. Supplemental Award at 1. In particular, the Union objected to the Agency's method of calculating certain survey data. The Arbitrator sustained the grievance and ordered the Agency to provide teachers with a third longevity step retroactive to the 1989-90 school year. Subsequently, the Union asked the Arbitrator to award attorney fees.
In his supplemental award, the Arbitrator determined that the Agency, in refusing to establish a third longevity step, disregarded applicable law and a prior arbitration award involving a similar issue. The Arbitrator also determined that the Agency's method of calculating relevant survey data was inconsistent with the method it used in connection with the establishment of minimum and maximum salaries. The Arbitrator concluded that the Agency knew that its reliance on the survey data at issue was not proper and, therefore, that an award of attorney fees to the Union was warranted in the interest of justice. Accordingly, the Arbitrator awarded attorney fees to two attorneys, Austin and Nguyen, who represented the Union in this matter.
III. Agency's Exceptions
The Agency asserts that attorney fees are not warranted in the interest of justice because it had no authority to add a third longevity step to the salary schedule for Agency teachers. According to the Agency, the Department of Defense Wage Fixing Authority had sole authority to establish such a step. The Agency also argues that, even if it had authority to add a third longevity step, it could not have known that the Arbitrator would disapprove of the statistical method used to justify its refusal to do so. In addition, the Agency asserts that, because of errors in the award, the award must be modified.
IV. Union's Opposition
The Union contends that the Agency "is merely trying to relitigate the merits of the case." Opposition at 4. The Union also asserts that an award of attorney fees is warranted in the interest of justice because the Agency knew or should have known that its method for determining whether to establish a third longevity step was not proper. In addition, the Union contends that the errors referred to by the Agency are typographical and do not alter the Arbitrator's decision. Finally, the Union requests that the Authority remand the matter to the Arbitrator for consideration of additional attorney fees for time spent responding to the Agency's exceptions.
V. Analysis and Conclusions
We construe the Agency's allegation that fees are not warranted because it had no authority to add the disputed third longevity step to its pay scale as an assertion that the award is based on a nonfact. In order for an award to be found deficient because it is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. See U.S. Department of the Air Force, Griffis Air Force Base, Rome, New York and American Federation of Government Employees, Local 2612, 39 FLRA 889, 893 (1991). In this case, the Agency fails to demonstrate that the Arbitrator's factual findings are clearly erroneous. In our view, the Agency's contention concerning its authority to revise the pay scale constitutes nothing more than disagreement with the Arbitrator's finding that the Agency made "final decisions" on the salaries of its teachers. Original Award at 4. Consequently, we conclude that this exception provides no basis for finding the award deficient.
Further, we reject the Agency's argument that the Arbitrator erred in concluding that attorney fees were warranted in the interest of justice. The Authority has recognized certain requirements for determining when an award of attorney fees is warranted in the interest of justice, including whether the agency knew or should have known it would not prevail on the merits when it brought the proceeding. See U.S. Department of the Army, Red River Army Depot, Texarkana, Texas and National Association of Government Employees, Local R14-52, 39 FLRA 1215, 1222-23 (1991) (Red River Army Depot). An award of attorney fees is warranted in the interest of justice if any of those requirements are met.1/ Id. at 1222.
We disagree with the Agency's contention that, assuming it had authority to add a third longevity step, the Arbitrator incorrectly found that it knew that its reliance on the survey data at issue was not proper and, therefore, that attorney fees were warranted in the interest of justice because the Agency knew or should have known that it would not prevail on the merits. We conclude that the Agency has not demonstrated that the Arbitrator's finding is erroneous or that it violates applicable law or regulation. See, for example, United States Department of the Navy, Norfolk Naval Shipyard and American Federation of Government Employees, Local 4015, 34 FLRA 725, 733 (1990). Accordingly, the Agency has failed to show that the award of attorney fees is deficient.
Finally, we reject the Agency's assertion that, because of errors in the award, the award must be modified. We note that the Arbitrator initially stated that $165.00 per hour would be a fair rate for Austin. However, on three subsequent occasions, the Arbitrator described Austin's rate as $190.00 per hour. Further, as the Arbitrator awarded $722.00 to Austin for 3.8 hours of work, it is clear that the Arbitrator awarded fees at a rate of $190.00 per hour and there is no need to modify the award on this point.2/
The Agency's exceptions are denied.3/
(If blank, the decision does not have footnotes.)
1/ An award of fees is warranted in the interest of justice in cases: (1) involving prohibited personnel practices; (2) where agency actions are clearly without merit or wholly unfounded, or where the employee is substantially innocent of charges brought by the agency; (3) when agency actions are taken in bad faith to harass or exert improper pressure on an employee; (4) when gross procedural error by an agency prolonged the proceeding or severely prejudiced the employee; (5) where the agency knew or should have known it would not prevail on the merits when it brought the proceeding; or (6) where there is either a service rendered (Footnote continued on next page.) to the Federal work force or there is a benefit to the public derived from maintaining the action. Red River Army Depot, 39 FLRA at 1222-23.
2/ We also note that, although the Arbitrator awarded fees to Nguyen for 513.4 hours of work, the parties agree that the correct number of hours is 153.4. Therefore, despite the Arbitrator's apparent typographical error, we find no basis for modifying the award.
3/ We find no basis on which to remand the case to the Arbitrator for consideration of additional fees. However, the Union may direct its request to the Arbitrator within a reasonable time after the issuance of this decision. See Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 32 FLRA 417, 421 (1988).