45:0830(77)AR - - NAGE Local R14-52 and Red River Army Depot, Texarkana, TX - - 1992 FLRAdec AR - - v45 p830
[ v45 p830 ]
The decision of the Authority follows:
45 FLRA No. 77
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Lawrence Mann, Jr. 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 did not file an opposition to the Union's exception.
The Arbitrator sustained the grievance of employees who claimed that they received performance ratings that were not in accordance with the requirements of the parties' collective bargaining agreement. As his award, the Arbitrator ordered the Agency to give the grievants higher performance ratings and pay them any cash awards due them as the result of the higher ratings. The Arbitrator denied the Union's request for attorney fees.
The Agency filed an exception to the Arbitrator's award that was docketed as Case No. 0-AR-2259. The Agency's exception was resolved in U.S. Department of the Army, Red River Army Depot, Texarkana, Texas and National Association of Government Employees, Local R14-52, 45 FLRA 626 (1992). In 45 FLRA 626, we found that the award was deficient and modified the award to require the Agency to reevaluate the grievants to determine their proper ratings and to pay them any cash awards that may be connected with those ratings.
The Union excepts to that part of the Arbitrator's award denying attorney fees. For the following reasons, we conclude that the Arbitrator's denial of attorney fees is deficient. We will remand the issue of attorney fees to the parties for action in accordance with this decision.
II. Background and Arbitrator's Award
The Union filed a grievance contesting the fully successful performance ratings of eight grievants who were employed as WG-11 machinists. The Union claimed that the Agency had not objectively evaluated the grievants as required by the performance rating plan in the parties' collective bargaining agreement and sought to have the grievants' summary performance ratings raised to exceptional. The grievance was submitted to arbitration.
The Arbitrator found that the Agency had failed to comply with the performance rating plan contained in the parties' agreement and ordered that the grievants be given summary performance ratings of exceptional, along with any cash awards connected with the higher ratings. The Arbitrator denied the Union's request for attorney fees, stating:
With respect to attorney's fees, I am of the opinion that no attorney's fees should be awarded in this matter. I can find no reference to awarding of attorney's fees in this collective bargaining agreement. Since the traditional American rule is that attorney's fees are generally not awarded, and the Arbitrator may decide only issue[s] submitted for arbitration, the burden is on the [Union] to demonstrate that an award of attorney's fees was within the scope of arbitrable issues. [The Union] cannot validly assert the existence of a custom so universal that the parties may be deemed to have agreed to arbitration with an understanding that attorney['s] fees might be awarded. Instead, the general understanding is to the contrary.
Award at 6-7.
The Agency filed an exception to the merits of the award with the Authority and maintained that the award failed to comply with the test established in Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156 (1988) (SSA I) and described in U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1122, 34 FLRA 323, 328 (1990) (SSA II). We found that the Arbitrator met the first part of the test in SSA I and SSA II by finding that the Agency had not applied the established elements and standards in accordance with the performance rating plan and the parties' collective bargaining agreement. Therefore, we concluded that the Arbitrator properly sustained the grievance and properly could cancel the grievants' performance ratings.
However, we found that the Arbitrator failed to comply with the second part of the test in SSA I and SSA II because the Arbitrator's finding regarding the grievants' performance did not constitute a proper determination under SSA I and SSA II of what rating or ratings the grievants' performance would have received if the grievants had been properly appraised. Therefore, we set aside that portion of the Arbitrator's award directing the Agency to raise the grievants' performance ratings, and modified the award by directing the Agency to
reevaluate the grievants for the appraisal period in dispute to determine the ratings the grievants would have been granted had they been appraised as required by the collective bargaining agreement and remit to them any cash award that may be connected with those ratings.
45 FLRA at 629-30. Our decision in 45 FLRA 626 did not address the issue of attorney fees because the parties did not raise that issue in that proceeding.
III. The Union's Exception
The Union asserts that the Arbitrator's denial of attorney fees is contrary to the Back Pay Act, 5 U.S.C. ° 5596, and to established precedent. The Union contends that the Arbitrator erred when he stated that he had no jurisdiction to award attorney fees in the absence of an agreement provision authorizing attorney fees and in view of the "traditional American rule" that attorney fees are not awarded. Exceptions at 2, quoting Award at 7.
The Union maintains that it informed the Arbitrator of his authority to award attorney fees under the Back Pay Act and "properly addressed . . . the legal standards upon which an arbitrator can render attorney fees" under Authority precedent. Id. at 3. The Union asks that the Arbitrator's denial of attorney