45:0971(96)AR - - Army, Fort Polk, LA and NAGE Local R5-168 - - 1992 FLRAdec AR - - v45 p971

[ v45 p971 ]
The decision of the Authority follows:

45 FLRA No. 96








LOCAL R5-168



(44 FLRA 1548 (1992))


August 21, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on a motion for reconsideration of 44 FLRA 1548 (1992), filed by the Union under section 2429.17 of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's motion.(1)

We conclude that the Union fails to establish that extraordinary circumstances exist warranting reconsideration of our decision in 44 FLRA 1548. Accordingly, we will deny the Union's motion.

II. The Decision in 44 FLRA 1548

In 44 FLRA 1548, as relevant here, we found that the Arbitrator's denial of the Union's motion for attorney fees was contrary to the Back Pay Act, 5 U.S.C. ° 5596. Accordingly, we modified the award to strike the denial of fees.

In denying the Union's motion for attorney fees, the Arbitrator had concluded that an award of fees was not warranted in the interest of justice because the Agency's position was "decided by litigating the issue[]" and was not in "bad faith." 44 FLRA at 1550 (quoting Award at 7). In the Arbitrator's view, "[t]he fact that the Grievance was sustained does not justify in itself the award of attorney's fees and costs." Id. (quoting Award at 7).

We found that the Arbitrator's denial of fees was deficient because the Arbitrator had failed to provide a fully articulated, reasoned decision as required by the Back Pay Act. In finding the denial deficient, we noted our decision in American Federation of Government Employees, Local 1770 and U.S. Department of the Army, Headquarters, XVIII Airborne Corps, Fort Bragg, North Carolina, 44 FLRA 1287 (1992) (Ft. Bragg). In Ft. Bragg, we had reexamined our approach to arbitration awards denying requests for attorney fees without providing the required fully articulated, reasoned decision. We held in Ft. Bragg that as with awards granting fees without the proper support, we would find these awards deficient, and we would strike the portion of the award denying the fees. Id. at 1290. We advised that in such cases, we would no longer remand the issue of attorney fees to the parties for further proceedings. Accordingly, consistent with the approach set forth in Ft. Bragg, we modified the award in 44 FLRA 1548 to strike the denial of fees.

III. Positions of the Parties

The Union requests that the Authority reconsider its decision "to a small degree" to provide for a remand of the attorney fee issue to the Arbitrator. Motion for Reconsideration at 2. The Union maintains that the decision does not make clear what steps are necessary for the Union to obtain a decision on the requested attorney fees. The Union submits that it would be "more prudent for the Authority to follow the course of federal and state courts and other administrative bodies of remanding cases in which Arbitrators incorrectly address the issues presented." Id.

The Agency contends that the Union has failed to provide extraordinary circumstances to warrant reconsideration of the Authority's decision. The Agency argues that, consistent with Authority precedent, there is no basis on which the Union can obtain fees in this dispute. The Agency claims that although the Union may not agree with this precedent, its application is clear.

IV. Analysis and Conclusions

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish the existence of "extraordinary circumstances" to request reconsideration of a decision of the Authority. We conclude that the Union has not established extraordinary circumstances within the meaning of section 2429.17 to warrant reconsideration of our decision in 44 FLRA 1548.

We reject the Union's claim that the decision in 44 FLRA 1548 is not clear. In U.S. Department of the Army, Army Transportation Center, Fort Eustis, Virginia and National Association of Government Employees, Local R4-6, 40 FLRA 275 (1991) (Ft. Eustis), we reviewed the effect of striking an award of attorney fees. We noted that in National Association of Air Traffic Specialists and Federal Aviation Administration, Washington Flight Service Station, 21 FLRA 169, 172-73 (1986), the Authority explicitly stated that in future cases an award of attorney fees without the required support would be set aside or modified, as appropriate, rather than remanded to the arbitrator. We also noted that in U.S. Army Transportation Center, Ft. Eustis, Virginia and National Association of Government Employees, Local R4-106, 34 FLRA 601 (1990) (NAGE Local R4-106), we similarly denied the Union's request for a clarification of the Authority's decision in 33 FLRA 391 (1988), in which the Authority had set aside, in part, an arbitration award. In NAGE Local R4-106, we also denied the union's request that the case be remanded to the arbitrator. In NAGE Local R4-106, the union had requested that we clarify the decision in 33 FLRA 391 to provide instruction as to whether the case had been remanded to the arbitrator for a more complete opinion or whether the case had been dismissed. The union had argued that the arbitrator had sufficient information to render a decision that would not be deficient. In the union's view, the appropriate action was to set aside the award and remand it to the arbitrator.

In NAGE Local R4-106, we found no need to clarify the Authority's decision in 33 FLRA 391. We held that when the Authority sets aside an award, the award is dismissed as to the portion set aside. We also found no basis to remand the award to the arbitrator. We held that once we find an award deficient and set the award aside, "a claim that the Arbitrator could now render a legally sufficient decision does not establish a basis on which to remand this case to the Arbitrator." 34 FLRA at 604.

In Ft. Eustis, we advised the union, which was represented by the same attorney representing the Union in this case, that "these cases mean that when the Authority