48:1264(134)AR - - Navy, HQ., Naval District, Washington, DC and Fraternal Order of Police, U.S Navy Yard Labor Committee - - 1993 FLRAdec AR - - v48 p1264

[ v48 p1264 ]
The decision of the Authority follows:

48 FLRA No. 134















December 30, 1993


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Robert J. Ables 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.

A grievance was filed over the Agency's 14-day suspension of the grievant for being absent without leave (AWOL). The Arbitrator sustained the grievance. As remedy, the Arbitrator ordered the Agency to rescind the suspension and make the grievant whole for any loss of pay or benefits. However, the Arbitrator denied the Union's request for attorney fees.

For the following reasons, we conclude that the Arbitrator's award, insofar as it denies the Union's request for attorney fees is deficient and we will set aside that portion of the award. However, we conclude that the Union's remaining exceptions provide no basis for finding the award deficient. Accordingly, we will deny the remaining exceptions.

II. Background and Arbitrator's Award

The grievant was suspended for 14 days for being absent without leave (AWOL). The Union filed a grievance over the matter and, when the grievance was not resolved, it was submitted to arbitration. The issue as framed by the Arbitrator was as follows:

[W]hether the employer had cause to suspend the grievant for 14 days and [to] [issue] a 'letter of requirement', under charges the grievant was absent without leave (AWOL) on seven scheduled workdays, for a total of 56 hours, between October 12 and October 21, 1992.

Award at 1-2 (footnote omitted).

The Agency argued that it was justified in suspending the grievant because he "failed to produce specific documentation supporting his absences, . . . despite repeated oral and written instructions to do so." Id. at 2. The Union argued that the Agency was not justified in suspending the grievant because the grievant "did, in fact, provide the requested documentation." Id. at 3 (footnote omitted).

The Arbitrator found, as relevant here, that the grievant provided sufficient medical documentation to justify the absences for which he was charged AWOL. The Arbitrator concluded that "the grievant's absences . . . were excusable and the [Agency] unreasonably withheld excusing those absences." Id. at 15. The Arbitrator also concluded that the Agency did not unreasonably deny the grievant's request for advance sick leave and the Union did not establish that the Agency suspended the grievant as a reprisal for the grievant's union activity.

As his award, the Arbitrator ordered, as relevant here, the Agency to (1) expunge the 14-day suspension from the grievant's official personnel record; (2) credit the grievant with any benefits lost; and (3) pay the grievant backpay. However, the Arbitrator denied the Union's request for attorney fees, stating:

Attorney's fees to [the] union's counsel would not be authorized if the question were presented and considered during any extended period of jurisdiction, if retained. No novel, difficult, or important policy question was involved in this dispute on a 14-day suspension. The decision turned on the facts. Union['s] counsel's reward for presenting a superb argument at trial, and on post-hearing brief, must come from the client.

Id. at 16.

III. Positions of the Parties

The Union claims that the Arbitrator should have found that the Agency improperly denied the grievant's request for advance sick leave because, according to the Union, the grievant provided medical documentation. The Union also argues that the Arbitrator erred in concluding that the Union did not establish that the Agency suspended the grievant as a reprisal for the grievant's union activity. Finally, the Union claims that the Arbitrator's denial of its request for attorney fees is deficient because, in the Union's view, the Arbitrator did not address "issues that are [c]ustomarily considered in determining whether to [a]ward [a]ttorney's [f]ee's . . . ." Exceptions at 3.

The Agency claims that the Union has not demonstrated that the award is deficient.

IV. Analysis and Conclusions

When exceptions are filed to arbitration awards resolving requests for attorney fees under the Back Pay Act, the Authority's role is to ensure that the award complies with applicable statutory standards. U.S. Patent and Trademark Office and Patent Office Professional Association, 32 FLRA 375 (1988). A threshold requirement for entitlement to attorney fees under the Back Pay Act is a finding that the grievant was affected by an unjustified or unwarranted personnel action which resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials. The Back Pay Act further requires that an award of attorney fees must be: (1) in conjunction with an award of backpay to the grievant on correction of the personnel action; (2) reasonable and related to the personnel action; and (3) in accordance with the standards established under 5 U.S.C. § 7701(g). Id. at 378. The prerequisites for an award of attorney fees under section 7701(g)(1) are as follows: (1) the employee must be the prevailing party; (2) the award of fees must be warranted in the interest of justice; (3) the amount of the fees must be reasonable; and (4) the fees must have been incurred by the employee. American Federation of Government Employees, Local 12 and U.S. Department of Labor, Washington, D.C., 38 FLRA 1240, 1248 (1990).

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 Trans