49:0815(75)AR - - NAGE, Local R1-109 and VA Medical Center, Newington, CT - - 1994 FLRAdec AR - - v49 p815

[ v49 p815 ]
The decision of the Authority follows:

49 FLRA No. 75




LOCAL R1-109










April 21, 1994


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

II. Background and Supplemental Award

The initial grievance, which challenged various actions taken against the grievant by the Agency, was sustained at arbitration. As a remedy, the arbitrator in that case ordered the Agency, among other things, to make the grievant whole for any salary loss.

The Union filed another grievance (hereinafter the compliance grievance) alleging that the Agency failed to comply with the initial award and that the Agency had not properly compensated the grievant for 6 days of holiday pay owed to the grievant as a result of that award. The Arbitrator determined that the grievant had not been properly compensated pursuant to the initial award and that the grievant should have been paid for 2 days of holiday pay. The Arbitrator noted that, although the Agency had made reference in its brief to a "post-hearing payment" to the grievant, the Agency did not establish that such a payment had been made. Exceptions, Attachment B at 11. As such, the Arbitrator sustained the compliance grievance and ordered the parties to report to him regarding whether a payment had been made.

The attorney for the grievant and the Union filed a motion for attorney fees incurred solely in connection with the compliance grievance. The attorney maintained that the grievant was the prevailing party in both the underlying grievance and the compliance grievance, and that an award of attorney fees was in the interest of justice. In particular, the attorney argued that the Agency's action in refusing to comply with the original award was clearly without merit and in bad faith. The attorney also argued that the Agency knew or should have known that it failed to comply with the original award and that, as such, it could not prevail on the merits of the grievance.

In the supplemental award to which the exceptions now before us have been filed, the Arbitrator denied the request for attorney fees. The Arbitrator found, in this regard, that the Union "offered no evidence to justify the claim in its brief for compensation for all six holidays." Award at 2 (citation omitted). The Arbitrator concluded that, as the grievant was awarded pay for only two of the six holidays that occurred during the relevant period, the grievant "did not 'prevail' on 'substantially all charges.'" Id. In addition, the Arbitrator found that a fee award was not warranted in the interest of justice. In this regard, the Arbitrator noted that, in AFGE, AFL-CIO, Local 3882 v. FLRA, 962 F.2d 1053 (D.C. Cir. 1992), the court "illustrated what was needed to be characterized as a 'clear disregard of the law.'" Id. at 3. The Arbitrator further found that "[n]othing even approaching that test was present in the instant case[,] which was founded on clerical carelessness rather than intentional substantial adverse action against the employee." Id. Finally, the Arbitrator determined that the fees sought were not reasonable, and that the Union was not entitled to market rate fees.

III. Preliminary Matters

We reject the Agency's claim that the Union's exceptions were untimely. The Arbitrator's award was served on the Union on September 17, 1993. Consistent with sections 2425.1, 2429.21 and 2429.22 of the Authority's Rules and Regulations, the Union's exceptions had to be postmarked by the U.S. Postal Service, or delivered in person, no later than October 25, 1993, in order to be timely filed. The Union's exceptions were postmarked October 20, 1993. As such, we find that the Union's exceptions were timely filed.

We also reject the Agency's claim that, because the Union filed a petition for review of the supplemental award in the U.S. Court of Appeals for the Federal Circuit prior to filing its exceptions with the Authority, it is precluded from seeking review of that award from the Authority. The Agency has cited no authority, and none is apparent to us, which establishes that the Union is precluded from filing exceptions with the Authority solely because it filed a petition for review of the same award with the U.S. Court of Appeals for the Federal Circuit. As stated previously, the Union filed timely exceptions to the Arbitrator's supplemental award. As no basis for a contrary finding has been presented, we find that the Union's exceptions are properly before the Authority. See 5 U.S.C. § 7122(a); 5 C.F.R. § 2425.1.(1)

IV. Positions of the Parties

The Union contends that the Arbitrator erred in finding that the grievant was not a prevailing party. According to the Union, the grievant is a prevailing party because both the initial and compliance grievances "were expressly sustained" and, as a result, the grievant was awarded "full back pay, allowances and differentials[,]" including "two days of holiday compensation . . . ." Exceptions at 4 (emphasis in original). The Union also contends that the Arbitrator erred in finding that an award of fees is not in the interest of justice. In this regard, the Union contends that the failure of the Agency to comply with the initial arbitration award demonstrates that the Agency's actions were clearly without merit. The Union also claims that the Agency acted in bad faith and that the Agency knew or should have known it would not prevail in the compliance grievance because it was aware of the "'procedures and computations necessary to effect the r