50:0048(11)AR - - AFGE, National Council of EEOC Locals No. 216 and EEOC, Philadelphia District Office - - 1994 FLRAdec AR - - v50 p48

[ v50 p48 ]
The decision of the Authority follows:

50 FLRA No. 11














December 14, 1994


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.(1)

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Jerome H. Ross 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 exception.

The award denied the Union's request for attorney fees. The Union argues that the award is contrary to law.

For the following reasons, we conclude that the Union has failed to establish that the award is deficient under section 7122(a)(1) of the Statute. Accordingly, we deny the exception.

II. Background and Arbitrator's Award

The Arbitrator sustained, in part, a grievance over the Agency's 14-day suspension of the grievant and reduced the suspension to an oral reprimand. The Authority denied the Agency's exceptions to that award in American Federation of Government Employees, National Council of EEOC Locals No. 216 and U.S. Equal Employment Opportunity Commission, 49 FLRA 906 (1994).

The Union filed a request for attorney fees with the Arbitrator. The Arbitrator noted that, by sustaining a grievance that included a request for backpay as a remedy, his initial award "presumed that backpay will be paid, with any accrued benefits." Award at 1. Applying the standards governing an award of attorney fees under the Back Pay Act, the Arbitrator found that the Union was the prevailing party in the initial award but that payment of attorney fees was not warranted in the interest of justice. In this regard, the Arbitrator found that: (1) the Agency did not engage in a prohibited personnel practice; (2) the Agency's action in disciplining the grievant was not clearly without merit or wholly unfounded; (3) the grievant was not substantially innocent of the majority of charges brought by the Agency; (4) the Agency did not initiate the charges against the grievant in bad faith; (5) the Agency did not commit a gross procedural error which prolonged the proceeding or severely prejudiced the grievant; and (6) the Agency did not know, nor should it have known, that it would not prevail on the merits when it brought the proceeding. Consequently, the Arbitrator denied the Union's request for attorney fees.

III. Exception

A. Union's Contentions

The Union contends that the award is deficient because the Arbitrator improperly concluded that attorney fees were not warranted in the interest of justice. The Union argues that an award of attorney fees is warranted in this case because the fees are related to the Arbitrator's award reversing the grievant's suspension and requiring the Agency to pay the grievant backpay. The Union contends that but for the Agency's unjustified suspension of the grievant, the Union would not have incurred attorney fees and the costs of litigation.

B. Agency's Opposition

According to the Agency, in order to sustain a claim for attorney fees, the Union must demonstrate, among other things, that fees are warranted in the interest of justice. The Agency notes the interest of justice criteria set forth in 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) and argues that, after a review of the findings in his initial award, the Arbitrator found in a fully supported determination that the Union's request did not meet any of those criteria. Additionally, the Agency contends that attorney fees could have been denied based on the principle of functus officio because the Arbitrator had no authority to issue another decision or modify his initial award.(2)

IV. Analysis and Conclusions

The Union has not demonstrated that the Arbitrator's conclusions as to any of the interest of justice criteria are deficient. Rather, the Union merely disagrees with the Arbitrator's conclusions. As such, the Union has not demonstrated that the award is contrary to law. See, for example, U.S. Patent and Trademark Office and Patent Office Professional Association, 32 FLRA 375, 378 (1988).

V. Decision

The Union's exception is denied.

(If blank, the decision does not have footnotes.)

1. Member Talkin did not participate in this decision as this case arose during her tenure as Chief of Staff of the Equal Employment Opportunity Commission.

2. The principle of functus officio means that once an official has fulfilled the function or accomplished the designated purpose of his or her office, the official has no further authority. National Treasury Employees Union, National Treasury Employees Union Chapter 33 and U.S. Internal Revenue Service, Phoenix District, 44 FLRA 252, 263 (1992). In light of our disposition of this case, we do not address the Agency's argument regarding functus officio.