[ v56 p477 ]
56 FLRA No. 72
U.S. DEPARTMENT OF THE NAVY
NAVAL UNDERSEA WARFARE CENTER
NEWPORT, RHODE ISLAND
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES FEDERAL UNION OF
SCIENTISTS AND ENGINEERS
June 30, 2000
Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.
Decision by Chairman Wasserman for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to a supplemental award of Arbitrator Roberta Golick filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union did not file an opposition to the Agency's exceptions. [n1]
The Arbitrator granted, without explanation, the Union's request for attorney fees. For the following reasons, we remand the case to the parties for resubmission to the Arbitrator, absent settlement, to set forth specific findings on the statutory requirements for attorney fees.
II. Background and Arbitrator's Supplemental Award
In an underlying arbitration award, the Arbitrator sustained the merits of the grievance alleging that the grievant was entitled under the Federal Employees Pay Act, 5 U.S.C. § 5542(b)(2)(B)(iv) (FEPA) to overtime pay for travel outside of duty hours. The Arbitrator directed the Agency to compensate the grievant for time spent in travel. See U.S. Department of the Navy, Naval Underseas Warfare Center, Newport, Rhode Island and National Association of Government Employees, Federal Union of Scientists and Engineers, 54 FLRA 1495 (1998) (Naval Underseas Warfare Center). The Agency filed exceptions to the underlying award and the Authority denied the exceptions. Id.
Thereafter, the Union filed a petition with the Arbitrator for an award of attorney fees in the amount of $4,387.50. [n2] The Agency filed a motion with the Arbitrator that opposed the Union's request for attorney fees. [n3]
The Arbitrator did not hold a hearing on the matter. In a supplemental award, the Arbitrator awarded the Union attorney fees. The supplemental award states, in its entirety, as follows:
I have considered the Union's petition for fees in the above-referenced matter as well as the Government's arguments in opposition. I find an award as follows:
The Union is entitled to attorney's fees it initially requested in the amount of $3,225 plus one-half the cost of this proceeding, or a total of $3,675.
The Department is directed to pay these fees to NAGE.
The Union's supplemental request is denied.
Supplemental Award. [ v56 p478 ]
III. Agency's Exceptions
The Agency contends that the supplemental award of attorney fees fails to satisfy the criteria set forth in the Back Pay Act, 5 U.S.C. § 5596. The Agency argues that the grievant "requested compensatory time rather than any pay, allowances, or differential and the payroll office determination to follow established policy does not meet the definition of an unwarranted personnel action." Exceptions at 2.
Furthermore, the Agency argues that the Arbitrator failed to show how the requirements in 5 U.S.C. § 7701(g) have been met. The Agency states that 5 U.S.C. § 7701(g) requires that: (1) the fees must have been incurred for the services of an attorney; (2) fees may be sought only by the prevailing party; (3) the award of fees must be warranted in the interest of justice; (4) the amount claimed for attorney fees must be reasonable; and (5) the award of fees must be set out in a fully articulated reasoned decision. See id.
The Agency maintains that the award of attorney fees "is merely a conclusion[.]" Id. The Agency asserts that the "arbitrator's reference to one party's brief as support for a finding of attorney fees, or a cursory statement that the arbitrator considered the necessary elements of analysis does not meet the requirement under 5 U.S.C. § 7701(g) for a fully articulated, reasoned decision." Id.
Finally, the Agency argues that, if the Authority remands this case to the parties, it would be inappropriate for the parties to resubmit this case to Arbitrator Golick because she did not properly consider the Agency's arguments in its motion opposing an award of attorney fees. In this regard, the Agency asserts that:
It appears that the agreement with the [U]nion to decide the matter for a predetermined one-day fee reflects the consideration given to the agency arguments.
Id. at 3.
IV. Analysis and Conclusions
The Authority's role in reviewing arbitration awards depends on the nature of the exceptions raised by the appealing party. See U.S. Customs Service v. FLRA, 43 F.3d 682, 686 (D.C. Cir. 1994). In National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995), the Authority stated that if the arbitrator's decision is challenged, as it is here, on the ground that it is contrary to any law, rule, or regulation, the Authority will review the legal question de novo. In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998) (Army Research, Development and Engineering Center).
A. Statutory Requirements for Attorney Fees
The threshold requirement for entitlement to attorney fees under the Back Pay Act, 5 U.S.C. § 5596 (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. National Association of Government Employees, Local R4-106 and U.S. Department of the Air Force, Langley Air Force Base, Hampton, Virginia, 55 FLRA 676, 677 (1999); Alabama Association of Civilian Technicians and U.S. Department of Defense, Alabama State Military Department, Alabama National Guard, 54 FLRA 229, 232 (1998) (Alabama National Guard). Once such a finding is made, the Back Pay Act further requires that an award of 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), which pertains to attorney fee awards by the Merit Systems Protection Board (MSPB). Alabama National Guard, 54 FLRA at 232.
5 U.S.C. § 7701(g) applies to all cases except those involving employment discrimination, and applies in this case. The prerequisites for an award of attorney fees under section 7701(g) are that: (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. See U.S. Department of the Treasury, Internal Revenue Service, Philadelphia Service Center, Philadelphia, Pennsylvania and National Treasury Employees Union, Chapter 53, 53 FLRA 1697, 1699 (1998) (NTEU); Allen v. United States Postal Service, 2 M.S.P.R. 420, 427 (1980).
An arbitrator's award resolving a request for attorney fees under section 7701(g)(1) must set forth specific findings supporting determinations on each pertinent statutory requirement. See NTEU, 53 FLRA at 1699-700; U.S. Department of Defense, Defense Distribution Region East, New Cumberland, Pennsylvania and American Federation of Government Employees, [ v56 p479 ] Local 2004, 51 FLRA 155, 158 (1995). If an award fails to contain the findings necessary to enable the Authority to assess the arbitrator's legal conclusions, and those findings cannot be derived from the record, the case will be remanded to the parties for submission to the arbitrator so that the requisite findings can be made. See Army Research, Development and Engineering Center, 53 FLRA at 1710.
B. The grievant was affected by an unjustified or unwarranted personnel action consistent with the Back Pay Act, 5 U.S.C. § 5596.
The Agency argues that its conduct toward the grievant did not constitute an unjustified or unwarranted personnel action. We reject this argument.
A violation of an applicable law, rule, regulation or provision of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action. See U.S. Department of the Army, Pine Bluff Arsenal, Arkansas and American Federation of Government Employees, Local 953, 47 FLRA 626, 629 (1993); see also 5 C.F.R. § 550.803. The cursory supplemental award did not address whether the Agency's actions constituted an unjustified or unwarranted personnel action. However, the record reveals that, in the underlying award, the Arbitrator ruled that the Agency's denial of overtime pay to the grievant for travel outside of duty hours was inconsistent with FEPA. See Naval Underseas Warfare Center, 54 FLRA at 1497. This determination by the Arbitrator that FEPA was violated constitutes a finding that the grievant suffered an unjustified or unwarranted personnel action as defined by the implementing regulations of the Back Pay Act. See 5 C.F.R. § 550.803.
Therefore, the Agency's argument provides no basis for finding the supplemental award deficient.
C. The Arbitrator's supplemental award otherwise does not contain specific findings supporting her decision to grant the Union's request for attorney fees.
The Agency argues that the Arbitrator failed to show how the requirements in 5 U.S.C. § 7701(g) have been met. The Agency asserts that the award of attorney fees "is merely a conclusion[.]" Exceptions at 2.
Before the Arbitrator, the Agency argued that the request for attorney fees did not satisfy two of the four listed requirements for an award of attorney fees under 5 U.S.C. § 7701(g): whether fees are warranted in the interest of justice and whether the fees are reasonable. However, the Arbitrator's cursory supplemental award did not make any findings as to these statutory requirements. See National Association of Government Employees, Local R4-6 and U.S. Department of the Army, Army Transportation Center, Fort Eustis, Virginia, 55 FLRA 1298, 1301 (2000) (Fort Eustis); NTEU, 53 FLRA at 1700-01. As the record does not permit the Authority to make these determinations, we remand the supplemental award to the parties for resubmission to the Arbitrator, absent settlement, for a determination of these attorney fee requirements. [n4] Fort Eustis, 55 FLRA at 1301.
We reject the Agency's argument that it would be inappropriate for the parties to resubmit this case to Arbitrator Golick because she did not properly consider the Agency's arguments in its motion opposing an award of attorney fees. The Arbitrator stated in the supplemental award that she considered "the Government's arguments in opposition." Supplemental Award. Thus, even though the award does not contain any analysis of any of the pertinent statutory requirements, the Agency has not established that the Arbitrator could not properly consider those requirements. In addition, the applicable regulations call for attorney fee decisions to be made by the "appropriate authority that corrected or directed the correction of the unjustified or unwarranted personnel action." 5 C.F.R. § 550.807(a). [n5] In this case, that would be the Arbitrator.
The award is remanded for further proceedings consistent with this decision.
Footnote # 1 for 56 FLRA No. 72
By Order dated May 26, 2000, the Authority denied the Union's request to waive the expired time limit for filing an opposition because the Union had not established extraordinary circumstances, under 5 C.F.R. § 2429.23(b), for granting such a waiver.
Footnote # 2 for 56 FLRA No. 72
After receiving the petition, the Arbitrator stated, in a letter to the Agency dated August 23, 1999, that "NAGE has remitted $900.00 to me to cover one day's study on the question of attorney fees." The Arbitrator also stated, in the letter, that she would afford the Agency one month to present its position regarding attorney fees for the Union.
Footnote # 3 for 56 FLRA No. 72
In opposition, citing to the Back Pay Act, 5 U.S.C. § 5596 and 5 U.S.C. § 7701(g), the Agency contended that the request for attorney fees should be denied. The Agency argued that, in the underlying dispute, its application of Agency travel policy did not constitute a "personnel action" for purposes of the Back Pay Act, 5 U.S.C. § 5596. Further, the Agency argued that the attorney fees were not warranted in the interest of justice under 5 U.S.C. § 7701(g). Finally, the Agency argued that the amount of attorney fees sought was excessive.
Footnote # 4 for 56 FLRA No. 72
We find no indication in the record that the Agency argued to the Arbitrator that the request for attorney fees did not satisfy the other listed requirements in 5 U.S.C. § 7701(g): whether the employee was the prevailing party and whether fees were incurred by the employee. Accordingly, the Agency is precluded under section 2429.5 from doing so for the first time here. See, e.g., U.S. Department of the Interior, National Park Service, Golden Gate National Recreation Area, San Francisco, California and Laborers' International Union of North America, Local 1276, 55 FLRA 193, 195 (1999) (under section 2429.5 of the Authority's Regulations, the Authority will not consider issues that could have been, but were not, raised before the arbitrator).
Footnote # 5 for 56 FLRA No. 72
In its exceptions, the Agency claims, in a headnote, that the award is "contrary to public policy." We do not address this claim, as captioned, because the Agency's arguments in support of it are not distinct from those in support of the contrary to law exception.