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61 FLRA No. 162
OF GOVERNMENT EMPLOYEES
SOCIAL SECURITY ADMINISTRATION
September 26, 2006
Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Anna DuVal Smith filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator found that the grievant's suspension was not for just cause. The Arbitrator denied the Union's request for attorney fees. The Union excepts only to the Arbitrator's denial of the Union's request for attorney fees.
For the following reasons, we remand the award to the parties, absent settlement, for resubmission to the Arbitrator for clarification of the award.
II. Background and Arbitrator's Award
The Agency suspended the grievant for unauthorized access of the Agency's electronic systems of records. The Agency determined that the grievant had "no legitimate business-related reason" to access the records of three individuals. Award at 4. The Union filed a grievance, which the parties could not resolve, and the matter was submitted to arbitration. The Arbitrator framed the issues as "Does the Agency have just cause to discipline the [g]rievant and, if not, what is the remedy?" Id. (emphasis omitted).
On the merits of the case, the Arbitrator stated that Article 23, Section 1 of the parties' collective bargaining agreement requires "just cause for discipline." Id. at 7. The Arbitrator found that the burden was on the Agency to prove by a preponderance of the evidence that the suspension of the grievant for the unauthorized access of Agency records was for just cause. See id.
The Arbitrator determined "that the Agency did not meet its burden of proof and therefore had no just cause for disciplining the [g]rievant" as was required by Article 23 Section I of the parties' collective bargaining agreement. Id. at 10. The Arbitrator found that the grievant's access of the record for each of the three individuals "has possible legitimacy at least as probable as illegitimacy" and that the Agency did not prove that the grievant had no legitimate business-related reason to access the records of the three individuals. Id. at 8. Thus, the Arbitrator sustained the grievance.
The Arbitrator, based on his finding that the Agency violated Article 23, Section 1 of the parties' agreement, awarded the grievant back pay and interest for the two-day suspension. See id. However, the Arbitrator denied the Union's request for attorney fees. See id. In so doing, the award states in entirety:
The request for attorney's fees is denied as there was no showing of bad faith, gross procedural error or other Agency action that would warrant such an award.
III. Positions of the Parties
A. Union's Exceptions
The Union contends that the Arbitrator's denial of attorney fees violates the Back Pay Act, 5 U.S.C. § 5596. See Exceptions at 3. The Union claims that the grievant was affected by an unjustified or unwarranted agency personnel action, which resulted in the withdrawal of her pay for the term of the suspension. The Union also asserts that the grievant was the prevailing party and that an award of fees is in "the interest of justice" because the Allen factors have been met. [n1] Id. at 5, 6.
Citing the second Allen factor, the Union claims that the award "established that that grievant was "substantially innocent of the charges brought by the [a]gency" and "that she was cleared, completely, of the charges[.]" Id. at 5. Citing the third and fifth Allen factors, the Union argues the Agency's actions were taken in bad faith and that it should have known it would not prevail on the merits when it brought the proceeding. In [ v61 p809 ] this regard, the Union asserts that the "Agency['s] actions appear to have originate simply because the employee had been an acquaintance of a person publicized to be a crook." Id. The Union further argues that, based on the Agency's actions, "employee[s] will be inclined to document all their access [of records] unnecessarily, loosing the benefits and [the] efficiencies . . . to the public." Id. at 6.
Finally, the Union maintains that the denial of attorney fees by the Arbitrator is based on "narrow and unarticulated" grounds and, thus, fails to comply with statutory standards. Exceptions at 3. In this regard, the Union asserts that the Arbitrator "did not provide a fully articulated decision." Id. at 6.
B. Agency's Opposition
The Agency contends that attorney fees are not warranted in the interest of justice, as required under the Back Pay Act. In the alternative, the Agency requests that the award be remanded to the Arbitrator, if the Authority finds that the Arbitrator's explanation for the denial attorney fees was "insufficient." Opposition at 7 n.3.
IV. Analysis and Conclusions
The Union argues that the Arbitrator's denial of attorney fees is contrary to the Back Pay Act. When a party's exceptions involve an award's consistency with law, the Authority reviews the question of law and the arbitrator's award de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a de novo standard of review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. Id.
The threshold requirement for entitlement to attorney fees under the Back Pay Act, 5 U.S.C. § 5596, 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. See United States Dep't of Defense, Defense Distribution Region E., New Cumberland, Pa., 51 FLRA 155, 158 (1995). 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). See id.
The prerequisites for an award of attorney fees under § 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 id.
The Arbitrator did not articulate the reasons for denying the Union's request for attorney fees and the record, as submitted to the Authority, does not contain any evidence that would assist the Authority in determining the Arbitrator's basis for denying the Union's request for attorney fees. The Authority's approach to attorney fees awards under the Back Pay Act that are not sufficiently explained is to "take the action necessary to assure that the award is consistent with applicable statutory standards." See United States Dep't of Agric., Animal and Plant Health Inspection Serv., Plant Prot. and Quarantine, 53 FLRA 1688, 1695 (1998) (Animal and Plant Health Inspection Serv.) (citing NAGE, Local R5-188, 46 FLRA 458 (1992)).
With respect to the interest of justice standard, the Arbitrator specifically cited two of the interest of justice factors, finding that "there was no showing of bad faith, gross procedural error or other Agency action that would warrant such an award." Award at 10. However, the Arbitrator did not explain the basis of those findings or specifically address the other interest of justice factors. In addition, the Arbitrator did not address, and the record does not reveal, whether the fees as [ v61 p810 ] requested were reasonable, or were incurred by the employee.
Because the Arbitrator has not sufficiently explained the "determination of a pertinent statutory requirement" and the record does not permit the Authority to resolve the Union's exception, we remand this portion of the award to the parties, absent settlement, for resubmission to the Arbitrator to clarify, consistent with the foregoing standards, the reasons for the denial of attorney fees. See Animal and Plant Health Inspection Serv., 53 FLA at 1695. See also, AFGE, Council 220, 60 FLRA 1, 4 (2004).
We remand the award to the parties, absent settlement, for resubmission to the arbitrator for clarification of her award, consistent with this decision.
Footnote # 1 for 61 FLRA No. 162 - Authority's Decision
See Allen v. United States Postal Serv., 2 M.S.P.R. 420 (1980) (Allen). According to Allen, an award of attorney fees is warranted in the interest of justice if: (1) the agency engaged in a prohibited personnel practice; (2) the agency actions are clearly without merit or wholly unfounded, or the employee is substantially innocent of charges brought by the agency; (3) the agency actions are taken in bad faith to harass or exert improper pressure on an employee; (4) the agency committed gross procedural error which prolonged the proceeding or severely prejudiced the employee; or (5) the agency knew or should have known it would not prevail on the merits when it brought the proceeding. The Authority has also stated that an award of attorney fees is warranted in the interest of justice when there is either a service rendered to the Federal workforce or there is a benefit to the public derived from maintaining the action. United States Dep't of the Army, Red River Army Depot, Texarkana, Tex., 39 FLRA 1215, 1223 (1991) (citing Naval Air Dev. Ctr., Dep't of the Navy, 21 FLRA 131, 139 (1986)). An award of fees is warranted if any of these criteria is satisfied. See United States Dep't of Def., Def. Mapping Agency, Hydrographic/Topographic Ctr., Wash., D.C., 47 FLRA 1187, 1194 (1993).