[ v21 p169 ]
21:0169(26)AR
The decision of the Authority follows:
21 FLRA No. 26
NATIONAL ASSOCIATION OF
AIR TRAFFIC SPECIALISTS
Union
and
FEDERAL AVIATION ADMINISTRATION,
WASHINGTON FLIGHT SERVICE STATION
Activity
Case No. 0-AR-1029
(20 FLRA No. 87)
ORDER GRANTING REQUEST FOR RECONSIDERATION
I. STATEMENT OF THE CASE
This matter is before the Authority on a request filed by the Union
seeking reconsideration of the Authority's decision of November 25,
1985, setting aside the Arbitrator's award of attorney fees.
II. BACKGROUND
The Arbitrator determined that there was not just cause to suspend
the grievant and awarded him backpay and benefits for the period of the
suspension. The grievant subsequently requested an award of attorney
fees and the Arbitrator, after quoting the relevant provisions of the
Back Pay Act, 5 U.S.C. 5596, summarily concluded that application of the
statutory requirements resulted in a determination that the grievant was
entitled to the fees requested. The Arbitrator therefore awarded the
grievant attorney fees in the amount of $6,790. In its exceptions to
the award of attorney fees, the Agency contended, among other things,
that the award was contrary to the Back Pay Act because it was not in
accordance with the standards established under 5 U.S.C. 7701(g).
Specifically, the Agency argued on the basis of the Authority's decision
in International Brotherhood of Electrical Workers and United States
Army Support Command, Hawaii, 14 FLRA 680 (1984), that the Arbitrator
failed to provide a fully articulated, reasoned decision as required.
The Authority agreed with the Agency. The Authority found that the
Arbitrator's decision and award of fees was not in accordance with
standards established under section 7701(g) as expressly required by the
Back Pay Act. The Authority found that Arbitrator failed to provide a
fully articulated, reasoned decision setting forth his specific findings
supporting the determination on each pertinent statutory requirement,
including the bases on which he had determined that $5,790 was a
reasonable amount of attorney fees. Accordingly, the Authority
concluded that the award of attorney fees was deficient as contrary to
the Back Pay Act and therefore set aside the award. The Authority also
found that it was not necessary to address the Agency's other exceptions
to the attorney fees award.
III. REQUEST FOR RECONSIDERATION
In its request for reconsideration, the Union essentially contends,
on legal and equitable grounds, that rather than set the award aside the
Authority should have remanded the case to the parties and directed them
to seek a fully articulated determination from the Arbitrator as to
basis for his award. In support of its contention that a remand order
was appropriate, the Union argues that in Army Support Command, Hawaii,
where the Authority also found that the award of attorney fees was not
properly supported, the authority remanded that case to the parties.
The Union further argues that while the Arbitrator's award of attorney
fees in this case was rendered subsequent to the Army Support Command
decision, that fact alone does not provide a sufficient basis for a
different result in the essentially similar circumstances of this case.
The Agency filed opposition to the Union's request for reconsideration,
contending that the Union had not demonstrated extraordinary
circumstances.
IV. ANALYSIS AND CONCLUSIONS
Section 2429.17 of the Authority's Rules and Regulations permits a
party that can establish "extraordinary circumstances" to move for
reconsideration of a final decision of the Authority. Upon careful
consideration of the Union's request and the Agency's opposition, the
Authority concludes that reconsideration is warranted.
In Army Support Command, Hawaii, the Authority, for the first time,
had addressed in detail the statutory requirements regarding awards of
attorney fees. In that case, the Authority said, in pertinent part:
As previously recognized by the Authority, a threshold requirement
for entitlement to attorney fees under the Back Pay Act is a finding
that the grievant had been affected by an unjustified or unwarranted
personnel action which has resulted in the withdrawal or reduction of
the grievant's pay, allowances, or differentials. Department of Defense
Dependents Schools and Overseas Education Association, 3 FLRA 259, 263
(1980). Further, a reading of the Back Pay Act indicates that an award
of attorney fees must be in conjunction with an award of backpay to the
grievant on correction of the personnel action, that the award of
attorney fees must be reasonable and related to the personnel action,
and the award of attorney fees must be in accordance with the standards
established under 5 U.S.C. 7701(g). Section 7701(g) prescribes that for
an employee to be eligible for an award of attorney fees, the employee
must be the prevailing party. Section 7701(g)(1), which applies to all
cases except those of discrimination, requires that an award of attorney
fees must be warranted "in the interest of justice," that the amount
must be reasonable, and that the fees must have been incurred by the
employee ...
The standards established under section 7701(g) further require a
fully articulated; reasoned decision setting forth the specific
findings supporting the determination on each pertinent statutory
requirement, including the basis upon which the reasonableness of the
amount was determined when fees are awarded. See, e.g., Allen v. U.S.
Postal Service, 2 MSPB 582 (1980); Kling v. Department of Justice, 2
MSPB 620 (1980); see also 5 CFR 550.806 (1983).
The Authority found that the arbitrator in Army Support Command,
Hawaii had failed to provide such an articulated decision and remanded
the award to the parties with the direction that they request, jointly
or separately, that the arbitrator clarify and interpret his award and
to articulate fully specific findings on all pertinent statutory
provisions. Likewise, in several subsequent decisions in which the
Authority found that the arbitrator's determinations were not properly
supported, the Authority remanded the cases to the parties and in each
case directed them to request the arbitrator to articulate fully
specific findings on all pertinent statutory requirements. E.g., Naval
Air Development Center, Department of the Navy and American Federation
of Government Employees, Local 1928, AFL-CIO, 14 FLRA 782 (1984); Audie
L. Murphy Veterans Administration Hospital, San Antonio, Texas and
American Federation of Government Employees, AFL-CIO, Local No. 3511, 15
FLRA 276 (1984); American Federation of Government Employees, Local
2667 and Equal Employment Opportunity Commission, 15 FLRA 281 (1984);
U.S. Army Missile Readiness Command and American Federation of
Government Employees, Local 1858, 15 FLRA 286 (1984).
In each of those cases the award had been issued on a date prior to
the issuance of Army Support Command, Hawaii, and as specifically noted
in each decision "without the benefit of the instruction and guidance
provided by Army Support Command, Hawaii." For that reason, the
Authority remanded each of those awards to the parties for the limited
purpose of having the arbitrator clarify and interpret his award
regarding attorney fees to articulate fully specific findings on all
pertinent statutory provisions relating thereto.
In contrast, the award of attorney fees in this case was issued more
than one year subsequent to the issuance of Army Support Command,
Hawaii, and thus with the benefit of the instruction and guidance
provided therein. Since it did not provide a fully articulated,
reasoned decision, it was found deficient by the Authority and the award
was set aside. In considering the request for reconsideration of this
case, we note that the Authority did not explicitly announce in Army
Support Command, Hawaii, or in the subsequent remands of awards of
attorney fees which were issued prior to Army Support Command, Hawaii,
that deficient awards of attorney fees issued thereafter despite the
benefit of that guidance would be set aside rather than remanded. The
Authority finds that arbitrators and parties, including the Arbitrator
and parties in this case, were not explicitly apprised by the Authority
in any of its published decisions that the Authority would set aside an
award of attorney fees that was not fully supported as required. Nor
were parties fully apprised by the Authority of their responsibility and
interest in ensuring that arbitrators make the requisite determinations.
In these specific circumstances, the Authority has concluded that
reconsideration of the decision of November 25, 1985, in this case is
warranted and that this case should also be remanded to the parties for
the purpose of having the arbitrator clarify his award.
In the future, however, consistent with our general practice
concerning deficient arbitration awards, if the Authority finds that an
award granting attorney fees is deficient because it is not fully
supported as required, the Authority will set aside or modify the award
as appropriate.
V. ORDER
Accordingly, for the reasons set forth above, the Union's request for
reconsideration is granted. the Authority's decision of November 25,
1985, setting aside the Arbitrator's award of attorney fees is therefore
rescinded. The case is hereby remanded to the parties and they are
directed to request, jointly or separately, the Arbitrator to clarify
and interpret his award of attorney fees to articulate fully specific
findings on all pertinent statutory requirements. It should be noted
that this Order is without prejudice to the Agency to renew any of the
arguments it previously raised in its exceptions to the Arbitrator's
award which were not considered by the Authority. Such arguments may be
renewed before the Arbitrator or in any duly filed exceptions to the
Arbitrator's interpretation and clarification of his award pursuant to
this Order.
Issued, Washington, D.C., March 25, 1986
(s)---
Jerry L. Calhoun, Chairman
(s)---
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY