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44 FLRA No. 110

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

OVERSEAS EDUCATION ASSOCIATION

(Union)

and

U.S. DEPARTMENT OF DEFENSE

DEPENDENTS SCHOOLS

(Agency)

0-AR-2206

DECISION

May 27, 1992

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 Fred Blackwell 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. The Union filed a response to the Agency's opposition, and the Agency moved to dismiss the Union submission and filed a response.⁽¹⁾

In the supplemental award, the Arbitrator denied the Union's application for attorney fees. For the following reasons, we deny the exceptions in part and set aside the award in part.

II. Background and Supplemental Arbitration Award

In his initial award, the Arbitrator determined that, under the parties' agreement, employees were entitled to payment for travel and transportation expenses incurred when the Agency granted employees certain transfers from one geographic location to another. The Arbitrator ordered the Agency to reimburse the employees for those expenses. Subsequently, the Union requested the Arbitrator to award attorney fees under the Back Pay Act, 5 U.S.C. § 5596.

In his supplemental award, the Arbitrator found, as relevant here, that two interest of justice standards, whether the Agency knew or should have known that it would not prevail on the merits and whether the Agency's action was shown to be clearly without merit, were applicable. However, the Arbitrator concluded that the Union had not established that fees were warranted under these standards. The Arbitrator also concluded that fees were not warranted on the basis that there was a benefit to the Federal work force or to the public as a result of the grievance. Accordingly, the Arbitrator denied the Union's application for fees.

III. Union's Exceptions

The Union asserts that the Arbitrator's supplemental award is deficient because the Arbitrator did not provide a fully reasoned, articulated decision. According to the Union, it is entitled to fees because, based on the record: (1) the Agency knew or should have known that its denial of the disputed transportation expenses would not prevail; and (2) the Agency's actions were clearly without merit. The Union also asserts that the Authority should remand the supplemental award to permit the Arbitrator to find that fees are warranted because the grievance provided a service to the Federal work force or a benefit to the public.

IV. Agency's Opposition

The Agency contends that the Arbitrator's award of transportation expenses does not constitute an award of backpay and that, in the absence of a backpay award, attorney fees cannot be awarded under the Back Pay Act. The Agency also asserts that the Arbitrator's ruling is consistent with his findings and that the Union is trying "to relitigate the merits of the case . . . ." Opposition at 1.

V. Analysis and Conclusions

The Authority has held repeatedly that, in resolving a request for attorney fees under the Back Pay Act, an arbitrator must provide a fully articulated, reasoned decision setting forth specific findings supporting determinations on each pertinent statutory requirement. See, for example, 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 (1991) (Red River Army Depot). An award of attorney fees is warranted in the interest of justice if any of the statutory requirements are met.⁽²⁾ Id.

We reject the Union's assertion that attorney fees are warranted in the interest of justice because the Agency knew or should have known that it would not prevail on the merits when it denied the disputed expenses. Initially, we find that, on this point, the Arbitrator's supplemental award is a fully reasoned, articulated decision. In his opinion, the Arbitrator found that the Agency "took into account in a positive manner the law/regulations/agreement provisions that were pertinent" to its denial. Supplemental Award at 8 (emphasis in original). Further, the Arbitrator found that the Agency "presented meaningful evidence to support the action that was grieved, including decisions by the Comptroller General[.]" Id.

Turning to the question of whether the award is deficient because, as a matter of law, the Agency knew or should have known that it would not prevail on the merits, we conclude, contrary to the Union, that the record does not support such a finding. Accordingly, we deny the Union's exception to the Arbitrator's finding that fees were not warranted on this basis. See, for example, American Federation of Government Employees, Local 12 and U.S. Department of Labor, Washington, D.C., 38 FLRA 1240, 1254 (1990) (DOL) (union failed to demonstrate that attorney fees were warranted because the agency knew or should have known that it would prevail). Compare Department of Health and Human Services, Public Health Service, Region IV, Atlanta, Georgia and National Treasury Employees Union, Chapter 210, 34 FLRA 823, 832 (1990) (as arbitral findings of fact established that agency relied on incomplete information in preparing case for arbitration, Authority held that arbitrator erred in ruling that attorney fees were not warranted).

We also reject the Union's assertion that attorney fees are warranted in the interest of justice because the Agency's action was clearly without merit. In this regard, we find, contrary to the Union's argument, that the Arbitrator's supplemental award is fully reasoned and articulated. In the supplemental award, the Arbitrator noted that he rejected the Agency's "interpretation of the authorizing statutes, regulations, and agreement provisions" because the Union's "legal and contract argument on such interpretation was more persuasive than the argument of the [A]gency." Supplemental Award at 7. Further, the Arbitrator noted that the Agency supported its case by referring to the policies of other Federal agencies. We also find, contrary to the Union, that the record does not establish that, as a matter of law, attorney fees are warranted because the Agency's action was clearly without merit. Consequently, we deny the Union's exception to the Arbitrator's finding that fees were not warranted on this basis. See, for example, DOL, 38 FLRA at 1251-52.

However, we also conclude that the Arbitrator has not fully addressed the Union's assertion that fees were warranted in the interest of justice because the grievance constituted either a service to the Federal work force or a benefit to the public. See Red River Army Depot, 39 FLRA at 1223. In this regard, the Arbitrator's supplemental award states only that "the [A]gency position and arguments on the grievance clearly manifest . . . that there was no benefit to the general [F]ederal work force or to the public derived from the action." Supplemental Award at 9. This conclusionary statement does not, in our view, meet the requirement that an arbitrator provide a fully reasoned, articulated decision. Accordingly, the Arbitrator's supplemental award denying fees on the basis that there was no service to the Federal work force or benefit to the public is deficient, and we will set aside the award. See, for example, American Federation of Government Employees, Local 1770 and U.S. Department of the Army, Headquarters, XVIII Airborne Corps, Fort Bragg, North Carolina, 44 FLRA No. 108 (1992) (award denying attorney fees which provided only conclusions that attorney fees were not warranted in the interest of justice was set aside).

VI. Decision

The Arbitrator's supplemental award is set aside.⁽³⁾

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

1. As the Authority's regulations do not provide for the filing of a response to an opposition, or for any other additional filings, the Agency's motion to dismiss the Union's response is granted. See U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center and American Federation of Government Employees, Local 3407, 44 FLRA 103, 103 (1992). As the Union's response is dismissed, we do not consider the Agency's response to it.

2. An award of fees is warranted in the interest of justice in cases: (1) involving prohibited personnel practices; (2) where agency actions are clearly without merit or wholly unfounded, or where the employee is substantially innocent of charges brought by the agency; (3) when agency actions are taken in bad faith to harass or exert improper pressure on an employee; (4) when gross procedural error by an agency prolonged the proceeding or severely prejudiced the employee; (5) where the agency knew or should have known it would not prevail on the merits when it brought the proceeding; or (6) where there is either a service rendered to the Federal work force or there is a benefit to the public derived from maintaining the action. Red River Army Depot, 39 FLRA at 1222-23.

3. In view of our decision, it is unnecessary to address the Agency's assertion that travel and transportation expenses do not constitute pay, allowances, or differentials under the Back Pay Act.

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