[ v14 p680 ]
14:0680(90)AR
The decision of the Authority follows:
14 FLRA No. 90
INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS
Union
and
UNITED STATES ARMY SUPPORT
COMMAND, HAWAII
Activity
Case No. O-AR-215
DECISION
This matter is before the Authority on exceptions to the award of
Arbitrator Stuart M. Cowan 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 Rules and Regulations. The Union filed an
opposition.
The dispute before the Arbitrator herein concerns the assessment
under provisions of Army Regulation (AR) 735-11 (Accounting for Lost,
Damaged and Destroyed Property) of pecuniary liability against the
grievant for damage to a landing vehicle assertedly caused by his
negligence. A grievance was filed and submitted to arbitration
protesting this assessment.
The Arbitrator reviewed the investigation of the property damage
(report of survey) on which the assessment was founded and determined
"that there is no substantial evidence in this case to prove by a
preponderance of evidence or otherwise that there is just cause to
impose pecuniary liability upon Grievant." Accordingly, as his award in
this respect, the Arbitrator granted the grievance and vacated the
financial responsibility assessment against the grievant. He also
ordered in this respect "that this matter not be reopened for further
proceedings against this Grievant." In addition, the Arbitrator awarded
attorney fees to the grievant in the amount of $3500.
In its first exception the Agency contends that the portion of the
award granting the grievance because there was no substantial evidence
to support a financial assessment against the grievant is based on
nonfacts. In support of this exception, the Agency argues that
underlying this portion of the award are the Arbitrator's comments that
the report of survey "was totally hearsay evidence" and that "the survey
officer failed to provide the Grievant any opportunity to participate in
the investigation," and the Agency maintains that these statements were
erroneous and that but for these errors the Arbitrator would have
reached a different result.
In order for the award to be found deficient on this ground, it must
be established that the alleged "nonfacts" involved facts that were
objectively ascertainable, were the central facts underlying the award,
were concededly erroneous, and that but for the arbitrator's
misapprehension, the arbitrator would have reached a different result.
See, e.g., United States Army Missile Materiel Readiness Command
(USAMIRCOM) and American Federation of Government Employees, Local 1858,
AFL-CIO, 2 FLRA 432, 438 (1980). Without fully addressing the
above-cited statements of the Arbitrator in terms of this ground, it is
readily apparent that the Arbitrator based his granting of the grievance
on inadequacies in the report of survey proceedings that were much more
extensive than claimed by the Agency. The Arbitrator expressly held
that the report of survey investigation was inadequate because "it was
cursory" (Award at 19), and because the survey officer "did not conduct
a complete investigation, did not determine if there were other
witnesses or evidence, but merely ceased investigating when he felt that
the evidence he had was sufficient (and) did not make an objective,
impartial and thorough investigation as required" (Award at 21). In
sum, the Arbitrator held that "there were numerous deficiencies in the
investigation and numerous unanswered and uninvestigated factors which
might have been either wholly or completely the proximate cause of the
loss in this case" (Award at 27). Consequently, the Agency has not
established that the central facts underlying the award were that the
report of survey proceedings were based on hearsay evidence and that the
survey officer failed to provide the grievant an opportunity to
participate in the proceedings. Thus, it is not established, even if
these statements of the Arbitrator were concededly erroneous, that this
"is the fact on which the award is based" and that "but for the
arbitrator's misapprehension, the arbitrator would have reached a
different result." Id. at 438 (emphasis in original). Accordingly, the
exception provides no basis for finding the award deficient in this
respect, and therefore the exception is denied.
In its second exception the Agency contends that the Arbitrator's
order that this matter not be reopened for further proceedings against
the grievant is contrary to law and regulation. Specifically, the
Agency claims that the award in this respect is contrary to section
7106(a)(1) of the Statute which authorizes the Agency to determine its
internal security practices. The Agency further claims that the award
is contrary to 10 U.S.C. 4832, 4835 by effectively removing from the
Secretary of the Army the authority provided by those statutory
provisions to prescribe regulations for the accounting of Army property
and the fixing of responsibility for its damage. The Agency also argues
that the award is contrary to AR 735-11 because it precludes the
commander from ensuring that this matter is adequately investigated and
from assessing pecuniary liability against the grievant if, after
further investigation, it is determined that such an assessment is
warranted.
The Authority concludes that this exception provides no basis for
finding the award deficient. The Agency fails to establish that the
award in this respect infringes in any manner on management's right
pursuant to section 7106(a)(1) of the Statute to determine its internal
security practices so as to prevent destruction of agency property. The
Agency likewise has not established that the award in this respect is
contrary to the general statutory and regulatory provisions pertaining
to the accounting for Army property. The matter specifically submitted
to and addressed by the Arbitrator was whether the Agency was justified
in its assessment of pecuniary liability against the grievant. In
resolution of precisely this matter, the Arbitrator expressly determined
that the assessment was not justified, and accordingly he vacated the
assessment and barred further proceedings against the grievant as to
this matter. In vacating the assessment and barring further proceedings
against the grievant, he essentially ruled that the issue of the
grievant's liability was before him for final resolution. Thus, he
rejected the contention that this matter was limited to the adequacy of
the report of survey and rejected the contention that in the event he
determined that the report was inadequate, the Agency was not precluded
from reopening the matter and proceeding until liability of the grievant
is sustained. In these circumstances the Authority finds that the
general statutory and regulatory provisions pertaining to the accounting
for Army property, including the broad right to conduct reports of
survey as set forth in AR 735-11, cannot be used to circumvent the
Arbitrator's resolution of the submitted dispute. Accordingly, this
exception is denied. /1/
In its third exception the Agency contends that the Arbitrator's
award of attorney fees is not authorized by law, essentially relying
upon the statutory requirements of the Back Pay Act, 5 U.S.C. 5596. /2/
This exception provides the Authority with an opportunity to address in
detail for the first time the statutory requirements regarding awards of
attorney fees by arbitrators. 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 has 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 that the award of attorney fees
must be in accordance with the standards established under 5 U.S.C.
7701(b). /3/ 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.
Section 7701(g)(2), pertaining to cases of discrimination prohibited by
5 U.S.C. 2302(b)(1), requires as to such cases that the award of
attorney fees must be in accordance with the standards prescribed under
section 706(k) of the Civil Rights Act of 1964, 42 U.S.C. 2000e - 5(k).
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). In terms of this case, the
Arbitrator failed to provide such an articulated decision as part of his
award of attorney fees in the amount of $3500. Consequently, the
Authority shall remand the award to the parties to have them obtain a
clarification and interpretation of the award of attorney fees by the
Arbitrator, who shall consider the specific criteria set forth in this
decision.
Accordingly, pursuant to section 2425.4 of the Authrity's Rules and
Regulations, the award is remanded to the parties with the direction
that they request, jointly or separately, that the Arbitrator clarify
the award. The submission to the Arbitrator is for the limited purpose
of having the Arbitrator clarify and interpret his award of attorney
fees in the amount of $3500 and to articulate fully specific findings on
all pertinent statutory provisions.
Issued, Washington, D.C., May 21, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ As requested by the parties, the Arbitrator also ruled on whether
the grievance should be sustained because AR 735-11 is unconstitutional.
However, because the Arbitrator expressly indicated that the
inadequacies in the report of survey proceedings alone required the
grievance to be granted and the assessment against the grievant vacated,
it is unnecessary for the Authority to consider this question.
/2/ 5 U.S.C. 5596 (1982) pertinently provides:
(b)(1) An employee of an agency who, on the basis of a timely
appeal or an administrative determination (including a decision
relating to an unfair labor practice or a grievance) is found by
appropriate authority under applicable law, rule, regulation, or
collective bargaining agreement, to have been affected by an
unjustified or unwarranted personnel action which has resulted in
the withdrawal or reduction of all or part of the pay, allowances,
or differentials of the employee--
(A) is entitled, on correction of the personnel action, to
receive for the period of which the personnel action was in
effect--
. . . .
(ii) reasonable attorney fees related to the personnel action
which, with respect to any decision relating to an unfair labor
practice or a grievance processed under a procedure negotiated in
accordance with chapter 71 of this title, or under chapter 11 of
title 1 of the Foreign Service Act of 1980, shall be awarded in
accordance with standards established under section 7701(g) of
this title(.)
/3/ 5 U.S.C. 7701(g) (1982) provides:
(1) Except as provided in paragraph (2) of this subsection, the
Board, or an administrative law judge or other employee of the
Board designated to hear a case, may require payment by the agency
involved of reasonable attorney fees incurred by an employee or
applicant for employment if the employee or applicant is the
prevailing party and the Board, administrative law judge, or other
employee (as case may be) determines that payment by the agency is
warranted in the interest of justice, including any case in which
a prohibited personnel practice was engaged in by the agency or
any case in which the agency's action was clearly without merit.
(2) If an employee or applicant for employment is the
prevailing party and the decision is based on a finding of
discrimination prohibited under section 2302(b)(1) of this title,
the payment of attorney fees shall be in accordance with the
standards prescribed under section 706(k) of the Civil Rights Act
of 1964 (42 U.S.C. 2000e-5(k)).