---

47 FLRA No. 110

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF DEFENSE

DEFENSE MAPPING AGENCY

HYDROGRAPHIC/TOPOGRAPHIC CENTER

WASHINGTON, D.C.

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3407

(Union)

0-AR-2401

_____

DECISION

July 15, 1993

_____

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 attorney fees of Arbitrator Dale M. Race 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 to the Agency's exceptions.

For the following reasons, we conclude that the Agency has failed to establish that the supplemental award is deficient as to the Union's entitlement to an award of attorney fees. We conclude, however, that the Union's application for attorney fees fails to specify certain matters and that the Arbitrator erred in awarding certain costs. Accordingly, we will sustain in part and deny in part the Agency's exceptions, and remand the award to the parties for resubmission to the Arbitrator.

II. Background and Supplemental Award

In the underlying grievance, the grievant challenged a 14-day suspension for allegedly engaging in disruptive conduct and sexual harassment in the workplace. In the original award, the Arbitrator attributed the grievant's conduct to a mental disorder and not to an intentional disruption of the workplace. The Arbitrator rescinded the 14-day suspension and awarded the grievant backpay.⁽¹⁾ Subsequently, the Union requested attorney fees under the Back Pay Act, 5 U.S.C. § 5596.

In a supplemental award, the Arbitrator granted the Union's request for attorney fees and awarded the grievant's attorney $15,270.00 in fees and $616.10 in costs. The Arbitrator determined that the grievant met the Back Pay Act threshold requirements for an award of attorney fees because the fee award was in conjunction with an award of back pay, was reasonable and related to the personnel action, and was in accordance with the standards established under 5 U.S.C. § 7701(g). The Arbitrator also found that the award satisfied the requirements set forth in 5 U.S.C. § 7701(g)(1) in that the grievant was the prevailing party, the award was warranted in the interest of justice, the amount of the fees requested was reasonable, and the fees were incurred by the grievant.

Relying on Allen v. United States Postal Service, 2 M.S.P.R. 420 (1980), and Naval Air Development Center, Department of the Navy and American Federation of Government Employees, Local 1928, AFL-CIO, 21 FLRA 131, 137-38 (1986) (NADC), the Arbitrator noted that fees are generally awarded in the interest of justice in the following circumstances:

a. Instances where the agency initiated action against any employee in disregard of prevailing law, regulations, or negotiated agreement provisions on [F]ederal policy. . . .

b. Instances where the agency presents little or no evidence to support its actions or demonstrates either a lack of or negligent preparation of the case. This includes instances where the agency's action lacked substantial justification or is totally unfounded and clearly without merit. . . .

c. Instances where the employee is ultimately found to be substantially innocent of the charges brought by the agency. . . .

d. Instances where agency ill will, or negligence, tainted the action against the employee to an unconscionable degree. . . .

e. Instances where the agency fails to inquire into facts presented by the employee or fails to conduct a prudent inquiry into the employee's contradictory evidence. For example, had an agency inquired into the facts presented by the employee, the agency would or should have ascertained at the outset that the charges against the employee were without merit or that the grievance should have been sustained.

f. Instances where there is either a service rendered to the [F]ederal work force or there is a benefit to the public derived from maintaining the action. . . .

Award at 5-6.

The Arbitrator found that attorney fees were warranted under criteria (b), (c), (d), (e), and (f). With respect to criteria (b), the Arbitrator found that "[t]he very nature of the [g]rievant's conduct belies culpability[]" because "[t]he [g]rievant simply suffered a disorder[] [or] a medical condition of some sort." Id. at 7. The Arbitrator specifically found that "[n]o special expertise or conjecture was necessary to draw this conclusion and, in any event, the Agency was alerted to the [g]rievant's pre-existing mental/emotional problems prior to imposing the disciplinary action complained of." Id. With respect to criteria (c), the Arbitrator found that the grievant was "substantially innocent" of the charges brought by the Agency because he "was not responsible for his acts and thus not amenable to discipline." Id.

With respect to criteria (d), the Arbitrator found that "the Agency chose to studiously ignore the obvious and attempted to outmaneuver the [g]rievant in the grievance process[,]" by "fail[ing] to respond to the [g]rievance." Id. at 7, 8. According to the Arbitrator, "the Agency relied on the delay created by its own inaction to support a motion to dismiss the grievance on timeliness grounds." Id. at 8. The Arbitrator concluded that "the Agency was then aware of the true nature of the dispute and sought to finesse the [g]rievant, and bury the facts." Id.

The Arbitrator also found that fees were warranted under criteria (e). According to the Arbitrator, "[h]ad the Agency inquired into the facts presented or merely viewed the conduct in light of all the facts available, it would have, and should have, ascertained at the outset that the charges were without merit." Id. at 7 (emphasis omitted). The Arbitrator also found that it was "clear that the Agency had evidence of and information concerning the [g]rievant's mental condition at the time it effected the disciplinary action." Id.

Finally, the Arbitrator found that under criteria (f), "a great service [had] been rendered to the Federal work[-]force and the public at large by reason of these proceedings." Id. at 8. The Arbitrator stated that "persons who suffer mental disorders in the workplace ought not to be pilloried[,] but treated with the same compassion a decent society has for all who become ill." Id.

Based on the foregoing, the Arbitrator concluded that "an award of attorney fees in this case would be very much in the interest of justice." Id.

The Arbitrator found that the hourly rates charged by grievant's attorney and her law firm were reasonable. The Arbitrator rejected the Agency's claim that charges billed by a supervising attorney were duplicative of those billed by the grievant's attorney. In this regard, the Arbitrator found that "[t]he bulk of [the supervising attorney's] time was spend [sic] in conference with [grievant's attorney,]" and that it "is the common and expected practice" to have associates confer with their seniors. Id. at 11. Similarly, the Arbitrator found that there was nothing unusual about the fees claimed by grievant's attorney for the services of another associate, and two paralegals.

In addition, the Arbitrator rejected the Agency's argument that fees related to the "[g]rievant's security clearance, a potential EEO complaint, conversations with the [g]rievant's physician, a review of medical records and other ancillary matters[]" were not recoverable because they were unrelated to the case.⁽²⁾ Id. Rather, the Arbitrator found that these matters were "inextricably intertwined with the personnel action complained of and allowable." Id. Finally, the Arbitrator awarded all costs requested in the fee petition except those for photocopying. In this regard, the Arbitrator denied the $357.80 requested for photocopying costs.

The Arbitrator rejected the Agency's argument that Article XI, section 10(b) of the parties' agreement barred recovery of fees for work performed by the grievant's counsel prior to the February 21, 1991, arbitration hearing when the Union designated her as their representative.⁽³⁾ According to the Arbitrator, Article XI, section 10(b) provides that "'the parties will designate in writing the representative and an alternative representative to act for them.'" Id. at 8. The Arbitrator found that "Article XI, §10b. is a purely procedural provision[]" whose "purpose is to establish lines of communication between the parties once arbitration has been demanded." Id. at 9. In this regard, the Arbitrator determined that Article XI, section 10(b) had "nothing whatsoever to do with an award of 'attorney fees in accordance with the standards of the Civil Service Reform Act [CSRA].'" Id. According to the Arbitrator, under the CSRA, "a [g]rievant who meets the criteria may recover attorney fees even though his or her attorney is never designated as the Union's representative." Id. (emphasis omitted).

III. Statutory Requirements

When exceptions are filed to arbitration awards resolving requests for attorney fees under the Back Pay Act, the Authority's role is to ensure that the award complies with applicable statutory standards. U.S. Patent and Trademark Office and Patent Office Professional Association, 32 FLRA 375 (1988) (Patent and Trademark Office). A threshold requirement for entitlement to attorney fees under the 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. The Back Pay Act further requires that an award of attorney 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). Id. at 378.

The prerequisites for an award of attorney fees under section 7701(g)(1), which applies here, are as follows: (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. American Federation of Government Employees, Local 12 and U.S. Department of Labor, Washington, D.C., 38 FLRA 1240, 1248 (1990). The standards established under section 7701(g) further require a fully articulated, reasoned decision setting forth the Arbitrator's specific findings supporting the determination on each pertinent statutory requirement, including the basis on which the reasonableness of the amount was determined when fees are awarded. Id. at 1248.

In this case, neither party disputes that the grievant was affected by an unjustified or unwarranted personnel action, that the award of fees was in conjunction with an award of back pay, or that the grievant was the prevailing party. Accordingly, we conclude that these requirements have been satisfied and we will not address them further. The Agency alleges only that the award of attorney fees is not reasonable and does not satisfy the interest of justice standard set forth in 5 U.S.C. § 7701(g)(1). In particular, the Agency asserts that the award is deficient because it is not in accordance with the standards established in 5 U.S.C. § 7701(g)(1), it violates the collective bargaining agreement, and is based on a nonfact and is tainted by the bias of the Arbitrator.

IV. First Exception

A. Positions of the Parties

1. Agency

The Agency argues that the award of fees is not warranted in the interest of justice. In particular, the Agency argues that the Arbitrator's finding that the Agency's action was clearly without merit "is inconsistent with the evidence of record." Exceptions at 8. According to the Agency, it was not aware of grievant's mental condition at the time of the disciplinary action because the grievant "actively concealed his mental health problems from his supervisors . . . ." Id. at 9. The Agency also contends that the Arbitrator's finding that the grievant was substantially innocent "is at odds with the [a]ward on the merits which found that the [g]rievant had behaved as indicated in the Agency's charges but was not responsible for his behavior." Id. at 8. The Agency argues that the grievant cannot be substantially innocent because he "actively concealed his mental health condition . . . ." and "conceded the conduct charged[.]" Id. at 9, 10.

The Agency also disputes the Arbitrator's finding that the Agency knew or should have known about the grievant's mental health problems prior to the disciplinary action. The Agency contends that "[a]t the time it took the disciplinary action[,] . . . the Agency was not on notice of any mental or physical problems which might be considered to have caused or excused grievant's 'sudden breakdown' on January 3, 1990." Id. at 12. According to the Agency, the grievant "never raised the defense of alleged mental handicap until a few days before the arbitration hearing nor did he provide notice of potential medical evidence until the actual day of the hearing." Id. at 10. Further, the Agency contends that the Arbitrator's finding that "'a great service [was] rendered to the Federal work force . . . by reason of [this] proceeding[]' . . . is totally arbitrary." Id. at 14 (quoting Award at 8). In this regard, the Agency argues that the award sends a message to federal employees like the "guard who [g]rievant kissed without her permission" that "she must not only tolerate such insults to her body but treat the offender with compassion[.]" Id.

2. Union

The Union maintains that "the [A]gency's contention that it was not aware of [the grievant's] mental condition is simply unsupported by the record." Opposition at 10. According to the Union, the Agency was alerted to grievant's mental health problem because "two weeks prior to the arbitration[,] . . . the [A]gency was specifically provided with the medical information outlining [the grievant's] mental condition." Id. at 8. In addition, the Union contends that the Agency was put on notice of the grievant's mental state by his "conduct at the workplace on January 3, 1990, which gave rise to the [A]gency disciplin[e]." Id. at 9.

B. Analysis and Conclusions

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 workforce or there is a benefit to the public derived from maintaining the action. U.S. Department of the Army, Red River Army Depot, Texarkana, Texas and National Association of Government Employees, Local R14-52, 39 FLRA 1215, 1222-23 (1991) (Red River Army Depot).

Although the Arbitrator found that the requested attorney fees were warranted on several grounds, an award of attorney fees is warranted in the interest of justice if any of these criteria are met, including a finding that the Agency's actions were clearly without merit. See Red River Army Depot, 39 FLRA at 1222. An Agency's actions are clearly without merit where "the [A]gency presents little or no evidence to support its actions or demonstrates either a lack of or negligence preparation of the case." See NADC, 21 FLRA at 137-38.

The Agency claims that its actions were not clearly without merit because the grievant's actions which led to the 14-day suspension were not sufficient to put the Agency on notice that the grievant was suffering from a mental health problem. Further, the Agency claims that the grievant actively concealed his mental health condition by stating in response to the proposed disciplinary action that he had received a clean bill of health.

The Arbitrator found that the Agency's action in "disciplin[ing] the [g]rievant for conduct patently attributable to a mental disorder[]" was clearly without merit because "[t]he very nature of the [g]rievant's conduct belie[d] culpability." Award at 7. According to the Arbitrator, "[n]o special expertise or conjecture was necessary to draw [the] conclusion" that "[t]he [g]rievant simply suffered a disorder, a medical condition of some sort." Id. Further, the Arbitrator determined that "[w]hile these findings were made on appeal[,] it is clear that the Agency had evidence of and information concerning the [g]rievant's mental condition at the time it effected the disciplinary action. . . ." Id.

The Arbitrator's findings on this issue support the conclusion that the Agency's actions were without merit and that the award of fees is in the interest of justice. See for example, Jarze v. Department of the Air Force, 4 M.S.P.R. 164 (1980)(MSPB found that Agency's action in removing an employee for misconduct was clearly without merit where presiding official found that any reasonable person would have reached the conclusion that such conduct was the result of mental illness). The Agency's claim constitutes nothing more than disagreement with the Arbitrator's findings of fact and evaluation of the evidence and testimony and is an attempt to relitigate the merits of the case before the Authority. As such, the exception provides no basis for finding the award deficient under the Statute. See U.S. Department of the Army, Corpus Christi Army Depot, Corpus Christi, Texas and American Federation of Government Employees, Local 2142, 42 FLRA 927, 929-30 (1991) (Corpus Christi Army Depot). Accordingly, the Agency's exception will be denied.⁽⁴⁾

V. Second Exception

A. Positions of the Parties

1. Agency

The Agency alleges that certain items in the Union's application for fees were for services not in connection with the grievance and arbitration, and, thus, cannot be found reasonable within the meaning of 5 U.S.C. § 7701(g)(1). Specifically, the Agency excepts to a charge for a telephone call to an EEO representative and all charges relating to the dispute over the grievant's security clearance. According to the Agency, the fees requested for these services are not allowable because there was no EEO complaint ever filed and the security clearance matter is unrelated to this case. The Agency also claims that fees requested for services rendered on August 8, 9, and 13, 1991, were not relevant to the grievance or arbitration and were incurred after the Arbitrator's original award.

The Agency also alleges that "[i]t is impossible . . . to determine, based on review of the attorney's fee bill, at what hourly rate various services were billed." Exceptions at 21. According to the Agency, the fee agreement between the grievant and his counsel "provided that time spent in travel would be charged out at one-half of the normal hourly rate and that time spent in court or at administrative hearings would be charged at $15 per hour above the normal hourly rate." Id. at 21-22. The Agency contends that "[i]n order to determine whether specific charges are reasonable, it is necessary to know at what rate they were billed." Id. at 22.

2. Union

The Union maintains that the "[A]gency's specific contentions" regarding the fee petition "are unfounded." Opposition at 15. Although the Union does not separately address each of the Agency's contentions in its opposition, it does address the issue concerning travel and court time in its application for fees. The Union claims that "[a]lthough the fee agreement provides that the time spent in intra-city travel will be charged at one-half of the normal hourly rate, no such intra-city travel was involved in this case and all travel expenses were billed at the attorney's normal hourly rate." Application at 21, n.7. In addition, the Union asserts that the "$15.00 per hour surcharge provided in the fee agreement for attorney time spent in court or at administrative hearings was not charged to [the grievant]." Id.

B. Analysis and Conclusions

We reject the Agency's claim that fees incurred in connection with the grievant's security clearance and a potential EEO complaint are not allowable. The Agency claims that the Arbitrator's conclusion that these matters were inextricably "intertwined with the [14] day suspension . . . [was] not based in fact since[] there was no EEO issue involved . . . and because [g]rievant subsequently left employment with the Agency after loss of his security clearance." Exceptions at 20. However, the Agency has not demonstrated that the Arbitrator's finding is inconsistent with law, rule, regulation, or the collective bargaining agreement. In our view, this exception constitutes mere disagreement with the Arbitrator's findings of fact and evaluation of the evidence, and is an attempt to relitigate the case before the Authority. See Corpus Christi Army Depot, 42 FLRA at 929-30.

We also reject the Agency's claim that charges for August 8, 9, and 13, 1991, are not allowable because they were not related to the grievance or arbitration and were incurred after the original arbitration award was issued. Our review of the fee petition reveals that there were no charges listed for those dates.

However, we find that we are unable to determine whether certain fees awarded by the Arbitrator are reasonable, within the meaning of 5 U.S.C. § 7701(g)(1). In this regard, we note that the reasonableness of attorney fees is determined by examining, as relevant here, an attorney's customary rates and the terms of any applicable fee agreement. For example, West v. Department of the Treasury, 32 M.S.P.R. 338, 340 (1987) ("When an appellant and his attorney agree on a specific fee arrangement, the [Merit Systems Protection] Board will presume that it represents the maximum reasonable fee absent clear evidence to the contrary.") (citation omitted).

The parties' references to the portion of the fee agreement regarding travel time are unclear. According to the Agency, the fee agreement states that "time spent in travel would be charged at one-half of the normal hourly rate and that time spent in court or at administrative hearings would be charged at $15 per hour above the normal hourly rate." Exceptions at 21-22. The Union contends that the fee agreement provides that "time spent in intra-city travel will be charged at one-half of the normal hourly rate," and that "no such intra-city travel was involved" rather "all travel expenses were billed at the attorney's normal hourly rate." Application at 21, n.7.

Our review of the fee agreement reveals that it provides that "[a]ny time spent relative to the [c]lient's matter including . . . necessary travel time, etc., will be billed on an hourly basis." Fee Agreement at 1. In addition, the fee agreement provides that "[t]ime spent in inter-city travel will be charged at one-half the normal hourly rate unless that time is spent performing other work on the client's behalf." Id. The agreement does not define the parameters of inter-city travel and makes no reference to intra-city travel. The fee agreement also provides that "[t]ime spent in court or at administrative hearings will be charged at $15 per hour above the normal hourly rate." Id.

Although the grievant's attorney listed her standard hourly rates for 1990 through 1991, she did not identify which hours were billed at the normal hourly rate, and which, if any, were billed at other rates. In addition, the attorney did not specify how much time was expended at each rate. Specifically, there are six entries dated February 21, 1990, February 21, 1991, August 20, 1991, August 21, 1991, September 18, 1991, and October 2, 1991, which indicate that time was spent travelling or at administrative hearings but which do not specify if any of the time was billed at other than the regular rate. While the grievant's attorney claim's that no intra-city travel took place, and that all travel expenses were billed at the normal hourly rate, the grievant's attorney has not a specified what inter-city travel entails or whether any inter-city travel took place. In addition, the grievant's attorney claims that the grievant was not charged a $15.00 surcharge for time spent in court or at administrative hearings. However, it is unclear from the application for fees how much time was spent at these activities and what rate was charged.

We note that an award granting or denying attorney fees under the Back Pay Act which fails to provide a fully articulated decision setting forth specific findings on each pertinent statutory requirement, is deficient and will be set aside. See American Federation of Government Employees, Local 1770 and U.S. Department of the Army, Headquarters, XVIII Airborne Corps, Fort Bragg, North Carolina, 44 FLRA 1287, 1289-90 (1992). However, we have distinguished between two types of attorney fee cases: (1) those in which an arbitrator fails to provide an articulated, reasoned decision on the factors pertaining to entitlement to attorney fees; and (2) those in which an arbitrator finds entitlement to fees but fails to provide a reasoned decision as to the reasonable amount of attorney fees. When an arbitrator has properly found that attorney fees are warranted but has failed to explain how the amount of those attorney fees was calculated or has made an erroneous determination as to a reasonable amount, we will either modify the award or remand the award to the parties for resubmission to the arbitrator. Where it is apparent from the record what the amount of attorney fees would have been if the arbitrator had made a proper determination, we will modify the award accordingly. See National Association of Government Employees, Local R5-188 and U.S. Department of the Air Force, Seymour Johnson Air Force Base, North Carolina, 46 FLRA 458, 463-64 (1992) (Seymour Johnson AFB).

As the grievant's attorney has not specified, and we cannot ascertain from the record, at what rate certain services were billed, we are unable to determine whether certain fees awarded by the Arbitrator are reasonable, within the meaning of 5 U.S.C. § 7701(g)(1). Therefore, we remand this issue to the parties for resubmission to the Arbitrator. The grievant's attorney shall specify which portion of the above charges, if any, were attributable to inter-city travel time, administrative hearing time, or straight time, and at what hourly rate they were billed.

VI. Third Exception

A. Positions of the Parties

1. Agency

The Agency contends that certain costs requested by the grievant's attorney are unreasonable and contrary to law. Specifically, the Agency argues that "[t]here is no lawful authority for the payment of [an] automated equipment [charge][.]" Exceptions at 21. The Agency maintains that such charges are similar to those for secretarial services, which are not recoverable under 5 U.S.C. § 7701(g). The Agency also maintains that all travel costs should be disallowed because "the list of attorney charges indicates no travel." Id. In addition, the Agency disputes postal charges for February 1991, because "the itemized statement shows no documents submitted or items mailed during that month." Id. The Agency also disputes one postal charge for August 1991, because the Agency claims that the disputed item was mailed after the arbitration hearing. Further, the Agency contends that all costs billed for the months of March, April, and May 1990, are not allowable because "the bill reflects no work performed during those months." Id. Finally, the Agency alleges that the grievant's attorney charged the grievant a Federal employee surcharge and that there is no lawful basis for this charge.

2. Union

The Union contends that "no '[F]ederal employee surcharge' is contained within the accounting of attorneys' fees[.]" Opposition at 15. The Union does not separately address each of the other fees disputed by the Agency, but addresses certain issues in its fee application. The grievant's attorney contends that in a previous case, an "MSPB Administrative Judge allowed reimbursement of costs related to automated equipment time noting that 'the Board has held that necessary supplemental secretarial costs formerly charged to fee-paying clients are recoverable.'" Application at 22. With respect to the Agency's claim that postal charges should be disallowed because time spent for mailing is not reflected in the fee application, the grievant's attorney contends that "the fee [application] does not necessarily reflect . . . [t]he mailing of relevant documents . . . since the mailing is performed by a secretary, not an attorney." Id. at 19.

B. Analysis and Conclusions

The Authority has recognized that certain costs are recoverable in conjunction with an award of attorney fees. See, for example, Department of the Air Force, Headquarters, 832D Combat Support Group DPCE, Luke Air Force Base, Arizona, 32 FLRA 1084, 1113-14 (1988) (Luke, AFB); Federal Aviation Administration, Washington Flight Service Station and National Association of Air Traffic Specialists, 27 FLRA 901, 905 (1987)(FAA/NATS); NADC, 21 FLRA at 142. In Bennet v. Department of the Navy, 699 F.2d 1140 (Fed. Cir. 1983), the court stated that an award of attorney fees under 5 U.S.C. § 7701(g) should:

encompass those reasonable and necessary out-of-pocket expenses of providing a lawyer's services that are not covered by the hourly rate . . . that are routinely paid by counsel and billed to the client for services rendered, that are not taxable costs or prohibited by statute or authorized regulation, and that are not expenses incurred for the mere convenience of counsel.

Id. at 1145 (footnote omitted).

We agree with the Agency that the grievant's attorney's request for the cost of automated equipment is not recoverable under 5 U.S.C. § 7701(g). We note that in the application for fees, grievant's counsel's supervisory attorney described the cost of automated equipment as "a surcharge for the use of the automated data processing system, for example, secretarial use of word processing and printing equipment." Affidavit of William L. Bransford at 4. Based on this description, we find that the requested cost for automated equipment is essentially a request for payment of secretarial services not supplemental secretarial services. Both the Authority and the Merit Systems Protection Board have held that payment for secretarial services is not a recoverable cost under 5 U.S.C. § 7701(g). See FAA/NATS, 27 FLRA at 905; Taylor v. Department of the Army, 29 M.S.P.R. 424 (1985). Accordingly, we find that the portion of the award granting $537.50 in costs for the use of automated equipment is deficient as contrary to 5 U.S.C. § 7701(g) and will be set aside.

We reject the Agency's claim that postal charges for February 1991, are not allowable and that a charge for postage in August 1991, is unreasonable. It is well settled that out-of-pocket expenses, such as postage, are recoverable under 5 U.S.C. § 7701(g)(1). See for example, Luke, AFB, 32 FLRA at 1113-14. Here, the Arbitrator determined that the charges for postage were reasonable and relevant to the underlying action. The Agency has not demonstrated that these findings violate any law, rule, regulation, or the collective bargaining agreement. The Agency's claim that the Union's request for postage costs are unreasonable constitutes mere disagreement with the Arbitrator's evaluation of the evidence and is not a basis for overturning the award. See Corpus Christi Army Depot, 42 FLRA at 929-30. Accordingly, we will deny this exception.

The Agency does not dispute that travel costs are recoverable under 5 U.S.C. § 7701(g), but claims that these costs should be denied because "the list of attorney charges indicates no travel." Exceptions at 21. Based on our determination that it is not clear from the record how much travel time was expended, when it was expended and at what rate it was billed, we remand to the parties the issue of whether the travel costs requested by the grievant's attorney are consistent with the travel time billed to the parties for resubmission to the Arbitrator. Following remand, the grievant's attorney shall specify the dates and the amount charged for travel expenses.

The Agency claims that "[t]here is no lawful basis for the payment of a [F]ederal employee surcharge[.] . . ." Id. at 21. We will deny this exception because our review of the Union's fee petition reveals that there was no Federal employee surcharge contained in the Union's application for fees. The Agency also claims that all costs incurred from March 1990, through May 1990, are not allowable because there was no work performed during those months. Our review of the Unions' fee petition indicates that there were several services rendered and costs incurred in those months. Therefore, we find that the Agency's claim constitutes mere disagreement with the Arbitrator's findings of fact and evaluation of the evidence and testimony and is an attempt to relitigate the merits of the case before the Authority. As such, the exception provides no basis for finding the award deficient. Accordingly, this exception will be denied. See Corpus Christi Army Depot, 42 FLRA at 929-30.

VII. Fourth Exception

A. Positions of the Parties

1. Agency

The Agency claims that the award of attorney fees violates Article XI, section 10(b) of the parties' agreement, which states that "'[t]he [p]arties will designate in writing the representative and an alternate representative who will be fully authorized to act for them.'" Exceptions at 15-16. According to the Agency, as the grievant's attorney was not designated as a representative of the Union until the arbitration hearing on February 21, 1991, the parties' agreement precludes the award of any attorney fees prior to that date.

The Agency also contends that all attorney fees should be denied to the attorney who supervised the grievant's counsel. According to the Agency, an award of fees would violate the parties' agreement because the supervising attorney "was never designated . . . as the representative of a party in this case." Id. at 16. In addition, the Agency claims that the services of the supervising attorney are not allowable because they were duplicative of those of the grievant's counsel.

2. Union

The Union contends that the Arbitrator "had the authority to render a decision on attorney[] fees in this case for both fees incurred by [the grievant] in responding to the proposed adverse action at the [A]gency level and fees incurred for the services of an attorney by the [U]nion throughout the arbitration process." Opposition at 13-14. In addition, the Union contends that the Arbitrator's "conclusion that the work of [the supervising attorney and the grievant's attorney] is not duplicative is correct[.]" Id. at 15.

B. Analysis and Conclusions

We construe the Agency's claim that an award of attorney fees for work performed prior to February 21, 1991, violates Article XI, section 10(b) as a claim that the award fails to draw its essence from the agreement. To demonstrate that an award is deficient on this ground, a party must show that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact, and so unconnected with the wording and purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. For example, American Federation of Government Employees, Local 1840 and U.S. Department of the Air Force, Randolph Air Force Base, San Antonio, Texas, 45 FLRA 497, 499 (1992).

The Arbitrator found that Article XI, section 10(b) "has nothing whatsoever to do with an award of 'attorney fees . . . .'" Award at 9. Rather, the Arbitrator determined that Article XI, section 10(b) "is a purely procedural provision[] [whose] purpose is to establish lines of communication between the parties once arbitration has been demanded." Id. In this connection, the Arbitrator found that the "[g]rievant's entitlement to attorney fees is to be determined in accordance with the dictates of the [Civil Service Reform Act] and not by who may or may not have been the Union's designee at various and sundry times." Id. The Agency has not shown that the Arbitrator's interpretation of the agreement is irrational, implausible, or unconnected to the wording and purpose of the agreement. We find that the Agency's exception constitutes mere disagreement with the Arbitrator's interpretation and application of the agreement, and such disagreement is not a ground for finding an award deficient. See, for example, United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76 (1990) (Field Labor Locals).

We also reject the Agency's claim that an award of fees for the services of the supervising attorney violates Article XI, section 10(b) because the supervising attorney was not designated by the Union as its representative and because his services were duplicative of the grievant's attorney. As stated above, the Arbitrator determined that Article XI, section 10(b) "has nothing whatsoever to do with an award of 'attorney fees . . . .'" Award at 9. The Agency has not demonstrated that the Arbitrator's interpretation of the agreement is irrational, implausible, or unconnected to the wording and purpose of the agreement. Therefore, the Agency's claim that Article XI, section 10(b) bars recovery of attorney fees for the supervising attorney constitutes mere disagreement with the Arbitrator's interpretation of the parties' agreement and, as such, is not a ground for finding the award deficient. See Field Labor Locals, 34 FLRA at 575-76. In addition, the Agency has not presented any evidence that the services of the supervising attorney were duplicative of the services of the grievant's attorney and thus unreasonable. In this regard, the Authority has held that "the fact that an attorney's participation in a case was limited to administrative or supervisory functions is not, by itself, a sufficient basis for denying attorney fees." Overseas Education Association and U.S. Department of Defense, Dependents Schools, 39 FLRA 1261, 1268 (1991). As the Agency has not demonstrated that the award of fees for the supervising attorney's services violates any law, rule, regulation, or the parties' collective bargaining agreement, the Agency's exception is not a basis for overturning the award. See Corpus Christi Army Depot, 42 FLRA at 929-30. Accordingly, we will deny this exception.

VIII. Fifth Exception

A. Positions of the Parties

1. Agency

The Agency contends that the "[f]inal [a]ward was replete with examples of bias or error." Exceptions at 22. In this regard, the Agency claims that the Arbitrator's statement that the "'[g]rievant was awarded all of the relief sought in the arbitral forum after extensive (and excessive) litigation'[]" indicates bias. Id. at 23. The Agency argues that the Arbitrator's statements accusing the Agency of "'studiously ignor[ing] the obvious and attempt[ing] to outmaneuver the [g]rievant in the grievance process[,]" also indicates bias against the Agency. Id. at 24.

The Agency also contends that the Arbitrator erroneously found that the Agency referred the grievant to psychiatric counseling when, in fact, the grievant sought counseling on advice of his counsel. According to the Agency, the Arbitrator's reliance on this nonfact was the "basis for the erroneous conclusion that the Agency had knowledge of [g]rievant's mental problems." Id. at 14.⁽⁵⁾

2. Union

The Union contends that the Agency has not demonstrated "why arbitrator Race would be biased against the [Agency][.]" Opposition at 18. In this regard, the Union contends that "[d]isagreement with the [A]rbitrator's findings does not automatically give rise to a charge of bias as suggested by the [A]gency." Id.

B. Analysis and Conclusions

To demonstrate that an award is deficient because of bias on the part of an arbitrator, it must be shown, for example, that the award was procured by improper means, that there was partiality or corruption on the part of the arbitrator, or that the arbitrator engaged in misconduct that prejudiced the rights of a party. For example, U.S. Department of the Treasury, Customs Service, Houston, Texas and National Treasury Employees Union, 41 FLRA 485, 493 (1991). The Agency has not shown that the award is deficient under any of these tests. Although the Arbitrator's comments that the grievance entailed "excessive litigation" and that the Agency "attempted to outmaneuver the grievant in the grievance process" may not have been favorable to the Agency, the Agency has not established that the award was procured by fraud, corruption, or undue means; or that there was partiality or corruption on the part of the Arbitrator; or that the Arbitrator was guilty of misconduct by which the rights of any party were prejudiced under any of the tests commonly applied by Federal courts in private sector labor relations cases. Award at 5, 7. See U.S. Department of the Army, Fort Polk, Louisiana and National Association of Government Employees, Local R5-168, 44 FLRA 1548, 1562 (1992). In our view, the Agency has failed to demonstrate that the Arbitrator was biased. Accordingly, we will deny this exception. See National Gallery of Art and American Federation of Government Employees, Local 1831, 39 FLRA 226, 234 (1991).

IX. Summary

We find no deficiency in the portion of the Arbitrator's award finding that the grievant is entitled to attorney fees and certain costs. However, as it is unclear from the record how the amount of those attorney fees was calculated, that is, whether the grievant's attorney charged a different hourly rate for travel time and time spent in administrative hearings. Accordingly, we will remand the award to the parties for resubmission to the Arbitrator to make the required determination consistent with this decision. For the same reasons, we will remand the portion of the award granting the grievant's attorney's request for travel expenses.

We find that the cost billed for automated equipment is equivalent to a secretarial cost, and thus, is not allowable under 5 U.S.C. § 7701(g). Therefore, the portion of the award granting costs for automated equipment will be set aside.

X. Decision

For the foregoing reasons, the Agency's exceptions are granted in part and denied in part. The portion of the award granting costs for automated equipment is set aside. The award is remanded to the parties for resubmission to the Arbitrator in accordance with this decision. The Union's attorney shall provide the Arbitrator with information concerning travel expenses and the amount of time and rate billed for travel and administrative hearings.

---

---

---

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

1. The Agency's exceptions to the original award were denied in U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center and American Federation of Government Employees, Local 3407, 44 FLRA 103 (1992).

2. As a result of the grievant's behavior on January 3, 1990, the Agency instituted the 14-day suspension which became the subject of the arbitration. Based on that same behavior, the Agency instituted separate proceedings to revoke the grievant's security clearance.

3. In February 1990, soon after the incident which resulted in the disputed 14-day suspension, the grievant retained a law firm. At the arbitration hearing, the Arbitrator informed the grievant that his attorney could not participate in a representative capacity unless she was designated to do so by the Union. With approval of the grievant, the Union designated the grievant's attorney as its representative.

4. Because an award of attorney fees is warranted where the award meets any interest of justice criterion, there is no need to address further the Agency's exceptions regarding the other criteria. See Red River Army Depot, 39 FLRA at 1222.

5. We will not address further the Agency's claim that the Arbitrator's decision was based on a nonfact. The nonfact which the Agency disputes relates only to the Arbitrator's finding that the award of fees was warranted in the interest of justice because the Agency "knew or should have known" that it would not prevail on the merits. However, we previously denied the Agency's exception to the Arbitrator's finding that the award was warranted on the clearly without merit standard, and, as noted above, an award may be in the interest of justice when it meets any of the six criteria. As such, the Agency's nonfact claim is irrelevant to the outcome of this decision.

---