American Federation of Government Employees, Local 2667 and Equal Employment Opportunity Commission (Authority decision, July 17, 1984)

FLRA remand decision. The Authority returns the attorney fee portion of an arbitration award for clarification by the arbitrator. That fee issue remains open, so this decision does not present a final judicial-review period under 5 U.S.C. § 7123(a).

Plain-English summary

An arbitrator set aside an EEOC employee's 14-day suspension and awarded back pay, but denied the union's request for attorney fees. AFGE Local 2667 argued that the fee denial did not apply the standards of the Back Pay Act. The Authority found that the arbitrator's explanation lacked the specific findings required under its newly stated fee standards. It remanded the fee issue for clarification. The decision did not disturb the suspension and back pay relief or decide whether fees should ultimately be paid.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a) and attorney fee criteria under 5 U.S.C. §§ 5596 and 7701(g)(1).
• Outcome: Fee denial remanded for specific statutory findings.
• Key point: The arbitrator had to explain the denial of attorney fees under the applicable statutory criteria.

Full text (FLRA public release)

[ v15 p281 ]

15:0281(62)AR

The decision of the Authority follows:

15 FLRA No. 62

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 2667
Union

and

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
Agency

Case No. O-AR-292

DECISION

This matter is before the Authority on an exception to the award of Arbitrator James M. Harkless filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition.

The dispute in this matter concerns the grievant's 14-day suspension on charges of failure to obey an order, insubordination, and dereliction in the performance of her assigned duties. A grievance was filed and submitted to arbitration protesting the suspension. The Arbitrator determined that the suspension was not for sufficient cause. Accordingly, he sustained the grievance, set aside the suspension, and awarded the grievant backpay for the salary that was improperly withheld by reason of the suspension. However, he denied the Union's request for an award of attorney fees because he determined that the grievant's conduct warranted an admonishment. The Union has filed an exception to the Arbitrator's denial of attorney fees.

In its exception the Union contends that the denial of attorney fees is contrary to the Back Pay Act, 5 U.S.C. 5596. Specifically, the Union argues that the award is not in accordance with the standards established under 5 U.S.C. 7701(g) regarding awards of attorney fees. Specifically, the Union maintains that the Arbitrator essentially held that an award of attorney fees was not justified because the grievant's conduct warranted an admonishment and that this ruling is inconsistent with section 7701(g)(1), which provides other criteria for determining when an award of attorney fees is warranted. Further, the Union claims that the refusal to grant attorney fees is inconsistent with the standards established under section 7701(g)(1) by the Merit Systems Protection Board which provide that an award of attorney fees is warranted when an employee is substantially innocent of charges brought against the employee or when a suspension was initiated in bad faith.

In International Brotherhood of Electrical Workers and United States Army Support Command, Hawaii, 14 FLRA No. 90 (1984), the Authority for the first time addressed in detail the statutory requirements regarding awards of attorney fees by arbitrators. The Authority held that under the applicable standards of the Back Pay Act, an arbitrator must provide 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. In this case the Arbitrator's award is not in accordance with these standards. However, the Arbitrator's determination was made without the benefit of the instruction and guidance provided by United States Army Support Command, Hawaii. Consequently, the Authority shall remand the award to the parties to have them obtain a clarification and interpretation of the determination by the Arbitrator to deny an award of attorney fees.

Accordingly, pursuant to section 2425.4 of the Authority'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 regarding attorney fees to articulate fully specific findings on all pertinent statutory provisions.

Issued, Washington, D.C., July 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY