U.S. Army Missile Readiness Command and American Federation of Government Employees, Local 1858 (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 found that an Army employee should have received a noncompetitive promotion and ordered back pay and attorney fees. The Army argued that the grievance concerned position classification and that the fee award lacked the findings required by the Back Pay Act. The Authority rejected the classification argument because the grievance concerned entitlement to promotion after the position had been upgraded. It found that the arbitrator had not explained the statutory basis for the fee award. The Authority returned that portion for clarification while leaving the promotion ruling undisturbed.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a) and fee standards under 5 U.S.C. § 5596.
• Outcome: Classification exception denied; attorney fee award remanded for findings.
• Key point: The arbitrator needed specific findings supporting the attorney fee award.

Full text (FLRA public release)

[ v15 p286 ]

15:0286(64)AR

The decision of the Authority follows:

15 FLRA No. 64

U.S. ARMY MISSILE
READINESS COMMAND
Activity

and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 1858
Union

Case No. O-AR-415

DECISION

This matter is before the Authority on exceptions to the award of Arbitrator John A. Griffin filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. /1/

The Arbitrator stated the dispositive issue as whether the grievant had been improperly denied a noncompetitive promotion. The Arbitrator essentially determined that in November 1979 the grievant's position was upgraded because of additional duties and responsibilities and that the grievant was entitled at that time to have been noncompetitively promoted. Accordingly, as his award the Arbitrator ordered the grievant retroactively promoted with backpay and also ordered the payment of reasonable attorney fees.

In its first exception the Agency contends that the award violates section 7121(c)(5) of the Statute which precludes grievances concerning the classification of any position which does not result in the reduction in grade or pay of an employee. However, the Authority has expressly determined that a grievance and an award pertaining to whether the grievant was entitled to a noncompetitive promotion as a result of the grievant's position being upgraded do not concern the classification of any position within the meaning of section 7121(c)(5) of the Statute. Warner Robins Air Logistics Center, Robins Air Force Base, Georgia and American Federation of Government Employees, Local 987, 10 FLRA No. 69 (1982). Accordingly, this exception provides no basis for finding the award contrary to section 7121(c)(5) of the Statute and is denied.

In its second exception the Agency contends that the Arbitrator's award of attorney fees is contrary to the Back Pay Act, 5 U.S.C. 5596. Specifically, the Agency argues that the award of attorney fees is not in accordance with the standards established under 5 U.S.C. 7701(g) which govern an award of attorney fees by an arbitrator under the Back Pay Act.

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 of fees 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 award of attorney fees by the Arbitrator.

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 of 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

--------------- FOOTNOTES$ ---------------

/1/ Exceptions submitted by the grievant were not timely filed and therefore are dismissed.