U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

Naval Undersea Warfare Center and National Association of Government Engineers, Federal Union of Scientists and Engineers, 0-AR-3253, March 29, 2001, 57 FLRA No. 11.

The Authority, citing MSPB and Federal Circuit decisions, turned down agency exceptions to an award of attorney fees for fees incurred in opposing agency exceptions to the arbitrator's initial award. Since the arbitrator had determined that the agency should have known that its exceptions to the arbitrator's initial award would be denied and were wholly unfounded, FLRA concluded that the award satisfied Allen criteria 2 and 5 and thus attorney fees were warranted in the interest of justice.

In 54 FLRA No. 132, the Authority turned down agency exceptions to an award in which the arbitrator, after finding that the grievant was entitled under the Federal Employees Pay Act (FEPA) to overtime pay for travel outside duty hours, directed the agency to compensate the grievant for time spent in travel. FLRA relied, in part, on Comptroller General precedent relating to 5 USC 5542(b)(2)(B)(iv), which is an exception to the rule that time spent in a travel status away from the official duty station doesn't constitute hours of work. Deferring to the factual findings of the arbitrator, FLRA concluded that those findings supported the arbitrator's legal conclusion that the grievant's travel resulted from an event that was not administratively controlled by the agency.

The union subsequently filed a petition with the arbitrator for an award of attorney fees in the amount of $4,387.50. The arbitrator, who didn't hold a hearing on the matter, issued a supplemental award ordering the agency to pay the union attorney fees in the amount of $3,675. The agency filed exceptions, arguing, among other things, that the award didn't satisfy the requirements of the Back Pay Act. The Authority, noting that the arbitrator, in her cursory supplemental award, didn't make any findings with respect to the agency's claim that the award wasn't warranted in the interest of justice and that the amount wasn't reasonable, remanded the case to the parties for resubmission to the arbitrator for a determination on these attorney fee requirements.

On remand the arbitrator said the following in determining that an award of fees was warranted in the interest of justice:

[W]hile an argument might be advanced that prior to the arbitration award reasonable minds could differ on the merits of the case, once the matter was decided and fully explained in the written decision, the Agency knew or should have known that the arbitration award was not deficient. The Agency showed ill will and/or negligence in proceeding to the FLRA on exceptions. These exceptions were wholly unfounded and were properly dismissed, but not before the Union expended time and resources preparing for a defense.

The arbitrator also determined that the union's request for fees covering 7.75 hours in preparing the motion for fees wasn't reasonable and accordingly awarded the union $3,225 in attorney fees.

The agency again filed exceptions, claiming, among other things, that the attorney fees were awarded with respect to the agency's filing of exceptions, and not with respect to the agency's personnel action that resulted in the underlying arbitration award.

In rejecting this argument, FLRA cited and briefly quoted from 48 FLRA No. 113—a case involving the awarding of attorney fees for fees incurred in opposing exceptions to the underlying award—where, after discussing the interest of justice requirement, it said the following:

If the arbitrator determines that the agency's conduct in the underlying case meets any of the interest of justice criteria so as to warrant attorney fees, then the arbitrator's determination that fees are warranted in the interest of justice applies to all subsequent phases of litigation involving the case if the grievant prevails in the subsequent litigation. . . . However, if the arbitrator determines that the agency's conduct in the underlying case does not meet any of the interest of justice criteria needed to support an award of attorney fees, then the arbitrator should extend his or her examination beyond an agency's action in the underlying personnel action to determine whether fees are warranted in the interest of justice for subsequent phases of litigation. Specifically, an arbitrator should assess whether the agency's exceptions to the Authority meet any of the interest of justice criteria so as to warrant attorney fees in connection with the adjudication of those exceptions. If the arbitrator determines that the agency's action in filling exceptions meets any of the interest of justice criteria, the arbitrator could award fees for work related to the union's opposition to the agency's exceptions, notwithstanding the fact that the agency's conduct in the underlying personnel action did not meet any of the interest of justice criteria.

FLRA also rejected the agency's claim that the union never argued to the arbitrator that fees were warranted in the interest of justice based on the agency's having filed exceptions to the original award, noting that the union made such arguments in its memorandum supporting its motion for attorney fees. Also rejected was the agency's claim that the union's motion for fees was untimely. FLRA also found it unnecessary to address the agency's argument that the arbitrator's conclusion that the agency showed ill will and/or negligence in filing exceptions to her initial award, as the award of fees was based "on more than the conclusion that the Agency showed ill will and/or negligence. She also specifically concluded that the Agency knew or should have known that its exceptions would be denied and that the exceptions were wholly unfounded."