Click here to view the decision.
56 FLRA No. 193
NAGE, Local R4-6 and U. S. Dept. of the Army, Army Transportation Center, Fort Eustis, Virginia (Rosen, Arbitrator), 0-AR-3207 (Decided January 31, 2001)
Following remand from the Authority, the Arbitrator found that the Union's requested award of attorney fees was not warranted in the interest of justice. Accordingly, he denied the Union's motion for such fees. The Authority found that the Union failed to show that the award was deficient under § 7122(a) of the Statute.
The Authority noted that under the Back Pay Act, 5 U.S.C. § 5596, an award of attorney fees must be in accordance with the standards established under 5 U.S.C. § 7701(g). The prerequisites for an award of attorney fees under § 7701(g) are that: (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. The Authority further noted that it evaluates whether an award of attorney fees is warranted in the interest of justice by applying the criteria established by the Merit Systems Protection Board.
The Authority found that the Union did not cite any authority in support of its assertion that its duty to represent employees affected the evaluation of the substantial innocence of an employee. The Authority found, given that the Arbitrator dismissed the charges of misrepresentation for technical reasons and that he did not find the grievant to be without fault, that the Union provided any reason to reverse the Arbitrator's award based on his determination that the grievant was not substantially innocent.
The Arbitrator's findings established that the grievant committed the conduct alleged by the Agency in its charges of misrepresentation. The Arbitrator found that the grievant was at fault. Thus, the Arbitrator's legal conclusion that fees were not warranted was consistent with the clearly without merit or wholly unfounded standard. The Authority found that the Union's exception did not establish that the Arbitrator erred in determining that attorney fees were not warranted in the interest of justice