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

Number 139                    February 2001

National Association of Government Employees, Local R4-6 and Army Transportation Center, Fort Eustis, Virginia, 0-AR-3207-REM (55 FLRA 1298 (2000)), January 31, 2001, 56 FLRA No. 193.

FLRA upheld an arbitrator's determination that, notwithstanding his having mitigated a 14-day suspension to a 1-day suspension, attorney fees were not warranted in the interest of justice. Because the grievant prevailed on technical, not substantive grounds, she was not substantially innocent. Moreover, it can't be said that an agency should have known that its original penalty selection wasn't reasonable where its choice of penalty was based on several charges, not all of which were sustained.

The grievant, employed as a program assistant at a child care center operated by the agency, had informed the father of a child at the center that she believed the child was being abused. (The grievant wasn't the child's primary or regular caregiver and her belief was allegedly derived from agency records.) When the child's father confronted the child's mother and her spouse about the alleged abuse, he was arrested and a trial followed. When the grievant was subpoened to testify as a character witness for the father, agency counsel instructed the grievant regarding the scope of permissible testimony under agency regulations. Following the trial, the agency charged the grievant with (1) misrepresenting the agency by testifying she had been instructed not to testify and that she had records indicating that the child had been abused; (2) misrepresenting the agency by disclosing confidential information to the child's father; and (3) acting insubordinately by testifying about the center despite instructions not to testify. After her reply to a proposed separation, the agency reduced the penalty to a 14-day suspension.

When the matter was referred to arbitration, the arbitrator sustained the charge of insubordination, dismissed the charges of misrepresentation, and reduced the suspension from 14 days to 1 day. The arbitrator, however, rejected the union's motion for attorney fees, determining that the grievant wasn't a "prevailing party" under the Back Pay Act because the grievant "clearly and flagrantly committed a punishable offense." In 55 FLRA No. 207, the Authority concluded that the arbitrator erred in finding that the grievant wasn't a "prevailing party" under the Back Pay Act and remanded the award to the arbitrator to determine whether the other requirements for an award of fees were met.

On remand, the arbitrator, relying on two of the criteria (i.e., Allen criteria 2 and 5) that are used by MSPB and FLRA to determine whether an award of fees is in the interest of justice, found that an award of attorney fees wasn't warranted. (See Allen v. USPS, 2 M.S.P.R. 420, 434-35 (1980) and 54 FLRA 773, 790 (1998).) The union again filed an exception.

Criterion 2.  In denying the union's exception, FLRA noted that under Allen criterion 2, an employee is substantially innocent when he or she prevails on substantive, rather than technical, grounds on the major charges. Although the grievant prevailed on the two major charges against her, FLRA noted that the arbitrator didn't dismiss those charges for substantive reasons.

Rather, he determined that the charge of "misrepresentation" under the Agency's regulation is limited to misrepresentation to the Agency, not [to] a court or other third party. Moreover, he found that the grievant clearly and flagrantly committed a punishable offense for which she merited the strictest penalty available. These findings support the Arbitrator's conclusion that the substantial innocence standard was not met. . . . Accordingly, given that the Arbitrator dismissed the charges of misrepresentation for technical reasons and that he did not find the grievant to be without fault, the Union has provided no reason to reverse the Arbitrator's award based on his determination that the grievant is not substantially innocent.

FLRA further noted that under Allen criterion 2, the issue of whether the agency's actions were clearly without merit and wholly unfounded is addressed independently from the grievant's substantial innocence. Inasmuch as the arbitrator had found that the grievant was at fault—i.e., "clearly and flagrantly committed a punishable offense" which merited the strictest penalty available—and had dismissed the charges of misrepresentation solely on technical grounds, FLRA found that "the Arbitrator's legal conclusion that fees are not warranted under criterion 2 is consistent with the clearly without merit or wholly unfounded standard."

Criterion 5.  Quoting from 54 FLRA 250, 254 (1998), FLRA noted that Allen criterion 5 "requires an arbitrator to determine the reasonableness of an agency's actions and positions in light of what information was available to it [at the outset of] the case." The reasonableness of the agency's actions includes both the charges themselves and its choice of penalty. Quoting from Shelton v. OPM, 42 M.S.P.R. 214, 221-22 (1989) (Shelton), aff'd 904 F.2d 46 (Fed. Cir. 1990), FLRA noted that where an agency's "choice of penalty is based on multiple charges, and a subsequent decision to mitigate the penalty is based in part on the fact that not all of the charges were sustained, it cannot be said that the agency should have known its original penalty selection was not reasonable."

In the case at bar, as in Shelton, the agency decided to impose a 14-day penalty based on an evaluation of multiple charges and the arbitrator reduced the penalty to 1 day based on his dismissal of some of the charges. The arbitrator determined that the agency conducted a thorough investigation before recommending discipline and it properly weighed the relevant factors in determining the penalty for the grievant's actions. "These findings," FLRA concluded, "support the Arbitrator's conclusion that the Agency neither knew nor should have known that its 14-day penalty would not be sustained on appeal."

FLRA accordingly found that the union's exception didn't establish that the arbitrator erred in determining that attorney fees were not warranted in the interest of justice.