Army Aviation Systems Command and NFFE Local 405 (Authority decision, July 7, 1986)

Final FLRA decision. The Authority resolves exceptions to an arbitration award. Under 5 U.S.C. § 7123(a)(1), ordinary judicial review is generally unavailable for an order concerning an arbitration award unless it involves an unfair labor practice under § 7116; this decision does not decide one.

Plain-English summary

An arbitrator found errors in a selection for a supervisory engineering position and ordered attorney fees. The Authority held that the Back Pay Act did not permit those fees without a finding of lost pay and an accompanying backpay award. It removed the attorney fee paragraph from the arbitration award.

Decision snapshot

• Authority: 5 U.S.C. § 5596, 5 U.S.C. § 7122(a).
• Outcome: Attorney fee paragraph struck from award.
• Key point: Fees under the Back Pay Act require a qualifying loss of pay and a backpay award.

Full text (FLRA public release)

[ v22 p379 ]

22:0379(35)AR

The decision of the Authority follows:

22 FLRA No. 35

UNITED STATES ARMY AVIATION
SYSTEMS COMMAND
Activity

and

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 405

Case No. 0-AR-1088

DECISION

I. STATEMENT OF THE CASE

This matter is before the Authority on an exception to the award of Arbitrator Paul E. Fitzsimmons 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. The Union filed an opposition. /*/

II. BACKGROUND AND ARBITRATOR'S AWARD

The grievance in this case concerned the grievant's failure to be selected for a supervisory professional engineer position. A grievance was filed and submitted to arbitration on the issue of whether the selection action conformed to applicable laws, rules, and regulations. The Arbitrator determined that there were substantial errors in the selection action that required remedial action. With respect to the remedy, the Arbitrator stated that he was not qualified to determine the relative qualifications of the grievant and the employee selected for the engineer position. Accordingly, as his award, the Arbitrator ordered that the selection and recruitment process for the position be rerun in accordance with applicable laws, rules, and regulations and that the selected employee be retained in the position pending the corrective action. In addition, the Arbitrator ordered as follows:

3. Pursuant to the provisions of 5 U.S.C. Sections 5596, 7701,
   (the) Attorney for the Grievant is to be compensated by the Employer, upon submission of an itemized bill at the rate of ($75.00) per hour for services rendered. The total fee shall not exceed ($1500.00).

III. EXCEPTION

A. Contentions of the Agency

In its exception the Agency contends that paragraph 3 of the award is contrary to the Back Pay Act, 5 U.S.C. Section 5596. Specifically, the Agency argues that the Arbitrator was not authorized under the Back Pay Act to award attorney fees to the grievant.

B. Opposition of the Union

In its opposition the Union maintains that the Back Pay Act is not the only authority for an award of attorney fees by an arbitrator. In particular, the Union argues that in cases of prohibited personnel practices, an arbitrator may award attorney fees under the terms of 5 U.S.C. Section 7701(g), independent of the Back Pay Act, and that in this case section 7701(g) supports the award.

IV. ANALYSIS AND CONCLUSIONS

Contrary to the position of the Union, the Authority has indicated that an arbitrator is authorized to award attorney fees in cases of unjustified or unwarranted personnel actions only under the terms of the Back Pay Act. Naval Air Development Center, Department of the Navy and American Federation of Government Employees, Local 1928, AFL-CIO, 21 FLRA No. 25 (1986); see also International Brotherhood of Electrical Workers and United States Army Support Command, Hawaii, 14 FLRA 680 (1984). Thus, an arbitrator is not authorized to award attorney fees solely under the terms of section 7701(g), independent of the terms of the Back Pay Act, even in cases of prohibited personnel practices. Consequently, attorney fees were properly awarded by the Arbitrator only if authorized under the requirements of the Back Pay Act. As previously recognized by the Authority, the Act requires that in order to be eligible for attorney fees, the employee must be found by appropriate authority, under applicable law, rule, regulation or collective bargaining agreement, to have been affected by an unjustified or unwarranted personnel action which resulted in the withdrawal of reduction of the employee's pay, allowances, or differentials. Additionally, the fee award must be in conjunction with an award of backpay on the correction of the unjustified or unwarranted personnel action; the fee award must be reasonable and related to the personnel action; and the fee award must be in accordance with standards established under section 7701(g). Id.

In this case the Authority concludes that the Arbitrator's award of attorney fees is not in accordance with the requirements of the Act. Although the Arbitrator determined that the grievant had been affected by the improper selection action, he did not determine that this resulted in a withdrawal or reduction of the grievant's pay, allowances, or differentials, and consequently he awarded no backpay to the grievant. Thus, the Arbitrator's award of attorney fees was not in conjunction with an award of backpay on correction of the improper selection action. For this reason, and apart from other considerations, the award is deficient as contrary to an express requirement of the Back Pay Act. See Audie L. Murphy Veterans Administration Hospital, San Antonio, Texas and American Federation of Government Employees, AFL-CIO, Local No. 3511, 16 FLRA 1079 (1984); Department of Defense Dependents Schools and Overseas Education Association, 3 FLRA 259 (1980).

V. DECISION

Accordingly, paragraph 3 is struck from the Arbitrator's award.

Issued, Washington, D.C., July 7, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY

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

(*) In its opposition the Union notes a provision of the parties' collective bargaining agreement stating that within 10 days after receipt of an arbitrator's award, there will be written notification by the parties of any intent to file exceptions. The Union maintains that there was no such notification in this case and that the Authority on this basis should dismiss the Agency's exception. The Authority concludes that the parties' agreement provides no basis for dismissing the Agency's exception that conforms to the requirements of section 7122(a) and the Authority's Rules and Regulations.