U.S. Patent and Trademark Office and Patent Office Professional Association (Authority decision, June 16, 1988)

Final FLRA decision. The Authority denies the union's exception to an arbitrator's denial of attorney fees. Under 5 U.S.C. § 7123(a)(1), orders involving arbitral awards are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116. This decision does not state that it involves one.

Plain-English summary

Patent examiners won a grievance over changes to the Patent and Trademark Office's signatory authority program. After the agency and union agreed on remedies for affected employees, the union sought attorney fees. The arbitrator denied fees, finding they were not warranted in the interest of justice. The union argued that the grievance had corrected a workplace problem affecting many employees. The Authority denied its exception because the arbitrator had explained his reasons under the statutory fee standards and the union had not shown that the fee denial was contrary to law.

Decision snapshot

• Authority: 5 U.S.C. §§ 5596, 7701(g), 7122(a).
• Outcome: Union exception denied; arbitrator's attorney-fee denial stands.
• Key point: A successful grievance does not itself establish that attorney fees are warranted in the interest of justice.

Full text (FLRA public release)

[ v32 p375 ]

32:0375(58)AR

The decision of the Authority follows:

32 FLRA NO. 58
32 FLRA 375

16 JUN 1988
U.S. PATENT AND TRADEMARK OFFICE

Agency

and

PATENT OFFICE PROFESSIONAL
ASSOCIATION

Union

Case No. 0-AR-1459

DECISION

I. Statement of the Case. This matter is before the Authority on an exception to the arbitration award of Arbitrator Jerome H. Ross. The Arbitrator denied the Union's request for an award of attorney fees. He found that an award of attorney fees was not warranted in the interest of justice.

The Union filed an exception under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition.

We conclude that the Union has failed to establish that the denial of attorney fees is contrary to law. Accordingly, we deny the exception.

II. Background

In a prior grievance arbitration award, Arbitrator Ross determined that the Agency violated the interest arbitration award of Arbitrator Seidenberg when the Agency raised the level of performance necessary to obtain signatory authority. Accordingly, Arbitrator Ross sustained the Union's grievance that had been filed on behalf of patent examiners challenging the change in the signatory authority program. He directed that the signatory program as it existed before the change be reinstituted and that the Agency and the Union jointly determine whether any patent examiners had been affected adversely by the Agency's change and, if so, to fashion an appropriate make-whole remedy.

The Agency filed exceptions to the award. We denied the exceptions in Patent and Trademark Office and Patent Office Professional Association, 26 FLRA 295 (1987).

After the Agency's exceptions were denied and in accordance with the Arbitrator's award, the Agency and the Union agreed to provide a make-whole remedy for all patent examiners who had been adversely affected by the change in the signatory program. As a result of the agreement, one former employee received an award of backpay and four employees received special achievement awards in the amount of 3 percent of their gross salary.

The Union then filed a motion for an award of attorney fees with Arbitrator Ross under 5 U.S.C. 5596 and 7701(g). The Arbitrator's award resolving the request for attorney fees is in dispute in this case.

III. Arbitrator's Award

The Arbitrator stated that the Union's motion presented the issue of whether an award of attorney fees was warranted in the interest of justice. He noted that both the Merit Systems Protection Board (MSPB) in Allen v. U.S. Postal Service, 2 MSPB 582 (1980) (Allen), and the Members of the Authority in separate concurring opinions in Naval Air Development Center, Department of the Navy and American Federation of Government Employees, Local 1928, AFL - CIO, 21 FLRA 131 (1986) (NADC), provided examples of instances when the award of attorney fees would be warranted in the interest of justice. He determined that two illustrative examples set forth in Allen and NADC, respectively, were relevant to the union's motion: (1) instances where the agency knew or should have known that it would not prevail on the merits when it took the disputed action; and (2) instances where there is either a service rendered to the Federal workforce or there is a benefit to the public derived from maintaining the action.

The Arbitrator found no basis for concluding that the Agency knew or should have known that it would not prevail on the merits when it changed the standard required to obtain signatory authority. The Arbitrator found that the Agency had a legitimate basis for believing that the award of Arbitrator Seidenberg was not intended to act as an indefinite bar to changes involving management rights.

The Arbitrator also determined that this case did not involve a service rendered to the Federal workforce or a benefit to the public derived from maintaining the action so as to warrant an award of attorney fees. He found that the dispute was not the type of "workplace problem" that warranted an award of attorney fees under NADC.

Accordingly, the Arbitrator ruled that the award of attorney fees was not warranted in the interest of justice. Therefore, the Arbitrator denied the Union's motion for attorney fees.

IV. Exception and Opposition

The Union contends that the Arbitrator's denial of its request for attorney fees is contrary to law. The Union argues that NADC required the award of fees because this case resulted in a service to the Federal workforce: the grievance led to correction of workplace problems affecting a segment of the workplace. The Union maintains that the correction of unilateral changes of promotion practices covering large numbers of employees requires the award of fees in the interest of justice under NADC. The Union claims that the benefits sought and received in this case were actually far broader in scope and monetary amount than the scope and monetary amount of the benefit in NADC.

The Agency contends that the exception should be denied. The Agency maintains that the Arbitrator fully considered the request for fees and reasonably concluded that the limited nature of the grievance did not constitute an instance where fees would be warranted because of a service rendered to the Federal workforce in correcting a workplace problem.

V. Analysis and Conclusions

We conclude that the Union's exception provides no basis for finding the award contrary to law.

When exceptions are filed to arbitration awards resolving requests for attorney fees, our role is to ensure that the arbitrator complies with applicable statutory standards. A threshold requirement for entitlement to attorney fees under the Back Pay Act is a finding that the grievant had been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials. The Back Pay Act further requires that an award of attorney fees must be: (1) in conjunction with an award of backpay to the grievant on correction of the personnel action; (2) reasonable and related to the personnel action, and (3) in accordance with the standards established under 5 U.S.C. 7701(g).

Section 7701(g) prescribes that for an employee to be eligible for an award of attorney fees, the employee must be the prevailing party. Section 7701(g)(1), which applies to all cases except those involving allegations of discrimination, requires that an award of attorney fees must be warranted in the interest of justice, that the amount must be reasonable, and that the fees must have been incurred by the employee. The standards established under section 7701(g) further require a fully articulated, reasoned decision setting forth the specific findings supporting the determination on each pertinent statutory requirement, including the basis on which the reasonableness of the amount was determined when fees are awarded. See NADC; and International Brotherhood of Electrical Workers and United States Army Support Command, Hawaii, 14 FLRA 680 (1984).

We have examined the award and we find that the award is supported by a fully articulated decision and contains the specific findings required by law. In particular, the Arbitrator fully articulated his reasons for determining that an award of fees was not warranted in the interest of justice. The Union fails to establish that the Arbitrator's decision is contrary to law.

The Arbitrator determined that this case did not involve a service rendered to the Federal workforce or a benefit to the public derived from maintaining the action so as to warrant an award of fees in the interest of justice. In our view, the Union fails to establish that the denial of fees in these circumstances was contrary to law. Rather, the Union disagrees with the Arbitrator's conclusion. The Union's exception provides no basis for finding the award deficient

VI. Decision

The Union's exception is denied.

Issued, Washington, D.C., June 16, 1988.

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY