American Federation of Government Employees, Local 216, National Council of EEOC Locals and Equal Employment Opportunity Commission (Authority decision, September 24, 1991)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority involving an arbitral award under 5 U.S.C. § 7122. Judicial review under 5 U.S.C. § 7123(a) generally does not extend to such an order unless the order involves an unfair labor practice under 5 U.S.C. § 7116. This decision resolves exceptions to an arbitration award and does not state that it involves an unfair labor practice.

Plain-English summary

An arbitrator found that the EEOC partly based an employee's marginal performance rating on retaliation for union activity and ordered a fully successful rating. The arbitrator did not award backpay and later denied the union's request for attorney fees. The union challenged the fee denial under the Back Pay Act. The Authority held that fees under that Act required a loss and an award of pay, allowances, or differentials. Because the arbitrator made no such award, it denied the union's exception.

Decision snapshot

• Authority: Attorney fees under the Back Pay Act, 5 U.S.C. § 5596(b)(1), and arbitration exceptions under § 7122(a).
• Outcome: Union's exception denied; attorney fee denial remains.
• Key point: The Back Pay Act did not support fees without an associated award of pay, allowances, or differentials.

Full text (FLRA public release)

[ v42 p319 ]

42:0319(24)AR

The decision of the Authority follows:

42 FLRA No. 24

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 216

NATIONAL COUNCIL OF EEOC LOCALS

(Union)

and

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

(Agency)

0-AR-2112

DECISION

September 24, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Jerome H. Ross. The Arbitrator denied the Union's request for attorney fees under the Back Pay Act, 5 U.S.C. § 5596(b)(1).

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 to the Union's exception.

For the following reasons, we conclude that the Union has failed to establish that the denial of attorney fees is contrary to the Back Pay Act. Accordingly, we will deny the exception.

II. Background and Arbitrator's Award

In his initial award, the Arbitrator found that a grievant's marginal performance rating was based, in part, on the Agency's retaliation for the grievant's Union activities. The Arbitrator ordered that the grievant receive a fully successful performance rating. The Arbitrator did not award backpay to the grievant.

Subsequently, the Union requested attorney fees. In an award dated April 19, 1991, the Arbitrator denied the Union's request. The Arbitrator found that "a loss of pay, allowances or other differentials" was required to support an attorney fee award under the Act and that his April 1, 1991, award "did not grant any relief in the form of back pay[.]" April 19 Award at 1.

III. Positions of the Parties

A. The Union

The Union contends that the Arbitrator's denial of its request for attorney fees is contrary to the Back Pay Act, 5 U.S.C. § 5596(b)(1)(A)(ii). According to the Union, the Agency's unlawful retaliation against the grievant constitutes "an unwarranted and unjustified personnel action pursuant to 5 U.S.C. § 5596(b) for which attorney fees are awardable." Exceptions at 2. The Union asserts that the Arbitrator's denial of attorney fees violates the Back Pay Act and should be reversed.

B. The Agency

The Agency contends that the Union's exception to the Arbitrator's award denying attorney fees should be dismissed because "[t]here has never been any claim or determination that Grievant suffered any loss of 'pay, allowances or differentials,' as required by the Back Pay Act." Opposition at 6.

IV. Analysis and Conclusions

A threshold requirement for entitlement to attorney fees under the Back Pay Act is a finding that the grievant has been affected by an unjustified or unwarranted personnel action which resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials. See Department of Health and Human Services, Public Health Service, Region IV, Atlanta, Georgia and National Treasury Employees Union, Chapter 210, 34 FLRA 823, 829 (1990). Attorney fees can be awarded under the Back Pay Act only in conjunction with an award of backpay, allowances, or differentials. For example, Health Care Financing Administration, Department of Health and Human Services and American Federation of Government Employees, Local 1923, 35 FLRA 274, 290 (1990).

In this case, the Arbitrator did not find that the grievant's disputed performance rating resulted in a loss of pay, allowances, or differentials and the Arbitrator did not award such pay, allowances, or differentials. Absent such an award, there is no basis under the Back Pay Act for an award of attorney fees. Consequently, the Arbitrator's failure to award attorney fees is not deficient as contrary to the Back Pay Act and we will deny the Union's exception.

V. Decision

The Union's exception is denied.

FOOTNOTES:

(If blank, the decision does not have footnotes.)