Department of Defense, Dependents School (Activity) and Overseas Education Association, Inc. (Union) (Authority decision, May 23, 1980)

Final FLRA decision. This order concerns exceptions to an arbitration award under 5 U.S.C. § 7122. Under 5 U.S.C. § 7123(a)(1), such orders 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

An overseas schools union sought review of an arbitrator’s denial of attorney fees after a pay grievance. The arbitrator later denied the underlying grievance on reconsideration, finding the teacher had been properly paid. The Authority found no showing of the pay reduction needed to support Back Pay Act fees and denied review. The fee award remained in place.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a).
• Outcome: Petition for review denied; attorney fee denial remains in effect.
• Key point: No unjustified reduction in pay was established after the final grievance award.

Full text (FLRA public release)

[ v03 p260 ]

03:0260(40)AR

The decision of the Authority follows:

3 FLRA No. 40

DEPARTMENT OF DEFENSE,
DEPENDENTS SCHOOL
Activity

and

OVERSEAS EDUCATION
ASSOCIATION, INC.
Union

Case No. 0-AR-28

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON A PETITION FOR REVIEW OF THE
AWARD OF ARBITRATOR HOWARD KLEEB FILED BY THE UNION UNDER SECTION
7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5
U.S.C. 7122(A)).

ACCORDING TO THE ENTIRE RECORD BEFORE THE AUTHORITY, THE DISPUTE IN
THIS CASE AROSE WHEN THE AGENCY INCREASED THE NUMBER OF ACTUAL WORK DAYS
IN A SCHOOL YEAR FOR OVERSEAS TEACHERS FROM 187 TO 190 STARTING WITH THE
1976-77 SCHOOL YEAR. THEREAFTER, THE GRIEVANT FILED A GRIEVANCE SEEKING
TO "BE FINANCIALLY COMPENSATED FOR THESE THREE EXTRA WORK DAYS." THE
GRIEVANCE COULD NOT BE RESOLVED AND WAS, THEREFORE, SUBMITTED TO
ARBITRATION.

NOTING THAT THE PARTIES WERE UNABLE TO AGREE ON THE ISSUE, THE
ARBITRATOR FOUND THE "REAL ISSUE" TO BE "(W)HEHTER MANAGEMENT HAS PAID
THE GRIEVANT PROPERLY UNDER PUBLIC LAW 86-91." /1/ ON THIS ISSUE, THE
ARBITRATOR RENDERED AN INITIAL AWARD ON MARCH 29, 1979. THEREIN, THE
ARBITRATOR, IN GRANTING THE GRIEVANCE, HELD THAT THE DEPARTMENT OF
DEFENSE OFFICE OF DEPENDENTS SCHOOLS (DODDS) HAD NOT BEEN PAYING THE
GRIEVANT THE PROPER DAILY RATE AND, APPLYING THE DAILY RATE AS HE
COMPUTED IT TO A 190 DAY SCHOOL YEAR, THE ARBITRATOR DIRECTED DODDS TO
PAY THE GRIEVANT THE DIFFERENCE BETWEEN THE NEWLY COMPUTED SALARY AND
THE SALARY THE GRIEVANT WAS ORIGINALLY PAID. HOWEVER, IN ARRIVING AT
THIS AWARD, THE ARBITRATOR STATED:

BECAUSE I HAVE CONCLUDED THAT THE GRIEVANCE IS A CONTINUING GRIEVANCE
AND BECAUSE I AM

GRANTING THE GRIEVANCE I RECOGNIZE THAT THE PRACTICAL EFFECT OF MY
DECISION WILL UNDOUBTEDLY

OPEN THE DOOR FOR THE ASSOCIATION TO FILE ADDITIONAL GRIEVANCES OR
PERHAPS A CLASS GRIEVANCE

WHICH WILL INVOLVE ALL OF THE TEACHERS COVERED BY THE AGREEMENT.
THEREFORE, I WILL RETAIN

JURISDICTION OF THE GRIEVANCE IN ORDER TO GIVE EITHER PARTY A FURTHER
OPPORTUNITY TO ARGUE

THEIR POSITIONS AFTER HAVING REVIEWED MY DISCUSSION AND CONCLUSIONS,
BECAUSE OF THE POTENTIAL

MAGNITUDE OF THE AWARD IF IT IS SUSTAINED.

THEREFORE, THE ARBITRATOR RETAINED JURISDICTION UNTIL MAY 1, 1979, TO
RESOLVE ANY DISPUTES OR TO IMPLEMENT THE AWARD, AND TO HEAR ANY MOTIONS
INVOLVING THE AWARD. FINALLY, THE ARBITRATOR DENIED THE UNION'S REQUEST
FOR ATTORNEY FEES, SUBJECT TO FURTHER CONSIDERATION.

THEREAFTER, IN RESPONSE TO MOTIONS FILED BY THE PARTIES, THE
ARBITRATOR ISSUED A "SUPPLEMENTAL OPINION AND AWARD" ON MAY 29, 1979.
IN THAT AWARD HE HELD IN PART:

1. DOD'S MOTION TO RECONVENE THE HEARING IS GRANTED.

. . . .

4. OEA'S MOTION FOR THE PAYMENT OF ATTORNEY'S FEES IS DENIED. AS I
   READ THE AUTHORITIES

CITED BY OEA IN ITS MOTION I DO NOT FIND THEM APPLICABLE TO AN
ARBITRATION PROCEEDING UNDER

THE NEGOTIATED AGREEMENT OF THE PARTIES. ARTICLE 13, GRIEVANCE
PROCEDURE, MAKES NO REFERENCE

TO THE PAYMENT OF LEGAL FEES BY EITHER PARTY. SECTION 10,
ARBITRATION, PARAGRAPH J LIMITS THE

COST OF ARBITRATION TO THE ARBITRATOR'S FEE, TRAVEL, PER DIEM, AND
COST OF THE TRANSCRIPT OF

THE HEARING. THE COST IS TO BE BORNE EQUALLY BY THE PARTIES.
THEREFORE I FIND NO AUTHORITY

FOR THE ASSESSMENT OF LEGAL FEES AGAINST DODDS.

FOLLOWING THAT SUPPLEMENTAL OPINION AND AWARD AND PRIOR TO THE
RECONVENED HEARING ORDERED BY THE ARBITRATOR, THE UNION FILED THE
PETITION FOR REVIEW INVOLVED HEREIN, TAKING EXCEPTION TO THE
ARBITRATOR'S DENIAL OF THE UNION'S REQUEST FOR ATTORNEY FEES. THE
AGENCY FILED AN OPPOSITION.

AS A RESULT OF THE RECONVENED HEARING, THE ARBITRATOR ISSUED A
"SECOND SUPPLEMENTAL OPINION AND AWARD" ON SEPTEMBER 7, 1979. THEREIN
THE ARBITRATOR STATED THAT "(U)PON RECONSIDERATION (HE WAS) OF THE
OPINION THAT MANAGEMENT DID PROPERLY PAY THE GRIEVANT FOR THE YEARS
1976-77 AND 1977-78 WITHIN THE FRAMEWORK OF THE NEGOTIATED AGREEMENT
THAT WAS SIGNED ON MARCH 4, 1977 TO REMAIN IN EFFECT UNTIL MARCH 4,
1980." THEREFORE, HE DENIED THE GRIEVANCE. /2/

THE UNION'S PETITION FOR REVIEW IN THIS CASE, TAKING EXCEPTION TO THE
ARBITRATOR'S DENIAL OF THE UNION'S REQUEST FOR ATTORNEY FEES, WAS FILED
PURSUANT TO THE RULES OF PROCEDURE SET FORTH IN 5 C.F.R.PART 7122(A) OF
THE STATUTE AND AS AMENDED BY SECTION 2400.5 OF THE TRANSITION RULES AND
REGULATIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY, 44 F.R. 44741,
REMAIN OPERATIVE WITH RESPECT TO THIS CASE. THE UNION SEEKS AUTHORITY
ACCEPTANCE OF ITS PETITION ON THE BASIS OF THE EXCEPTION DISCUSSED
BELOW.

PURSUANT TO SECTION 2411.32 OF THE AMENDED RULES AND SECTION 7122(A)
OF THE STATUTE, THE AUTHORITY WILL GRANT A PETITION FOR REVIEW OF AN
ARBITRATOR'S AWARD WHERE IT APPEARS, BASED UPON THE FACTS AND
CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE AWARD IS DEFICIENT
BECAUSE IT IS CONTRARY TO LAW, RULE, OR REGULATION, OR ON OTHER GROUNDS
SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR
LABOR-MANAGEMENT RELATIONS CASES.

IN ITS EXCEPTION THE UNION CONTENDS THAT THE ARBITRATOR'S DENIAL OF
THE UNION'S REQUEST FOR ATTORNEY FEES VIOLATES THE BACK PAY ACT OF 1966,
5 U.S.C. 5596, AS AMENDED BY SECTION 702 OF THE CIVIL SERVICE REFORM ACT
OF 1978. /3/ IN SUPPORT OF ITS EXCEPTION, THE UNION STATES THAT AS A
RESULT OF THE AMENDMENTS MADE TO THE BACK PAY ACT "(THE GRIEVANT) IS
ENTITLED TO AN AWARD OF REASONABLE ATTORNEY FEES . . . "

THE AUTHORITY WILL GRANT A PETITION FOR REVIEW OF AN ARBITRATION
AWARD WHERE IT APPEARS, BASED ON THE FACTS AND CIRCUMSTANCES DESCRIBED
IN THE PETITION, THAT THE AWARD VIOLATES LAW. HOWEVER, IN THIS CASE THE
UNION HAS NOT PRESENTED SUFFICIENT FACTS AND CIRCUMSTANCES TO SUPPORT
ITS EXCEPTION.

THE BACK PAY ACT OF 1966, AS AMENDED, PROVIDES THAT AN EMPLOYEE WHO
IS FOUND TO HAVE BEEN AFFECTED BY AN UNJUSTIFIED OR UNWARRANTED
PERSONNEL ACTION WHICH HAS RESULTED IN THE WITHDRAWAL OR REDUCTION OF
THE EMPLOYEE'S PAY, IS ENTITLED, ON CORRECTION OF THE ACTION, TO
REASONABLE ATTORNEY FEES RELATED TO THE ACTION AND AWARDED IN ACCORDANCE
WITH PRESCRIBED STANDARDS. IN THIS CASE, HOWEVER, IT IS NOTED THAT THE
ARBITRATOR'S FINAL DISPOSITION OF THE MATTER BEFORE HIM WAS TO DENY THE
GRIEVANCE, FINDING THAT THE AGENCY HAD PROPERLY PAID THE GRIEVANT.
THUS, THERE HAS BEEN NO DETERMINATION IN THIS CASE THAT AN UNJUSTIFIED
OR UNWARRANTED PERSONNEL ACTION HAS RESULTED IN THE WITHDRAWAL OR
REDUCTION OF THE GRIEVANT'S PAY, A NECESSARY THRESHOLD DETERMINATION FOR
ENTITLEMENT TO ATTORNEY FEES UNDER THE BACK PAY ACT, AS AMENDED.
THEREFORE, THE UNION'S EXCEPTION PROVIDES NO BASIS FOR ACCEPTANCE OF ITS
PETITION UNDER SECTION 2411.32 OF THE AMENDED RULES.

ACCORDINGLY, THE UNION'S PETITION FOR REVIEW OF THE ARBITRATOR'S
AWARD IS DENIED BECAUSE IT FAILS TO MEET THE REQUIREMENTS OF SECTION
2411.32 OF THE AMENDED RULES FOR ACCEPTANCE BY THE AUTHORITY OF A
PETITION FOR REVIEW OF AN ARBITRATOR'S AWARD.

ISSUED, WASHINGTON, D.C., MAY 23, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS DECISION

/1/ DEFENSE DEPARTMENT OVERSEAS TEACHERS PAY AND PERSONNEL PRACTICES
ACT, PUB. L. NO. 86-91, 73 STAT. 213(1959).

/2/ THE UNION'S EXCEPTIONS TO THE ARBITRATOR'S ULTIMATE DENIAL OF THE
GRIEVANCE HAVE BEEN DISMISSED THIS DATE AS UNTIMELY FILED. DEPARTMENT
OF DEFENSE, DEPENDENTS SCHOOLS AND OVERSEAS EDUCATION ASSOCIATION, INC.,
CASE NO. O-AR-51, 3 FLRA NO. 39.

/3/ THE CIVIL SERVICE REFORM ACT OF 1978, PUB. L. NO. 95-454, SEC.
702, 92 STAT. 1216, PROVIDES, IN RELEVANT PART:

BACKPAY IN CASE OF UNFAIR LABOR PRACTICES AND GRIEVANCES

SEC. 702. SECTION 5596(B) OF TITLE 5, UNITED STATES CODE IS AMENDED
TO READ AS FOLLOWS:

(B)(1) AN EMPLOYEE OF AN AGENCY WHO, ON THE BASIS OF A TIMELY APPEAL
OR AN ADMINISTRATIVE

DETERMINATION (INCLUDING A DECISION RELATING TO AN UNFAIR LABOR
PRACTICE OR A GRIEVANCE) IS

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 HAS RESULTED IN THE WITHDRAWAL OR REDUCTION OF ALL OR PART OF
THE PAY, ALLOWANCES, OR

DIFFERENTIALS OF THE EMPLOYEE--

(A) IS ENTITLED, ON CORRECTION OF THE PERSONNEL ACTION, TO RECEIVE
FOR THE PERIOD FOR WHICH

THE PERSONNEL ACTION WAS IN EFFECT--

. . . .

(II) REASONABLE ATTORNEY FEES RELATED TO THE PERSONNEL ACTION WHICH,
WITH RESPECT TO ANY

DECISION RELATING TO AN UNFAIR LABOR PRACTICE OR A GRIEVANCE
PROCESSED UNDER A PROCEDURE

NEGOTIATED IN ACCORDANCE WITH CHAPTER 71 OF THIS TITLE, SHALL BE
AWARDED IN ACCORDANCE WITH

STANDARDS ESTABLISHED UNDER SECTION 7701(G) OF THIS TITLE(.)

5 U.S.C. 7701, RELATING TO APPELLATE PROCEDURES BEFORE THE MERIT
SYSTEMS PROTECTION BOARD, PROVIDES IN RELEVANT PART:

SEC. 7701. APPELLATE PROCEDURES

. . . .

(G)(1) EXCEPT AS PROVIDED IN PARAGRAPH (2) OF THIS SUBSECTION, THE
BOARD, OR AN

ADMINISTRATIVE LAW JUDGE OR OTHER EMPLOYEE OF THE BOARD DESIGNATED TO
HEAR A CASE, MAY REQUIRE

PAYMENT BY THE AGENCY INVOLVED OF REASONABLE ATTORNEY FEES INCURRED
BY AN EMPLOYEE OR

APPLICANT FOR EMPLOYMENT IF THE EMPLOYEE OR APPLICANT IS THE
PREVAILING PARTY AND THE BOARD,

ADMINISTRATIVE LAW JUDGE, OR OTHER EMPLOYEE, AS THE CASE MAY BE,
DETERMINES THAT PAYMENT BY

THE AGENCY IS WARRANTED IN THE INTEREST OF JUSTICE, INCLUDING ANY
CASE IN WHICH A PROHIBITED

PERSONNEL PRACTICE WAS ENGAGED IN BY THE AGENCY OR ANY CASE IN WHICH
THE AGENCY'S ACTION WAS

CLEARLY WITHOUT MERIT.

(2) IF AN EMPLOYEE OR APPLICANT FOR EMPLOYMENT IS THE PREVAILING
PARTY AND THE DECISION IS

BASED ON A FINDING OF DISCRIMINATION PROHIBITED UNDER SECTION
2302(B)(1) OF THIS TITLE, THE

PAYMENT OF ATTORNEY FEES SHALL BE IN ACCORDANCE WITH THE STANDARDS
PRESCRIBED UNDER SECTION

706(K) OF THE CIVIL RIGHTS ACT OF 1964(42 U.S.C. 2000E-5(K)).