National Federation of Federal Employees, Local 2030 and U.S. Department of the Interior, Bureau of Land Management, Idaho Falls District (Authority decision, July 31, 1998)

Final FLRA decision. The Authority denies an exception to an arbitration award. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award is generally excluded from judicial review unless the order involves an unfair labor practice under 5 U.S.C. § 7116.

Plain-English summary

A Bureau of Land Management employee won a grievance over a denied promotion and received a retroactive promotion, back pay, and interest. The union also sought reimbursement for its expenses in pursuing the grievance. The arbitrator denied that request, and the union argued that the Back Pay Act required payment. The Authority held that the Act did not authorize these expenses because the union had no attorney representing it. It denied the union's exception, leaving the promotion remedy intact and the expense request unpaid.

Decision snapshot

• Authority: 5 U.S.C. §§ 5596(b)(1)(A)(ii), 7122(a), and 7701(g).
• Outcome: Union's exception denied; no reimbursement of grievance expenses.
• Key point: The Back Pay Act did not cover the union's expenses where no attorney provided representation.

Full text (FLRA public release)

[ v54 p626 ]
54:0626(67)AR

The decision of the Authority follows:

54 FLRA No. 67

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES

LOCAL 2030

(Union)

and

U.S. DEPARTMENT OF THE INTERIOR

BUREAU OF LAND MANAGEMENT

IDAHO FALLS DISTRICT

IDAHO FALLS, IDAHO

(Agency)

0-AR-3045

_____

DECISION

July 31, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S.

Wasserman and Dale Cabaniss, Members.

Decision by Chair Segal for the

Authority

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator James E. Reed filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency did not file an opposition to the Union's exception.

The Arbitrator sustained a grievance alleging that the Agency violated the parties' collective bargaining agreement by not promoting the grievant. The Arbitrator directed the Agency to promote the grievant and to compensate the grievant in the form of back pay and interest. The Arbitrator did not award any additional expenses.

For the reasons explained below, we conclude that the award is not inconsistent with law. Accordingly, we deny the Union's exception.

II. Background and Arbitrator's Award

The Agency denied the grievant a promotion. The Union's grievance alleging that the denial violated the parties' collective bargaining agreement was unresolved and submitted to arbitration. At arbitration, the Union, which was not represented by an attorney, requested back pay, interest, and reimbursement for certain expenses incurred in processing the grievance. The Arbitrator sustained the grievance and directed the Agency to promote the grievant retroactively with back pay and interest. In a supplemental award, the Arbitrator denied the Union's request for the reimbursement of expenses.

III. Union's Exception

The Union argues that the Arbitrator erred in failing to award it expenses "associated with the prosecution of the grievance and [the] successful arbitration hearing." Exception at 7. The Union asserts that because the Arbitrator determined that the Agency improperly failed to promote the grievant, the Back Pay Act "automatically kicked in . . . ." Id.

The Union argues that the Arbitrator "has not articulated" his decision to deny the requested expenses "point by point as required by law." Id. (citations omitted). The Union emphasizes that it is not seeking attorney fees, but is seeking only the expenses "incurred in prosecuting this matter." Id. at 8-9. In support of its argument, the Union cites U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California and Federal Employees Metal Trades Council, Local 127, 53 FLRA 390 (1997) (Vallejo); U.S. Department of the Navy, Naval Base, Norfolk, Virginia and American Federation of Government Employees, Local 22, 51 FLRA 305 (1995) (Norfolk); and U.S. Department of Housing and Urban Development and American Federation of Government Employees Local 476, 47 FLRA 1053 (1993) (HUD).

IV. Analysis and Conclusions

We construe the Union's exception as a claim that the Arbitrator's refusal to award it the requested arbitration expenses is contrary to law because it violates the Back Pay Act, 5 U.S.C. § 5596(b)(1)(A)(ii), which incorporates the standards established in 5 U.S.C. § 7701(g). Where a party's exceptions involve an award's consistency with law, we review the questions of law raised by the arbitrator's award and the party's exceptions de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994).

The Back Pay Act authorizes the payment of attorney fees when, as relevant here, an attorney-client relationship exists and the attorney has rendered legal services on behalf of the grievant. See Federal Deposit Insurance Corporation, Division of Information Resource Management, Atlanta, Georgia and National Treasury Employees Union, 53 FLRA 1657, 1661 (1998) (FDIC). The attorney fees encompassed by the Back Pay Act include payment of certain expenses.(1) However, as relevant here, only "'those reasonable and necessary out-of-pocket expenses of providing a lawyer's services'" are authorized by the Back Pay Act. U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine and National Association of Agriculture Employees, 53 FLRA 1688, 1693 (1998) (citations omitted). See also Bennett v. Department of the Navy, 699 F.2d 1140, 1145 (Fed. Cir. 1983) ("In the real world of actual law practice . . . a few variable expenses . . . must routinely be . . . billed to clients . . . .") (Bennett).

The Union concedes that it was not represented by an attorney. See Exception at 8 (Union states that its "[r]epresentative is not an attorney."). Therefore, the Back Pay Act does not provide a basis for requiring payment of the requested expenses. Moreover, even if an attorney-client relationship existed in this case and the Union's request for expenses were encompassed by the Back Pay Act, the Union could not recover all its requested expenses; the costs of obtaining a transcript and the expenses associated with copying documents are not permitted. See Gavette v. Office of Personnel Management, 785 F.2d 1568, 1573 (Fed. Cir. 1986); Bennett, 699 F.2d at 1144.

In this regard, the Union's reliance on Vallejo, Norfolk, and HUD is misplaced. Vallejo did not address the issue of fees and expenses; it addressed whether an award of back pay should be reduced by the amount of worker's compensation received by the grievant. See Vallejo, 53 FLRA at 400. Although Norfolk and HUD involved attorney fees, the unions therein, unlike the Union here, were represented by attorneys. See Norfolk, 51 FLRA at 306; HUD, 47 FLRA at 1063. Thus, these decisions provide no basis for finding the award in this case deficient.

In the absence of an "unequivocal and unambiguous expression of a waiver of sovereign immunity, the payment of Federal money . . . is not authorized." U.S. Department of the Navy, Navy Public Works Center, Norfolk, Virginia and Tidewater Virginia Federal Employees, Metal Trades Council, 54 FLRA 338, 342 (1998) (citing United States v. Testan, 424 U.S. 392 (1976) and Lane v. Pena, 518 U.S. 187 (1996)). See also U.S. Department of the Army, Missile Range, White Sands, New Mexico and National Federation of Federal Employees, Local 2049, 38 FLRA 258, 261 (1990) (holding that "it is well established that the expenditure of funds by a Federal Government agency to reimburse litigation costs must be pursuant to a specific statutory authorization"). Accord Jack M. Haning, 63 Comp. Gen. 170, 172 (1984). The Union asserts no statutory basis other than the Back Pay Act for the payment of its requested fees and expenses. Accordingly, as the Back Pay Act does not authorize the requested payment, the Arbitrator's award denying the expenses is not contrary to law.

V. Decision

The Union's exception that the award is contrary to the Back Pay Act is denied.

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

1. The Back Pay Act also encompasses
   certain fees for services rendered by individuals who are not attorneys. See FDIC, 53 FLRA at 1661-62 ( Authority found an award of fees for paralegal services permissible). However, payment of fees for services rendered by individuals who are not attorneys is permitted only where those services are rendered to assist in representation provided by an attorney. See id. at 1661. The Union in this case is not requesting reimbursement of any fees paid to its nonattorney representative.