American Federation of Government Employees, Local 1592 (Union) and United States Department of the Air Force, Hill Air Force Base, Utah (Agency) (Authority decision, June 2, 2010)

FLRA remand decision. This decision leaves the three-hour compensatory-time award in place but sends the attorney fee request back for further findings. It does not finally resolve the fee issue. Because that issue remains open, this banner does not present the judicial-review provisions or arbitration exclusion in 5 U.S.C. § 7123(a) as finally determined.

Plain-English summary

An arbitrator awarded a Hill Air Force Base employee three hours of compensatory time off for travel but denied attorney fees. She reasoned that compensatory time was not pay, an allowance, or a differential under the Back Pay Act. The Authority held that compensatory time off counts as backpay for this purpose, so that reason for denying fees was wrong. It sent the fee request back to the parties for resubmission to the arbitrator unless they settle. The arbitrator must address the other statutory requirements for fees, including the agency's argument that the employee was not a prevailing party. The fee request remains unresolved.

Decision snapshot

• Authority: 5 U.S.C. §§ 5550(b), 5596, and 7122(a); 5 C.F.R. § 550.803.
• Outcome: Attorney fee denial remanded; three hours of compensatory time off remain awarded.
• Key point: An award of compensatory time off can satisfy the Back Pay Act's backpay condition for attorney fee eligibility.

Full text (FLRA public release)

XX FLRA No

64 FLRA No. 159

FEDERAL
LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1592

(Union)

and

UNITED STATES
DEPARTMENT OF THE AIR FORCE

HILL AIR FORCE
BASE, UTAH

(Agency)

0-AR-4637

_____

DECISION

June 2, 2010

_____

Before the
Authority: Carol Waller Pope, Chairman, and

Thomas M. Beck and
Ernest DuBester, Members

I. Statement of the Case

This matter is before the
Authority on an exception to an award of Arbitrator Barbara Bridgewater filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority’s Regulations. The Agency filed an opposition to the Union’s exception.

The Arbitrator awarded the grievant three
hours of compensatory time off but denied his request for n award of attorney fees under Back Pay Act, 5 U.S.C. § 5596 (BPA). For the reasons that follow, we conclude that the basis for the denial of fees is deficient, and we remand the award to the parties for resubmission to the Arbitrator, absent settlement, for a resolution of the attorney-fee request.

II. Background
and Arbitrator’s Award

The Union filed a grievance protesting the Agency’s denial of the grievant’s request for compensatory time off for time spent in a travel status.[1] The grievance was not resolved and was submitted to arbitration. The Arbitrator concluded that the grievant was entitled to compensatory time off and awarded him three hours of compensatory time off. However, she denied the grievant’s request for an award of attorney fees under the BPA on the basis that the award of compensatory time off did not constitute “pay, allowance[s,] or differential[s]” within the meaning of the BPA. Award at 8.

III. Positions of
the Parties

A. Union’s
Exception

The
Union contends that the basis for the denial of the request for attorney fees is contrary to the BPA. In particular, the Union asserts that the award of compensatory time off constitutes “pay, allowances, or differentials” within the meaning of the BPA similar to awards of administrative leave, annual leave, or sick leave. Exception at 2. In this regard, the Union claims that the Authority has specifically held that awards of paid leave satisfy the requirement of the BPA that the grievant be awarded backpay to be eligible for an award of attorney fees. Id. at 3-4 (citing NAGE, Local R4-6, 52 FLRA 1522 (1997) (NAGE); Nat’l Gallery of Art, Wash., D.C., 48 FLRA 841 (1993); U.S. Dep’t of the Air Force, Aerospace Guidance & Metrology Ctr., Newark Air Force Base, Ohio,

41 FLRA 550
(1991)).

B.
Agency’s Opposition

The Agency
contends that the Arbitrator correctly denied the request for fees because an award of compensatory time off is not an award of pay, allowances, or differentials. Additionally, the Agency claims that the denial of the request for fees was warranted because the grievant was not the prevailing party.

IV. The award is
contrary to the BPA.

When an exception to an arbitration
award challenges an award’s consistency with law, we review the question of law raised by the exception and the award de novo. E.g., U.S. Dep’t of Agric., Rural Dev., Wash., D.C., 60 FLRA 527, 529 (2004) (Dep’t of Agric.). In applying a standard of de novo review, we assess whether the arbitrator’s legal conclusions are consistent with the applicable standard of law. Id.

For a grievant to be eligible for
an award of attorney fees under the BPA, an arbitrator must award the grievant backpay upon finding under applicable law, rule, regulation, or collective bargaining agreement that the grievant was affected by an unjustified or unwarranted personnel action which resulted in the grievant’s loss of pay, allowances, or differentials. E.g., NAGE, 52 FLRA at 1528. It is not disputed that the Arbitrator found under applicable law and regulation that the grievant was affected by an unjustified or unwarranted personnel action. The only question presented is whether compensatory time off constitutes pay, allowances, or differentials within the meaning of the BPA such that the Arbitrator’s award of compensatory time constitutes an award of backpay.

“Pay, allowances, and
differentials” are defined as “pay, leave, and other monetary employment benefits to which an employee is entitled by statute or regulation and which are payable by the employing agency to an employee during periods of Federal employment.” 5 C.F.R. § 550.803. On the basis of definition, the Authority has held that awards of paid leave, including annual leave or administrative leave, constitute awards of backpay because paid leave constitutes pay, allowances, or differentials. Dep’t of Argic., 60 FLRA at 529 (annual leave); NAGE, 52 FLRA at 1528-29 (administrative leave). Moreover, in NAGE, the Authority concluded that an award of administrative leave constituted an award of backpay and that the arbitrator’s refusal to award attorney fees on that basis was contrary to the BPA. Id.

The Authority as repeatedly held
that compensatory time off is equivalent to annual leave and sick leave. E.g., U.S. Dep’t of Transp., Fed. Aviation Admin., Wash., D.C., 54 FLRA 584, 590 (1998); Int’l Bhd. of Police Officers, 47 FLRA 397, 401-02 (1993). Consequently, arbitration awards of compensatory time off constitute awards of backpay and, as in NAGE, the Arbitrator’s refusal to award fees on the basis that she had not awarded backpay is contrary to the BPA.

As the Arbitrator did not address
the other statutory requirements for an award of attorney fees under the BPA, we remand the award to the parties for submission to the Arbitrator, absent settlement, for resolution of the request for an award of attorney fees.[2] NAGE, 52 FLRA at 1529.

V. Decision

The award
is remanded to the parties for further action consistent with this decision.

[1]
5 U.S.C. § 5550(b) provides for compensatory time off for time spent in a travel status that is not otherwise compensable.

[2]
As the Arbitrator is the appropriate authority for the resolution of the request for fees, the Agency’s allegation that the grievant was not the prevailing party is appropriately presented to the Arbitrator. Accordingly, we do not address the allegation. See AFGE, Local 3105, 63 FLRA 128, 131 (2009) (citing 5 C.F.R. § 550.807 (a)).