20:0794(95)AR - GSA and AFGE Council #236 -- 1985 FLRAdec AR

 20 FLRA No. 95
 
 GENERAL SERVICES ADMINISTRATION
 Agency
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, COUNCIL #236, AFL-CIO
 Union
 
                                            Case No. 0-AR-971
 
                                 DECISION
 
    This matter is before the Authority on an exception to the award of
 Arbitrator Robert Barlow filed by the Union under section 7122(a) of the
 Federal Service Labor-Management Relations Statute and part 2425 of the
 Authority's Rules and Regulations.  The Agency filed an opposition.  /1/
 
    The grievance submitted to arbitration involved the discipline of the
 grievant.  The proposed action was removal, but the final decision of
 the Agency was to suspend the grievant for fourteen days.  A grievance
 was filed and submitted to arbitration challenging the suspension and
 demanding that it be withdrawn.  As his award in this respect, the
 Arbitrator determined that the suspension was not for just cause and
 ordered that the suspension be withdrawn and that the grievant be made
 whole for any pay and benefits that may have been lost.  Thereafter, the
 grievant filed a motion for attorney fees.  The Arbitrator as his award
 in this respect ruled that the motion was not arbitrable.  Specifically,
 he found, among other things, that he was not authorized under the terms
 of the parties' collective bargaining agreement to consider the motion
 because at no time previously had there been any reference to attorney
 fees.  The Union has filed an exception to this refusal to consider the
 motion for attorney fees.
 
    In its exception the Union essentially contends that the award
 regarding attorney fees is contrary to the collective bargaining
 agreement and provisions of the Back Pay Act, 5 U.S.C. 5596.  /2/
 Specifically, the Union maintains that the Arbitrator was authorized
 under both the agreement and the Back Pay Act to consider the motion and
 his refusal is therefore deficient.
 
    The Authority finds that the Union's exception fails to establish
 that the award is deficient.  As has been noted, the Arbitrator in
 finding the motion not to be arbitrable specifically determined that in
 the circumstances of this case, he was not authorized under the express
 terms of the parties' agreement to consider the motion for attorney
 fees.  Thus, the Union's exception in contending otherwise constitutes
 nothing more than disagreement with the Arbitrator's interpretation and
 application of the collective bargaining agreement and consequently
 provides no basis for finding the award deficient in this respect.  In
 addition, the Authority also finds in the circumstances of this case
 that no basis is provided for finding the award contrary to the Back Pay
 Act because it is evident that there was no effective award of backpay
 by the Arbitrator on which a motion for attorney fees could be properly
 based under the Act.  In its opposition, the Agency has made the
 statement, which is fully consistent with, and in no manner contradicted
 by, the record before the Authority, that under the express terms of the
 parties' collective bargaining agreement, the grievant's suspension was
 stayed pending expedited arbitration of his grievance.  Thus, the Agency
 maintains that no pay, allowances, or differentials of the grievant were
 withdrawn or reduced as a result of the decision to suspend him which
 was stayed and that the Arbitrator's make whole award conditioned on an
 actual loss of pay necessarily includes no effective award of backpay.
 The Agency's position therefore is that with no award of backpay to
 create the statutory eligibility for fees, the Arbitrator's award
 refusing to consider the motion cannot be inconsistent with the Back Pay
 Act.  The Authority agrees.  The Authority has repeatedly held that in
 order for an employee to be eligible for in award of fees by an
 arbitrator, there must he an award of backpay to the grievant on
 correction by the arbitrator of the unjustified or unwarranted personnel
 action which had resulted in the withdrawal or reduction of the pay,
 allowances, or differentials of the grievant.  Audie L. Murphy Veterans
 Administration Hospital, San Antonio, Texas and American Federation of
 Government Employees, AFL-CIO, Local No. 3511, 16 FLRA No. 140 (1984);
 International Brotherhood of Electrical Workers and United States Army
 Support Command, Hawaii, 14 FLRA 680 (1984);  Department of Defense
 Dependents Schools and Overseas Education Association, 3 FLRA 259
 (1980).  Thus, in terms of this case, and apart from other
 considerations, the Authority concludes that with no award of backpay to
 the grievant, no basis is provided for finding deficient as contrary to
 the Back Pay Act the Arbitrator's award ruling that the motion for fees
 was not arbitrable.
 
    Accordingly, the Union's exception is denied.
 
    Issued, Washington, D.C., December 4, 1985.
                                       (s)---
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       (s)---
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
 
    /1/ The Union filed a motion to strike the opposition as untimely
 filed.  Because the opposition was timely filed under the authority's
 Rules and Regulations, the motion is denied.
 
 
    /2/ 5 U.S.C. 5596(b)(1)(A)(ii) provides:
 
    (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, or 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(.)