32:0375(58)AR - U.S. PATENT AND TRADEMARK OFFICE and PATENT OFFICE PROFESSIONAL ASSOCIATION -- 1988 FLRAdec AR


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32:0375(58)AR
The decision of the Authority follows:


 32 FLRA NO. 58
     32 FLRA 375

     16 JUN 1988
U.S. PATENT AND TRADEMARK OFFICE

                    Agency

       and

PATENT OFFICE PROFESSIONAL
ASSOCIATION

                    Union

Case No. 0-AR-1459

DECISION

     I. Statement of the Case. This matter is before the
Authority on an exception to the arbitration award of Arbitrator
Jerome H. Ross. The Arbitrator denied the Union's request for an
award of attorney fees. He found that an award of attorney fees
was not warranted in the interest of justice.

     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.

     We conclude that the Union has failed to establish that the
denial of attorney fees is contrary to law. Accordingly, we deny
the exception.

     II. Background

     In a prior grievance arbitration award, Arbitrator Ross
determined that the Agency violated the interest arbitration
award of Arbitrator Seidenberg when the Agency raised the level
of performance necessary to obtain signatory authority.
Accordingly, Arbitrator Ross sustained the Union's grievance that
had been filed on behalf of patent examiners
challenging the change in the signatory authority program. He
directed that the signatory program as it existed before the
change be reinstituted and that the Agency and the Union jointly
determine whether any patent examiners had been affected
adversely by the Agency's change and, if so, to fashion an
appropriate make-whole remedy.

     The Agency filed exceptions to the award. We denied the
exceptions in Patent and Trademark Office and Patent Office
Professional Association, 26 FLRA  295 (1987).

     After the Agency's exceptions were denied and in accordance
with the Arbitrator's award, the Agency and the Union agreed to
provide a make-whole remedy for all patent examiners who had been
adversely affected by the change in the signatory program. As a
result of the agreement, one former employee received an award of
backpay and four employees received special achievement awards in
the amount of 3 percent of their gross salary.

     The Union then filed a motion for an award of attorney fees
with Arbitrator Ross under 5 U.S.C. 5596 and 7701(g). The
Arbitrator's award resolving the request for attorney fees is in
dispute in this case.

     III. Arbitrator's Award

     The Arbitrator stated that the Union's motion presented the
issue of whether an award of attorney fees was warranted in the
interest of justice. He noted that both the Merit Systems
Protection Board (MSPB) in Allen v. U.S. Postal Service, 2 MSPB
582 (1980) (Allen), and the Members of the Authority in separate
concurring opinions in Naval Air Development Center, Department
of the Navy and American Federation of Government Employees,
Local 1928, AFL - CIO, 21 FLRA  131 (1986) (NADC), provided
examples of instances when the award of attorney fees would be
warranted in the interest of justice. He determined that two
illustrative examples set forth in Allen and NADC, respectively,
were relevant to the union's motion: (1) instances where the
agency knew or should have known that it would not prevail on the
merits when it took the disputed action; and (2) instances where
there is either a service rendered to the Federal workforce or
there is a benefit to the public derived from maintaining the
action.

     The Arbitrator found no basis for concluding that the Agency
knew or should have known that it would not prevail on 
the merits when it changed the standard required to obtain
signatory authority. The Arbitrator found that the Agency had a
legitimate basis for believing that the award of Arbitrator
Seidenberg was not intended to act as an indefinite bar to
changes involving management rights.

     The Arbitrator also determined that this case did not
involve a service rendered to the Federal workforce or a benefit
to the public derived from maintaining the action so as to
warrant an award of attorney fees. He found that the dispute was
not the type of "workplace problem" that warranted an award of
attorney fees under NADC.

     Accordingly, the Arbitrator ruled that the award of attorney
fees was not warranted in the interest of justice. Therefore, the
Arbitrator denied the Union's motion for attorney fees.

     IV. Exception and Opposition

     The Union contends that the Arbitrator's denial of its
request for attorney fees is contrary to law. The Union argues
that NADC required the award of fees because this case resulted
in a service to the Federal workforce: the grievance led to
correction of workplace problems affecting a segment of the
workplace. The Union maintains that the correction of unilateral
changes of promotion practices covering large numbers of
employees requires the award of fees in the interest of justice
under NADC. The Union claims that the benefits sought and
received in this case were actually far broader in scope and
monetary amount than the scope and monetary amount of the benefit
in NADC.

     The Agency contends that the exception should be denied. The
Agency maintains that the Arbitrator fully considered the request
for fees and reasonably concluded that the limited nature of the
grievance did not constitute an instance where fees would be
warranted because of a service rendered to the Federal workforce
in correcting a workplace problem.

     V. Analysis and Conclusions

     We conclude that the Union's exception provides no basis for
finding the award contrary to law.

     When exceptions are filed to arbitration awards resolving
requests for attorney fees, our role is to ensure that the
arbitrator complies with applicable statutory standards. A
threshold requirement for entitlement to attorney fees under the
Back Pay Act is a finding that the grievant had been affected by
an unjustified or unwarranted personnel action which has resulted
in the withdrawal or reduction of the grievant's pay, allowances,
or differentials. The Back Pay Act further requires that an award
of attorney fees must be: (1) in conjunction with an award of
backpay to the grievant on correction of the personnel action;
(2) reasonable and related to the personnel action, and (3) in
accordance with the standards established under 5 U.S.C.
7701(g).

     Section 7701(g) prescribes that for an employee to be
eligible for an award of attorney fees, the employee must be the
prevailing party. Section 7701(g)(1), which applies to all cases
except those involving allegations of discrimination, requires
that an award of attorney fees must be warranted in the interest
of justice, that the amount must be reasonable, and that the fees
must have been incurred by the employee. The standards
established under section 7701(g) further require a fully
articulated, reasoned decision setting forth the specific
findings supporting the determination on each pertinent statutory
requirement, including the basis on which the reasonableness of
the amount was determined when fees are awarded. See NADC; and
International Brotherhood of Electrical Workers and United States
Army Support Command, Hawaii, 14 FLRA  680 (1984).

     We have examined the award and we find that the award is
supported by a fully articulated decision and contains the
specific findings required by law. In particular, the Arbitrator
fully articulated his reasons for determining that an award of
fees was not warranted in the interest of justice. The Union
fails to establish that the Arbitrator's decision is contrary to
law.

     The Arbitrator determined that this case did not involve a
service rendered to the Federal workforce or a benefit to the
public derived from maintaining the action so as to warrant an
award of fees in the interest of justice. In our view, the Union
fails to establish that the denial of fees in these circumstances
was contrary to law. Rather, the Union disagrees with the
Arbitrator's conclusion. The Union's exception provides no basis
for finding the award deficient

     VI. Decision

     The Union's exception is denied.

     Issued, Washington, D.C., June 16, 1988.

Jerry L. Calhoun,        Chairman

Jean McKee,                Member

FEDERAL