42:0319(24)AR - - AFGE, Local 216, National Council of EEOC Locals and EEOC - - 1991 FLRAdec AR - - v42 p319
[ v42 p319 ]
The decision of the Authority follows:
42 FLRA No. 24
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Jerome H. Ross. The Arbitrator denied the Union's request for attorney fees under the Back Pay Act, 5 U.S.C. § 5596(b)(1).
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 to the Union's exception.
For the following reasons, we conclude that the Union has failed to establish that the denial of attorney fees is contrary to the Back Pay Act. Accordingly, we will deny the exception.
II. Background and Arbitrator's Award
In his initial award, the Arbitrator found that a grievant's marginal performance rating was based, in part, on the Agency's retaliation for the grievant's Union activities. The Arbitrator ordered that the grievant receive a fully successful performance rating. The Arbitrator did not award backpay to the grievant.
Subsequently, the Union requested attorney fees. In an award dated April 19, 1991, the Arbitrator denied the Union's request. The Arbitrator found that "a loss of pay, allowances or other differentials" was required to support an attorney fee award under the Act and that his April 1, 1991, award "did not grant any relief in the form of back pay[.]" April 19 Award at 1.
III. Positions of the Parties
A. The Union
The Union contends that the Arbitrator's denial of its request for attorney fees is contrary to the Back Pay Act, 5 U.S.C. § 5596(b)(1)(A)(ii). According to the Union, the Agency's unlawful retaliation against the grievant constitutes "an unwarranted and unjustified personnel action pursuant to 5 U.S.C. § 5596(b) for which attorney fees are awardable." Exceptions at 2. The Union asserts that the Arbitrator's denial of attorney fees violates the Back Pay Act and should be reversed.
B. The Agency
The Agency contends that the Union's exception to the Arbitrator's award denying attorney fees should be dismissed because "[t]here has never been any claim or determination that Grievant suffered any loss of 'pay, allowances or differentials,' as required by the Back Pay Act." Opposition at 6.
IV. Analysis and Conclusions
A threshold requirement for entitlement to attorney fees under the Back Pay Act is a finding that the grievant has been affected by an unjustified or unwarranted personnel action which resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials. See Department of Health and Human Services, Public Health Service, Region IV, Atlanta, Georgia and National Treasury Employees Union, Chapter 210, 34 FLRA 823, 829 (1990). Attorney fees can be awarded under the Back Pay Act only in conjunction with an aw