National Federation of Federal Employees, Forest Service Council, Local 1771 (Union) and U.S. Department of Agriculture, Forest Service, Shasta Trinity National Forest (Agency)

[ v56 p737 ]

56 FLRA No. 123

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, FOREST SERVICE COUNCIL
LOCAL 1771
(Union)

and

U.S. DEPARTMENT OF AGRICULTURE
FOREST SERVICE
SHASTA TRINITY NATIONAL FOREST
(Agency)

0-AR-3262

_____

DECISION

September 26, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.

Decision by Chairman Wasserman for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Ronald Hoh 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. [n1]  The Agency filed an opposition to the Union's exceptions.

      The Arbitrator granted the grievance in part and denied it in part. The Arbitrator rejected the Union's claim that the parties' collective bargaining agreement required the Agency to grant the grievant an immediate, noncompetitive, accretion of duties promotion. Instead, while finding that the grievant was entitled to back pay, the Arbitrator determined that the grievant was entitled to a promotion only if the Agency fails to implement, within 120 days of the date of the award, its prior decision to eliminate or redistribute the higher graded duties that were being performed by him. The Arbitrator also ordered that attorney fees payable to the Union be limited to 25 percent of the amount that had been requested. For the reasons that follow, we deny the Union's exceptions.

II.     Background and Arbitration Award

      The grievant has been employed as a GS-7 Culturalist since 1988. Beginning in 1998, the grievant made a series of requests to the Agency that he be compensated for performing higher graded work at the GS-9 level. Upon review on November 5, 1998, the Agency's classification specialist classified the grievant's position at the GS-9 level. Thereafter, the Union filed a grievance requesting that the revised position description be placed in the grievant's personnel record as his official position description. The Agency refused to grant the Union's request, but in February, 1999 came to an agreement to grant the grievant a "retroactive temporary promotion" for the time that he performed higher graded duties since October, 1995. See Award at 8. However, in late April 1999, the Union filed a second grievance, currently before us, which complained in part that the Agency had not yet implemented the parties' February, 1999 agreement. [n2]  In a June, 1999 response, the Agency recognized that it had not yet implemented the February agreement and that the grievant was still performing higher graded duties. The Agency stated that it intended to continue to pay the grievant for performance of higher graded duties, until the Agency either eliminated or redistributed those duties. [n3]  The Agency also made a Request for Personnel Action to initiate the retroactive temporary promotion, which contained a stop pay date of July 17, 1999. [n4]  Thereafter, the Union filed the instant request for arbitration.

      The hearing was held on September 1, 1999. There, the parties agreed to the following description of the issues:

1.     Did management violate the master contract, particularly Articles 14 and 16, when it did [ v56 p738 ] not grant to grievant a non-competitive "accretion of duties" promotion?
2.     If so, what is the appropriate remedy?
3.     Is the grievant entitled to additional backpay beyond that already granted by management and, if so, how much?
4.     Is the Union entitled to reasonable attorney's fees?

Award at 2. [n5]  As relevant to those issues, the Arbitrator set forth the text of a "joint written Annotation" (hereinafter "Annotation"), found by the Arbitrator to express the parties' mutual intent in negotiating Article 14, Section 4 of the parties' agreement. Id. at 10. [n6] 

      The Union argued before the Arbitrator that, pursuant to Articles 14 and 16 of the parties' agreement, the grievant was entitled to a noncompetitive, accretion of duties promotion because the Agency had failed to either eliminate or redistribute the higher graded duties that had been performed by the grievant.

      The Arbitrator rejected the Union's claim that the parties' agreement required the Agency to grant the grievant a noncompetitive accretion of duties promotion. He did find, however, that the Agency violated Article 16 of the agreement by failing to implement its decision to eliminate or redistribute the grade-controlling GS-9 duties that were being performed by the grievant at the time of the hearing. As a result, the Arbitrator ordered the Agency to grant the grievant a noncompetitive accretion of duties promotion "only if the Employer fails to actually implement its prior decision to eliminate or redistribute those duties within 120 days" of the date of the award. Id. at 31.

      In coming to that conclusion, the Arbitrator analyzed and interpreted the language of Article 14, Section 4, which states that, upon finding that an employee is performing higher graded duties that would result in the classification of a position at a higher grade, the Agency "may decide to eliminate and/or redistribute the grade-controlling duties or the employee will be promoted per Article 16[.]" See Article 14, Section 4. [n7]  The Arbitrator determined that this language does not require the Agency to promote the grievant, but rather "gives [the Agency] the choice either to promote the [grievant] or to decide to eliminate or redistribute the duties involved." Award at 22. The Arbitrator reasoned that, because the Agency had notified the grievant that it intended to eliminate or redistribute the higher graded duties that were being performed by him, the Agency had not violated Article 14, Section 4.

      Next, the Arbitrator analyzed and interpreted the language of Article 16, Section 7, which states that, where an employee is performing duties that would result in the classification of a position at a higher grade, "[t]he employee in the position will be promoted without competition, unless Management eliminates or redistributes the grade-controlling duties, in accordance with Article 14.4." See Article 16, Section 7. While recognizing that this section "appears to require promotion without competition" in the event that the Agency fails to eliminate or redistribute grade-controlling duties, the Arbitrator determined that this language should be read in conjunction with the language of the Annotation, which had been negotiated by the parties to supplement the meaning of Article 14, Section 4. Award at 24-25. In this regard, the Arbitrator found that "the `arbitrary and capricious' standard set forth in the [Annotation] . . . should also be applied to the timing of the elimination or redistribution of [the] grade controlling duties language of Article 16, Section 7." Id. at 25-26.

      The Arbitrator held that a "reasonable and fair interpretation" of the Annotation is that an Agency failure to implement a decision to eliminate or redistribute higher graded duties performed by an employee would be "arbitrary and capricious" if it failed to do so within 120 days of its decision. Id. at 26. In coming to that conclusion, the Arbitrator paid particular attention to the language of Article 16, Section 6, which states that "[t]emporary promotions of more than one hundred twenty (120) days will be filled through competitive procedures." See Article 16, Section 6. In "the interests of fairness and equity," the Arbitrator held that it would not be proper to promote the grievant based upon a retroactive application of the language of the Annotation and the 120 day time limit contained in Article 16, Section 6. The Arbitrator listed the following factors as support for his reasoning: (1) neither Article 14, Section 4, nor Article 16, Section 7, contain a specific requirement that someone in the grievant's situation be promoted, but reserves to the Agency the choice to promote or eliminate/redistribute the higher graded duties; (2) prospective application of the 120 day period preserves the Agency's ability to choose whether to promote or eliminate/redistribute higher graded duties; (3) [ v56 p739 ] the award in this case gives the Agency notice of the time period in which it is required to either implement its decision to eliminate/redistribute higher graded duties, or promote the employee; (4) while the language of Article 16, Section 6 requires that temporary promotions of over 120 days will be filled competitively, that language "do[es] not require [the] grievant to be retroactively promoted non-competitively[.]" See Award at 26-28.

      In sum, the Arbitrator held that unless the Agency actually eliminates or redistributes the higher graded duties performed by the grievant within 120 days, the grievant "shall receive a non-competitive accretion of duties promotion" in accordance with the requirements of Article 16, Section 7. Id. at 31.

      With regard to whether the grievant was entitled to additional back pay beyond that already granted by management, the Arbitrator found that, but for the Agency's unwarranted personnel action of refusing to extend the grant of back pay past July 17, 1999, the grievant would have continued to receive that higher pay until the elimination or redistribution of the higher graded duties. Accordingly, the Arbitrator ordered the Agency to continue compensating the grievant at the higher rate "so long as [he] continues to perform those GS-9 duties, from July 17, 1999 until such date as he is either non-competitively promoted or the higher graded duties are actually eliminated or redistributed from his existing GS-7 position description." Id. at 29.

      On the issue of attorney fees, the Arbitrator recognized that the grievant and Union were the prevailing party at arbitration. However, the Arbitrator refused to grant the entire amount of fees that had been requested by the Union. In this regard, the Arbitrator noted that the Union's attorney was not designated by the Union until the September 1, 1999 hearing. The Arbitrator also noted that the unwarranted personnel action found by him in this case was limited to the Agency's failure to extend back pay past the July 17, 1999 date that had been set by the Agency. As a result, the Arbitrator stated that the "maximum period" for the unwarranted personnel action performed by the Agency is "approximately seven months - including the 120 days from the date of this decision's `arbitrary and capricious' standard . . . - compared to the forty-five months of retroactive temporary promotion back pay to which [the grievant] was already entitled" by virtue of the parties' February, 1999 agreement. Id. at 30. Accordingly, the Arbitrator found that "the effect of the attorney's impact upon the unjustified or unwarranted personnel action resulting from the grievant's pay in these circumstances was limited to that short time period." Id. The Arbitrator concluded that "[i]n my view the impact of the attorneys fees related to correction of that personnel action should likewise be limited to 25% of those attorneys fees, as a `reasonable' percentage under the criteria contained in the Back Pay Act." Id. at 30-31.

      The Arbitrator retained jurisdiction in order to resolve any dispute over the remedy or the award of attorney fees.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union makes two arguments that the award fails to draw its essence from the parties' agreement. First, the Union claims that the Arbitrator erred in determining that there is a conflict between Article 14, Section 4, and Article 16, Section 7, of the parties' agreement. Specifically, the Union argues that the Arbitrator's analysis of "whether [the] [g]rievant should be retroactively promoted" (Exceptions at 4) was based on his erroneous finding that there are "`clearly conflicting requirements'" and "`inherent conflicts'" between Article 14, Section 4, and Article 16, Section 7. Exceptions at 3-4 (quoting Award at 25, 26). The Union claims that the Authority should interpret the agreement to require the Agency to grant the grievant a noncompetitive accretion of duties promotion.

      Second, the Union argues that, even if there is a conflict between Article 14, Section 4, and Article 16, Section 7, the award fails to draw its essence from the agreement because those provisions require the Agency to promote the grievant. In particular, the Union claims that the plain language of the parties' agreement restricts temporary promotions to 120 days or less, and that "[t]he [Agency's] refusal, or failure, to take action within 120 days removes from it the right to implement any other action than a non-competitive permanent promotion" of the grievant. Id. at 5-6.

      The Union also claims that the Agency's "failure" to permanently promote the grievant, once his work exceeded a 120 day time period, "constructively violate[d] the law[.]" Exceptions at 5, 6. In support, the Union claims that 5 C.F.R § 335.103 and "the United States Code" restrict temporary promotions to 120 days or less. Id. at 5.

      Lastly, the Union argues that the Arbitrator's limitation of attorney fees is contrary to law because "arbitrators may not limit fees in an arbitrary manner." Id. at 7. Citing Farrar v. Hobby, 506 U.S. 103, 114-16 (1992) (Farrar) and Stein v. United States Postal Service, 65 M.S.P.B. 685, 689-90 (1994) (Stein), the Union recognizes [ v56 p740 ] that attorney's fee awards may be limited under certain conditions, but claims that the fees requested by the Union were warranted in this case. In this regard, the Union states that it deliberately limited the time that its attorney was involved in this case in order to save costs. The Union claims that, if sustained, "the award would have the adverse effect of either greatly increasing the cost of grievances or preclud[e] Unions from being able to retain legal counsel." Id. The Union requests that the Authority "remand the fee matter to the Arbitrator with directions to apply the applicable case law on fee matters." Id.

B.     Agency's Opposition

      First, the Agency asserts that the Arbitrator reasonably interpreted the agreement to mean that the Agency is not required to permanently promote the grievant. The Agency claims that the Union's exceptions are an attempt to relitigate the merits of the dispute and reflect mere disagreement with the Arbitrator's decision.

      The Agency claims that "[t]he Union has not demonstrated that the award is contrary to 5 C.F.R § 335.103 or any other relevant legal authority." Opposition at 3. In particular, the Agency argues that the 120 day restriction contained in 5 C.F.R § 335.103(i) only applies to temporary promotions which were originally made under competitive procedures, while the temporary promotion granted by the Agency in this case was made retroactively and was never offered under competitive procedures. The Agency also asserts that the Union's argument should be rejected because the Union does not state which subsection of 5 C.F.R § 335.103 should apply to this case. In support, the Agency cites 5 C.F.R. 2425.2, and American Federation of Government Employees, Local 1406 and U.S. Department of the Air Force, Air Force Flight Test Center, Edwards Air Force Base, California, 54 FLRA 150, 153 (1998).

      Finally, the Agency argues that the Arbitrator had authority to decide what attorney fees were reasonable. In this regard, the Agency cites National Association of Government Employees, Local R4-6 and U.S. Department of the Army, Fort Eustis, Virginia, 54 FLRA 1594, 1598-1600 (1998) (Fort Eustis), for the proposition that an arbitrator may reduce requested attorney fees to an amount that is proportionate to the result achieved. As such, the Agency argues that the Union's exception should be denied.

IV.     Analysis and Conclusions

A.     The Award Does Not Fail to Draw its Essence From the Agreement

      In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that Federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2); American Federation of Government Employees, Council 220 and Social Security Administration, Baltimore, Maryland, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990). The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.

      The Arbitrator rejected the Union's claim that, when read as a whole, Article 14, Section 4, and Article 16, Section 7, of the parties' agreement require the Agency to permanently promote the grievant. In this regard, the Arbitrator found that, when an employee is performing higher graded duties that would result in the classification of a position at a higher grade, the language of Article 14, Section 4 "gives [the Agency] the choice either to promote the [grievant] or to decide to eliminate or redistribute the duties involved." Award at 22. Nothing in the language of Article 14, Section 4 requires the Agency to permanently promote the grievant in the situation presented here.

      With regard to Article 16, Section 7, the Arbitrator recognized that this section "appears to require promotion without competition" in the event that the Agency fails to eliminate or redistribute grade-controlling duties, but determined that the Agency should have a period of 120 days to implement its decision. In this case, it is undisputed that the Agency has stated its intent to eliminate or redistribute the higher graded duties performed by the grievant. The Union cites to no language which precludes the Arbitrator's determination that the Agency's decision should be subject to the 120 [ v56 p741 ] day period. Accordingly, based on our reading of the agreement provisions interpreted by the Arbitrator, we find that the Union has not shown that the award is irrational, implausible, or unconnected to the wording of the agreement.

      Furthermore, we reject the Union's argument that the Arbitrator was required by law and regulation to promote the grievant as soon as he had performed higher graded duties for over 120 days. Although the Union cites 5 C.F.R. § 335.103, it does not explain why the Agency's failure to apply competitive selection procedures would mandate a permanent promotion. Moreover, the Union cites to no other provision of law or regulation that demonstrates that the Agency is required to grant the grievant a permanent promotion under these circumstances. As such, we find that the Union has not provided a basis to find the award deficient. See Professional Airways Systems Specialists, District No. 1, MEBA/NMU (AFL-CIO) and U.S. Department of Transportation, Federal Aviation Administration, Office of Aviation Systems Standards, Battle Creek Flight Inspection Field Office, Battle Creek, Michigan, 48 FLRA 764, 768-69 (1993) (union failed to demonstrate that law and regulations mandated the remedy desired by the union and consequently failed to demonstrate that the award was in any manner contrary to those provisions).

B.     The Arbitrator's Award of Attorney Fees is Not Unreasonable

      The Union's exception involving the reasonableness of attorney fees involves the consistency of the arbitration award with law. We review questions of law raised by the award and the Agency's exception de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995).

1.     Statutory Requirements for Entitlement to Attorney Fees

      The threshold requirement for entitlement to attorney fees under the Back Pay Act, 5 U.S.C. § 5596, is a finding that the grievant was affected by an unjustified or unwarranted personnel action, which resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials. National Association of Government Employees, Local R4-106 and U.S. Department of the Air Force, Langley Air Force Base, Hampton, Virginia, 55 FLRA 676, 677 (1999); Alabama Association of Civilian Technicians and U.S. Department of Defense, Alabama State Military Department, Alabama National Guard, 54 FLRA 229, 232 (1998) (Alabama National Guard). Once such a finding is made, the Act further requires that an award of 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), which pertains to attorney fee awards by the Merit Systems Protection Board (MSPB). Alabama National Guard, 54 FLRA at 232.

      Section 7701(g)(1) applies to all cases except those involving allegations of employment discrimination and applies in this case. The prerequisites for an award of attorney fees under section 7701(g)(1) are as follows: (1) the employee must be the prevailing party; (2) the award of fees must be warranted in the interest of justice; (3) the amount of the fees must be reasonable; and (4) the fees must have been incurred by the employee. See U.S. Department of the Treasury, Internal Revenue Service, Philadelphia Service Center, Philadelphia, Pennsylvania and National Treasury Employees Union, Chapter 53, 53 FLRA 1697, 1699 (1998) (NTEU); Allen v. United States Postal Service, 2 M.S.P.B. 420, 427 (1980).

      An arbitrator's award resolving a request for attorney fees under section 7701(g)(1) must set forth specific findings supporting determinations on each pertinent statutory requirement. See NTEU, 53 FLRA at 1699-700; See U.S. Department of Defense, Defense Distribution Region East, New Cumberland, Pennsylvania and American Federation of Government Employees, Local 2004, 51 FLRA 155, 158 (1995). If an award fails to contain the findings necessary to enable the Authority to assess the arbitrator's legal conclusions, and those findings cannot be derived from the record, the case will be remanded to the parties for submission to the arbitrator so that the requisite findings can be made. See National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998).

      In this case, because the Union challenges only the Arbitrator's determination that his award of attorney fees was reasonable, we need not consider the other requirements of the Back Pay Act. See U.S. Department of Veterans Affairs Medical Center, North Chicago, Illinois and American Federation of Government Employees, Local 2107, 52 FLRA 387, 398 n.9 (1996). [ v56 p742 ]

2.     The Arbitrator Properly Considered the Union's Degree of Success in Determining that Reduction of the Amount of Requested Fees Was Reasonable

      In Fort Eustis, 54 FLRA 1594, 1598-1600, the Authority reviewed an arbitrator's determination that it was reasonable to reduce requested attorney fees to an amount proportionate to the result achieved by the grievants. The Authority held that, when the arbitrator awarded only one-fourth of the amount of leave that was sought by the grievants, it was not unreasonable for the arbitrator to determine that the union should not receive the full amount of requested fees. Id. at 1599-1600. There, the Authority relied on the Supreme Court's formulation of "reasonableness" for attorney fees under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988. [n8]  Id. at 1598. In this regard, the Supreme Court held in Farrar, 506 U.S. at 114, that the extent to which a plaintiff prevailed in the underlying litigation is the most critical factor to consider in determining reasonable attorney fees. See also Texas State Teachers Association v. Grievant Independent School District, 489 U.S. 782, 791-93 (1989) (finding that the extent of the plaintiff's overall success goes to the reasonableness of the award). The Court stated "that if `a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount.'" Farrar, 506 U.S. at 114 (quoting Hensley v. Eckerhart, 461 U.S. 424, 436 (1983) (Hensley)). The Supreme Court has also held that, in cases involving a single successful claim, "[a] reduced fee award is appropriate if the relief, however significant, is limited in comparison to the scope of the litigation as a whole." Hensley, 461 U.S. at 440.

      The Authority's application of the Supreme Court precedent in Fort Eustis is consistent with decisions of the MSPB. The MSPB has held that in determining the "reasonableness" of attorney fees under 5 U.S.C. § 7701(g), it is necessary to consider whether a fee award should be reduced because the relief ordered was significantly less than what was sought. See, e.g., Stein, 65 M.S.P.B. at 690. The MSPB has also held that "when more than one claim for relief is made and the claims involve a common core of facts or are based on related legal theories, the fee determination should reflect the significance of the overall relief obtained in relation to the hours reasonably expended." Smit v. Department of the Treasury, 61 M.S.P.B. 612, 618-19 (1994). See also Heath v. Department of Transportation, 66 M.S.P.B. 101, 105 (1995) (finding that in determining whether a fee request should be reduced "the result [of the litigation] is what matters").

      Here, the Arbitrator found that the parties' agreement did not require the Agency to grant the grievant a noncompetitive accretion of duties promotion, as had been argued by the Union. Instead, the Arbitrator found that the grievant is entitled to back pay for time that he had not already been compensated for performing higher grade duties. The Arbitrator emphasized that the maximum amount of time that constituted an unfair personnel action in this case - "approximately seven months" - was relatively small, "compared to the forty-five months of retroactive [temporary] promotion back pay" which the Agency had, prior to the hearing, agreed to pay the grievant. Award at 30. Given the fact that the Union's attorney was not designated by the Union until the date of the hearing, the Arbitrator determined that the attorney's impact on the outcome of the case did not warrant the amount of fees requested by the Union. In addition, while not relied upon by the Arbitrator in his award, we note that the purpose of the arbitration hearing was to try to obtain a permanent accretion of duties promotion for the grievant. This did not occur, which reflects that the Union prevailed to a lesser extent than it had sought to accomplish. We further note that the Union presents no evidence to support its claim that the Arbitrator limited attorney fees in a manner that is contrary to the terms of the Back Pay Act. [n9]  Accordingly, the reduction in fees is consistent with the cases cited above.

      Because the Union did not achieve full success in this case, and the Union presents no evidence showing that the Arbitrator's decision to limit attorney fees was unreasonable, we find that the award of attorney fees is not contrary to law.

V.     Decision

      The Union's exceptions are denied. [ v56 p743 ]


APPENDIX

ARTICLE 14 - POSITION DESCRIPTION

. . . .

4.     Noncompetitive Promotions:     If a review of a position or position description reveals that there has been accretion of duties that would result in the classification of a position at a higher grade, Management may decide to eliminate and/or redistribute the grade-controlling duties or the employee will be promoted per Article 16 (Noncompetitive Promotion). If Management eliminates and/or redistributes the grade controlling duties of an employee, the employee will be notified of his/her right to grieve. If management decides to promote the employee, he/she will be promoted at the beginning of the first pay period after the position has been classified at the higher level. In the event the promotion is delayed, Management will inform the employee of the reason for the delay and the pay period that the promotion will take effect. The employee will also be informed of his/her right to grieve in accordance with Article 9.

. . . .

ARTICLE 16 - PROMOTIONS AND DETAILS

. . . .

6.     Temporary Promotion:     A qualified employee placed in a higher-graded position or assigned to a group of duties that have been properly classified at a higher grade, for thirty (30) consecutive days or more, will be temporarily promoted into that position and paid accordingly. Management will not rotate vacant positions for the sole purposes of avoiding a temporary promotion. Temporary promotions of more than one hundred (120) days will be filled through competitive procedures.

7.     Noncompetitive Promotion:     When there has been an accretion of duties and responsibilities to warrant an increase in grade, the employee in the position will be promoted without competition, unless Management eliminates or redistributes the grade-controlling duties, in accordance with Article 14.4. Management shall refrain from temporarily reassigning an employee's work during the position classification review if the purpose for reassigning the work is to avoid reclassification of the said employee's position

. . . .



Footnote # 1 for 56 FLRA No. 123

   On January 5, 2000, the Authority's Case Control Office issued a Notice and Order denying a request by the Union for a two-week extension of time within which to supplement its exceptions. On February 11, 2000, the Union filed a supplement to its exceptions with the Authority. Pursuant to the Authority's January 5, 2000 Notice and Order, we will not consider the Union's supplementary filing.


Footnote # 2 for 56 FLRA No. 123

   As a remedy, the grievance requested that the grievant receive "an accretion of duties (non-competitive[,] permanent) promotion to the GS-9 level, with back pay and retroactive temporary promotion for the period following the resolution of the first grievance." Award at 8.


Footnote # 3 for 56 FLRA No. 123

   In a July 8, 1999 letter, the Agency formally notified the grievant that the Agency had decided to redistribute the GS-9 duties that had been performed by him, with the goal that the duties he performed thereafter would be consistent with his prior-existing GS-7 position description.


Footnote # 4 for 56 FLRA No. 123

   On August 14, 1999, the grievant received a back pay check covering one year of work prior to that date. Award at 8-9. The record is not clear whether, at the time of the hearing, the grievant had received all the back pay that was the subject of the parties' February, 1999 agreement.


Footnote # 5 for 56 FLRA No. 123

   Articles 14 and 16 are set forth at the Appendix to this Decision.


Footnote # 6 for 56 FLRA No. 123

   The Annotation is set forth at the Appendix to this Decision.


Footnote # 7 for 56 FLRA No. 123

   It was unrefuted at the hearing that the grievant continued to perform higher graded duties consistent with a GS-9 position.


Footnote # 8 for 56 FLRA No. 123

   The Authority has previously determined that the standards set forth by the Supreme Court for applying section 1988 are applicable to requests for attorney fees under the Back Pay Act. See Department of the Air Force Headquarters, 832D Combat Support Group DPCE, Luke Air Force Base, Arizona, 32 FLRA 1084, 1100 (1988) (quoting the Supreme Court's statement that the standards set forth in Hensley v. Eckerhart, 461 U.S. 424 (1983), ar