United States Department of the Army, U.S. Army Corps of Engineers, Saint Louis District, St. Louis, Missouri (Agency) and National Federation of Federal Employees, Local 405 (Union)
at 28. The Arbitrator found that a reasonable person would not consider the grievant’s words and actions to be threatening. Id. at 27. In this regard, the Arbitrator determined that the grievant’s conduct was simply rude and boisterous and that the grievant’s statement “what are you going to do about it” was merely rude and provocative. Id.
at 28; see also id. at 27. Additionally, the Arbitrator found that the grievant’s actions only could be considered “[d]iscourtesy,” a lesser offense listed in the Agency’s table of penalties. Id. at 28.
U.S., Dep’t of Def., Def. Distrib. Region E., New Cumberland, Pa., 51 FLRA 155, 158 (1995). The Back Pay 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 standards established under 5 U.S.C. § 7701(g). See id. The prerequisites for an award under § 7701(g) are that: (1) the employee must be the prevailing party; (2) the award of attorney fees must be warranted in the interest of justice; (3) the amount of fees must be reasonable; and (4) the fees must have been incurred by the employee. See id.