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The decision of the Authority follows:
16 FLRA NO. 140
AUDIE L. MURPHY VETERANS ADMINISTRATION HOSPITAL, SAN ANTONIO, TEXAS Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL NO. 3511 Union Case No. 0-AR-844
This matter is before the Authority on an exception to the arbitration award, as clarified, of Arbitrator Albert V. Carter 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 arbitration award as to which the exception has been filed constitutes the Arbitrator's clarification of his award denying attorney fees. This clarification was rendered pursuant to the request of the Activity and in accordance with the Authority's decision remanding the award to the parties with the direction that a clarification of the award be obtained. 15 FLRA No. 60 (1984). In his clarification the Arbitrator noted that a threshold requirement under the Back Pay Act, 5 U.S.C. 5596, for an award of attorney fees is that the grievant has been affected by an unjustified or unwarranted personnel action that has resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials and that the award of attorney fees must be in conjunction with an award of backpay on correction of that unwarranted action. In this respect the Arbitrator stated that he had not found that the grievant's pay, Allowances, or differentials had been withdrawn or reduced and that he had not awarded backpay to the grievant. The Arbitrator further noted that attorney fees must be incurred by the aggrieved employee and that he had no evidence that the grievant incurred any attorney fees relative to this matter. Thus, the Arbitrator as his clarification articulated these reasons for his refusal to award attorney fees. [ v16 p1079 ]
In its exception the Union principally contends that the award is deficient as contrary to the standards respecting the award of attorney fees by arbitrators set forth in the decision of the Authority remanding the award. The Union however fails to establish that the award, as clarified, is in any manner contrary to the principles pertaining to the award of attorney fees under the Back Pay Act or to the remand decision of the Authority. Contrary to the Union's contention, the Arbitrator correctly recognized and applied the statutory requirements for entitlement to and eligibility for an award of attorney fees under the Back Pay Act. See International Brotherhood of Electrical Workers and United States Army Support Command, Hawaii, 14 FLRA No. 90 (1984); Department of Defense Dependents Schools and Overseas Education Association, 3 FLRA 259 (1980). Additionally, with the Arbitrator articulating those requirements and their application in terms of this case, the Arbitrator has articulated as required by the standards set forth in the remand decision of the Authority the basis for his refusal of an award of fees.
The Union additionally argues that the award is deficient because it was issued without the presentation of evidence and argument and as the result of ex parte contact with representatives of the Activity. The Union however fails to substantiate that the clarification by the Arbitrator of his award must only have been after the submission of evidence and argument. Similarly, with the remand decision of the Authority specifying that the submission to the Arbitrator could be at the request of only one party, 15 FLRA No. 60, at 3, the Union's bare statement of contact by the Arbitrator wit representatives of the Activity provides no basis for finding the award deficient.
Accordingly, the Union's exception is denied.
Issued, Washington, D.C., December 24, 1954 Henry B. Frazier III, Acting Chairman Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY
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