22:0379(35)AR - Army Aviation Systems Command and NFFE Local 405 -- 1986 FLRAdec AR
[ v22 p379 ]
22:0379(35)AR
The decision of the Authority follows:
22 FLRA No. 35
UNITED STATES ARMY AVIATION
SYSTEMS COMMAND
Activity
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 405
Case No. 0-AR-1088
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on an exception to the award of
Arbitrator Paul E. Fitzsimmons filed by the Agency under section 7122(a)
of the Federal Service Labor-Management Relations Statute and part 2425
of the Authority's Rules and Regulations. The Union filed an
opposition. /*/
II. BACKGROUND AND ARBITRATOR'S AWARD
The grievance in this case concerned the grievant's failure to be
selected for a supervisory professional engineer position. A grievance
was filed and submitted to arbitration on the issue of whether the
selection action conformed to applicable laws, rules, and regulations.
The Arbitrator determined that there were substantial errors in the
selection action that required remedial action. With respect to the
remedy, the Arbitrator stated that he was not qualified to determine the
relative qualifications of the grievant and the employee selected for
the engineer position. Accordingly, as his award, the Arbitrator
ordered that the selection and recruitment process for the position be
rerun in accordance with applicable laws, rules, and regulations and
that the selected employee be retained in the position pending the
corrective action. In addition, the Arbitrator ordered as follows:
3. Pursuant to the provisions of 5 U.S.C. Sections 5596, 7701,
(the) Attorney for the Grievant is to be compensated by the
Employer, upon submission of an itemized bill at the rate of
($75.00) per hour for services rendered. The total fee shall not
exceed ($1500.00).
III. EXCEPTION
A. Contentions of the Agency
In its exception the Agency contends that paragraph 3 of the award is
contrary to the Back Pay Act, 5 U.S.C. Section 5596. Specifically, the
Agency argues that the Arbitrator was not authorized under the Back Pay
Act to award attorney fees to the grievant.
B. Opposition of the Union
In its opposition the Union maintains that the Back Pay Act is not
the only authority for an award of attorney fees by an arbitrator. In
particular, the Union argues that in cases of prohibited personnel
practices, an arbitrator may award attorney fees under the terms of 5
U.S.C. Section 7701(g), independent of the Back Pay Act, and that in
this case section 7701(g) supports the award.
IV. ANALYSIS AND CONCLUSIONS
Contrary to the position of the Union, the Authority has indicated
that an arbitrator is authorized to award attorney fees in cases of
unjustified or unwarranted personnel actions only under the terms of the
Back Pay Act. Naval Air Development Center, Department of the Navy and
American Federation of Government Employees, Local 1928, AFL-CIO, 21
FLRA No. 25 (1986); see also International Brotherhood of Electrical
Workers and United States Army Support Command, Hawaii, 14 FLRA 680
(1984). Thus, an arbitrator is not authorized to award attorney fees
solely under the terms of section 7701(g), independent of the terms of
the Back Pay Act, even in cases of prohibited personnel practices.
Consequently, attorney fees were properly awarded by the Arbitrator only
if authorized under the requirements of the Back Pay Act. As previously
recognized by the Authority, the Act requires that in order to be
eligible for attorney fees, the employee must be found by appropriate
authority, under applicable law, rule, regulation or collective
bargaining agreement, to have been affected by an unjustified or
unwarranted personnel action which resulted in the withdrawal of
reduction of the employee's pay, allowances, or differentials.
Additionally, the fee award must be in conjunction with an award of
backpay on the correction of the unjustified or unwarranted personnel
action; the fee award must be reasonable and related to the personnel
action; and the fee award must be in accordance with standards
established under section 7701(g). Id.
In this case the Authority concludes that the Arbitrator's award of
attorney fees is not in accordance with the requirements of the Act.
Although the Arbitrator determined that the grievant had been affected
by the improper selection action, he did not determine that this
resulted in a withdrawal or reduction of the grievant's pay, allowances,
or differentials, and consequently he awarded no backpay to the
grievant. Thus, the Arbitrator's award of attorney fees was not in
conjunction with an award of backpay on correction of the improper
selection action. For this reason, and apart from other considerations,
the award is deficient as contrary to an express requirement of the Back
Pay Act. See Audie L. Murphy Veterans Administration Hospital, San
Antonio, Texas and American Federation of Government Employees, AFL-CIO,
Local No. 3511, 16 FLRA 1079 (1984); Department of Defense Dependents
Schools and Overseas Education Association, 3 FLRA 259 (1980).
V. DECISION
Accordingly, paragraph 3 is struck from the Arbitrator's award.
Issued, Washington, D.C., July 7, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(*) In its opposition the Union notes a provision of the parties'
collective bargaining agreement stating that within 10 days after
receipt of an arbitrator's award, there will be written notification by
the parties of any intent to file exceptions. The Union maintains that
there was no such notification in this case and that the Authority on
this basis should dismiss the Agency's exception. The Authority
concludes that the parties' agreement provides no basis for dismissing
the Agency's exception that conforms to the requirements of section
7122(a) and the Authority's Rules and Regulations.