22:0379(35)AR - Army Aviation Systems Command and NFFE Local 405 -- 1986 FLRAdec AR

[ v22 p379 ]
The decision of the Authority follows:

 22 FLRA No. 35
                                            Case No. 0-AR-1088
                         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.  /*/
    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.