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The decision of the Authority follows:
46 FLRA No. 125
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL UNION OF LABOR INVESTIGATORS
U.S. DEPARTMENT OF LABOR
OFFICE OF LABOR MANAGEMENT STANDARDS
February 4, 1993
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Suzanne R. Butler 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 Rules and Regulations. The Agency filed an opposition to the Union's exceptions.(1)
The Union filed exceptions only to the portion of the Arbitrator's award denying the Union's request for attorney fees. For the following reasons, we conclude that the Union fails to establish that the portion of the award denying attorney fees is deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
The grievant, a GS-12 Investigator in the Agency's Washington Area Office, applied, but was not selected, for either of two GS-13 Senior Investigator positions in that office. The grievant filed a grievance claiming that the Agency failed to promote him because of his race and his Union activity and, as a remedy, sought a retroactive promotion with backpay and attorney fees. When the grievance was not resolved, it was submitted to arbitration. The parties stipulated that the issue before the Arbitrator was whether the Agency had discriminated against the grievant when it failed to promote him.
For reasons not relevant here, the Arbitrator concluded that the Agency discriminated against the grievant by failing to recommend him for promotion to one of the two vacancies.(2) However, the Arbitrator also concluded that, even if the grievant had been recommended for promotion, he would not have received the promotion because the Agency decided to cancel the disputed vacancy for legitimate reasons. The Arbitrator stated that, as she was unable to find that "'but for' the wrongful action" the grievant would not have suffered a reduction or withdrawal in pay, allowances, or differentials, she also was unable to grant the grievant a retroactive promotion with backpay and attorney fees. Award at 27.
III. Positions of the Parties
The Union excepts only to the Arbitrator's refusal to grant attorney fees. The Union argues that the Back Pay Act does not preclude an award of attorney fees in this case because, under 5 U.S.C. § 7701(g)(2)(3) , the grievant is the prevailing party and is entitled to fees in accordance with the standards prescribed under section 706(k) of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-5(k)),(4) absent special circumstances which would render such an award unjust. The Union claims that no special circumstances exist in this case. The Union also claims that the award does not draw its essence from the parties' collective bargaining agreement(5) because the Arbitrator "did not even attempt to interpret her contractual remedial authority[.]" Exceptions at 5. In this connection, the Union asserts that the parties' agreement does not prohibit an award of attorney fees in cases where backpay is not provided.
The Agency argues that the grievant is not entitled to attorney fees because he is not the prevailing party and, even if the grievant is the prevailing party, special circumstances exist which would render an award of attorney fees unjust.
IV. Analysis and Conclusions
At the outset, we reject the Union's argument that fees may be awarded in this case without regard to the requirements of the Back Pay Act.
We note that 5 U.S.C. § 7701(g)(2), which provides for awards of attorney fees in cases involving prohibited discrimination, expressly refers to the standards for awards of fees set forth in section 706(k) of the Civil Rights Act of 1964. Section 7701, by its terms, provides authorization for awards of fees only to the Merit Systems Protection Board (MSPB) in connection with proceedings before it. See Brown v. U.S. Coast Guard, 28 MSPR 539 (1985) (Brown). In this regard, other "appropriate authorities," including arbitrators, are authorized to award attorney fees. See 5 C.F.R. § 550.803. However, appropriate authorities other than the MSPB are not authorized to do so directly under section 7701. Instead, section 7701 applies to these authorities only through application of the Back Pay Act, which provides that, in addition to other requirements, attorney fees must be awarded "in accordance with standards established under section 7701(g) . . . ." 5 U.S.C. § 5596(b)(1)(A)(ii). As such, and as no authority to the contrary has been supplied by the Union or is apparent to us, we conclude that the Arbitrator was not authorized to award fees solely under section 706(k) of the Civil Rights Act of 1964. See U.S. Department of the Army, Missile Range, White Sands, New Mexico and National Federation of Federal Employees, Local 2049, 38 FLRA 258, 261 (1990) (White Sands) (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); 5 C.F.R. § 550.807(e) ("[w]hen a determination by an appropriate authority that an employee has been affected by an unjustified or unwarranted personnel action that resulted in the withdrawal, reduction, or denial of all of part of the pay, allowances, and differentials otherwise due the employee is based on a finding of discrimination . . . the payment of attorney fees shall be in accordance with the standards prescribed under section 706(k) of the Civil Rights Act of 1964[.]").
A threshold requirement for an award of attorney fees under the Back Pay Act is a finding that the grievant was affected by an unjustified or unwarranted personnel action that resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials. Federal Deposit Insurance Corporation, Chicago Region and National Treasury Employees Union Chapter 242, 45 FLRA 437 (1992). The Back Pay Act further provides, among other things, that an award of attorney fees must be in conjunction with an award of backpay to the grievant on correction of the personnel action.
In the instant case, the Arbitrator concluded that the Agency had discriminated against the grievant. However, the Arbitrator also concluded that, as the grievant would not have been promoted even if the Agency had not discriminated against him, the Agency's discriminatory action did not cause the grievant to suffer a reduction in pay, allowances or differentials. Absent such finding, attorney fees may not be awarded under the Back Pay Act.(6)As discussed previously, the Back Pay Act applies in this case. Accordingly, the award is not deficient in denying the Union's request for attorney fees. For example, White Sands, 38 FLRA at 262.
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. The Union filed a response to the Agency's opposition. The Authority's Rules and Regulations do not provide for the filing of a supplemental submission, and the Union fails to demonstrate a reason for the Authority to consider its response. Accordingly, we have not considered the Union's supplemental submission. See U.S. Department of the Treasury, Customs Service, South Central Region, New Orleans, Louisiana and National Treasury Employees Union, Chapter 168, 43 FLRA 337, n.1 (1991).
2. The Arbitrator found no discrimination against the grievant in filling one vacancy. The Arbitrator's finding of discrimination relates only to the second vacancy.
3. 5 U.S.C. § 7701(g)(2) provides, in pertinent part:
If an employee . . . is the prevailing party and the decision is based on a finding of discrimination prohibited under section 2302(b)(1) of this title, the payment of attorney fees shall be in accordance with the standards prescribed under section 706(k) of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-5(k)).
4. Section 706(k) of the Civil Rights Act of 1964 provides, in pertinent part:
In any action . . . the court, in its discretion, may allow the prevailing party[ ] . . . a reasonable attorney's fee as part of the costs . . . .
5. The Union relies on Article 24, Section 13(c) of the parties' agreement, which provides as follows:
The arbitrator will have the authority to make an appropriate adjustment for the aggrieved to the extent such remedy is not limited by statute, regulation, or this Agreement.
Exceptions at 3.
6. As attorney fees could not properly be awarded under the Back Pay Act, it is unnecessary to address the Union's argument that the parties' agreement does not prohibit such an award. We note, however, that the provision relied on by the Union refers to statutory restrictions on awards of attorney fees.