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50:0128(26)AR - - AFGE, Local 2419 and HHS, National Institutes of Health, Division of Engineering Services, Maintenance Engineering Branch - - 1995 FLRAdec AR - - v50 p128

[ v50 p128 ]
The decision of the Authority follows:

50 FLRA No. 26





LOCAL 2419











February 14, 1995


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

This case is before the Authority on exceptions to a supplemental award of Arbitrator Stuart Rothman 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.

In his supplemental award, the Arbitrator denied the Union's motion for attorney fees. The Union contends that the Arbitrator's denial is contrary to law.

We conclude that the Union has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II. Background and Arbitrator's Supplemental Award

In his original award, the Arbitrator sustained, in part, a grievance filed by the Union. As a remedy, the Arbitrator directed the Agency to take certain actions to monitor its compliance with occupational safety and health requirements.

The Union filed a petition for attorney fees pursuant to Article XXIV, Section 11 of the parties' collective bargaining agreement.(1) The Arbitrator denied the Union's petition. The Arbitrator stated that an arbitrator's authority to award attorney fees derives solely from the Back Pay Act, 5 U.S.C. § 5596. The Arbitrator found that the portion of the grievance on which the Union prevailed could not serve as a basis for fees because the award did not provide for backpay. The Arbitrator added that the Union's reliance on the standards in 5 U.S.C. § 7701(g)(1) as a basis for fees was misplaced because that provision operates within the limits of the Back Pay Act.(2)

III. Exceptions

A. Union's Contentions

The Union states that this case raises the issue of whether an arbitrator has the authority to award attorney fees where, as here, although no backpay has been ordered, the grievant has prevailed and an award of fees is warranted in the interest of justice. Citing the legislative history of the Civil Service Reform Act, the Union contends that the grievant is entitled to fees in accordance with 5 U.S.C. § 7701(g), which is incorporated by reference into the parties' agreement, separate and apart from the Back Pay Act. The Union requests that the Authority remand this case to the Arbitrator to determine whether a fee award is in the interest of justice and the reasonableness of the fees sought.

B. Agency's Opposition

The Agency contends that the Union is not entitled to attorney fees because there was no award of backpay. The Agency further argues that the Arbitrator could not award attorney fees solely under 5 U.S.C. § 7701(g).

IV. Analysis and Conclusions

It is well established that an arbitrator may not award attorney fees under 5 U.S.C. § 7701, which is incorporated into the Back Pay Act, independent of the terms of the Back Pay Act. 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); United States Army Aviation Systems Command and National Federation of Federal Employees, Local 405, 22 FLRA 379, 380 (1986). As relevant here, the payment of attorney fees can only be made pursuant to specific statutory authorization; a collective bargaining agreement cannot serve as a basis for an award of fees in the absence of statutory authority. See National Association of Government Employees, Local R7-23 and U.S. Department of the Air Force, Scott Air Force Base, Illinois, 35 FLRA 638 (1990). Moreover, 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 and a grant of such pay, allowances, or differentials. American Federation of Government Employees, Local 216, National Council of EEOC Locals and Equal Employment Opportunity Commission, 42 FLRA 319, 320-21 (1991).

In this case, the Arbitrator concluded that as there had been no award of backpay, he was not empowered to award attorney fees. The Union has not established that the denial of attorney fees in these circumstances is deficient as contrary to law or that there is any basis on which to remand this case to the Arbitrator.

V. Decision

The Union's exceptions are denied.

(If blank, the decision does not have footnotes.)

1. Article XXIV, Section 11 of the agreement provides:

The arbitrator has full authority to award representative fees in accordance with the standards of the CSRA [Civil Service Reform Act].

Supplemental Award at 1.

2. 5 U.S.C. § 7701(g) provides, in relevant part:

(1) Except as provided in paragraph (2) of this subsection, the [Merit Systems Protection] Board, or an administrative law judge or other employee of the Board designated to hear a case, may require payment by the agency involved of reasonable attorney fees incurred by an employee or applicant for employment if the employee or applicant is the prevailing party and the Board, administrative law judge, or other employee (as the case may be) determines that payment by the agency is warranted in the interest of justice, including any case in which a prohibited personnel practice was engaged in by the agency or any case in which the agency's action was clearly without merit.