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59 FLRA No. 24
DEPARTMENT OF STATE
OF GOVERNMENT EMPLOYEES
September 9, 2003
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Richard I. Bloch filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions. The Agency filed a response to the Union's opposition, and the Agency filed a reply to the Union's response. [*]
The Arbitrator found that the grievant, whose three-day suspension was rescinded by the Agency during the pendency of the grievance process, was entitled to attorney fees under the Back Pay Act. For the reasons that follow, we set aside the award.
II. Background and Arbitrator's Award
The Agency issued the grievant a three-day suspension, which the grievant served. A grievance was filed challenging the suspension. The Agency denied the grievance and it was submitted to arbitration. Prior to the arbitration hearing, the Agency rescinded the suspension, directing that any pay and benefits the grievant lost as a result of the suspension be restored. Although the suspension itself was no longer at issue, the parties continued to dispute whether the grievant had suffered a loss of pay or leave. That issue was resolved when the parties agreed prior to the hearing that due to an administrative error at the time of the suspension, the Agency had not withheld the grievant's pay while she served the suspension. The parties further agreed that the Agency had not improperly charged the grievant leave during that period.
The parties continued to dispute the grievant's entitlement to attorney fees, and that matter was the subject of the arbitration hearing, where the issue was framed as whether the "grievant [is] entitled to recovery under the Back Pay Act." Award at 3.
The Arbitrator found that although the grievant "[u]nquestionably . . . suffered no . . . loss" of pay or leave, she was entitled to attorney fees under the Back Pay Act. Id. at 5. In this regard, the Arbitrator determined that the only reason that the grievant had not been subject to a withdrawal of pay was an administrative error. The Arbitrator further stated that it would be "bizarre . . . to conclude that the [Agency's] bookkeeping error should serve to deny the grievant, who ultimately prevailed on the merits, the attorney fees she [paid] in a lengthy effort to [prevail.]" Id. at 6-7. Accordingly, the Arbitrator awarded the grievant attorney fees.
III. Positions of the Parties
A. Agency's Exceptions
The Agency asserts that the award is inconsistent with the Back Pay Act because the grievant did not suffer any loss of pay, allowances, or differentials. Relying on AFGE, Local 1547, 58 FLRA 241 (2002), the Agency further argues that the grievant is not entitled to attorney fees because she is not the "prevailing party," within the meaning of 5 U.S.C. § 7701(g)(1).
B. Union's Opposition
The Union asserts that the Arbitrator properly found that the grievant is entitled to attorney fees because the grievant was subject to an improper adverse action, which the grievant actually served. The Union further argues that the suspension was without pay and, as such, the adverse action resulted in a loss of pay. The Union asserts that neither the Agency's administrative [ v59 p130 ] error nor the fact that the suspension was ultimately rescinded is relevant because the grievant was treated improperly.
IV. The award is inconsistent with the Back Pay Act, 5 U.S.C. § 5596
The Authority reviews questions of law raised by exceptions to an arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.
It is well established that 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. United States SBA, 55 FLRA 179, 181 (1999); Ala. Ass'n of Civilian Technicians, 54 FLRA 229, 232 (1998); AFGE, Local 4015, 52 FLRA 82, 84 (1996); AFGE, Local 2419, 50 FLRA 128, 130 (1995); AFGE, Local 216, Nat'l Council of EEOC Locals, 42 FLRA 319, 320-21 (1991) (AFGE, Local 216). It is also well established that to find that a personnel action resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials, there must be an actual loss suffered by the grievant. United States Dep't of the Air Force, Warner Robins AFB, Ga., 56 FLRA 541, 543 (2000) (Warner Robins AFB); United States Dep't of the Air Force, Travis AFB, Cal., 56 FLRA 434, 437-38 (2000); AFGE, Local 4015, 52 FLRA at 84; AFGE, Local 216, 42 FLRA at 320-21; GSA, 20 FLRA 794, 795-96 (1985).
Where the threshold requirement for an award of attorney fees is met, the Back Pay Act provides that fees are to be awarded "in accordance with standards established under section 7701(g) of [title 5.]" 5 U.S.C. § 5596(b)(1)(A)(ii); see AFGE, Local 1547, 58 FLRA 241, 242 (2002). The standards for an award of attorney fees under § 7701(g) include, among other things, that the employee must be the "prevailing party." 5 U.S.C. § 7701(g)(1); see NAGE, Local R4-6, 55 FLRA 1298, 1300-01 (2000).
In this case, the Arbitrator found that it was "unquestionab[le]" that the grievant did not suffer a loss of pay or leave as a result of serving three-day suspension that was later rescinded. Award at 5. The Union's arguments that there was a loss in pay because the suspension was intended to be without pay, and that an actual loss of pay is not relevant where there is an underlying finding of entitlement to back pay, are not persuasive. In this regard, as set forth above, the grievant must have suffered an actual loss of pay. Warner Robins AFB, 56 FLRA at 543. Neither party disputes that the grievant did not in fact lose pay as a result of the suspension. Moreover, given the Arbitrator's factual finding -- to which we defer -- that the grievant did not suffer a loss of pay or leave, there is no basis for finding that the suspension resulted in a "withdrawal or reduction" of pay within the meaning of the Back Pay Act. NFFE, Local 186, 55 FLRA 59, 61 (1999). As the grievant did not suffer an actual loss of pay, the award of attorney fees is not consistent with the requirements of the Back Pay Act. United States SBA, 55 FLRA at 181; AFGE, Local 4015, 52 FLRA at 84; AFGE, Local 2419, 50 FLRA at 130; AFGE, Local 216, 42 FLRA at 320-21.
Even if the grievant suffered an actual loss of pay, she would not be entitled to fees under the Back Pay Act because she is not the "prevailing party," within the meaning of the standards established under 5 U.S.C. § 7701(g). In this regard, the Authority recently held --adopting the definition of "prevailing party" set forth in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001) and adopted by the Merit Systems Protection Board -- that an appellant is not the "prevailing party" where an agency unilaterally rescinds an adverse action during the pendency of an appeal. AFGE, Local 1547, 58 FLRA at 242-43. As the Agency rescinded the grievant's suspension prior to the arbitration hearing, the grievant is not a "prevailing party," and the award of attorney fees is not consistent with the requirements of the Back Pay Act. Id.
Accordingly, we conclude that the award of fees is deficient because it is inconsistent with the Back Pay Act, and we set aside the award.
The award is set aside.
Footnote * for 59 FLRA No. 24 - Authority's Decision
The Authority's Regulations do not provide for the filing of a response to an opposition to a party's exceptions, or a reply to such a response. Although § 2429.26(a) permits the filing of additional documents, the Authority has held that it is incumbent on the moving party to demonstrate why the Authority should consider such supplemental submissions. See United States Dep't of the Navy, Naval Sea Systems Command, 57 FLRA 543, 543 n.1 (2001); United States Dep't of the Treasury, United States Customs Serv., El Paso, Tex., 52 FLRA 622, 625 (1996). Neither the Agency nor the Union has demonstrated that its additional submission should be considered. Accordingly, we have not considered the submissions.