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63 FLRA No. 35
OF GOVERNMENT EMPLOYEES
DEPARTMENT OF THE ARMY
HEADQUARTERS, ARMY SUSTAINMENT
ROCK ISLAND, ILLINOIS
January 30, 2009
Before the Authority: Thomas M. Beck, Chairman and
Carol Waller Pope, Member
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator James E. Slavens filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator denied the Union's request for attorney fees. For the reasons set forth below, we deny the Union's exceptions.
II. Background and Arbitrator's Award
In his original award, the Arbitrator awarded the grievant priority consideration for the next GS-13, Contract Price/Cost Analyst position, but did not award the Union its requested remedy of a retroactive promotion with backpay. See Exceptions, Attach. 6, Original Award at 1. [n1] The Arbitrator stated that the original award was "in full settlement and satisfaction of all claims and counterclaims submitted to this arbitration." Exceptions, Attach. 1, Final Award at 1. The Union subsequently filed a request for attorney fees, which the Arbitrator denied. In this regard, the Arbitrator stated that his original award constituted "the closure of the arbitration[,]" and, as such, any further action by him would be "inappropriate." Id. The Arbitrator also stated that, although he had considered awarding "monetary amounts" in his original award, he "decided against it[,]" and, as such, his original award stands "without change." Id.
III. Positions of the Parties
A. Union's Exceptions
The Union asserts that the Arbitrator's denial of attorney fees is "misplaced." Exceptions at 2. In this regard, the Union claims that the Arbitrator "ruled out" awarding attorney fees "without giving due weight" to 5 U.S.C. § 7701(g). [n2] Id. at 2-3. In this connection, the Union argues that the grievant was the "prevailing party" because the Arbitrator ruled in his favor on every aspect of the grievance. Id. at 3. The Union also contends that, even though the Arbitrator did not award backpay, the Union prevailed, and, as such, a finding that attorney fees are appropriate in the interest of justice is not without merit. See id. at 5. [n3]
B. Agency's Opposition
The Agency argues that the Arbitrator properly denied the Union's request for attorney fees because he did not award the Union backpay. See Opposition at 3 (citing AFGE, Local 4015, 52 FLRA 82, 84 (1996) (AFGE, Local 4015)). The Agency also claims that the Union's reliance on 5 U.S.C. § 7701(g) is misplaced. Specifically, the Agency contends that the Arbitrator could not award attorney fees under § 7701(g) unless he made a finding under the Back Pay Act that "the grievant was affected by an unjustified or unwarranted personnel action that has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials of the [grievant]." Id. at 4. As the Arbitrator did not make such a finding or award backpay, the Agency argues that § 7701(g) does not provide the Union a basis [ v63 p90 ] for obtaining attorney fees. Finally, the Agency claims that even if the Arbitrator's denial of attorney fees is not fully articulated, the Arbitrator did not have the authority to award attorney fees because he did not award backpay.
IV. Analysis and Conclusion
The threshold requirements for entitlement to attorney fees under the Back Pay Act are: (1) a finding that the grievant was affected by an unjustified or unwarranted personnel action, which resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials; and (2) a grant of such pay, allowances, or differentials. See AFGE, Local 3239, 61 FLRA 808, 809 (2006).
In this case, the Arbitrator ordered the Agency only to provide the grievant priority consideration; the Arbitrator did not award backpay. As the grievant was not awarded backpay, the Arbitrator properly denied attorney fees under the Back Pay Act. See AFGE, Local 4015, 52 FLRA at 84 (finding that an award of priority consideration did not support an award of attorney fees under the Back Pay Act). In this regard, we reject as unsupported the Union's assertion that it is entitled to attorney fees because it prevailed in its grievance. In this case, there is no dispute that the resolution of the grievance -- the Arbitrator's original award of priority consideration -- resulted in no monetary benefit to the grievant. See id. Further, to the extent the Union argues that the award is contrary to § 7701(g), it is well established that an arbitrator may not award attorney fees under § 7701, which is incorporated into the Back Pay Act, independent of the terms of the Back Pay Act. See United States Small Bus. Admin., 55 FLRA 179, 181 (1999) (Small Bus. Admin.); AFGE, Local 2419, 50 FLRA 128, 130 (1995). As the Arbitrator did not award backpay, the terms of the Back Pay Act were not met, and the Arbitrator was not authorized to award attorney fees under § 7701(g). See Small Bus. Admin., 55 FLRA at 181. Accordingly, we deny the Union's exceptions.
The Union's exceptions are denied.
Footnote # 1 for 63 FLRA No. 35 - Authority's Decision
Footnote # 2 for 63 FLRA No. 35 - Authority's Decision
Under 5 U.S.C. § 7701(g), when a deciding official determines that an employee has suffered a prohibited personnel action, the employee may request reasonable attorney fees if the deciding official decides that fees are warranted "in the interest of justice[.]"
Footnote # 3 for 63 FLRA No. 35 - Authority's Decision
To the extent the Arbitrator's award "implies" that the Union's request for attorney fees was untimely, the Union asserts that there is nothing in the Statute that establishes timeframes for filing a request for attorney fees. Exceptions at 4. However, the Union concedes that "apparently[,] the timing of the Union's request did not have any bearing" on the Arbitrator's decision. Id. Accordingly, we do not address this claim further.