United States Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Greenville, Illinois (Agency) and American Federation of Government Employees, Local 1304, Council of Prison Locals (Union)

65 FLRA No. 128              
LOCAL 1304
March 14, 2011
Before the Authority: Carol Waller Pope, Chairman, and Thomas M. Beck and Ernest DuBester, Members
I.     Statement of the Case
        This matter is before the Authority on exceptions to an award of Arbitrator Steven Briggs filed by the Agencyunder § 7122(a) of the Federal Service Labor‑Management Relations Statute (the Statute) and part 2425 of the Authority’s Regulations. The Union did not file an opposition to the Agency’s exceptions.
        The Arbitrator awarded the Union attorney fees and costs. For the reasons that follow, we deny the Agency’s exceptions.
II.    Background and Arbitrator’s Awards
        The Union filed a grievance alleging that the Agency had failed to properly compensate employees for pre-shift and post-shift work. In his initial award, the Arbitrator found that the Agency had violated the Fair Labor Standards Act (FLSA), Agency regulations, and the parties’ collective bargaining agreement, and he sustained the grievance. The Arbitrator directed the parties to negotiate over a remedy, including “reasonable attorney’s fees.” Supplemental Award on the Remedy at 7 (supplemental award). He retained jurisdiction to direct a remedy if the parties were unable to agree. Id. at 2.
        When the parties were unable to agree to a remedy, the Arbitrator held a hearing, after which each party submitted a written position paper. In addition, the Union submitted a verified statement of attorney fees, the Agency submitted a response, and the Union submitted a brief for an award of attorney fees. Id. at 2-3. In his supplemental award, the Arbitrator awarded employees backpay with interest “consistent with the Back Pay Act.” Id. at 6-7 (citation omitted). With regard to attorney fees, the Arbitrator noted that he had previously directed that “reasonable attorney’s fees” should be included in any remedy. Id. at 7 (quoting Initial Award). Accordingly, he awarded as follows: “Since the Union is the prevailing party in this case[,] I hereby direct the Agency to pay the Union’s reasonable attorney’s fees and costs as part of the remedy in this case.” Id. Specifically, the Arbitrator awarded attorney fees in the amount of $409,118.75, and costs in the amount of $24,372.66. Id. at 7-8.
III. Agency’s Exceptions
        The Agency contests only the Arbitrator’s award of costs. Exceptions at 4. The Agency first contends that the Arbitrator’s award of costs is contrary to the Back Pay Act, 5 U.S.C. § 5596. The Agency maintains that, under the Back Pay Act, an award of attorney fees including costs must be in accordance with the standards established under 5 U.S.C. § 7701(g) (§ 7701(g)), which standards require a fully articulated, reasoned decision setting forth the arbitrator’s specific findings supporting the determination on each pertinent statutory requirement. Id. at 4-5. The Agency further maintains that § 7701(g) limits the award of costs to those that are “incidental and necessary expenses incurred in furnishing effective and competent representation.” Id. at 7. The Agency asserts that the Arbitrator’s award of costs is contrary to § 7701(g) because: (1) “the Arbitrator failed to provide a ‘clear and reasoned explanation’ of why the expenses claimed by the Union were recoverable[,]” id. at 5 (footnote omitted); and (2) the Union attorney’s costs were not incidental and necessary expenses incurred in furnishing effective and competent representation, id. at 7.
        The Agency also contends that the award of costs fails to draw its essence from the parties’ collective bargaining agreement. Id. at 8. The Agency notes that, with exceptions not applicable in this case, Article 32, Section d (Section d) provides: “The arbitrator’s fees and all expenses of the arbitration . . . shall be borne equally by the Employer and the Union.” Id. at 9 (quoting agreement). According to the Agency, it is not disputed that the Arbitrator’s award of costs includes the Union’s share of the Arbitrator’s fee and the Union’s share of the hearing transcript fee. Thus, the Agency claims that the award “manifestly disregards” Section d. Id. In addition, the Agency asserts that the award, as it pertains to the transcript fee, also disregards Article 32, Section I of the parties’ agreement.[1]                 
IV. Analysis and Conclusions
        A.    The award of costs is not contrary to the Back Pay Act.
        The Authority held in United States Department of the Navy, United States Naval Academy, Nonappropriated Fund Program Division, 63 FLRA 100 (2009), that “awards of backpay should not be granted under the Back Pay Act where there is an independent statutory basis for such an award.”[2] Id. at 103. In addition, the Authority found that the FLSA, 29 U.S.C. § 216(b) (§ 216(b)),[3] constitutes an independent statutory basis for awards of backpay and reasonable attorney fees. Id. at 102-03. Thus, the Authority held “the requirement under . . . § 7701(g)[(1)] that attorney fees are ‘warranted in the interest of justice’ is inapplicable” to award of fees made pursuant to the FLSA. Id. at 103.
        In his supplemental award, the Arbitrator does not expressly identify the statutory authority for his award of fees and costs. However, for the reasons that follow, we conclude that it is implicit in the supplemental award that the Arbitrator awarded fees and costs under § 216(b).