SUPPLEMENTARY INFORMATION:

The Authority is considering Case No. 0-AR-5354 pursuant to its responsibilities under the Federal Service Labor-Management Relations Statute, 5 U.S.C. 7101-7135 (the Statute), and its regulations on the review of arbitration awards, set forth at 5 CFR part 2425. The issues include whether there is a need for the Authority to reconsider its nearly exclusive reliance on the factors or criteria found in Allen v. U.S. Postal Service, 2 M.S.P.R. 420 (1980), when considering whether an award of attorney fees is in the “interest of justice” (5 U.S.C. 7701(g)), and then, if reconsideration is warranted, what the factors or criteria should be, as adapted for the federal collective-bargaining context. As this matter is likely to be of concern to agencies, labor organizations, and other interested persons, the Authority finds it appropriate to provide for the filing of amici briefs addressing this matter.

In Case No. 0-AR-5354, Arbitrator Fred K. Blackard sustained a grievance and found that the Agency, U.S. Department of Veterans Affairs, Michael E. DeBakey Medical Center, Houston, Texas, had violated an article of its collective bargaining agreement with the Union, American Federation of Government Employees (AFGE), Local 1633. Arbitrator Blackard awarded back pay to the grievants but denied attorney fees to the Union, finding no provision in the parties' collective bargaining agreement provided attorney fees to a party prevailing at arbitration. Both the Agency and the Union filed timely exceptions with the Authority on different grounds. Those exceptions are currently pending before the Authority. A summary of the case follows.

1. Background and Award

The Union filed a grievance seeking environmental differential pay on behalf of housekeepers who worked at the Agency's medical center. The parties submitted the matter to arbitration. The Union argued that the housekeepers were entitled to environmental differential pay under federal law and the parties' collective-bargaining agreement because they worked in close proximity to hazardous micro-organisms. The Agency argued that the housekeepers were not entitled to environmental differential pay because their duties do not meet the standards described under 5 U.S.C. 5343(c)(4); 5 CFR part 532, subpart E, Appendix A; and the parties' agreement. On January 24, 2018, the Arbitrator issued an award finding that the housekeepers worked in sufficient proximity to micro-organisms within the meaning of Appendix A, thereby entitling them to environmental differential pay. Accordingly, the Arbitrator sustained the grievance, and awarded backpay, but denied the Union's request for attorney fees because attorney fees were not authorized under the parties' agreement.

2. Exceptions as Filed

In addition to the exceptions filed by the Agency, an exception was filed by the Union to the award. The Union has argued that the Arbitrator's determination, that he lacked the authority to award attorney fees because the parties' collective-bargaining agreement did not provide for them, is deficient. The Union requests that the Authority find this determination contrary to law, as contravening the Back Pay Act, 5 U.S.C. 5596, and the Union requests that the Authority remand the case to the parties, to resubmit to the Arbitrator, absent settlement, the issue of whether attorney fees are warranted.

3. Questions on Which Briefs Are Solicited

In 1984, the Authority first reviewed the issue of entitlement to attorney fees and then adopted the “interest of justice standards” (later called alternatively “factors” or “criteria”) of the Merit Systems Protection Board (MSPB) 1980 decision in Allen v. U.S. Postal Service. In general, the Authority has since held that a threshold requirement for entitlement to attorney fees under the Back Pay Act is a finding that the grievant has been affected by an unjustified or unwarranted personnel action that has resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials. Further, the award of attorney fees must be in conjunction with an award of backpay to the grievant on correction of the personnel action, that the award of attorney fees must be reasonable and related to the personnel action, and that the award of attorney fees must be in accordance with the standards established under 5 U.S.C. 7701(g). Section 7701(g) in turn prescribes that for an employee to be eligible for an award of attorney fees, the employee must be the prevailing party. Section 7701(g)(1), which applies to all cases except those involving discrimination, requires that an award of attorney fees must be warranted “in the interest of justice,” that the amount must be reasonable, and that the fees must have been incurred by the employee.

The Authority has referred to and applied the case law of the MSPB on ( printed page 7054) attorney fees since 1984. As early as 2016, the Authority has publicly questioned its continued use of the Allen criteria and acknowledged that it may be more appropriate to develop criteria to assess attorney fees that are more applicable to the federal collective-bargaining and grievance-arbitration experience. See U.S. DHS, U.S. CBP, 70 FLRA 73, 76 (2016).

Because the Authority has not directly addressed the issue of appropriate criteria for attorney fees, as reflecting federal collective-bargaining and grievance-arbitration actions, the Authority is providing an opportunity for the parties and other interested persons to file briefs addressing the following questions:

Should the Authority reconsider its nearly exclusive reliance upon MSPB case law ( Allen) and the MSPB's interpretation of 5 U.S.C. 7701(g) for the purpose of determining whether attorney fees are warranted in the federal collective bargaining context? If so, why? If not, why not?

What factors should the Authority consider when determining whether the statutory criteria for attorney fees are met in the federal collective bargaining context? What factors should the Authority not consider? For example, how should the Authority determine who is a “prevailing party” in the context of the interpretation of a collective-bargaining agreement?

In answering these questions, the parties and other interested persons should address: (1) The wording of the Statute and the Back Pay Act; (2) any principles of statutory construction; (3) any legislative history regarding 5 U.S.C. 7701(g) and any other relevant provisions of the Statute or other applicable laws; and (4) the practical impact of suggested criteria that should be considered in light of the Statute's requirement that its provisions be interpreted in a manner consistent with the requirement of an effective and efficient government.

4. Required Format for Briefs

All briefs shall be captioned “ AFGE, Local 1633 and the U.S. Department of Veterans Affairs, Michael E. DeBakey Medical Center, Houston, Texas, Case No. 0-AR-5354.” Briefs shall contain separate, numbered headings for each issue covered. Interested persons must submit an original and four (4) copies of each amicus brief, with any enclosures, on 8 1/2 x 11 inch paper. Briefs must include a signed and dated statement of service that complies with the Authority's Regulations showing service of one copy of the brief on all counsel of record or other designated representatives, 5 CFR 2429.27(a) and (c). Accordingly, briefs must be served on: Stephen Jones, Attorney, American Federation of Government Employees, Local 1633, 2002 Holcombe, Houston, TX 77030, (214) 796-0011, Stephen.jones@sejpc.com; Thomas Herpin, Attorney, U.S. Department of Veterans Affairs, Michael E. DeBakey Medical Center, Houston, Texas, 6900 Alameda (02), Houston, TX 77079, (713) 383-2769, Thomas.Herpin@va.gov; Fred K. Blackard, Arbitrator, 10713 Marsha Lane, Houston, TX 77024, FKblackard@aol.com.

Dissenting View of Member Ernie DuBester

I have previously suggested that the FLRA reconsider the Allen Factors. However, I do not think that this is an ideal case for doing so. In my view, the greatest deficiencies of the Allen Factors —as applied to the types of cases the FLRA is called upon to review—is that they are unnecessarily cumbersome and impractical for both practitioners and arbitrators. This case's disposition does not even require application of the Allen Factors. Accordingly, I do not think it is especially instructive.