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60 FLRA No. 62
U. S. Dept. of Defense, Defense Finance And Accounting Service and AFGE, Local 2510 (Oberdank, Arbitrator) 0-AR-3756 (Decided September 24, 2004)
The Authority concluded that the Union was entitled to attorney fees. The threshold requirement for entitlement to attorney fees under the Back Pay Act, 5 U.S.C. § 5596, is 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. Once such a finding is made, the Act further requires that an award of fees must be: (1) in conjunction with an award of back pay to the grievant on correction of the personnel action; (2) reasonable and related to the personnel action; and (3) in accordance with the standards established under 5 U.S.C. § 7701(g), which pertains to attorney fee awards by the Merit Systems Protection Board (MSPB). The prerequisites for an award of attorney fees under § 7701(g)(1) are as follows: (1) the employee must be the prevailing party; (2) the award of fees must be warranted in the interest of justice; (3) the amount of fees must be reasonable; and (4) the fees must have been incurred by the employee.
The Authority found that the Arbitrator did not fail to set forth a fully articulated decision, that the award did not exceed the arbitrator's authority or failed to draw its essence from the parties' collective bargaining agreement. The Authority, however, found that the amount of fees awarded was not reasonable and modified it.