FLRA Reconsidering Its Use of the Allen Factors to Award Attorney’s Fees

On March 1, 2019, the Federal Labor Relations Authority issued a press release stating that it was inviting amici curiae briefs on an issue in U.S. Department of Veterans’ Affairs, Michael E. DeBakey Medical Center, Houston, Texas, and American Federation of Government Employees (AFGE), Local 1633, Case No. 0-AR-5354. The issue involves whether the Federal Labor Relations Authority should reconsider relying on the factors in Allen v. U.S. Postal Service, 2 M.S.P.R. 420 (1980), when considering awards of attorney’s fees.

In Case No. 0-AR-5354, the American Federation of Government Employees, Local 1633 (“Union”) filed a grievance seeking environmental differential pay on behalf of housekeepers who worked at the U.S. Department of Veterans Affairs, Michael E. DeBakey Medical Center in Houston, Texas. 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 the environmental differential pay because their duties did not meet the required standards under federal law and regulation, and the parties’ collective bargaining agreement. The parties submitted the matter to arbitration.

On January 24, 2018, the Arbitrator issued an award finding that the housekeepers were entitled to environmental differential pay, and sustained the grievance. The Arbitrator awarded back pay, but denied the Union’s request for attorney’s fees because the fees were not authorized under the parties’ collective bargaining agreement.

The Union then appealed the Arbitrator’s award by filing an “exception” to the Federal Labor Relations Authority (“FLRA”). The Union argued that the Arbitrator’s determination was contrary to law, as contravening the Back Pay Act, 5 U.S.C. § 5596, and requested that the FLRA remand the case to the parties to resubmit to the Arbitrator the issue of whether attorney’s fees were warranted.

In 1984, the FLRA first reviewed the issue of entitlement to attorney’s fees and adopted the “interest of justice standards” set forth in the Merit Systems Protection Board’s (“MSPB”)1980 decision in Allen v. U.S. Postal Service. The FLRA has applied MSPB case law on attorney’s fees since.

The FLRA has held that a threshold requirement for entitlement to attorney’s fees under the Back Pay Act is a finding that the grievant has been affected by an unjustified or unwarranted personnel action that resulted in the withdrawal or reduction of the grievant’s pay, allowances, or differentials. The award of attorney’s fees must also be in conjunction with an award of back pay to the grievant on correcting the personnel action, be reasonable and related to the personnel action, and be in accordance with 5 U.S.C. § 7701(g). Under 5 U.S.C. § 7701(g), an employee must be the “prevailing party” in order to receive an award of attorney’s fees. Section 7701(g)(1) also requires that an award of attorney’s fees be “in the interest of justice,” the amount be “reasonable,” and the employee to have “incurred” the fees.

Until this time, the FLRA has not directly addressed the issue of appropriate criteria for considering attorney’s fees. Since this matter could have an impact on agencies, labor organizations, and others, on March 1, 2019, the FLRA issued its press release. Therein, the FLRA directs the parties and other interested persons to file briefs that address the following questions:

“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, briefs should address: (1) The wording of the Federal Service Labor-Management Relations 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.”

In its press release, the FLRA stated that it will consider briefs received on or before April 1, 2019. FEDagent will post an update when the FLRA issues a decision.

Read the FLRA press release posted here.

Read the Federal Register notice here.


This case law update was written by Michael J. Sgarlat, Associate Attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

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