[Federal Register Volume 84, Number 41 (Friday, March 1, 2019)]
[Notices]
[Pages 7053-7054]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-03429]


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FEDERAL LABOR RELATIONS AUTHORITY

[FLRA Docket No. 0-AR-5354]


Notice of Opportunity To Submit Amici Curiae Briefs in an 
Arbitration Appeal Pending Before the Federal Labor Relations Authority

AGENCY: Federal Labor Relations Authority.

ACTION: Notice.

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SUMMARY: The Federal Labor Relations Authority provides an opportunity 
for all interested persons to submit briefs as amici curiae on a 
significant issue arising in a case pending before the Authority. The 
Authority is considering this case pursuant to its responsibilities 
under the Federal Service Labor-Management Relations Statute, and its 
regulations on the review of arbitration awards.

DATES: Briefs must be received on or before April 1, 2019.

ADDRESSES: Mail or deliver briefs to Emily Sloop, Chief, Case Intake 
and Publication, Federal Labor Relations Authority, Docket Room, Suite 
200, 1400 K Street NW, Washington, DC 20424.

FOR FURTHER INFORMATION CONTACT: Emily Sloop, Chief, Case Intake and 
Publication, Federal Labor Relations Authority, (202) 218-7740.

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

[[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, [email protected]; 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, [email protected]; Fred K. Blackard, 
Arbitrator, 10713 Marsha Lane, Houston, TX 77024, [email protected].

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.

    Dated: February 22, 2019.
Emily Sloop,
Chief, Case Intake and Publication.
[FR Doc. 2019-03429 Filed 2-28-19; 8:45 am]
BILLING CODE 6727-01-P