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28 FLRA NO. 37

NATIONAL TREASURY EMPLOYEES
UNION

              Union
      and

BUREAU OF ALCOHOL, TOBACCO
AND FIREARMS

              Agency

Case No. O-AR-1351

DECISION

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator Leroy S. Merrifield filed by the union under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations.

II. Background and Arbitrator's Award

The grievance alleged that the Agency violated the parties' collective bargaining agreement when it refused to pay official time and travel and per diem expenses for a national level labor-management relations meeting. Prior to the arbitration hearing, the Agency agreed to pay the official time and travel and per diem expenses and the parties settled the grievance. The Union requested that the Arbitrator award it attorney fees. The Arbitrator found, based on Authority precedent that an award of attorney fees must be in conjunction with an award of backpay. The Arbitrator concluded that since there had been no award of backpay in this case and because an arbitrator is not authorized to award attorney fees solely under the terms of 5 U.S.C. 7701(g), he was not empowered to award attorney fees to the Union. He therefore denied the Union's request.

III. Discussion

The Union contends that the award denying its request for attorney fees is contrary to decisions of the Merit  systems Protection Board and the courts. The Union argues that under those decisions it is not necessary for the fact finder to render an award in order for an employee to prevail and be eligible for attorney fees under the Back Pay Act, 5 U.S.C. 5596.

We conclude that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule or regulation or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. For example, United States Army Aviation Systems Command and National Federation of Federal Employees, Local 405, 22 FLRA No. 35 (1986) (an arbitrator is not authorized to award attorney fees solely under the terms of 5 U.S.C. 7701(g) and an award of attorney fees must be in conjunction with an award of backpay under the Back Pay Act). Accordingly, the Union's exception is denied.

Issued, Washington, D.C., July 29, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

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