UNION ATTORNEY FEES ENTER THE FLRA WOOD CHIPPER

It is common knowledge that about the only thing an agency needs to do to prevail at FLRA these days is file.  Consequently, it is not good news for employee representatives when FLRA decides to take on an issue.  In fact, it is not much different than being stuffed into a highly tuned wood chipper. This past summer Kiko and Abbott lifted the issue of union attorney fees onto the chipper feeder plate and began to push.  They bundled together eight or so decisions from four different arbitrators who had awarded two attorneys millions of dollars in fees and pulverized a long line of precedent to rule that they was not entitled to fees. (DoD, 70 FLRA 718 (2018))  Employee representatives stand to lose millions in income as Kiko & Abbott peddle this precedent throughout the case law.

The eight-case bundle involved union claims that the agency had made procedural error while collecting overpayments from employees under the Debt Collection Act. The arbitrators ordered the agency in each case to repay employees the money they had deducted from salary checks to resolve overpayments and to pay the union attorney fees—before it was even determined via a financial audit whether the employees legitimately owed the money collected or even more.  The overpayments were from arguably incorrect salary, allowance and differential payments; however, the union failed to

…prove the grievants suffered an actual loss of pay to which they were legally entitled.  Agency attempts to recoup monies that it actually overpaid grievants, however, do not constitute unwarranted and unjustified personnel actions that resulted in the withdrawal or withholding of pay under BPA. 

The first part of the quoted FLRA analysis seems to leave hope that the union could get fees if it shows the monies were not owed as opposed to just showing a procedural error occurred.  But the concluding sentence seems to be a far more sweeping statement that DCA cases will never qualify for fees. (A later sentence referenced possible sovereign immunity bars in DCA cases that Kiko & Abbott did not want to take the time to get into now.  The CBCA reached that conclusion in a case titled, In the Matter of Jeffery E. Koontz, CBCA 3436-TRAV (July 23, 2013).

As Member Dubester pointed out in his withering dissent, the Authority had allowed fees in identical cases between these two parties for about 15 years. But Kiko and Abbott apparently could not hear him over the roar of their chipper and, therefore, did what they so often do, i.e., they ignored precedent and justified one way or the other the bottom line they wanted to reach. (See DoDEA and FEA, 70 FLRA 718 (2018))

Just a few days before that case, the Kiko-Abbott combo overturned an arbitrator’s decision reversing a two-day suspension and granting the union $35,000 in fees.  They proclaimed that if arbitrators want to grant fees in the future they must write a very rigorous justification. More specifically, they wrote,

As for the awarded remedy of attorney fees with interest, the Authority has long held that, when resolving a request for attorney fees, arbitrators must set forth specific findings supporting their determinations “on each pertinent statutory requirement.”⁴⁵ One of the prerequisites for an award of attorney fees under 5 U.S.C. § 7701(g) is that the award of fees be warranted in the interest of justice.⁴⁶ While the Arbitrator appeared to address § 7701(g)’s interest-of-justice requirement by finding that the grievant was “substantially innocent,”⁴⁷ the Arbitrator did not discuss the applicable legal standard.⁴⁸ Nor did she provide any reasoning for awarding interest.⁴⁹ Accordingly, there is not a sufficiently articulated basis for the awarded remedy.  (Small Business Administration and AFGE, 70 FLRA 649 (2018)

Oddly, FLRA remanded the SBA case to give the arbitrator a chance to write an adequate decision, but in the DOD case it decided not to remand to give the union a chance to show a substantive loss of pay. Why did they screw over the union like that? Because that is what they like to do.