Click here to view the decision.
56 FLRA No. 137
U.S. Department of Veterans Affairs Medical Center, Coatesville, Pennsylvania and National Association of Government Employees, Local R3-35 (Harris, Arbitrator), 0-AR-3315 (Decided September 29, 2000)
The Arbitrator sustained a grievance alleging that the Agency violated the parties' collective bargaining agreement by denying the grievant overtime compensation that had previously been approved. As a remedy, the Arbitrator ordered that the Agency pay the grievant for 2.5 hours of overtime, with interest. The Arbitrator also retained jurisdiction of the case for the purpose of addressing a request for attorneys fees. The Authority found that the Agency failed to establish that the award was deficient.
The Authority concluded that the award did not fail to draw its essence from the parties' master agreement, and that it was not contrary the Fair Labor Standards Act (FLSA), or the Back Pay Act. Regarding the allegation that the award was contrary to management's right to assign work under section 7106(a), the Authority noted that there was no indication in the record that the Agency raised the section 7106(a) management rights issue before the Arbitrator as it did in its exceptions. The Authority explained that under section 2429.5 of the Authority's Regulations, it will not consider issues that could have been, but were not, presented to the arbitrator. As such was the case here, the argument was barred from consideration. Lastly, the Agency argued that an award of attorneys fees would violate the Back Pay Act because there was no proof that an unwarranted personnel action had been committed. The Authority held that this contention was premature. The Authority noted that under the Back Pay Act and its implementing regulations, an arbitrator may retain jurisdiction after issuing an award for the purpose of considering requests for attorney fees. The Authority held that as the Arbitrator in this case merely retained jurisdiction for this purpose and did not make any determination on the merits, the Agency's attorney fee exception was premature.