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58 FLRA No. 62
AFGE, Local 2382 and U. S. Dept. of Veterans Affairs, Carl T. Hayden Medical Center Phoenix, Arizona (Anderson, Arbitrator), 0-AR-3535 (Decided December 24, 2002)
The Arbitrator found that the Agency did not justify its 1-day suspension of the grievant, and ordered the Agency to rescind the suspension and make the grievant whole. The Arbitrator also found that the grievant had not appropriately followed established sick leave procedures and on that basis ordered the Agency to give the grievant a final warning that another instance similar to that involved in this arbitration could result in summary termination. The Authority denied the Union's exceptions.
The Authority concluded that the Arbitrator did not exceed his authority. The Authority noted that Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority or award relief to those not encompassed within the grievance. In this case, the Authority found that in the absence of any applicable contractual provisions limiting the Arbitrator's discretion, his action of reducing the suspension to such a warning clearly fell within the broad discretion the Authority gives to an arbitrator to fashion a remedy that the arbitrator considers to be appropriate.
Additionally, the Authority concluded that the award was not contrary to law noting that nothing in the award denies the grievant any of his legal rights. Regarding the Union's Privacy Act exception, the Authority noted that the union failed to specify in what manner the award allegedly is inconsistent with the Privacy Act.
In its exceptions, the Union also requested that it be awarded attorneys' fees, including the cost of its exceptions. While the Arbitrator acknowledged the Union's initial request for attorneys' fees, he made no ruling on the request and has not had the opportunity to rule on the request for attorneys' fees for preparation of the exceptions. The Authority therefore construed the award as not resolving either the initial or subsequent requests. The Authority added that it will not consider a request for attorneys' fees and costs for expenses incurred in the preparation of exceptions and oppositions in cases filed under 5 U.S.C. § 7122. Instead, a request for attorneys' fees may be presented only to the appropriate authority that corrected or directed the correction of the unjustified or unwarranted personnel action. Therefore, the Authority held that the award was not ripe for review.