Arbitration Cases

In a consolidated case, U.S. Department of the Air Force, Seymour Johnson Air Force Base, North Carolina and National Association of Government Employees, Local R5-188, 56 FLRA No. 31 (2000), the Authority denied the Agency's exceptions to an arbitrator's award, finding that the Agency improperly assigned absence without leave to a Union negotiator. The Authority also denied the Union's exception to the Arbitrator's decision to recuse himself from consideration of an attorney fee request relating to the Agency's improper action. As to the Agency's exceptions, the Authority found that the award did not fail to draw its essence from the parties' agreement, that the Arbitrator did not exceed his authority and that the award was not based on a nonfact, deferring to the Arbitrator's factual finding that the Agency's grant of official time was not limited to negotiations. The Authority also found that the award was not contrary to law, rule or regulation, as the Arbitrator did not err by refusing to apply the "obey now, grieve later" principle. With respect to the Union's exceptions, the Authority found that the Arbitrator's decision to decline jurisdiction over the issue of attorney fees was not deficient because he was involved in a dispute with the Agency over payment of his fees and could not consider the matter of attorney fees neutrally. The Authority directed the parties to jointly submit the matter of the Agency's obligation to pay attorney fees to a different arbitrator for resolution. Chairman Wasserman, concurring, found that the "obey now, grieve later" principle does not constitute a law, rule, or regulation, and denied the Agency's exception for failing to state a ground under section 7122(a)(1) of the Statute on which an award can be found deficient.

In U.S. Department of the Navy, Naval Explosive Ordinance Disposal Technology Division, Indian Head, Maryland and American Federation of Government Employees, Local 1923, 56 FLRA No. 39 (2000), the Authority denied exceptions to an award challenging the arbitrator's determination that the Agency improperly exempted employees from overtime coverage under the Fair Labor Standards Act (FLSA). The Authority found that the arbitrator's reliance on the employees' position descriptions, as well as the Agency's exemption determination regarding other persons with similar duties, did not establish that the arbitrator failed to consider the employees' actual or day-to-day duties, as required under FLSA implementing regulations. In addition, the Agency offered no evidence that it took affirmative steps necessary to overcome the presumption in favor of liquidated damages, which the arbitrator had awarded.