50:0327(52)AR - - Intl. Assoc. of Firefighters, Local F-89 and Army, HQ, Fort Sam Houstom, Fort Sam Houston, TX - - 1995 FLRAdec AR - - v50 p327



[ v50 p327 ]
50:0327(52)AR
The decision of the Authority follows:


50 FLRA No. 52

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS

LOCAL F-89

(Union)

and

U.S. DEPARTMENT OF THE ARMY

HEADQUARTERS, FORT SAM HOUSTON

FORT SAM HOUSTON, TEXAS

(Agency)

0-AR-2668

_____

DECISION

April 7, 1995

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Fallon W. Bentz 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. The Agency filed an opposition to the Union's exceptions.

The Arbitrator sustained the grievance over the suspension of the grievant. As a remedy, the Arbitrator ordered that the grievant be made whole for any loss of pay or benefits, but did not award attorney fees or compensatory damages.

The Union contends that the award is deficient because it did not award compensatory damages and attorney fees. We find that the Union fails to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Union's exceptions.

II. Arbitrator's Award

The grievant was suspended for unauthorized possession of government property. He filed a grievance over the suspension, and the grievance was submitted to arbitration on the issue of whether the suspension was for just cause.

The Arbitrator sustained the grievance on the ground that the suspension was not for just cause. As a remedy, the Arbitrator ordered that the grievant be made whole for any loss of pay or benefits as a result of the suspension.

III. Exceptions

A. Union's Contentions

The Union contends that the award is contrary to the Back Pay Act, 5 U.S.C. § 5596, and the Civil Rights Act of 1991, 42 U.S.C. § 1981a. The Union claims that the award is inconsistent with the Back Pay Act because it fails to award attorney fees and is contrary to the Civil Rights Act of 1991 because it fails to award the grievant compensatory damages.

B. Agency's Opposition

The Agency contends that section 2429.5 of the Authority's Rules and Regulations bars the Union from raising the issues of attorney fees and compensatory damages because the Union did not raise those issues before the Arbitrator. Alternatively, the Agency contends that the failure to award fees and compensatory damages is not contrary to law.

IV. Analysis and Conclusions

Under section 2429.5 of our Rules and Regulations, we will not consider issues that could have been, but were not, presented to the arbitrator. E.g., U.S. Department of the Army, U.S. Army Aberdeen Proving Ground, Aberdeen Proving Ground, Maryland and International Association of Machinists and Aerospace Workers, Local Lodge 2424, 49 FLRA 950, 954 (1994) (APG). There is no indication in the record before us that the Union argued to the Arbitrator, as it has in its exception, that the grievant suffered "irrefutable harm; emotional, physical, and mental anguish, and has had to consult with a licensed mental health counselor" as a result. Exceptions at 2. Clearly, the issue of whether the grievant had suffered harm for which he was entitled to be compensated could have, and should have, been presented to the Arbitrator. Accordingly, we will not consider the issue, and we deny the Union's exception. See id.

Applicable regulations require that in order to be awarded attorney fees by an arbitrator, a request for fees must be presented to the arbitrator, who must provide the employing agency with an opportunity to respond to the request. Allen Park Veterans Administration Medical Center and American Federation of Government Employees, Local 933, 34 FLRA 1091, 1104-05 (1990) (discussing 5 C.F.R. part 550, subpart H) (Allen Park). There is no indication in the record before us that the Union requested the Arbitrator to award it attorney fees. As the issue of attorney fees must be, but was not, presented to the Arbitrator, we will not consider the issue, and we deny the Union's exception. See APG, 49 FLRA at 954.

In denying this exception, we note that unlike the issue of compensatory damages, nothing prevents the Union from filing a request for an award of attorney fees with the Arbitrator within a reasonable period of time after the date of this decision. See Allen Park, 34 FLRA at 1104-05; Philadelphia