American Federation of Government Employees, Council of Prison Locals and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Texarkana, Texas

[ v55 p192 ]

55 FLRA No. 33

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL OF
PRISON LOCALS
(Union)

and

U.S. DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
TEXARKANA, TEXAS
(Agency)

0-AR-3099-001

_____

DECISION

February 11, 1999

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

Decision by Member Wasserman for the Authority.

I. Statement of the Case

      This matter is before the Authority on an exception to an award of Arbitrator Bernard Marcus 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 Regulations. [n1]  The Agency did not file an opposition to the Union's exception.

      The Arbitrator sustained the grievance and awarded affected employees backpay. However, the Arbitrator denied the Union's request for an award of attorney fees. We find that the denial of the Union's request is deficient, and we remand the award.

II. Background and Arbitrator's Award

      The Union filed a grievance, which claimed that the Agency was assigning overtime improperly. The Arbitrator sustained the grievance to the extent that the Agency had forced employees to take compensatory time off instead of paying them overtime. He awarded backpay to all employees who had suffered a loss in overtime pay as a result of the Agency's improper actions. In addition, the Arbitrator noted that in its post-hearing brief, the Union had requested an award of attorney fees. He resolved the request as follows:

This claim for relief is not sought in the grievance or any of the other pre-arbitration documents. Nor was it litigated, or even referenced, at the hearing. The claim is denied.

Award at 15 n.14. For the same reasons, he denied the Union's request for reconsideration of the denial.

III. Union's Exception

      The Union contends that the Arbitrator's denial of its request for an award of attorney fees is contrary to the Back Pay Act, 5 U.S.C. § 5596. The Union maintains that nothing in the Act or its implementing regulations (5 C.F.R. § 550.807) precluded the Arbitrator from addressing its request for fees.

IV. Analysis and Conclusions

      When an exception to an award involves the consistency of the award with law, we review de novo the questions of law raised by the award and the exception. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995). In applying a de novo standard of review, we assess whether the arbitrator's legal conclusions are consistent with the applicable standard of law.

      The Back Pay Act confers jurisdiction on an arbitrator to consider a request for attorney fees at any time during the arbitratio