American Federation of Government Employees, Local 446 (Union) and United States Department of Veterans Affairs, Medical Center, Asheville, North Carolina (Agency)

XX FLRA No

64 FLRA No. 4                     

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 446

(Union)

and

UNITED STATES DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER

ASHEVILLE, NORTH CAROLINA

(Agency)

0-AR-4218

_____

DECISION

August 28, 2009

_____

Before the Authority:  Carol Waller Pope, Chairman, and

Thomas M. Beck and Ernest DuBester, Members*

I.          Statement of the Case

            This matter is before the Authority on exceptions to an award of Arbitrator

John J. Popular II filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority’s Regulations.  The Agency did not file an opposition to the Union’s exceptions.

            The Arbitrator denied the Union’s motion for an award of attorney fees.  For the reasons that follow, we deny the Union’s exceptions.

II.        Background and Arbitrator’s Award

            The grievant was suspended for 1 day, and the Union filed a grievance on his behalf that was submitted to arbitration.  During the arbitration hearing, the Agency “voluntarily and unilaterally rescinded” the suspension and agreed to award the grievant backpay.  Award at 5.  The Arbitrator retained jurisdiction pending proof of the cancellation of the suspension, which was provided by the Agency.  Id. at 2-3.  On request of the Union, the Arbitrator further retained jurisdiction to resolve the Union’s motion for attorney fees on behalf of the grievant.  Id. at 3. 

            The Arbitrator denied the motion for attorney fees.  He concluded that the grievant was not the prevailing party within the meaning of 5 U.S.C. § 7701(g) because the cancellation of the grievant’s suspension “did not result from a consent decree, settlement agreement or arbitration award.”  Id. at 5-6 (citing Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Servs., 531 U.S. 1004 (2000) (Buckhannon); Sacco v. Dep’t of Justice, 90 M.S.P.R. 37 (2001); AFGE Local 1547, 58 FLRA 241 (2002)).

           

III.       Union’s Exceptions