ADVOCATES’ ALERT: AT LEAST MAKE THE ARGUMENT
The Authority just posted a new decision and the lesson for advocates on either side of the arbitration table is that they should get all their arguments on the record, even if they are not among the best or primary arguments. A lot of practitioners will argue that it’s wrong to load up the record with alternative or only potentially useful arguments, but one agency learned the hard way the shortcomings of that approach. Because it failed to at least put an argument on the record with the arbitrator, FLRA would not consider agency exceptions raising the argument for the first time.
The agency was another Federal Bureau of Prison complex represented by AFGE. It allowed an unusual overtime scheduling practice to develop which FLRA described as follows:
The Agency had been permitting employees to volunteer for overtime shifts guarding inmates at local hospitals when those shifts overlapped with their regular duty shifts (overlapping overtime). For example, an employee whose regular shift was from 7:30 a.m. to 4:00 p.m. might work a midnight-to-8:00 a.m. overtime shift. The employee would remain at the hospital until 8:00 a.m. (but would begin receiving her normal rate of pay at 7:30 a.m.) and then travel to the Agency for the remainder of her regular shift. As a result, the employee might not arrive at her regular work site until 9:00 a.m.; however, the Agency would still pay her for a full, eight-hour shift.
When the agency tried to terminate the practice, AFGE took it to arbitration where the neutral ruled that it could not without violating the contract obligation to distribute overtime equitably.
The agency appealed to FLRA citing several regulations which it believes the decision violated, namely, allowing the employees to travel to and from their voluntary overtime assignments while on the clock is illegal, making the employees unavailable to work overtime
However, because the agency never raised with the arbitrator the specific regulations it cited in its exceptions, the FLRA would not even address the agency exceptions.
So, get those arguments on the record even if they might distracting the arbitrator from your best arguments. A tip on where the draw the line is that if the argument is one that has a reasonable chance of prevailing on exceptions, make it in the arbitration. Otherwise, the arbitrator can ignore them, including government-wide regulations and there is not a thing you can do. AFGE, 67 FLRA No. 108 (2014)