VA Medical Center and AFGE Local 31 (Authority decision, June 21, 1985)

Final FLRA decision. The Authority resolves exceptions to an arbitration award. Under 5 U.S.C. § 7123(a)(1), orders involving arbitral awards are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116. This decision does not state that it involves one.

Plain-English summary

An arbitrator found that a VA facility restricted the union's chance to discuss a temporary schedule change and awarded employees weekend overtime pay. The Authority found no determination that the violation directly caused them to lose the overtime work. It struck the pay portion under the Back Pay Act.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a) and the Back Pay Act.
• Outcome: Weekend overtime payment struck.
• Key point: Lost overtime required a finding that employees would have worked it absent the violation.

Full text (FLRA public release)

[ v18 p506 ]

18:0506(67)AR

The decision of the Authority follows:

18 FLRA No. 67

VETERANS ADMINISTRATION
MEDICAL CENTER
Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL NO. 31
Union

Case No. 0-AR-794

DECISION

This matter is before the Authority on an exception to the award of Arbitrator Samuel S. Perry filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations.

The grievance in this case concerns in relevant part the assignment of the grievants temporarily to an irregular tour of duty of Wednesday-Sunday instead of their regular tour of duty of Monday-Friday. A grievance was filed and submitted to arbitration claiming a violation of the parties' collective bargaining agreement when the assistant chief of engineering service barred the Union vice president from a meeting with the grievants on the proposed schedule change. The Arbitrator ruled that the barring of the union official from the meeting violated the parties' collective bargaining agreement. Because he determined the violation restricted the Union's opportunity to contribute to the discussion of the temporary schedule change, the Arbitrator awarded the grievants backpay in the amount of the difference in what they earned for the weekend work and the amount they would have earned had they been paid overtime for such work.

In its exception, the Agency contends that the award of backpay is contrary to the Back Pay Act, 5 U.S.C. 5996. The Authority agrees.

The Authority has specifically held with respect to overtime pay that in order for an award of backpay to be authorized under the Back Pay Act, there must be not only a determination that the aggrieved employee was affected by an unjustified or unwarranted personnel action, but also a determination that such unwarranted action directly resulted in the withdrawal or reduction of overtime pay that the employee would otherwise have earned or received by performing overtime work. E.g., Jefferson Barracks National Cemetery, St. Louis, Missouri and National Association of Government Employees, Local R14-116, 13 FLRA 703 (1984). In terms of this case, although the Arbitrator determined that the Activity had violated the agreement, constituting the unwarranted action, he failed to make the additional finding necessary to an authorized award of backpay. Specifically, the Arbitrator did not find that the unwarranted action of restricting the Union's opportunity to contribute to the discussion of the temporary schedule change directly resulted in the failure of the grievants to have worked the disputed weekends on overtime when they otherwise would have. Consequently, the award to the extent that is directs payment of overtime pay to the grievants is deficient as contrary to the Back Pay Act. See id. at 704.

Accordingly, the Arbitrator's award is modified by striking that portion of the award which directs the payment of overtime to the grievants. Issued, Washington, D.C., June 21, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY