Bureau of Alcohol, Tobacco, and Firearms and National Treasury Employees Union (Authority decision, May 6, 1983)

Final FLRA decision. The Authority denied exceptions to an arbitration award under 5 U.S.C. § 7122. Judicial review of an arbitration order is generally excluded by 5 U.S.C. § 7123(a)(1) unless it involves an unfair labor practice under § 7118. This decision does not address an unfair labor practice.

Plain-English summary

An agency changed an employee's regular workweek without the advance notice required by the agreement. An arbitrator ordered extra pay for a Saturday if overtime work had been available. The agency argued that the conditional remedy violated the Back Pay Act and misread the agreement. The Authority held that the remedy required payment only if the employee would have been entitled to overtime and denied the exceptions.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a) and back pay under § 5596.
• Outcome: Agency exceptions denied; conditional overtime remedy upheld.
• Key point: The award required overtime pay only if overtime work had actually been available.

Full text (FLRA public release)

[ v12 p49 ]

12:0049(13)AR

The decision of the Authority follows:

12 FLRA No. 13

BUREAU OF ALCOHOL, TOBACCO,
AND FIREARMS
Agency

and

NATIONAL TREASURY EMPLOYEES
UNION
Union

Case No. O-AR-211

DECISION

This matter is before the Authority on exceptions to the award of Arbitrator David L. Beckman filed by the Agency 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 Union filed an opposition.

The dispute in this matter concerns a change in the regularly scheduled administrative workweek of the grievant which was Monday through Friday. During the week in question the grievant was required to work an adjusted workweek of Tuesday through Saturday on a regular pay basis. A grievance was filed claiming a violation of the overtime provisions of the parties' collective bargaining agreement. /1/ The Arbitrator determined that the Agency violated the agreement by failing to give the grievant the required advance notice of the change in workweek. The Arbitrator further determined that the parties, in Article 23, Section 4(B) of their agreement, had specifically provided the remedy for such a violation. Thus, the Arbitrator awarded, in accordance with the parties' agreement, as follows:

The Bureau is hereby directed to pay the additional amount necessary to the Grievant for Saturday, December 17, 1977, so that the Grievant can be held to have received overtime for that day, provided overtime work was available within the meaning of that phrase as used in Article 23, Section 4(B).

In its first exception the Agency contends that the award is contrary to the Back Pay Act, 5 U.S.C. 5596, because the Arbitrator did not find that but for the violation of the agreement, the grievant would have been assigned to perform overtime on the day in question. However, the Authority finds that the award is not contrary to the Back Pay Act. The Arbitrator in his award directed the payment of overtime to the grievant if "overtime work was available." If no overtime was in fact available, the award does not direct backpay and obviously is not violative of the Back Pay Act. If overtime work was available, the award still is not contrary to the Back Pay Act because the Arbitrator effectively found that the result of the Agency's violation of the agreement would then have been a denial of overtime pay to which the grievant was entitled. Thus, the award in that event is fully consistent with the grievant's statutory entitlement under the Back Pay Act to receive "an amount equal to all or any part of the pay, allowances, or differentials, as applicable which the employee normally would have earned or received during the period if the (unjustified or unwarranted) personnel action had not occurred . . . ." /2/ See National Labor Relations Board Union, Local 19 and Office of the General Counsel, National Labor Relations Board, 7 FLRA No. 7 (1981).

In its second and third exceptions the Agency essentially contends that because the award is contrary to the express provisions of the collective bargaining agreement, the award does not draw its essence from the agreement and the Arbitrator exceeded his authority. However, these exceptions merely constitute disagreement with the Arbitrator's interpretation and application of the agreement and consequently provide no basis for finding the award deficient. E.g., Department of Health and Human Services, Social Security Administration, Philadelphia (West) District, Upper Darby, Pennsylvania and American Federation of Government Employees, AFL-CIO, Local 2327, 9 FLRA No. 43 (1982); The Adjutant General of Pennsylvania and The Pennsylvania State Council Association of Civilian Technicians, 8 FLRA No. 44 (1982).

Accordingly, the Agency's exceptions are denied. Issued, Washington, D.C., May 6, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ The grievance claimed a violation of Article 23, Section 4(B) of the agreement which provides:

Employees will be provided, when possible, with five (5) days advance notice of a change of the days of their regularly scheduled administrative workweek. Provided overtime work is available, an employee not so notified will work his/her regularly scheduled administrative workweek and receive overtime pay for additional time worked.

/2/ 5 U.S.C. 5596(b)(1)(A)(i) (Supp. V 1981).