Department of the Treasury, U.S. Customs Service and National Treasury Employees Union (Authority decision, November 4, 1983)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority involving an arbitral award under 5 U.S.C. § 7122. Judicial review under 5 U.S.C. § 7123(a) generally does not extend to such an order unless the order involves an unfair labor practice under 5 U.S.C. § 7116. This decision resolves exceptions to an arbitration award and does not state that it involves an unfair labor practice.

Plain-English summary

An arbitrator found that Customs supervisors at the Port of Portland performed overtime work when bargaining unit inspectors were available and ordered backpay. The agency argued that the award violated the Back Pay Act because the arbitrator had not identified each inspector owed overtime. The Authority held that the arbitrator had found the improper practice caused lost overtime pay. It denied the agency’s exceptions and left the parties to determine individual amounts.

Decision snapshot

• Authority: 5 U.S.C. § 5596.
• Outcome: Agency exceptions denied; inspectors’ overtime backpay award stands.
• Key point: An arbitrator may establish entitlement to backpay and leave individual amounts for the parties to calculate.

Full text (FLRA public release)

[ v13 p386 ]

13:0386(62)AR

The decision of the Authority follows:

13 FLRA No. 62

DEPARTMENT OF THE TREASURY,
U.S. CUSTOMS SERVICE
Agency

and

NATIONAL TREASURY EMPLOYEES UNION
Union

Case No. O-AR-354

DECISION

This matter is before the Authority on exceptions to the award of Arbitrator Albert J. Hoban 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.

A grievance was filed and submitted to arbitration in this case maintaining that the Activity regularly assigned supervisors to perform on overtime the duties of bargaining-unit inspectors when inspectors were available for such overtime work and claiming that the Agency thereby violated its own personnel policy, as well as the overtime provisions of the parties' collective bargaining agreement. The Arbitrator agreed and determined that the practice as in effect at the Port of Portland /1/ must be discontinued. The Arbitrator further determined that backpay was necessary to compensate the inspectors for the overtime pay they otherwise would have received. Accordingly, the Arbitrator ordered backpay in the amount of overtime pay lost as a result of the Activity's unwarranted practice and directed the parties, themselves, to resolve the exact amounts due individual inspectors.

In its exceptions the Agency principally contends that the award is contrary to the Back Pay Act, 5 U.S.C. 5596, because the Arbitrator assertedly failed to make the findings required by the Act. In particular, the Agency maintains that the Arbitrator failed to make the requisite finding that the Activity's practice directly resulted in the withdrawal or reduction of overtime pay of bargaining-unit inspectors because the Arbitrator failed to identify the specific inspectors who were available to work the overtime which was instead performed by supervisors. Contrary to the Agency's contention, the Authority concludes that the Arbitrator made the findings required by the Back Pay Act for an authorized award of backpay and that accordingly this exception provides no basis for finding the award deficient. The Arbitrator specifically determined that in every disputed instance of overtime being performed by supervisors, bargaining-unit inspectors were available to perform such work. He further determined that, consequently, the Activity's unwarranted practice resulted in the denial of overtime pay to inspectors that they otherwise would have received. Accordingly, the findings required by the Back Pay Act were made. See Bureau of Alcohol, Tobacco, and Firearms and National Treasury Employees Union, 12 FLRA No. 13 (1983). The Arbitrator's further direction that the parties determine the specific inspectors who would receive the backpay does not invalidate the award. With respect to this direction by the Arbitrator, the Agency cites no provision of the Back Pay Act or its implementing regulations, 5 CFR part 550, subpart H, and none is apparent, that would require the Arbitrator, after having found that in every instance a bargaining-unit inspector was available to perform the overtime work, to identify specific employees.

Accordingly, the Agency's exceptions are denied. Issued, Washington, D.C., November 4, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY

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

/1/ On the basis of the entire record before the Authority, it is clear that the Arbitrator was remedying the practice as in effect at the Port of Portland. The Arbitrator's use of "district" rather than "port" was an inadvertent error. Accordingly, the Agency's exception in this respect provides no basis for finding the award deficient.