Jefferson Barracks National Cemetery, St. Louis, Missouri and National Association of Government Employees, Local R14-116 (Authority decision, January 31, 1984)

Final FLRA decision. The Authority modified an arbitration award concerning overtime pay. 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

Jefferson Barracks National Cemetery assigned Saturday overtime without giving two employees an opportunity to volunteer. An arbitrator found that this violated the collective bargaining agreement and awarded both employees eight hours of overtime pay. The Authority agreed with the agency that the Back Pay Act required a finding that the employees would have worked the overtime but for the violation. Because the arbitrator made no such finding and treated their willingness to volunteer as irrelevant, the Authority removed the overtime pay remedy. The underlying finding that the agency violated the agreement remained.

Decision snapshot

• Authority: Back Pay Act, 5 U.S.C. § 5596; arbitration review under § 7122(a).
• Outcome: Award modified to remove eight hours of overtime pay for each grievant.
• Key point: An overtime back pay award requires a finding that the employees would have performed the work absent the agreement violation.

Full text (FLRA public release)

[ v13 p703 ]

13:0703(113)AR

The decision of the Authority follows:

13 FLRA No. 113

JEFFERSON BARRACKS NATIONAL
CEMETERY, ST. LOUIS, MISSOURI
Activity

and

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R14-116
Union

Case No. O-AR-421

DECISION

This matter is before the Authority on an exception to the award of Arbitrator Raymond L. Hilgert 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. /1/

The dispute in this matter concerns the selection by the Activity of employees to perform overtime work on a particular Saturday. A grievance claiming that the selection violated the parties' collective bargaining agreement was filed and submitted to arbitration on behalf of two employees not afforded the opportunity to perform the overtime work. The Arbitrator sustained the grievance determining that the Activity violated the agreement by the manner in which it secured employees to work the disputed overtime. Having found a violation of the agreement, the Arbitrator explained that it was "his proper duty" to award both grievants overtime pay. He held that whether the grievants would have accepted or refused to volunteer for overtime was irrelevant. Thus, as a remedy, the Arbitrator awarded each of the grievants 8 hours of pay at the overtime rate to make them whole for the day of overtime which "they might have worked."

In its exceptions, 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 grievants would have performed overtime work on the day in question. The Authority agrees.

The Authority has held with respect to overtime that in order for an award of backpay to be authorized under the Back Pay Act, there must be a determination not only that the aggrieved employee was affected by an unwarranted action, but also that such unwarranted action directly resulted in the withdrawal or reduction of overtime pay that the employee would otherwise have received by performing overtime work. See Picatinny Arsenal, U.S. Army Armament Research and Development Command, Dover, New Jersey and National Federation of Federal Employees, Local 1437, 7 FLRA 703(1982), petition for review denied sub nom. National Federation of Federal Employees, Local 1437 v. Federal Labor Relations Authority, 707 F.2d 1393 (3d Cir. 1983). In terms of this case, although the Arbitrator determined that the Activity violated the agreement, he failed to make the finding necessary to an authorized award of backpay. Specifically, he failed to find that but for the violation by the Activity of the agreement, the grievants would have performed the overtime work and received overtime pay. As noted, the Arbitrator expressly stated that it was irrelevant whether the grievants would have been the employees who volunteered to perform the overtime work. Consequently, the award to the extent that it directs payment of overtime pay to the grievants is deficient as contrary to the Back Pay Act.

Accordingly, the Arbitrator's award is modified by striking paragraph 2 which directs the Activity to pay 8 hours of overtime to the grievants.

Issued, Washington, D.C., January 31, 1984

Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier, III, Member
FEDERAL LABOR RELATIONS AUTHORITY

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

/1/ The Union filed an opposition which was untimely therefore has not been considered by the Authority.