American Federation of Government Employees, AFL-CIO, International Council of US Marshals Service Locals (Union) and The Department of Justice, U.S. Marshals Service (Agency)

 



[ v05 p542 ]
05:0542(66)AR
The decision of the Authority follows:


 5 FLRA No. 66
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO,
 INTERNATIONAL COUNCIL OF U.S.
 MARSHALS SERVICE LOCALS
 Union
 
 and
 
 THE DEPARTMENT OF JUSTICE,
 U.S. MARSHALS SERVICE
 Agency
 
                                            Case No. 0-AR-72
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR WILLIAM H. COBURN FILED BY BOTH THE AGENCY AND THE UNION
 UNDER SECTION 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (5 U.S.C. 7122(A)).
 
    ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER AROSE WHEN
 THE AGENCY CHANGED THE TOURS OF DUTY FOR CERTAIN DEPUTY UNITED STATES
 MARSHALS BY ESTABLISHING "EARLY" AND "LATE" SHIFTS IN ADDITION TO THE
 EXISTING NORMAL DAILY TOUR OF DUTY AND BY REASSIGNING MARSHALS FROM THE
 NORMAL TOUR TO THOSE SHIFTS.  PRIOR TO THIS ACTION, DEPUTY MARSHALS
 RECEIVED PREMIUM PAY UNDER THE ADMINISTRATIVELY UNCONTROLLABLE OVERTIME
 PROVISIONS OF 5 U.S.C.  5545(C)(2) FOR FREQUENT OVERTIME WORK CAUSED BY
 THE NEED TO TRANSPORT PRISONERS BETWEEN JAIL AND COURT AND TO PERFORM
 OTHER DUTIES OUTSIDE THE NORMAL WORKING HOURS OF 8:30 A.M. TO 5:00 P.M.
 HOWEVER, IN OCTOBER 1978, THE DIRECTOR OF THE UNITED STATES MARSHALS
 SERVICE NOTIFIED ALL DISTRICTS THAT DEPUTY MARSHALS WOULD NO LONGER BE
 PAID ADMINISTRATIVELY UNCONTROLLABLE OVERTIME AND THAT, THEREAFTER, THE
 MARSHALS WOULD BE PAID AT OVERTIME RATES ONLY FOR OVERTIME THAT WAS
 SCHEDULED AND APPROVED IN ADVANCE.  AS A CONSEQUENCE OF THIS NEW POLICY,
 SOME DISTRICTS CHANGED THE DAILY TOURS OF DUTY FOR THEIR DEPUTY MARSHALS
 BY ESTABLISHING ADDITIONAL TOURS EARLIER THAN AND LATER THAN THE
 EXISTING AND RETAINED TOUR.  THE ACTUAL TIMES VARY AMONG DISTRICTS, BUT
 A REPRESENTATIVE DISTRICT HAS TOURS BEGINNING AT 7:00, 8:30, AND 9:00
 A.M. AND ENDING AT 3:30, 5:00, AND 6:00 P.M., RESPECTIVELY.  EXISTING
 EMPLOYEES WERE ASSIGNED TO THE THREE TOURS OF DUTY AND THERE WAS NO
 CHANGE IN THE TOTAL NUMBER OF EMPLOYEES IN A GIVEN DISTRICT.
 
    THE UNION FILED A GRIEVANCE, WHICH WAS ULTIMATELY SUBMITTED TO
 ARBITRATION, CHARGING THE AGENCY WITH VIOLATING THE PARTIES' COLLECTIVE
 BARGAINING AGREEMENT BY UNILATERALLY CHANGING THE TOURS OF DUTY WITHOUT
 MEETING AND NEGOTIATING WITH THE UNION.
 
    AFTER FINDING THE GRIEVANCE ARBITRABLE, THE ARBITRATOR FOUND THE
 DISPOSITIVE ISSUE WAS:
 
    WHETHER THE EMPLOYER HAD THE UNILATERAL RIGHT TO ESTABLISH ADDITIONAL
 TOURS OF DUTY UNDER
 
    THE FACTUAL CIRCUMSTANCES OF THIS PARTICULAR CASE OR DOES THE SUBJECT
 MATTER COME WITHIN ITS
 
    DUTY TO BARGAIN UNDER THE AGREEMENT, THE ORDER AND THE STATUTE.
 
    THE ARBITRATOR FIRST CITED ARTICLE VI, SECTION 2 OF THE PARTIES'
 AGREEMENT /1/ WHICH PROVIDES, IN PERTINENT PART, THAT:
 
    (T)HE OBLIGATION TO MEET AND CONFER DOES NOT INCLUDE MATTERS WITH
 RESPECT TO THE MISSION OF
 
    THE AGENCY, ITS BUDGET, ITS ORGANIZATION;  THE NUMBER OF EMPLOYEES;
 AND THE NUMBERS, TYPES, AND
 
    GRADES OF POSITIONS OR EMPLOYEES ASSIGNED TO AN ORGANIZATIONAL UNIT,
 WORK PROJECT, OR TOUR OF
 
    DUTY . . . .
 
    THE ARBITRATOR ALSO CITED SECTION 7106(B)(1) OF THE STATUTE WHICH
 PROVIDES, IN PERTINENT PART, THAT:
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM
 
    NEGOTIATING --
 
    (1) AT THE ELECTION OF THE AGENCY, ON THE NUMBERS, TYPES, AND GRADES
 OF EMPLOYEES OR
 
    POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT,
 OR TOUR OF DUTY . . . .
 
    REFERRING TO THESE PROVISIONS, THE ARBITRATOR DETERMINED THAT "IF THE
 ESTABLISHMENT OF AN ADDITIONAL TOUR OF DUTY DIRECTLY RELATES TO THE
 NUMBERS, TYPES, OR GRADES OF EMPLOYEES ASSIGNED TO THAT TOUR OF DUTY THE
 OBLIGATION TO MEET AND CONFER WITH THE UNION WOULD COME WITHIN THE SOLE
 DISCRETION AND ELECTION OF THE AGENCY AND WOULD THEREFORE NOT BE A
 NEGOTIABLE MATTER." WITH RESPECT TO THE PARTICULAR CASE BEFORE HIM, THE
 ARBITRATOR NOTED THAT ALTHOUGH THE CHANGES MADE BY THE AGENCY HAD DIRECT
 IMPACT UPON THE WORKING CONDITIONS OF THE EMPLOYEES INVOLVED, THE NUMBER
 OF EMPLOYEES ASSIGNED TO THE TOUR OF DUTY, THE TYPE OR GRADE OF SUCH
 EMPLOYEES, AND THE NUMBER OF POSITIONS REMAINED THE SAME AS THEY HAD
 BEEN PRIOR TO THE CHANGES.  THEREFORE, HE FOUND THAT THE ESTABLISHMENT
 OF ADDITIONAL TOURS OF DUTY BY THE AGENCY DID NOT EXPLICITLY RELATE TO
 THE NUMBERS, TYPES, AND GRADES OF DEPUTY MARSHALS ASSIGNED TO THOSE
 TOURS OF DUTY AND THUS "CANNOT BE TREATED AS A MATTER NEGOTIABLE ONLY AT
 THE ELECTION OF THE EMPLOYER." (THE ARBITRATOR CITED THE AUTHORITY'S
 DECISION IN NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 66 AND INTERNAL
 REVENUE SERVICE, KANSAS CITY SERVICE CENTER, 1 FLRA NO. 106(1979) AS
 APPLICABLE AND CONTROLLING.) ACCORDINGLY, THE ARBITRATOR FOUND THAT THE
 AGENCY'S FAILURE TO NOTIFY AND, UPON REQUEST, NEGOTIATE WITH THE UNION
 OVER THE ESTABLISHMENT OF THE ADDITIONAL TOURS OF DUTY WAS A VIOLATION
 OF THE AGREEMENT AND THE ARBITRATOR SUSTAINED THE UNION'S GRIEVANCE.
 
    THE REMEDY THE UNION SOUGHT FROM THE ARBITRATOR WAS, IN PART, A
 RETURN OF THE DEPUTY MARSHALS TO THEIR REGULARLY SCHEDULED TOUR OF DUTY
 AND AN ORDER DIRECTING THE AGENCY TO CEASE AND DESIST FROM CHANGING
 TOURS OF DUTY IN VIOLATION OF THE AGREEMENT.  THE ARBITRATOR GRANTED
 THIS PORTION OF THE REQUESTED REMEDY.  ADDITIONALLY, THE UNION SOUGHT
 RETROACTIVE BACKPAY FOR DEPUTIES WHO WERE REQUIRED TO WORK OUTSIDE THEIR
 NORMAL TOUR OF DUTY BUT WERE NOT PAID OVERTIME.  THE ARBITRATOR REFUSED
 TO GRANT THIS AS PART OF THE REMEDY, FINDING THAT THE UNION FAILED TO
 PRODUCE EVIDENCE SHOWING THAT "BUT FOR" THE AGENCY'S VIOLATION OF THE
 AGREEMENT EMPLOYEES WOULD HAVE BEEN PAID MORE THAN THEY ACTUALLY
 RECEIVED.  FURTHER, THE ARBITRATOR NOTED THAT THERE WAS NO EVIDENCE THAT
 DEPUTY MARSHALS ACTUALLY PERFORMED OVERTIME WORK FOR WHICH THEY WERE
 NOT
 PAID, AND EVEN IF THE CHANGES IN TOURS OF DUTY HAD NOT BEEN MADE,
 BUDGETARY REQUIREMENTS WOULD HAVE FORCED THE AGENCY TO REDUCE ITS
 OVERTIME ALLOCATIONS;  THUS, HE CONCLUDED THAT THERE WAS NO SHOWING THAT
 THE DEPUTY MARSHALS WOULD HAVE RECEIVED OVERTIME IN ANY EVENT.
 
    BOTH THE AGENCY AND THE UNION FILED EXCEPTIONS TO THE ARBITRATOR'S
 AWARD UNDER SECTION 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE /2/ AND PART 2425 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR PART 2425), AND BOTH PARTIES FILED OPPOSITIONS.  THE
 AGENCY'S EXCEPTIONS WILL BE ADDRESSED FIRST.
 
    IN ITS FIRST EXCEPTION, THE AGENCY CONTENDS THAT THE AWARD IS
 DEFICIENT BECAUSE IT IS CONTRARY TO SECTION 7106(B)(1) OF THE STATUTE
 AND SECTION 11(B) OF EXECUTIVE ORDER NO. 11491.  SPECIFICALLY, THE
 AGENCY ASSERTS THAT THE AWARD IS CONTRARY TO LAW SINCE IT REQUIRES THE
 AGENCY TO NEGOTIATE AT THE REQUEST OF THE UNION PRIOR TO RE-ESTABLISHING
 THE EARLY AND LATE SHIFTS.  FURTHER, ACCORDING TO THE AGENCY, THE
 ARBITRATOR'S RELIANCE ON NATIONAL TREASURY EMPLOYEES UNION, SUPRA, AS
 CONTROLLING PRECEDENT WAS MISPLACED BECAUSE THE FACTS IN THIS CASE ARE
 DIFFERENT.
 
    THE AGENCY'S EXCEPTION THAT THE ARBITRATOR'S AWARD IS CONTRARY TO LAW
 IS A GROUND ON WHICH THE AUTHORITY WILL FIND AN ARBITRATOR'S AWARD
 DEFICIENT UNDER SECTION 7122(A)(1) OF THE STATUTE.  HOWEVER, IN THIS
 CASE THE AGENCY HAS NOT DEMONSTRATED THAT THE ARBITRATOR'S AWARD
 VIOLATES SECTION 7106(B)(1) OF THE STATUTE.  IT IS APPARENT FROM THE
 ARBITRATOR'S AWARD THAT IN RENDERING THAT AWARD HE WAS AWARE OF AND
 CORRECTLY APPLIED RELEVANT LAW AND PRECEDENT GOVERNING THE DETERMINATION
 OF WHETHER A MATTER IS NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY
 UNDER SECTION 7106(B )(1).  IN NATIONAL TREASURY EMPLOYEES UNION, SUPRA,
 THE AUTHORITY HELD THAT
 
    THE CLEAR MEANING OF (SECTION 7106(B)(1)) IS TO RENDER THE NUMBERS,
 TYPES, AND GRADES OF
 
    EMPLOYEES ASSIGNED TO A TOUR OF DUTY NEGOTIABLE AT THE AGENCY'S
 ELECTION.  A PROPOSAL
 
    OTHERWISE CONSISTENT WITH THE STATUTE, WHICH, BY ITS DIRECT OR
 INTEGRAL RELATIONSHIP TO THE
 
    NUMBERS, TYPES, OR GRADES OF EMPLOYEES OR POSITIONS ASSIGNED TO A
 TOUR OF DUTY, WOULD BE
 
    DETERMINATIVE OF SUCH NUMBERS, TYPES, OR GRADES, LIKEWISE WOULD BE
 NEGOTIABLE AT THE ELECTION
 
    OF THE AGENCY.  (FOOTNOTE OMITTED.)
 
    THE AUTHORITY THEN FOUND THAT THE UNION'S PROPOSAL TO MAINTAIN A
 THIRD STARTING AND QUITTING TIME IN ADDITION TO TWO OTHER STARTING AND
 QUITTING TIMES FOR EMPLOYEES DID NOT "EXPLICITLY RELATE TO THE NUMBERS,
 TYPES, AND GRADES OF EMPLOYEES ASSIGNED TO THE TOUR OF DUTY .  . . SO AS
 TO COME WITHIN THE LITERAL LANGUAGE OF SECTION 7106(B)(1)." 1 FLRA NO.
 106 AT 4 OF THE DECISION.
 
    THE ARBITRATOR IN THE INSTANT CASE APPLIED THAT DECISION TO THE
 FACTUAL CIRCUMSTANCES BEFORE HIM AND FOUND THAT THE ADDITION OF TWO
 DAILY TOURS OF DUTY FOR DEPUTY MARSHALS DID NOT CHANGE THE TOTAL NUMBER
 OF EMPLOYEES ASSIGNED TO THE TOURS OF DUTY, THE GRADE OF THOSE
 EMPLOYEES, OR THE NUMBER OF POSITIONS AND, THEREFORE, "THE CHANGE IN
 SHIFT SCHEDULES IN NO WAY RELATED TO OR WAS DETERMINATIVE OF THE
 NUMBERS, TYPES AND GRADES OF THE DEPUTY MARSHALS ASSIGNED TO TOURS OF
 DUTY." THUS, THE ARBITRATOR FOUND THAT THE ESTABLISHMENT OF THE EARLY
 AND LATE SHIFTS WAS WITHIN THE AGENCY'S OBLIGATION TO BARGAIN AND NOT A
 MATTER NEGOTIABLE ONLY AT THE ELECTION OF THE EMPLOYER.
 
    THE AGENCY'S ARGUMENT THAT THE DIFFERENT FACT SITUATION IN THE
 PRESENT CASE SHOULD DISTINGUISH IT FROM NATIONAL TREASURY EMPLOYEES
 UNION IS NOT CONVINCING.  BOTH CASES INVOLVE THE ESTABLISHMENT OF
 MULTIPLE STARTING AND QUITTING TIMES FOR DAILY TOURS OF DUTY, BUT IN
 NEITHER CASE DOES THE RECORD SHOW THAT THE ESTABLISHMENT OF THOSE
 STARTING AND QUITTING TIMES EXPLICITLY RELATES TO AND IS DETERMINATIVE
 OF THE NUMBERS, TYPES, AND GRADES OF EMPLOYEES ASSIGNED TO A TOUR OF
 DUTY.  THE FACT THAT NATIONAL TREASURY EMPLOYEES, UNION INVOLVED THE
 ESTABLISHMENT OF A TOUR OF DUTY WITH STARTING AND QUITTING TIMES THAT
 FELL WITHIN OTHER ESTABLISHED TOURS OF DUTY DOES NOT SERVE TO
 DISTINGUISH IT FROM THE INSTANT CASE IN WHICH THE TOURS OF DUTY
 ESTABLISHED FELL OUTSIDE THE ALREADY EXISTING STARTING AND QUITTING
 TIMES.  IT FOLLOWS THAT THE ESTABLISHMENT OF THE EARLY AND LATE SHIFTS
 IN THIS CASE IS NOT INTEGRALLY RELATED TO THE NUMBERS, TYPES, AND GRADES
 OF EMPLOYEES ASSIGNED TO A TOUR OF DUTY.  CONSEQUENTLY, THE AGENCY'S
 FIRST EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT UNDER
 5 U.S.C. 7122(A) AND SECTION 2425.3 OF THE AUTHORITY'S RULES AND
 REGULATIONS.  /3/
 
    IN ITS SECOND, THIRD, AND FOURTH EXCEPTIONS, THE AGENCY CONTENDS THAT
 THE AWARD IS DEFICIENT BECAUSE IT VIOLATES MANAGEMENT'S RIGHTS UNDER
 SECTION 7106(A) OF THE STATUTE TO DIRECT EMPLOYEES, TO DETERMINE THE
 PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE CONDUCTED, TO DETERMINE
 THE AGENCY'S ORGANIZATION, AND TO ASSIGN WORK.  THE AUTHORITY DISAGREES.
 
    THE ARBITRATOR FOUND THAT THE AGENCY WAS FOUND BY THE TERMS OF ITS
 AGREEMENT TO NOTIFY AND, UPON REQUEST, NEGOTIATE WITH THE UNION BEFORE
 ESTABLISHING THE ADDITIONAL TOURS OF DUTY AND, AS A REMEDY, HE DIRECTED
 THAT THE DEPUTIES BE RETURNED TO THEIR REGULAR TOUR OF DUTY AND THAT THE
 AGENCY CEASE AND DESIST FROM CHANGING TOURS WITHOUT NOTIFYING AND
 NEGOTIATING WITH THE UNION.  THERE IS NOTHING IN EITHER THE LITERAL
 LANGUAGE OR THE PRACTICAL EFFECT OF THAT AWARD TO SUPPORT THE AGENCY'S
 SECOND, THIRD, AND FOURTH EXCEPTIONS.  THAT IS, NOTHING IN THE AWARD
 PREVENTS THE AGENCY FROM DIRECTING EMPLOYEES TO PERFORM SPECIFIED WORK
 AT SPECIFIED TIMES.  NOR, CONTRARY TO THE AGENCY'S ASSERTIONS, DOES THE
 AWARD DICTATE TO THE AGENCY WHICH EMPLOYEES IT MUST ASSIGN TO CARRY OUT
 ITS OPERATIONS OR HOW THE AGENCY SHALL BE ORGANIZED.  DESPITE THE
 ARBITRATOR'S RULING THAT THE AGENCY CANNOT IGNORE THE AGREEMENT AND THE
 STATUTE WHEN IT DESIRES TO ESTABLISH ADDITIONAL STARTING AND QUITTING
 TIMES FOR DEPUTY MARSHALS, IT IS NEVERTHELESS CLEAR THAT THE TOTAL
 NUMBER OF EMPLOYEES, THE TYPE OF WORK PERFORMED, AND THE ORGANIZATIONAL
 STRUCTURE OF THE AGENCY CAN REMAIN UNCHANGED.  THEREFORE, THE AGENCY'S
 SECOND, THIRD, AND FOURTH EXCEPTIONS PROVIDE NO BASIS FOR FINDING THE
 AWARD DEFICIENT.
 
    IN ITS FIFTH EXCEPTION, THE AGENCY ALLEGES THAT THE ARBITRATOR'S
 AWARD IS DEFICIENT BECAUSE IT VIOLATES THE AGENCY'S RIGHT UNDER SECTION
 7106(B)(1) TO DETERMINE WHETHER WORK WHICH MUST BE PERFORMED OUTSIDE OF
 NORMAL DUTY HOURS "IS TO BE SCHEDULED ON AN OVERTIME OR REGULAR TIME
 BASIS." THE EFFECT OF THE AWARD, ACCORDING TO THE AGENCY, IS TO FORCE IT
 TO SCHEDULE OVERTIME EVERY WORKDAY IN ORDER TO CARRY OUT ITS PRISONER
 TRANSPORTATION DUTIES.  THE AGENCY ALSO ARGUES THAT THE AWARD WOULD
 REQUIRE IT TO PAY OVERTIME IN CONTRAVENTION OF THE PROVISIONS OF 5
 U.S.C. 5542(A).  /4/
 
    THE AGENCY'S ARGUMENTS IN SUPPORT OF ITS FIFTH EXCEPTION APPEAR TO BE
 VARIATIONS OF ITS ARGUMENTS WITH RESPECT TO ITS FIRST EXCEPTION.
 HOWEVER, AS STATED PREVIOUSLY, THE AWARD CONSTITUTES NOTHING MORE THAN A
 FINDING THAT, IN THE CIRCUMSTANCES OF THIS CASE, THE AGENCY HAS A DUTY
 TO NOTIFY AND BARGAIN CONCERNING ASPECTS OF THE ESTABLISHMENT OF
 ADDITIONAL TOURS OF DUTY.  THE AWARD DOES NOT, CONTRARY TO THE AGENCY'S
 CONTENTIONS, ORDER THE SCHEDULING OR PAYMENT OF OVERTIME IN VIOLATION OF
 LAW, NOR DOES THE AWARD INTERFERE WITH THE AGENCY'S RIGHT TO DECIDE
 WHETHER OVERTIME IS REQUIRED AND THE TIMES IT WILL BE PERFORMED.
 FURTHER, IT APPEARS THAT THE AGENCY HAS MISINTERPRETED 5 U.S.C. 5542(A).
  ACCORDING TO THE AGENCY, SECTION 5542(A) PROHIBITS THE PAYMENT OF
 OVERTIME RATES FOR HOURS WORKED BEFORE DAILY AND WEEKLY STATUTORY
 MINIMUMS ARE MET.  HOWEVER, THE PLAIN LANGUAGE OF THAT PROVISION OF LAW
 IS THAT "HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF 40
 HOURS IN AN ADMINISTRATIVE WORKWEEK, OR . . . IN EXCESS OF 8 HOURS IN A
 DAY" ARE CONSIDERED TO BE OVERTIME WORK PAID FOR AT OVERTIME RATES.
 NOTHING THEREIN PROHIBITS THE PAYMENT OF OVERTIME TO AN EMPLOYEE WHO IS
 DIRECTED TO REPORT TO WORK PRIOR TO THE START OF HIS OR HER REGULARLY
 SCHEDULED TOUR OF DUTY AND THUS WORKS IN EXCESS OF 8 HOURS A DAY.
 THEREFORE, THE AGENCY'S FIFTH EXCEPTION PROVIDES NO BASIS FOR FINDING
 THE AWARD DEFICIENT.
 
    IN ITS SIXTH AND FINAL EXCEPTION, THE AGENCY CONTENDS THAT THE AWARD
 IS DEFICIENT BECAUSE IT VIOLATES PUBLIC POLICY AS EXPRESSED IN THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE AND THE FEDERAL
 EMPLOYEES PAY ACT OF 1945 TO THE EXTENT THAT THE AWARD "WOULD REQUIRE
 MANAGEMENT TO SCHEDULE WORK ON AN OVERTIME BASIS AS A CONDITION OF
 EXERCISING ITS RIGHT TO DIRECT THAT SUCH WORK BE PERFORMED."
 
    HOWEVER, THE AGENCY HAS RELIED UPON AN INTERPRETATION WHICH IS NOT
 CONSISTENT WITH THE PLAIN LANGUAGE AND MEANING OF THE AWARD.  RATHER
 THAN ACCEPTING THE AWARD AS A FINDING THAT THE ESTABLISHMENT OF
 ADDITIONAL TOURS OF DUTY IN THE CIRCUMSTANCES OF THIS CASE IS NOT A
 MATTER TOTALLY EXCLUDED FROM THE SCOPE OF NEGOTIATIONS, THE AGENCY IS
 MAKING ARGUMENTS BASED UPON AN IMPROPER INTERPRETATION -- THAT THE AWARD
 IS A DIRECTIVE FORCING IT TO PAY OVERTIME WHICH IT FEELS IT SHOULD NOT
 HAVE TO PAY.  THUS, THE AGENCY'S CONTENTION THAT THE AWARD VIOLATES THE
 PURPOSES OF THE STATUTE AND THE FEDERAL EMPLOYEES PAY ACT OF 1945 IS
 ESSENTIALLY A RESTATEMENT OF THE GENERAL ALLEGATIONS UPON WHICH IT HAS
 RELIED IN PRESENTING ITS OTHER EXCEPTIONS.  THEREFORE, IT FOLLOWS THAT
 THE AGENCY'S SIXTH EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD
 DEFICIENT.
 
    WITH RESPECT TO THE UNION'S EXCEPTIONS TO THE ARBITRATOR'S AWARD, THE
 UNION'S FIRST EXCEPTION IS THAT THE ARBITRATOR'S FAILURE TO GRANT
 BACKPAY AS A REMEDY FOR THE AGENCY'S VIOLATION OF THE AGREEMENT WAS
 BASED IN PART ON A MISTAKE OF LAW.  SPECIFICALLY, THE UNION OBJECTS TO
 THE ARBITRATOR'S STATEMENT THAT IN ORDER FOR THE DEPUTY MARSHALS TO
 RECEIVE BACKPAY, IT MUST BE SHOWN THAT THEY ACTUALLY PERFORMED OVERTIME
 WORK FOR WHICH THEY WERE NOT PAID.  THE UNION POINTS OUT THAT DECISIONS
 OF THE COMPTROLLER GENERAL HAVE HELD THAT SUCH IS NOT THE CASE, AND THAT
 AN EMPLOYEE IMPROPERLY DENIED OVERTIME WORK MAY BE AWARDED BACKPAY.  THE
 UNION FURTHER ASSERTS, IN DISAGREEMENT WITH THE ARBITRATOR, THAT "BUT
 FOR" THE AGENCY'S VIOLATION OF THE AGREEMENT, DEPUTY MARSHALS WOULD HAVE
 WORKED THE NORMAL TOUR OF DUTY AND HOURS WORKED OUTSIDE OF THAT WOULD
 HAVE BEEN PAID AT OVERTIME RATES.  THEREFORE, ACCORDING TO THE UNION,
 DEPUTY MARSHALS ARE ENTITLED TO BACKPAY UNDER THE BACK PAY ACT, 5 U.S.C.
 5596(SUPP. III 1979) FOR THE OVERTIME WHICH THEY MISSED BECAUSE OF THE
 AGENCY'S ACTIONS.
 
    THE AUTHORITY FINDS THAT THE UNION HAS NOT DEMONSTRATED THAT THE
 AWARD IS CONTRARY TO THE BACK PAY ACT.  IN HIS AWARD, THE ARBITRATOR
 MADE A SPECIFIC FINDING THAT THE UNION FAILED TO PRODUCE EVIDENCE
 SUFFICIENT "TO SHOW THAT BUT FOR THE VIOLATION OF AN AGREEMENT, THE
 AFFECTED EMPLOYEES WOULD HAVE RECEIVED BACK PAY." REGARDLESS OF THE
 CORRECTNESS OF THE EXTRANEOUS STATEMENTS BY THE ARBITRATOR CONCERNING
 PAYMENT FOR OVERTIME NOT ACTUALLY WORKED, IT IS CLEAR THAT THE BASIS FOR
 HIS DECISION NOT TO AWARD BACKPAY WAS HIS FINDING THAT THERE WAS NO
 DIRECT CAUSAL RELATIONSHIP BETWEEN THE VIOLATION OF THE AGREEMENT AND
 THE FAILURE TO RECEIVE OVERTIME.  THE UNION'S DISAGREEMENT WITH THAT
 FACTUAL FINDING DOES NOT PROVIDE A BASIS FOR FINDING THE AWARD
 DEFICIENT.  MID-AMERICAN PROGRAM SERVICE CENTER, SOCIAL SECURITY
 ADMINISTRATION, DEPARTMENT OF HEALTH, EDUCATION AND WELFARE AND LOCAL
 NO. 1336, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, 5 FLRA
 NO. 34(1981).  CONSEQUENTLY, THE UNION'S FIRST EXCEPTION PROVIDES NO
 BASIS FOR FINDING THE AWARD DEFICIENT.
 
    IN ITS SECOND EXCEPTION, THE UNION ALLEGES THAT THE ARBITRATOR BASED
 HIS DECISION NOT TO GRANT BACKPAY ON A "NON-FACT" WHEN HE FOUND THAT THE
 AGENCY WOULD HAVE BEEN FORCED TO REDUCE OVERTIME BECAUSE OF BUDGETARY
 CONSTRAINTS EVEN IF THE CHANGES IN TOURS OF DUTY HAD NOT BEEN MADE.  IN
 SUPPORT OF THIS EXCEPTION, THE UNION ARGUES THAT THERE WAS NO EVIDENCE
 BEFORE THE ARBITRATOR TO SHOW THAT OVERTIME ALLOCATIONS WOULD HAVE TO BE
 REDUCED BECAUSE OF BUDGETARY CONSIDERATIONS.  FURTHER, ACCORDING TO THE
 UNION,
 
    (T)HE REDUCTION OF OVERTIME ALLOCATIONS WAS NOT AT ISSUE IN THIS
 CASE.  EVEN IF IT WERE,
 
    THE EMPLOYER IS REQUIRED TO PAY ITS EMPLOYEES APPROPRIATELY FOR HOURS
 WORKED OUTSIDE THEIR
 
    NORMAL TOUR OF DUTY EVEN IF THE ALLOCATIONS WERE REDUCED.
 
    THE AUTHORITY WILL FIND AN ARBITRATOR'S AWARD DEFICIENT WHEN IT IS
 DEMONSTRATED THAT THE CENTRAL FACT UNDERLYING THE AWARD IS CONCEDEDLY
 ERRONEOUS AND IN EFFECT IS A GROSS MISTAKE BUT FOR WHICH A DIFFERENT
 RESULT WOULD HAVE BEEN REACHED.  AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 987 AND WARNER ROBINS AIR LOGISTICS CENTER,
 ROBINS AIR FORCE BASE, GEORGIA, 3 FLRA NO. 89(1980).  IN THIS CASE,
 HOWEVER, THE UNION HAS FAILED TO DEMONSTRATE THAT THE AWARD IS DEFICIENT
 ON THIS GROUND.  THE UNION IS ARGUING, IN EFFECT, THAT THE ARBITRATOR'S
 FINDINGS REGARDING BUDGETARY CONSIDERATIONS GOVERNING PAYMENT FOR
 OVERTIME WERE IN ERROR.  HOWEVER, AS POINTED OUT BY THE AGENCY IN ITS
 OPPOSITION TO THE UNION'S EXCEPTION, TESTIMONY CONCERNING THOSE
 BUDGETARY LIMITATIONS WAS PRESENTED TO THE ARBITRATOR AND IT IS APPARENT
 THAT THE ARBITRATOR TOOK THIS TESTIMONY INTO ACCOUNT IN FORMULATING A
 REMEDY WHEN HE STATED:  "THE EMPLOYER WOULD HAVE BEEN REQUIRED TO REDUCE
 ITS OVERTIME ALLOCATIONS UNDER BUDGETARY REQUIREMENTS EVEN IF THE SHIFT
 SCHEDULES HAD NOT BEEN MADE." THEREFORE, RATHER THAN DEMONSTRATING THAT
 THE CENTRAL FACT UNDERLYING THE AWARD IS GROSSLY ERRONEOUS, THE UNION IS
 INSTEAD DISAGREEING WITH ONE OF THE ARBITRATOR'S FINDINGS OF FACT WHICH,
 AS PREVIOUSLY INDICATED, PROVIDES NO BASIS FOR FINDING THE AWARD
 DEFICIENT.
 
    AS TO THE UNION'S ASSERTION THAT THE REDUCTION OF OVERTIME
 ALLOCATIONS SHOULD NOT HAVE BEEN ADDRESSED BY THE ARBITRATOR SINCE IT
 WAS NOT AT ISSUE IN THIS CASE, SUCH ASSERTION PROVIDES NO BASIS FOR
 FINDING THE AWARD DEFICIENT.  THE QUESTION OF BUDGETARY LIMITATIONS WAS
 CLEARLY RAISED DURING THE HEARING AND SUCH A QUESTION WAS PROPERLY
 BEFORE THE ARBITRATOR AS PART OF HIS DETERMINATION AS TO WHETHER THE
 REQUISITE CAUSAL RELATIONSHIP WAS PRESENT FOR PURPOSES OF AWARDING
 BACKPAY UNDER THE BACK PAY ACT.  THEREFORE, THE UNION'S SECOND EXCEPTION
 PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT.
 
    FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2425.4 OF THE
 AUTHORITY'S RULES, WE HEREBY SUSTAIN THE ARBITRATOR'S AWARD.
 
    ISSUED, WASHINGTON, D.C., APRIL 29, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                          CERTIFICATE OF SERVICE
 
    COPIES OF THE DECISION OF THE FLRA IN THE SUBJECT PROCEEDING HAVE
 THIS DAY BEEN MAILED TO THE PARTIES LISTED:
 
    MR. WILLIAM C. OWEN
 
    ACTING CHIEF
 
    LABOR-MANAGEMENT RELATIONS GROUP
 
    DEPARTMENT OF JUSTICE
 
    WASHINGTON, D.C. 20530
 
    MR. RONALD D. KING, DIRECTOR
 
    CONTRACT AND APPEALS DIVISION
 
    AMERICAN FEDERATION OF GOVERNMENT
 
    EMPLOYEES, AFL-CIO
 
    1325 MASSACHUSETTS AVE.,N.W.
 
    WASHINGTON, D.C. 20005
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ EXECUTIVE ORDER 11491 WAS IN EFFECT AT THE TIME THE AGREEMENT WAS
 NEGOTIATED, AND THE CITED LANGUAGE IS IDENTICAL TO LANGUAGE CONTAINED IN
 SECTION 11(B) OF THAT ORDER.
 
    /2/ 5 U.S.C. 7122(A) PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION TO ANY ARBITRATOR'S AWARD PURSUANT TO THE
 ARBITRATION (OTHER THAN AN AWARD RELATING TO A MATTER DESCRIBED IN
 SECTION 7121(F) OF THIS TITLE).  IF