12:0049(13)AR - Bureau of Alcohol, Tobacco, and Firearms and NTEU -- 1983 FLRAdec AR



[ 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