13:0386(62)AR - Treasury, Customs Service and NTEU -- 1983 FLRAdec AR



[ 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 Nation