15:0778(146)AR - VA Medical Center, Sepulveda, CA and AFGE Local 1697 -- 1984 FLRAdec AR
[ v15 p778 ]
The decision of the Authority follows:
15 FLRA No. 146 VETERANS ADMINISTRATION MEDICAL CENTER, SEPULVEDA, CALIFORNIA Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1697 Union Case No. O-AR-461 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Harold M. Somers filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. The dispute before the Arbitrator in this matter concerned a change in the tour of duty of two employees. The employees normally work a five-day tour of duty of 8 a.m. to 4 p.m. Because of an emergency situation, each employee was reassigned to a workweek which consisted of one normal day and four days of the 4 p.m. to 12 p.m. tour of duty. A grievance was filed and submitted to arbitration claiming that the change violated the parties' collective bargaining agreement. The Arbitrator determined that the Activity had violated the parties' collective bargaining agreement by failing to give the grievants the required advance notice of the change in workweek. However, the Arbitrator rejected the Union's claim that because the employees assertedly would have worked the 4 p.m. to 12 p.m. tour of duty in addition to their normal tour of duty but for the improper change of schedule, the remedy for each grievant should be an award of backpay for 32 hours at the overtime rate. Instead, the Arbitrator determined that "what transpired here is akin to calling someone in from his days off." Thus, he ruled that for each day, the grievants should have been paid as if they were working that day on overtime and at the overtime rate. Because they had already received their normal rate of pay for the hours worked, the Arbitrator ordered that they receive the additional half-time pay for the hours worked on the changed schedule. As one of its exceptions the Agency contends that the award is deficient because the premium pay awarded by the Arbitrator is not authorized by law. The Authority agrees. In terms of this case, there is no provision of law that authorizes the premium pay awarded by the Arbitrator. The grievants as wage-board employees are entitled under 5 U.S.C. 5544 to overtime pay for work in excess of 8 hours a day or 40 hours a week. As noted, the grievants did not work in excess of 8 hours a day or 40 hours a week, and accordingly there is no basis under the wage-board overtime provisions for the premium pay awarded by the Arbitrator. In addition, the Authority finds that the award is also not authorized under the Back Pay Act, 5 U.S.C. 5596. Although it is well established that the Back Pay Act provides appropriate authority to remedy an unjustified or unwarranted personnel action that has denied an aggrieved employee overtime pay to which the employee was entitled, e.g., Bureau of Alcohol, Tobacco, and Firearms and National Treasury Employees Union, 12 FLRA No. 13 (1983), the premium pay awarded by the Arbitrator does not constitute overtime pay that the grievants would otherwise have received but for the Activity's schedule change in violation of the agreement. As the Authority has uniformly held, relief under th4 Back Pay Act is intended only to make the aggrieved employee whole-- that is, to place the employee in the position the employee would originally have achieved but for the unwarranted action. E.g., American Federation of Government Employees, AFL-CIO, Local 2855 and United States Army, Military Traffic Management Command, Eastern Area, 13 FLRA No. 43 (1983). Thus, in terms of this case, the Arbitrator could have found, consistent with the Back Pay Act and as the Union had contended, that but for the improper change of schedule, the grievants would have worked their normal tour of 8 a.m. to 4 p.m. and would have worked in addition 8 hours of overtime from 4 p.m. to 12 p.m., and the Arbitrator could have ordered backpay for the 32 hours of overtime denied each grievant. However, the Arbitrator did not so find and did not order such a remedy. Instead, he fashioned a remedy that is not authorized by the Back Pay Act-- additional half-time pay for the grievants based on his finding that the regular 8-hour workday of the grievants performed on the 4 p.m. to 12 p.m. tour of duty "should be paid as if they were called in from their days off." However, because the grievants did work and in any event would have worked a regular workday, the premium pay awarded by the Arbitrator plainly would not have otherwise been received and places the grievants in a position they would not otherwise have achieved. Consequently, the award is not authorized by law and accordingly is set aside. /1/ Issued, Washington, D.C., August 29, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ In view of this decision it is not necessary to address the other exception to the award.