18:0412(56)AR - INS, Justice and AFGE Local 40 -- 1985 FLRAdec AR



[ v18 p412 ]
18:0412(56)AR
The decision of the Authority follows:


 18 FLRA No. 56
 
 IMMIGRATION AND NATURALIZATION 
 SERVICE, U.S. DEPARTMENT OF JUSTICE
 Agency 
 
 and 
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 40 
 Union
 
                                            Case No. 0-AR-602
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator George Schatzki 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.  /1/
 
    According to the Arbitrator this case involves a claim for overtime
 pay on the basis that the Activity withheld opportunities to work
 overtime in violation of the parties' collective bargaining agreement.
 The Arbitrator found that before fiscal year (FY) 1982, available
 overtime was assigned to immigration inspectors with priority to
 inspectors with the least amount of overtime days previously worked.  In
 FY 82 the Activity commenced assigning overtime on the basis of overtime
 earnings rather than number of days of overtime worked.  In commencing
 this basis for assignment, the Activity equalized the position of all
 inspectors by abolishing the assignment priorities as they existed at
 the end of FY 81.  The Union filed a grievance that was submitted to
 arbitration claiming that the action of abolishing preexisting
 priorities for the assignment of overtime violated the agreement.
 
    At arbitration the Activity argued that the grievance was not
 arbitrable.  Primarily, the Activity maintained that the grievance was
 barred by an earlier-filed unfair labor practice charge as to which
 there was a refusal to issue a complaint.  The Arbitrator rejected the
 claim, determining that the grievance raised an issue different from the
 issue raised as an unfair labor practice.  The Arbitrator likewise
 rejected the claim that the grievance could only be resolved at the
 national level of recognition and was not appropriate for resolution
 under the agreement at the local level.  On the merits the Arbitrator
 ruled that the Activity had violated the agreement by abolishing the
 assignment priorities.  As to a remedy, the Arbitrator noted on the one
 hand that it seemed "inappropriate" for employees to receive backpay for
 work they did not perform because it would be a "windfall." On the other
 hand, the Arbitrator considered a remedy enforcing the abolished
 priorities by ordering make-up time to be inequitable to low-priority
 employees and inconvenient to high-priority employees.  Consequently, he
 ordered that inspectors receive one-half of the amount of overtime to
 which each inspector had a priority as of the end of FY 81 as an award
 of backpay and that the inspectors be offered overtime opportunities in
 accordance with the other half of each inspector's priority.
 
    In its first exception the Agency essentially contends that the
 grievance was barred by the earlier-filed unfa