20:0190(25)AR - Customs Service, Northeast Region and NTEU -- 1985 FLRAdec AR

[ v20 p190 ]
The decision of the Authority follows:

20 FLRA No. 25




                                      Case No. 0-AR-797


   This matter is before the Authority on exceptions to the award of
Arbitrator Joseph A. Sickles filed by the Activity and the Union under
section 7122(a) of the Federal Service Labor-Management Relations
Statute and part 2425 of the Authority's Rules and Regulations.

   The grievance essentially alleged that the Activity violated the
parties' collective bargaining agreement when it unilaterally
discontinued payment of premium pay for administratively uncontrollable
overtime (AUO) for most Customs Patrol Officers in the Baltimore
District without notifying or bargaining with the Union concerning the
change.  As found by the Arbitrator, the premium pay was discontinued
when a new management official made a number of operational changes
affecting the Patrol Officers which resulted in greater emphasis being
placed on the performance of patrol duties that could be performed in a
regular 8-hour tour of duty without the necessity for extensive amounts
of uncontrolled overtime.  The Arbitrator noted that the Activity had a
right to determine employee eligibility for AUO pay and found that from
a review of the evidence before him, there was no showing that the
responsible management official made an inappropriate determination when
he decided that after the changes most of the overtime of the affected
Patrol Officers was controllable.  However, the Arbitrator further found
that the Activity violated the parties' agreement when it failed to
notify the Union regarding the intended AUO pay changes and when it
refused to meet and negotiate with the Union concerning those changes.
The Arbitrator therefore sustained the grievance and, as a remedy, in
effect directed the Activity to notify and bargain with the Union
regarding the changes as required by the agreement and applicable law
and regulation, and further directed that the affected Patrol Officers
in the bargaining unit be compensated at their former AUO pay rates
commencing with a particular date and continuing until such time as the
Activity notifies and bargains with the Union as required.  However, the
Arbitrator denied the Union's request for attorney fees.

   As one of its exceptions, the Activity essentially contends that the
grievance was barred by an earlier-filed unfair labor practice charge
and that consequently the award is contrary to section 7116(d) of the
Statute.  /1/ In support of this exception, the Activity argues that
because the Union previously filed an unfair labor practice charge
alleging that the Activity had failed to notify or negotiate wi