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 UNITED STATES CUSTOMS SERVICE NORTHEAST REGION Activity and NATIONAL TREASURY EMPLOYEES UNION, Union Case No. 0-AR-797 DECISION 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 with the Union concerning a requirement that Patrol Officers secure prior approval before meeting with informants, the Union was precluded by section 7116(d) from raising what the Activity asserts is the same allegation in the instant grievance. The Authority has held that in order for a grievance to be precluded by an earlier-filed unfair labor practice charge, the issue which is the subject matter of the grievance must be the same as the issue which was the subject matter of the charge. See, e.g., Federal Bureau of Prisons and American Federation of Government Employees, Local 3690, 18 FLRA No. 40(1985). In terms of this case, the unfair labor practice charge apparently concerned meetings with informants. Since the issue in the grievance before the Arbitrator concerned the elimination of AUO pay, the issue of the charge and the grievance clearly are not the same. Accordingly, the award is not contrary to section 7116(d) as alleged and the exception is therefore denied. In two further exceptions, the Activity alleges as to that part of the award which effectively requires the Activity to notify and bargain with the Union, (1) that the Arbitrator exceeded his authority by considering whether the Activity failed to meet its obligations to the Union when changing the job structure of the Patrol Officers; and (2) that the award is based on a nonfact because the Activity had notified and negotiated with the Union regarding certain assertedly related matters. However, the Authority finds that the Activity's allegations constitute nothing more than disagreement with the Arbitrator's findings of fact, reasoning and conclusions, and interpretation of the parties' agreement and concludes that the exceptions provide no basis for finding the Arbitrator's award deficient. E.g., Federal Correctional Institution, Petersburg, Virginia, 13 FLRA 108(1983). Accordingly, these exceptions are denied. In another exception, the Activity contends that the award of AUO compensation is contrary to law. The Authority agrees. The legal basis for the payment of administratively uncontrollable overtime pay is 5 U.S.C. 5545(c)(2). This provision essentially provides that an agency may determine that an employee in a position in which the hours of duty cannot be controlled administratively, and which requires substantial amounts of irregular, unscheduled overtime duty, shall receive premium pay for such duty on an annual basis. In this case, as essentially determined by the responsible management official and acknowledged by the Arbitrator, after the duties of the affected Patrol Officers were restructured, their duty hours were administratively controllable rather than uncontrollable and they were no longer required to work substantial amounts of unscheduled overtime. Consequently, they were no longer authorized premium pay for administratively uncontrollable overtime under 5 U.S.C. 5545(c)(2). Therefore, while the Arbitrator had considerable latitude in fashioning a remedy for the Activity's violation of the parties' agreement, his award of AUO pay is contrary to 5 U.S.C. 5545(c)(2). Accordingly, the award of premium pay is set aside. /2/ In its exception, the Union contends that the Arbitrator's denial of the Union's request for attorney fees is contrary to law, rule and regulation and requests that the Authority order the payment of such fees to the Union. The Authority finds that since the Arbitrator's award of premium pay is set aside as contrary to law, any award of attorney fees in this matter is unwarranted. U.S. Department of Labor and American Federation of Government Employees, Local 12, 17 FLRA No. 125(1985). Accordingly, without passing upon the merits of the basis for the Arbitrator's denial of the Union's request, the Union's exception is denied. Issued, Washington, D.C., September 20, 1985 (s) HENRY B. FRAZIER III Henry B. Frazier III, Acting Chairman (s) WILLIAM J. MCGINNIS JR. William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Section 7116(d) pertinently provides: (I)ssues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under this section, but not under both procedures. /2/ In view of this decision, it is not necessary to address the Activity's remaining exception to the Arbitrator's award.