25:0969(80)AR - Air Force, Warner Robins Air Logistics Center, Robins AFB, GA and AFGE Local 987 -- 1987 FLRAdec AR



[ v25 p969 ]
25:0969(80)AR
The decision of the Authority follows:


 25 FLRA No. 80
 
 DEPARTMENT OF THE AIR FORCE 
 WARNER ROBINS AIR LOGISTICS CENTER 
 ROBINS AIR FORCE BASE, GA.
 Activity
 
 and
 
 AMERICAN FEDERATION OF 
 GOVERNMENT EMPLOYEES 
 LOCAL 987
 Union
 
                                            Case No. 0-AR-1223
 
                                 DECISION
 
                         I.  Statement of the Case
 
    This matter is before the Authority on an exception to the award of
 Arbitrator Jack R. George filed by the Union under section 7122(a) of
 the Federal Service Labor-Management Relations Statute (the Statute) and
 part 2425 of the Authority's Rules and Regulations.
 
                  II.  Background and Arbitrator's Award
 
    The grievance protested the Activity's determination that the
 grievant was not entitled to work overtime on four days in December
 1985.  According to the Arbitrator, the grievant was asked by his
 supervisor in late November 1985 if he would like to work overtime on
 December 7 and 8.  For religious reasons, the grievant declined to work
 on the 7th, a Saturday, but indicated that he would be willing to work
 on Sunday, the 8th.  Early in December management determined that
 unplanned overtime would be required on December 4, 5 and 6 in addition
 to the overtime scheduled for December 7 and 8.  The grievant indicated
 that he would like to work the 4th, 5th and 6th, although he still
 declined the Saturday overtime.  Management informed the grievant that
 he must work both the 7th and 8th to be eligible for the overtime on the
 4th, 5th and 6th because the additional overtime and weekend continuity
 were required to complete the work to be done.  On the basis of his
 refusal to work on Saturday the 7th, the grievant was not permitted to
 work any of the overtime.
 
    The grievant filed a grievance contending that he had been unjustly
 eliminated from working overtime on the 4th, 5th, 6th and 8th of
 December and that he should be made whole for all lost income.  The
 grievance was submitted to arbitration.  The Arbitrator framed the issue
 as whether management adhered to the parties' contract in determining
 the grievant's entitlement to overtime on December 4, 5, 6 and 8, and if
 not, what should the remedy be?  The Arbitrator determined that under
 the contract, the grievant was not entitled to work overtime on the 4th,
 5th and 6th because that overtime was unplanned.  However, he upheld the
 grievance concerning overtime for the 8th.
 
    As to remedy, the Arbitrator stated that the most frequently used
 remedy in such cases is a monetary one, but make-up overtime within a
 reasonable time may also be an appropriate remedy.  The Arbitrator
 determined in this case that there was no clear showing of monetary
 loss, and that make-up overtime was a just remedy.  Accordingly, as a
 remedy, he ordered that "at the first opportunity the Grievant will be
 offered 8 hours make-up overtime above and beyond that to which he
 otherwise would be entitled."
 
                              III.  Exception
 
                              A.  Contentions
 
    The Union contends that the Arbitrator erred when he substituted his
 judgment by awarding the grievant make-up overtime for December 8,
 instead of money damages as required by the clear and unambiguous
 language of the parties' collective bargaining agreement.  The agreement
 provides that "(a)n employee improperly passed over for an overtime
 assignment will be made whole by a remedy of money damages unless
 management provides substantiating evidence that the employee's silence
 has contributed to the error." According to the Union, management never
 alleged that the grievant's silence contributed to the error.  The Union
 contends that the only award permitted in accordance with the agreement
 is a remedy of money damages, and the agreement does not permit the
 Arbitrator the option of awarding make-up overtime.
 
                        B.  Analysis and Conclusion
 
    We find that the Union's exception constitutes nothing more than
 disagreement with the Arbitrator's interpretation and application of the
 collective bargaining agreement.  The Authority has consistently held
 that asserted errors in the construction and application of an agreement
 by an arbitrator provide no basis for finding an award deficient.
 Internal Revenue Service and National Treasury Employees Union, Chapter
 24, 12 FLRA 387 (1983).  Further, the Authority has held that an award
 cannot be set aside as not drawing its essence from the agreement on the
 basis that the arbitrator misconstrued or misapplied the agreement.
 Department of Health and Human Services, Social Security Administration,
 Louisville, Kentucky District and National Federation of Federal
 Employees, Local 1790, 10 FLRA 436 (1982).  Moreover, it is well
 established that arbitrators have great latitude in fashioning remedies.
  Veterans Administration Hospital, Newington, Connecticut and National
 Association of Government Employees, Local R1-109, 5 FLRA 64 (1981).  In
 this case the Arbitrator determined that in the absence of a clear
 showing of monetary loss, make-up overtime was a just remedy.  While we
 may not agree necessarily with his conclusion in light of the specific
 provision of the agreement cited by the Union, nevertheless we must
 recognize that the award was based on the Ar