35:0325(36)AR - - AFGE Local 1857 and Air Force, Sacramento Air Logistics Center, McClellan AFB, CA - - 1990 FLRAdec AR - - v35 p325
[ v35 p325 ]
The decision of the Authority follows:
35 FLRA No. 36
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1857
U.S. DEPARTMENT OF THE AIR FORCE, SACRAMENTO AIR
LOGISTICS CENTER, MCCLELLAN AIR FORCE BASE, CALIFORNIA
March 29, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to the award of Arbitrator William H. Shea filed by the Agency pursuant to section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations.*/ The Union filed an opposition to the Agency's exception.
The Arbitrator found that the Agency violated the overtime provisions of the collective bargaining agreement. He ruled that the grievant was entitled to backpay for 16 hours of overtime work. The Agency contends that the award is deficient because it is contrary to the Back Pay Act, 5 U.S.C. § 5596. We agree that the award is contrary to the Back Pay Act and we will set aside the award.
II. Background and Arbitrator's Award
In considering a grievance over the assignment of overtime, the Arbitrator rejected the Agency's contention that the grievance was not timely filed and addressed the merits of the grievance. The Arbitrator stated: "The substantive issue in the case is reduced to the question of whether the Agency violated it[s] agreement by failing to offer the grievant the opportunity to work overtime and, was he thereby injured." Award at 1-2.
The Arbitrator noted that the agreement provided that overtime work should be rotated equitably and that supervisors should maintain records of overtime worked or declined by employees. He found that although the agreement did not specifically require supervisors to maintain an overtime roster, it required some documentation of overtime assignments. The Arbitrator found that the grievant's supervisors did not keep an overtime roster and noted the supervisors' testimony that they assigned overtime according to work sheets whenever overtime was needed. Award at 2. The supervisors testified that the grievant was always offered overtime when his turn came up and that he always declined during the period in question.
The grievant testified that he was not even aware that overtime was available during that period and that he only learned that overtime was available by overhearing a fellow employee being asked to work overtime. The Arbitrator found that the "grievant admitted that he was never available for overtime on Thurs