United States Department of Veterans Affairs Medical Center, Cincinnati, Ohio (Agency) and American Federation of Government Employees, Local 2031 (Union)

[ v57 p782 ]

57 FLRA No. 173

UNITED STATES DEPARTMENT OF
VETERANS AFFAIRS, MEDICAL CENTER
CINCINNATI, OHIO
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2031
(Union)

0-AR-3467

_____

DECISION

May 21, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Joseph A. Alutto filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union did not file an opposition to the Agency's exceptions.

      The Arbitrator found that the Agency violated the parties' agreement by failing to provide the Union with sufficient notice of its intent to change certain employees' schedules and by failing to make every effort to avoid scheduling the employees for more than six consecutive days of work. The Arbitrator sustained the grievance and awarded the employees overtime compensation for the days they worked beyond five consecutive days.

      For the reasons that follow, we conclude that the manner in which the Arbitrator computed overtime compensation is inconsistent with applicable law. Accordingly, we modify the award to provide overtime compensation only for hours of work that would have constituted overtime hours if the Agency had not violated the parties' agreement.

II.     Background and Arbitrator's Award

      The Agency's administrative workweek runs from Sunday through Saturday. Due to a temporary need for Friday and Saturday coverage, the Agency changed five employees' work schedules for one week. As a result of the schedule changes, all five employees worked more than five consecutive days, although no more than five days were within one administrative workweek.

      The Union filed a grievance alleging that the schedule changes violated the parties' agreement in various respects. The grievance was unresolved and was submitted to arbitration, where the parties stipulated to the following issue:

In the instance at hand, did the Employer violate overtime provisions of the Collective Bargaining Agreement including Article 9, Section 8 of the Supplementary Agreement, Article 20[,] Section 4A of the Master Agreement and Article 20[,] Section 3J of the Master Agreement? If so, what shall be the remedy?

Award at 2. [n1] 

      As relevant here, the Arbitrator found that the Agency violated the parties' agreement by "assigning work tours longer than normal while not engaging in meaningful discussions with the Union about alternatives," and by failing to provide the Union with sufficient advance notice of the schedule changes. [n2]  Id. at 12.

      The Arbitrator rejected the Agency's argument that overtime could not be awarded because the grievants had not worked overtime. The Arbitrator found, in this regard, that some grievants "actually did work overtime hours" because "they were rescheduled to work extra days . . . beyond their normal work weeks." Id. at 13. The Arbitrator stated that "the regular work week should have been five consecutive eight hour days with hours worked beyond this paid at overtime rates." Id. According to the Arbitrator, "[t]his is not a matter of paying for `overtime that might have happened,'" but "a matter of the Employer paying for overtime that it required without consulting [with] the Union in a manner [ v57 p783 ] consistent with negotiated agreements." Id. (emphasis omitted).

      Based on the foregoing, the Arbitrator sustained the grievance and awarded the grievants backpay "in an amount equal to the difference between the rate they received for any days worked consecutively beyond five eight hour tours and the rate they would have been paid if they had been paid overtime for the excessive (i.e., beyond five) consecutive days worked." Id.

III.     Agency's Exceptions

      The Agency contends that the award conflicts with 5 U.S.C. § 5542 and 5 C.F.R. § 550.111(a) (§ 5542) because overtime may not be paid unless an employee works more than forty hours in an administrative workweek and, in this case, the employees did not do so. [n3] 

IV.     Analysis and Conclusions

      The Agency alleges that the award is contrary to law. The Authority reviews questions of law de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

      Under § 5542, overtime may not be paid unless an employee works more than forty hours in an administrative workweek or more than eight hours in a day. See United States Dep't of Def., Def. Commissary Agency, Fort Lee, Va., 54 FLRA 83, 87 (1998). However, overtime pay may be provided for work that was not performed on an overtime basis but would have been but for an agency's breach of a collective bargaining agreement. See, e.g., United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Sheridan, Or., 55 FLRA 28, 29 (1998).

      The Arbitrator found that the Agency breached the parties' agreement by the manner in which it changed the grievants' schedules and that, absent the breach, the grievants would have performed overtime work. As a result, overtime compensation may be awarded consistent with § 5542. See Fed. Employees Metal Trades Council, 39 FLRA 3, 9-10 (1991).

      Because the Arbitrator awarded overtime pay to the grievants for the overtime they would have worked absent the Agency's contractual breach, his award of overtime pay is not contrary to law. However, the manner in which he calculated that overtime pay is not consistent with § 5542. In this connection, the Arbitrator awarded overtime pay for "any days worked consecutively beyond five eight hour tours," spanning two administrative workweeks. Award at 13. Under § 5542, overtime pay is computed based on the number of hours over forty that are -- or would have been -- worked in an administrative workweek, not the number of consecutive days worked. Thus, the remedy does not properly reflect what the grievants would have been entitled to under § 5542 if they had worked the overtime. [n4] 

      Where an arbitrator's backpay award does not properly reflect what a grievant would have received absent the contractual violation, the Authority has modified the award. See United States Dep't of the Army, Dugway Proving Ground, Dugway, Utah, 57 FLRA 224, 228 (2001); United States Dep't of Veterans Affairs, Med. Ctr., Ann Arbor, Mich., 56 FLRA 216, 224 (2000). Accordingly, we modify the award here.

V.     Decision

      The award is modified to provide the employees with overtime compensation only for hours, if any, that they would have worked on an overtime basis during an administrative workweek if the Agency had not violated the parties' agreement.



Footnote # 1 for 57 FLRA No. 173

   Article 9, Section 8 of the parties' Local Supplemental Agreement provides that "[t]ours of duty shall not be changed for the purpose of avoiding payment of holiday pay or overtime." Award at 2. Article 20, Section 4A of the