13:0386(62)AR - Treasury, Customs Service and NTEU -- 1983 FLRAdec AR

[ v13 p386 ]
The decision of the Authority follows:

 13 FLRA No. 62
                                            Case No. O-AR-354
    This matter is before the Authority on exceptions to the award of
 Arbitrator Albert J. Hoban filed by the Agency under section 7122(a) of
 the Federal Service Labor-Management Relations Statute (the Statute) and
 part 2425 of the Authority's Rules and Regulations.
    A grievance was filed and submitted to arbitration in this case
 maintaining that the Activity regularly assigned supervisors to perform
 on overtime the duties of bargaining-unit inspectors when inspectors
 were available for such overtime work and claiming that the Agency
 thereby violated its own personnel policy, as well as the overtime
 provisions of the parties' collective bargaining agreement.  The
 Arbitrator agreed and determined that the practice as in effect at the
 Port of Portland /1/ must be discontinued.  The Arbitrator further
 determined that backpay was necessary to compensate the inspectors for
 the overtime pay they otherwise would have received.  Accordingly, the
 Arbitrator ordered backpay in the amount of overtime pay lost as a
 result of the Activity's unwarranted practice and directed the parties,
 themselves, to resolve the exact amounts due individual inspectors.
    In its exceptions the Agency principally contends that the award is
 contrary to the Back Pay Act, 5 U.S.C. 5596, because the Arbitrator
 assertedly failed to make the findings required by the Act.  In
 particular, the Agency maintains that the Arbitrator failed to make the
 requisite finding that the Activity's practice directly resulted in the
 withdrawal or reduction of overtime pay of bargaining-unit inspectors
 because the Arbitrator failed to identify the specific inspectors who
 were available to work the overtime which was instead performed by
 supervisors.  Contrary to the Agency's contention, the Authority
 concludes that the Arbitrator made the findings required by the Back Pay
 Act for an authorized award of backpay and that accordingly this
 exception provides no basis for finding the award deficient.  The
 Arbitrator specifically determined that in every disputed instance of
 overtime being performed by supervisors, bargaining-unit inspectors were
 available to perform such work.  He further determined that,
 consequently, the Activity's unwarranted practice resulted in the denial
 of overtime pay to inspectors that they otherwise would have received.
 Accordingly, the findings required by the Back Pay Act were made.  See
 Bureau of Alcohol, Tobacco, and Firearms and National Treasury Employees
 Union, 12 FLRA No. 13 (1983).  The Arbitrator's further direction that
 the parties determine the specific inspectors who would receive the
 backpay does not invalidate the award.  With respect to this direction
 by the Arbitrator, the Agency cites no provision of the Back Pay Act or
 its implementing regulations, 5 CFR part 550, subpart H, and none is
 apparent, that would require the Arbitrator, after having found that in
 every instance a bargaining-unit inspector was available to perform the
 overtime work, to identify specific employees.
    Accordingly, the Agency's exceptions are denied.  Issued, Washington,
 D.C., November 4, 1983
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ On the basis of the entire record before the Authority, it is
 clear that the Arbitrator was remedying the practice as in effect at the
 Port of Portland.  The Arbitrator's use of "district" rather than "port"
 was an inadvertent error.  Accordingly, the Agency's exception in this
 respect provides no basis for finding the award deficient.