[ v13 p703 ]
The decision of the Authority follows:
13 FLRA No. 113 JEFFERSON BARRACKS NATIONAL CEMETERY, ST. LOUIS, MISSOURI Activity and NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-116 Union Case No. O-AR-421 DECISION This matter is before the Authority on an exception to the award of Arbitrator Raymond L. Hilgert 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. /1/ The dispute in this matter concerns the selection by the Activity of employees to perform overtime work on a particular Saturday. A grievance claiming that the selection violated the parties' collective bargaining agreement was filed and submitted to arbitration on behalf of two employees not afforded the opportunity to perform the overtime work. The Arbitrator sustained the grievance determining that the Activity violated the agreement by the manner in which it secured employees to work the disputed overtime. Having found a violation of the agreement, the Arbitrator explained that it was "his proper duty" to award both grievants overtime pay. He held that whether the grievants would have accepted or refused to volunteer for overtime was irrelevant. Thus, as a remedy, the Arbitrator awarded each of the grievants 8 hours of pay at the overtime rate to make them whole for the day of overtime which "they might have worked." In its exceptions, the Agency contends that the award is contrary to the Back Pay Act, 5 U.S.C. 5596, because the Arbitrator did not find that but for the violation of the agreement, the grievants would have performed overtime work on the day in question. The Authority agrees. The Authority has held with respect to overtime that in order for an award of backpay to be authorized under the Back Pay Act, there must be a determination not only that the aggrieved employee was affected by an unwarranted action, but also that such unwarranted action directly resulted in the withdrawal or reduction of overtime pay that the employee would otherwise have received by performing overtime work. See Picatinny Arsenal, U.S. Army Armament Research and Development Command, Dover, New Jersey and National Federation of Federal Employees, Local 1437, 7 FLRA 703(1982), petition for review denied sub nom. National Federation of Federal Employees, Local 1437 v. Federal Labor Relations Authority, 707 F.2d 1393 (3d Cir. 1983). In terms of this case, although the Arbitrator determined that the Activity violated the agreement, he failed to make the finding necessary to an authorized award of backpay. Specifically, he failed to find that but for the violation by the Activity of the agreement, the grievants would have performed the overtime work and received overtime pay. As noted, the Arbitrator expressly stated that it was irrelevant whether the grievants would have been the employees who volunteered to perform the overtime work. Consequently, the award to the extent that it directs payment of overtime pay to the grievants is deficient as contrary to the Back Pay Act. Accordingly, the Arbitrator's award is modified by striking paragraph 2 which directs the Activity to pay 8 hours of overtime to the grievants. Issued, Washington, D.C., January 31, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier, III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Union filed an opposition which was untimely therefore has not been considered by the Authority.