13:0703(113)AR - Jefferson Barracks National Cemetery, St. Louis, MO and NAGE Local R14-116 -- 1984 FLRAdec AR

 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.