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15:0778(146)AR - VA Medical Center, Sepulveda, CA and AFGE Local 1697 -- 1984 FLRAdec AR

[ v15 p778 ]
The decision of the Authority follows:

 15 FLRA No. 146
                                            Case No. O-AR-461
    This matter is before the Authority on exceptions to the award of
 Arbitrator Harold M. Somers filed by the Agency under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.
    The dispute before the Arbitrator in this matter concerned a change
 in the tour of duty of two employees.  The employees normally work a
 five-day tour of duty of 8 a.m. to 4 p.m.  Because of an emergency
 situation, each employee was reassigned to a workweek which consisted of
 one normal day and four days of the 4 p.m. to 12 p.m. tour of duty.  A
 grievance was filed and submitted to arbitration claiming that the
 change violated the parties' collective bargaining agreement.  The
 Arbitrator determined that the Activity had violated the parties'
 collective bargaining agreement by failing to give the grievants the
 required advance notice of the change in workweek.  However, the
 Arbitrator rejected the Union's claim that because the employees
 assertedly would have worked the 4 p.m. to 12 p.m. tour of duty in
 addition to their normal tour of duty but for the improper change of
 schedule, the remedy for each grievant should be an award of backpay for
 32 hours at the overtime rate.  Instead, the Arbitrator determined that
 "what transpired here is akin to calling someone in from his days off."
 Thus, he ruled that for each day, the grievants should have been paid as
 if they were working that day on overtime and at the overtime rate.
 Because they had already received their normal rate of pay for the hours
 worked, the Arbitrator ordered that they receive the additional
 half-time pay for the hours worked on the changed schedule.
    As one of its exceptions the Agency contends that the award is
 deficient because the premium pay awarded by the Arbitrator is not
 authorized by law.  The Authority agrees.
    In terms of this case, there is no provision of law that authorizes
 the premium pay awarded by the Arbitrator.  The grievants as wage-board
 employees are entitled under 5 U.S.C. 5544 to overtime pay for work in
 excess of 8 hours a day or 40 hours a week.  As noted, the grievants did
 not work in excess of 8 hours a day or 40 hours a week, and accordingly
 there is no basis under the wage-board overtime provisions for the
 premium pay awarded by the Arbitrator.
    In addition, the Authority finds that the award is also not
 authorized under the Back Pay Act, 5 U.S.C. 5596.  Although it is well
 established that the Back Pay Act provides appropriate authority to
 remedy an unjustified or unwarranted personnel action that has denied an
 aggrieved employee overtime pay to which the employee was entitled,
 e.g., Bureau of Alcohol, Tobacco, and Firearms and National Treasury
 Employees Union, 12 FLRA No. 13 (1983), the premium pay awarded by the
 Arbitrator does not constitute overtime pay that the grievants would
 otherwise have received but for the Activity's schedule change in
 violation of the agreement.  As the Authority has uniformly held, relief
 under th4 Back Pay Act is intended only to make the aggrieved employee
 whole-- that is, to place the employee in the position the employee
 would originally have achieved but for the unwarranted action.  E.g.,
 American Federation of Government Employees, AFL-CIO, Local 2855 and
 United States Army, Military Traffic Management Command, Eastern Area,
 13 FLRA No. 43 (1983).  Thus, in terms of this case, the Arbitrator
 could have found, consistent with the Back Pay Act and as the Union had
 contended, that but for the improper change of schedule, the grievants
 would have worked their normal tour of 8 a.m. to 4 p.m. and would have
 worked in addition 8 hours of overtime from 4 p.m. to 12 p.m., and the
 Arbitrator could have ordered backpay for the 32 hours of overtime
 denied each grievant.  However, the Arbitrator did not so find and did
 not order such a remedy.  Instead, he fashioned a remedy that is not
 authorized by the Back Pay Act-- additional half-time pay for the
 grievants based on his finding that the regular 8-hour workday of the
 grievants performed on the 4 p.m. to 12 p.m. tour of duty "should be
 paid as if they were called in from their days off." However, because
 the grievants did work and in any event would have worked a regular
 workday, the premium pay awarded by the Arbitrator plainly would not
 have otherwise been received and places the grievants in a position they
 would not otherwise have achieved.  Consequently, the award is not
 authorized by law and accordingly is set aside.  /1/
    Issued, Washington, D.C., August 29, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ In view of this decision it is not necessary to address the other
 exception to the award.