18:0412(56)AR - INS, Justice and AFGE Local 40 -- 1985 FLRAdec AR

 18 FLRA No. 56
 
 IMMIGRATION AND NATURALIZATION 
 SERVICE, U.S. DEPARTMENT OF JUSTICE
 Agency 
 
 and 
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 40 
 Union
 
                                            Case No. 0-AR-602
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator George Schatzki 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.  /1/
 
    According to the Arbitrator this case involves a claim for overtime
 pay on the basis that the Activity withheld opportunities to work
 overtime in violation of the parties' collective bargaining agreement.
 The Arbitrator found that before fiscal year (FY) 1982, available
 overtime was assigned to immigration inspectors with priority to
 inspectors with the least amount of overtime days previously worked.  In
 FY 82 the Activity commenced assigning overtime on the basis of overtime
 earnings rather than number of days of overtime worked.  In commencing
 this basis for assignment, the Activity equalized the position of all
 inspectors by abolishing the assignment priorities as they existed at
 the end of FY 81.  The Union filed a grievance that was submitted to
 arbitration claiming that the action of abolishing preexisting
 priorities for the assignment of overtime violated the agreement.
 
    At arbitration the Activity argued that the grievance was not
 arbitrable.  Primarily, the Activity maintained that the grievance was
 barred by an earlier-filed unfair labor practice charge as to which
 there was a refusal to issue a complaint.  The Arbitrator rejected the
 claim, determining that the grievance raised an issue different from the
 issue raised as an unfair labor practice.  The Arbitrator likewise
 rejected the claim that the grievance could only be resolved at the
 national level of recognition and was not appropriate for resolution
 under the agreement at the local level.  On the merits the Arbitrator
 ruled that the Activity had violated the agreement by abolishing the
 assignment priorities.  As to a remedy, the Arbitrator noted on the one
 hand that it seemed "inappropriate" for employees to receive backpay for
 work they did not perform because it would be a "windfall." On the other
 hand, the Arbitrator considered a remedy enforcing the abolished
 priorities by ordering make-up time to be inequitable to low-priority
 employees and inconvenient to high-priority employees.  Consequently, he
 ordered that inspectors receive one-half of the amount of overtime to
 which each inspector had a priority as of the end of FY 81 as an award
 of backpay and that the inspectors be offered overtime opportunities in
 accordance with the other half of each inspector's priority.
 
    In its first exception the Agency essentially contends that the
 grievance was barred by the earlier-filed unfair labor practice charge
 and that consequently the award is contrary to section 7116(d) of the
 Statute /2/ and is in excess of the Arbitrator's authority.  The Agency
 argues that the issue raised as an unfair labor practice "subsume(d)"
 the issue raised under the grievance procedure because the grievance
 issue could have been raised as part of the broad issue raised as an
 unfair labor practice.  As noted, the Arbitrator found in terms of
 section 7116(d) that the grievance raised an issue different from that
 raised as an unfair labor practice.  The Authority recognized in
 Department of Defense Dependents School, Pacific Region and Overseas
 Education Association, 17 FLRA No. 135 (1985), that one of the elements
 of section 7116(d) which must attach in order for a grievance to be
 precluded is that the issue which is the subject matter of the grievance
 is the same as the issue which is the subject matter of the unfair labor
 practice.  In terms of this case, while the charge alleged that the
 Activity had failed to bargain over prospective changes in the manner of
 distributing overtime and restrictions on overtime earnings, it did not
 address the elimination of the existing overtime balances, which was the
 grievance issue.  While the issues are related, they are clearly not the
 same, and therefore the Authority finds the award is not contrary to
 section 7116(d) of the Statute.  /3/ Accordingly, this exception is
 denied.
 
    In its second exception the Agency contends that the Arbitrator's
 determination under the parties' collective bargaining agreement that
 the grievance was appropriate for resolution at the local level is
 deficient as failing to draw its essence from the collective bargaining
 agreement, as being based on a "nonfact," and as being contrary to
 section 7116(b)(5) of the Statute.  /4/ In essence, the Agency's
 exception challenges the Arbitrator's interpretation of the parties'
 collective bargaining agreement and it is well established that an
 arbitrator's interpretation of the collective bargaining agreement is
 not subject to review.  E.g., Immigration and Naturalization Service,
 Department of Justice, U.S. Government and American Federation of
 Government Employees, Local No. 1656, 7 FLRA 549 (1982).  Accordingly,
 this exception provides no basis for finding the award deficient and is
 denied.
 
    In its third exception the Agency contends that the award of backpay
 is contrary to the Back Pay Act, 5 U.S.C. 5596.  The Authority agrees.
 
    The Authority has expressly 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 employees were affected
 by an unwarranted personnel action, but also a determination that such
 unwarranted action directly resulted in the withdrawal or reduction of
 overtime pay that the employees would otherwise have received.  E.g.,
 Jefferson Barracks National Cemetery, St. Louis, Missouri and National
 Association of Government Employees, Local R14-116, 13 FLRA 703 (1984).
 In terms of this case, although the Arbitrator determined that the
 Activity violated the agreement, he failed to make the findings
 necessary to authorize his award of backpay in the amount of one-half of
 each inspector's assignment priorities.  In particular the Arbitrator
 failed to find any specific instances of overtime being worked by an
 inspector other than the inspector who would have been entitled to the
 overtime work opportunity under the abolished priorities.  The
 Arbitrator further failed to connect the award of backpay in the amount
 of one-half of assignment priorities with any specific amount of
 withdrawn or reduced pay, allowances, or differentials of the individual
 inspectors.  Consequently, the award to the extent that it directs that
 the inspectors receive backpay is deficient as contrary to the Back Pay
 Act and is modified by striking the award of backpay and any reference
 to it.  /5/ Issued, Washington, D.C., June 13, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J.McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Office of Personnel Management filed a brief as an amicus
 curiae.
 
 
    /2/ Section 7116(d) pertinently provides:
 
          (I)ssues which can be raised under a grievance procedure may,
       in the discretion of the aggrieved party, be raised under the
       grievance procedure or as an unfair labor practice under this
       section, but not under both procedures.
 
 
    /3/ In this regard, the Authority notes that section 7116(d) only
 precludes duplicate filings of an issue actually raised in the grievance
 and unfair labor practice forums and does not extend to an issue which
 the aggrieved party could have, but did not, raise in the earlier
 selected forum.
 
 
    /4/ Section 7116(b)(5) provides that it shall be an unfair labor
 practice for a labor organization "to refuse to consult or negotiate in
 good faith with an agency as required by (the Statute)."
 
 
    /5/ In a final exception the Agency essentially contends that the
 ordered offering of opportunities to do overtime is in effect a
 work-preservation provision in violation of management's right to assign
 work under section 7106(a)(2)(B) of the Statute.  The Authority
 concludes that the award, as modified, in no manner conflicts with
 section 7106(a)(2)(B) and this exception is accordingly denied.