[ v18 p412 ]
The decision of the Authority follows:
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.