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20:0190(25)AR - Customs Service, Northeast Region and NTEU -- 1985 FLRAdec AR

[ v20 p190 ]
The decision of the Authority follows:

20 FLRA No. 25




                                      Case No. 0-AR-797


   This matter is before the Authority on exceptions to the award of
Arbitrator Joseph A. Sickles filed by the Activity and the Union under
section 7122(a) of the Federal Service Labor-Management Relations
Statute and part 2425 of the Authority's Rules and Regulations.

   The grievance essentially alleged that the Activity violated the
parties' collective bargaining agreement when it unilaterally
discontinued payment of premium pay for administratively uncontrollable
overtime (AUO) for most Customs Patrol Officers in the Baltimore
District without notifying or bargaining with the Union concerning the
change.  As found by the Arbitrator, the premium pay was discontinued
when a new management official made a number of operational changes
affecting the Patrol Officers which resulted in greater emphasis being
placed on the performance of patrol duties that could be performed in a
regular 8-hour tour of duty without the necessity for extensive amounts
of uncontrolled overtime.  The Arbitrator noted that the Activity had a
right to determine employee eligibility for AUO pay and found that from
a review of the evidence before him, there was no showing that the
responsible management official made an inappropriate determination when
he decided that after the changes most of the overtime of the affected
Patrol Officers was controllable.  However, the Arbitrator further found
that the Activity violated the parties' agreement when it failed to
notify the Union regarding the intended AUO pay changes and when it
refused to meet and negotiate with the Union concerning those changes.
The Arbitrator therefore sustained the grievance and, as a remedy, in
effect directed the Activity to notify and bargain with the Union
regarding the changes as required by the agreement and applicable law
and regulation, and further directed that the affected Patrol Officers
in the bargaining unit be compensated at their former AUO pay rates
commencing with a particular date and continuing until such time as the
Activity notifies and bargains with the Union as required.  However, the
Arbitrator denied the Union's request for attorney fees.

   As one of its exceptions, the Activity essentially contends that the
grievance was barred by an earlier-filed unfair labor practice charge
and that consequently the award is contrary to section 7116(d) of the
Statute.  /1/ In support of this exception, the Activity argues that
because the Union previously filed an unfair labor practice charge
alleging that the Activity had failed to notify or negotiate with the
Union concerning a requirement that Patrol Officers secure prior
approval before meeting with informants, the Union was precluded by
section 7116(d) from raising what the Activity asserts is the same
allegation in the instant grievance.  The Authority has held that in
order for a grievance to be precluded by an earlier-filed unfair labor
practice charge, the issue which is the subject matter of the grievance
must be the same as the issue which was the subject matter of the
charge.  See, e.g., Federal Bureau of Prisons and American Federation of
Government Employees, Local 3690, 18 FLRA No. 40(1985).  In terms of
this case, the unfair labor practice charge apparently concerned
meetings with informants.  Since the issue in the grievance before the
Arbitrator concerned the elimination of AUO pay, the issue of the charge
and the grievance clearly are not the same.  Accordingly, the award is
not contrary to section 7116(d) as alleged and the exception is
therefore denied.

   In two further exceptions, the Activity alleges as to that part of
the award which effectively requires the Activity to notify and bargain
with the Union, (1) that the Arbitrator exceeded his authority by
considering whether the Activity failed to meet its obligations to the
Union when changing the job structure of the Patrol Officers;  and (2)
that the award is based on a nonfact because the Activity had notified
and negotiated with the Union regarding certain assertedly related
matters.  However, the Authority finds that the Activity's allegations
constitute nothing more than disagreement with the Arbitrator's findings
of fact, reasoning and conclusions, and interpretation of the parties'
agreement and concludes that the exceptions provide no basis for finding
the Arbitrator's award deficient.  E.g., Federal Correctional
Institution, Petersburg, Virginia, 13 FLRA 108(1983).  Accordingly,
these exceptions are denied.

   In another exception, the Activity contends that the award of AUO
compensation is contrary to law.  The Authority agrees.

   The legal basis for the payment of administratively uncontrollable
overtime pay is 5 U.S.C. 5545(c)(2).  This provision essentially
provides that an agency may determine that an employee in a position in
which the hours of duty cannot be controlled administratively, and which
requires substantial amounts of irregular, unscheduled overtime duty,
shall receive premium pay for such duty on an annual basis.  In this
case, as essentially determined by the responsible management official
and acknowledged by the Arbitrator, after the duties of the affected
Patrol Officers were restructured, their duty hours were
administratively controllable rather than uncontrollable and they were
no longer required to work substantial amounts of unscheduled overtime.
Consequently, they were no longer authorized premium pay for
administratively uncontrollable overtime under 5 U.S.C. 5545(c)(2).
Therefore, while the Arbitrator had considerable latitude in fashioning
a remedy for the Activity's violation of the parties' agreement, his
award of AUO pay is contrary to 5 U.S.C. 5545(c)(2).  Accordingly, the
award of premium pay is set aside.  /2/

   In its exception, the Union contends that the Arbitrator's denial of
the Union's request for attorney fees is contrary to law, rule and
regulation and requests that the Authority order the payment of such
fees to the Union.  The Authority finds that since the Arbitrator's
award of premium pay is set aside as contrary to law, any award of
attorney fees in this matter is unwarranted.  U.S. Department of Labor
and American Federation of Government Employees, Local 12, 17 FLRA No.
125(1985).  Accordingly, without passing upon the merits of the basis
for the Arbitrator's denial of the Union's request, the Union's
exception is denied.

   Issued, Washington, D.C., September 20, 1985
                                      (s) HENRY B. FRAZIER III
                                      Henry B. Frazier III, Acting
                                      (s) WILLIAM J. MCGINNIS JR.
                                      William J. McGinnis, Jr., Member
                                      FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

   /1/ 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.

   /2/ In view of this decision, it is not necessary to address the
Activity's remaining exception to the Arbitrator's award.