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The decision of the Authority follows:
27 FLRA NO. 101 U.S. CUSTOMS SERVICE WASHINGTON, D.C. Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party Case No. 9-CA-50404 (24 FLRA No. 76)
The Administrative Law Judge issued the attached Decision on Remand in the above-entitled proceeding, finding that but for the Respondent's action in temporarily detailing Loren Beebe and Donald Thomas to the Seattle and Blaine Ports, respectively, these employees would not have suffered a loss or reduction in overtime pay. Thereafter, the Respondent filed exceptions to the Judge's Decision on Remand. The General Counsel and the Charging Party filed oppositions to the exceptions; both oppositions were untimely filed and have not been considered.
Pursuant to section 2423.29 of the Authority's Rules and section 7118 of the Federal Service Labor - Management Relations Statute (the Statute), we have reviewed the findings, conclusions, and rulings of the Judge and find that no prejudicial error was committed. The findings are hereby affirmed. Upon consideration of the Judge's original Decision and his Decision on Remand, the exceptions, and the entire record, we adopt the Judge's findings, conclusions, and original recommended Order. 1
The record reflects that the employees routinely worked significant amounts of overtime on a regular basis at their permanent duty stations. As we have found, the employees were discriminatorily detailed to other locations. The record adequately supports the finding that the employees were improperly denied overtime assignments pursuant to the procedures in the parties' collective bargaining agreement for assignment of overtime, for which the employees made themselves available each day of the period in question. We therefore conclude that the requirement of the Back Pay Act that there be a finding that "but for" the prohibited action, the employees would not have suffered a loss or reduction in pay, has been met.
To the extent that the parties disagree as to the amount of a loss in overtime pay sustained by the employees, this issue should be resolved in compliance proceedings. See section 2423.31 of our Rules and Regulations.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor - Management Relations Statute, the U.S. Customs Service, Washington, D.C., shall:
1. Cease and desist from:
(a) Discriminating against Donald Thomas, Loren Beebe, or any other unit employees with regard to temporary assignments, details, or other conditions of employment because of their action in filing grievances or participating in other activities protected by the Statute.
(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute.
(a) Make whole Donald Thomas and Loren Beebe for any loss of overtime pay they would have earned but for their temporary details during the period September 3, 1985 to September 21, 1985.
(b) Post at all its locations within the Seattle, Washington District, where bargaining unit employees represented by the National Treasury Employees Union are located, copies of the attached notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the District Director, and shall be posted and maintained for 60 consecutive days there-after, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material. (c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region IX, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply with this Order.
Issued, Washington, D.C., June 29, 1987.
Jerry L. Calhoun, Chairman Henry B. Frazier III, Member Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT discriminate against Donald Thomas, Loren Beebe, or any other unit employees with regard to temporary assignments, details, or other conditions of employment because of their action in filing grievances or participating in other activities protected by the Statute.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.
WE WILL make whole Donald Thomas and Loren Beebe for any loss of overtime pay they would have earned but for their temporary details during the period September 3, 1985 to September 21, 1985.
_______________________________ (Activity) Dated:__________________ By: _______________________________ (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region IX, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, California 94103, and whose telephone number is: (415) 995-5000.
U.S. CUSTOMS SERVICE WASHINGTON, D.C. Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party Case No. 9-CA-50404 24 FLRA No. 76
On December 23, 1986, the Federal Labor Relations Authority remanded the captioned matter in 24 FLRA No. 76 to the undersigned Administrative Law Judge for purposes of determining whether the record evidence supports a finding that but for Respondent's action in temporarily detailing employees Loren Beebe and Donald Thomas they would not have suffered a loss or reduction in pay, allowance, or differentials. 2
Having reviewed the record, 3 in its entirety, I find that there is ample support for such a conclusion. Accordingly, I find that but for Respondent's action in temporarily detailing Mr. Beebe and Mr. Thomas to the Seattle and Blaine Ports, respectively, Mr. Beebe and Mr. Thomas would not have suffered a loss or reduction in overtime pay. 4
BURTON S. STERNBURG Administrative Law Judge Dated: January 12, 1987 Washington, D.C.
Footnote 1 In the hearing before the Judge, the parties attempted to introduce evidence concerning the extent of overtime lost by the employees as a result of their details. The Judge indicated that he viewed the proffered evidence as more appropriate for consideration in compliance proceedings. In our view, that evidence would have been helpful in determining what overtime was lost.
Footnote 2 Having found that the Respondent discriminatorily detailed Mr. Beebe and Mr. Thomas because of their participation in union activities and that but for such participation in union activities they would not have been temporarily detailed, it follows that any such loss of earnings is clearly attributable to such transfers. cf. VA Medical Center, O-AR-1127, 24 FLRA NO. 85, recently decided on December 29, 1986, where the Authority concluded that an Arbitrator's order directing that certain employees be reimbursed for all losses caused by an unwarranted personnel action "constitutes the finding, required by the Back Pay Act and the decisions of the Authority, that but for the unwarranted action, the employees would not have suffered a withdrawal or reduction of their pay, allowances or differentials."
Footnote 3 Respondent's unsolicited "Brief on Remand" has not been considered and is hereby rejected.
Footnote 4 Thus, the record exhibits establish that Mr. Thomas and Mr. Beebe earned less in overtime on the temporary details than they had been averaging at their permanent duty stations.