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The decision of the Authority follows:

28 FLRA NO. 68






Case No. 0-AR-1375


I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Emer C. Flounders filed by the Agency under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations.

II. Background and Arbitrator's Award

The grievances in this case concern management's cancellation of scheduled overtime for two employees on their regular days off because they were approved for annual leave during the week of their regular day off. The overtime work for which they had been scheduled was then performed by others. The employees disputed the cancellation of overtime and filed grievances which were submitted jointly to arbitration.

The Arbitrator stated the issue to be whether management's actions violated the parties' collective bargaining agreement because the refusal to permit the grievants to work overtime on their regular day off as was originally scheduled violated a binding past practice. After reviewing the positions of the parties on whether there was an established practice of permitting employees to work overtime on their regular day off despite annual leave having been taken during the week, the Arbitrator in effect agreed with the Union. Accordingly, he sustained the grievances stating that management did not have just cause to deny overtime work to the grievants. As his award, he ordered that the grievants be compensated for the overtime denied them.

III. Discussion

In its exceptions the Agency contends that the award is based on a nonfact and conflicts with management's rights under the Statute. Specifically, the Agency argues that the award is based on a nonfact because the Arbitrator failed to find that (1) a past practice existed as alleged by the Union, and (2) there was a rule prohibiting employees from being scheduled for overtime on their regular day off during a week when they were on annual leave. The Agency argues that the award is contrary to management's rights to assign work and to determine the personnel by which agency operations shall be conducted under section 7106(a)(2)(B) because the award precludes management's practice of not permitting employees to work overtime on their regular day off during a week when they were on annual leave.

We conclude that the Agency has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; specifically, that the award is contrary to any law, rule, regulation, or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor relations cases. See, for example, Bureau of Prisons. Department of Justice and American Federation of Government Employees, Local 148, 21 FLRA No. 15 (1986) (denying, as constituting nothing more than disagreement with the arbitrator's findings of fact, an exception contending that the award was based on a nonfact because it was premised on two mistaken findings of fact); National Treasury Employees Union and U.S. Customs Service, 18 FLRA 780 (1985) (the Authority denied an exception contending that an award of backpay to employees denied overtime work was contrary to section 7106(a); the Authority determined that the arbitrator had simply enforced the established procedures of the parties for the selection of which employee will perform work management has determined will be performed on overtime). 

Accordingly, the Agency's exceptions are denied. 1

Issued, Washington, D.C., August 13, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member




Footnote 1 The Agency also requested a stay of the award when it filed its exceptions with the Authority on June 3, 1987. Effective December 31, 1986, the Authority's Regulations were revised to revoke those portions pertaining to the filing of requests for stays of arbitrator awards (51 Fed. Reg. 45754). Accordingly, no action was taken on the stay request.