51:1618(133)AR - - AFGE Local 1286, Council of Prison Locals & Justice, Federal Bureau of Prisons, Federal Correctional Institution, Ashland, KY - - 1996 FLRAdec AR - - v51 p1618

[ v51 p1618 ]
The decision of the Authority follows:

51 FLRA No. 133





LOCAL 1286












July 25, 1996


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator John J. Murphy filed by both the Agency and the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions. The Union did not file an opposition to the Agency's exceptions.

The Arbitrator sustained a grievance by seven grievants claiming that the Agency violated the parties' collective bargaining agreement by assigning overtime work to another employee. The Arbitrator issued the following award: "A sum equal to 8 times the hourly wage of the highest paid of the seven grievants shall be paid by the [Agency] and distributed equally among the seven grievants." Award at 13.

For the following reasons, we conclude that the award is deficient under section 7122(a) of the Statute because it is contrary to the Back Pay Act. Accordingly, we set aside the award.

II. Background and Arbitrator's Award

The Agency has several departments, including UNICOR and Facilities. During a snowstorm, the Agency's Warden authorized a UNICOR employee to remove snow, and the UNICOR employee worked 8 hours of overtime doing so. At the time of the authorization, several Facilities employees were still at work, including two Facilities employees who "did in fact work overtime . . . in connection with the snow removal effort." Award at 11.

Seven Facilities employees filed a grievance claiming that the 8 hours of overtime worked by the UNICOR employee should have been offered to Facilities because Facilities normally performed that work. The grievance claimed that the Agency's action violated Article 18, Section (n) of the parties' master agreement.(1) As a remedy, the grievants requested "[e]qual compensation to the overtime pay for each qualified facilities staff", id. at 3; that is, 8 hours of overtime pay for each of the seven grievants. The grievance was not resolved and submitted to arbitration.

The Arbitrator stated that the issue before him was whether the Agency violated Article 18, Section (n) of the agreement, and, if so, what should the remedy be. He determined that the provision requires the Agency to distribute and rotate opportunities for overtime equitably among qualified employees and that it establishes a duty on the Agency to maintain records so that equitable distribution of overtime assignments may be monitored. The Arbitrator found that the grievants could not have been considered for equitable rotation and distribution because no overtime assignment list was maintained for them. Therefore, he concluded that the Agency failed to fulfill its duties under the agreement provision.

The Arbitrator found that the Union's request for a remedy that required each of the seven grievants to be paid 8 hours of overtime was punitive. He further found that "the harm was to the members of the Facilities Department represented in this case by the seven named grievants; the harm was not to just one of the seven grievants." Id. at 13. Accordingly, "in the interest of providing a remedy which is not punitive against the Employer, and in the interest of bringing this dispute to final decision," he "formulated" the following award: "A sum equal to 8 times the hourly wage of the highest paid of the seven grievants shall be paid by the [Agency] and distributed equally among the seven grievants." Id.

III. Exceptions

A. Union's Contentions

The Union contends that the Arbitrator's remedy fails to draw its essence from the parties' agreement because the Arbitrator should have awarded 8 hours of backpay to each of the seven grievants. The Union also argues that the award is based upon a nonfact.

B. Agency's Contentions

The Agency argues that the award is inconsistent with the Back Pay Act because the Arbitrator failed to find that "but for" the Agency's violation of Article 18, Section (n), a Facilities' employee would have worked the overtime. Exceptions at 14. In opposing the Union's exception alleging that the award is deficient because the Arbitrator should have awarded each of the grievants 8 hours of backpay, the Agency argues that such a remedy would "merely compound", id. at 17, the violation of the Back Pay Act and would also violate the Back Pay Act for the reasons discussed in U.S. Department of the Army, Aviation Applied Technology Directorate, Fort Eustis, Virginia and National Association of Government Employees, Local R4-6, 38 FLRA 362, 366 (1990) (Army, Fort Eustis).

The Agency further contends that the remedy violates 5 U.S.C. § 5542(a)(1), fails to draw its essence from the master agreement, and directly interferes with the exercise of management's rights to assign work and to determine the type of personnel by which its operations are to be conducted as provided for by section 7106(a)(2)(B) of the Statute.

IV. Analysis and Conclusions

Under the Back Pay Act, an award of backpay is authorized if: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; (2) the personnel action directly resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials; and (3) but for such action, the grievant otherwise wo