[ v25 p969 ]
25:0969(80)AR
The decision of the Authority follows:
25 FLRA No. 80 DEPARTMENT OF THE AIR FORCE WARNER ROBINS AIR LOGISTICS CENTER ROBINS AIR FORCE BASE, GA. Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 987 Union Case No. 0-AR-1223 DECISION I. Statement of the Case This matter is before the Authority on an exception to the award of Arbitrator Jack R. George filed by the Union 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 grievance protested the Activity's determination that the grievant was not entitled to work overtime on four days in December 1985. According to the Arbitrator, the grievant was asked by his supervisor in late November 1985 if he would like to work overtime on December 7 and 8. For religious reasons, the grievant declined to work on the 7th, a Saturday, but indicated that he would be willing to work on Sunday, the 8th. Early in December management determined that unplanned overtime would be required on December 4, 5 and 6 in addition to the overtime scheduled for December 7 and 8. The grievant indicated that he would like to work the 4th, 5th and 6th, although he still declined the Saturday overtime. Management informed the grievant that he must work both the 7th and 8th to be eligible for the overtime on the 4th, 5th and 6th because the additional overtime and weekend continuity were required to complete the work to be done. On the basis of his refusal to work on Saturday the 7th, the grievant was not permitted to work any of the overtime. The grievant filed a grievance contending that he had been unjustly eliminated from working overtime on the 4th, 5th, 6th and 8th of December and that he should be made whole for all lost income. The grievance was submitted to arbitration. The Arbitrator framed the issue as whether management adhered to the parties' contract in determining the grievant's entitlement to overtime on December 4, 5, 6 and 8, and if not, what should the remedy be? The Arbitrator determined that under the contract, the grievant was not entitled to work overtime on the 4th, 5th and 6th because that overtime was unplanned. However, he upheld the grievance concerning overtime for the 8th. As to remedy, the Arbitrator stated that the most frequently used remedy in such cases is a monetary one, but make-up overtime within a reasonable time may also be an appropriate remedy. The Arbitrator determined in this case that there was no clear showing of monetary loss, and that make-up overtime was a just remedy. Accordingly, as a remedy, he ordered that "at the first opportunity the Grievant will be offered 8 hours make-up overtime above and beyond that to which he otherwise would be entitled." III. Exception A. Contentions The Union contends that the Arbitrator erred when he substituted his judgment by awarding the grievant make-up overtime for December 8, instead of money damages as required by the clear and unambiguous language of the parties' collective bargaining agreement. The agreement provides that "(a)n employee improperly passed over for an overtime assignment will be made whole by a remedy of money damages unless management provides substantiating evidence that the employee's silence has contributed to the error." According to the Union, management never alleged that the grievant's silence contributed to the error. The Union contends that the only award permitted in accordance with the agreement is a remedy of money damages, and the agreement does not permit the Arbitrator the option of awarding make-up overtime. B. Analysis and Conclusion We find that the Union's exception constitutes nothing more than disagreement with the Arbitrator's interpretation and application of the collective bargaining agreement. The Authority has consistently held that asserted errors in the construction and application of an agreement by an arbitrator provide no basis for finding an award deficient. Internal Revenue Service and National Treasury Employees Union, Chapter 24, 12 FLRA 387 (1983). Further, the Authority has held that an award cannot be set aside as not drawing its essence from the agreement on the basis that the arbitrator misconstrued or misapplied the agreement. Department of Health and Human Services, Social Security Administration, Louisville, Kentucky District and National Federation of Federal Employees, Local 1790, 10 FLRA 436 (1982). Moreover, it is well established that arbitrators have great latitude in fashioning remedies. Veterans Administration Hospital, Newington, Connecticut and National Association of Government Employees, Local R1-109, 5 FLRA 64 (1981). In this case the Arbitrator determined that in the absence of a clear showing of monetary loss, make-up overtime was a just remedy. While we may not agree necessarily with his conclusion in light of the specific provision of the agreement cited by the Union, nevertheless we must recognize that the award was based on the Arbitrator's interpretation and application of the total agreement and on his conclusion that monetary damages were not appropriate under the circumstances. Consequently, the Union's exception provides no basis for finding the award deficient. IV. Decision For the above reasons, the Union's exception is denied. Issued, Washington, D.C., February 27, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY