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57 FLRA No. 173
U. S. Dept. of Veterans Affairs Medical Center, Cincinnati, Ohio and AFGE, Local 2031 (Alutto, Arbitrator), 0-AR-3467 (Decided May 21, 2002)
The Arbitrator found that the Agency violated the parties' agreement by failing to provide the Union with sufficient notice of its intent to change certain employees' schedules and by failing to make every effort to avoid scheduling the employees for more than six consecutive days of work. The Arbitrator sustained the grievance and awarded the employees overtime compensation for the days they worked beyond five consecutive days. The Authority concluded that the manner in which the Arbitrator computed overtime compensation was inconsistent with applicable law. Accordingly, the award was modified to provide overtime compensation only for hours of work that would have constituted overtime hours if the Agency had not violated the parties' agreement.
The Authority explained that under § 5542, overtime may not be paid unless an employee works more than forty hours in an administrative workweek or more than eight hours in a day. However, overtime pay may be provided for work that was not performed on an overtime basis but would have been but for an agency's breach of a collective bargaining agreement. Because the Arbitrator awarded overtime pay to the grievants for the overtime they would have worked absent the Agency's contractual breach, his award of overtime pay was not contrary to law. However, the manner in which he calculated that overtime pay was not consistent with § 5542. Thus, the remedy did not properly reflect what the grievants would have been entitled to under § 5542 if they had worked the overtime.