[ v38 p163 ]
38:0163(18)AR
The decision of the Authority follows:
38 FLRA No. 18
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
U.S. DEPARTMENT OF THE TREASURY
CUSTOMS SERVICE
NEW ORLEANS, LOUISIANA
(Agency)
and
NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 168
(Union)
0-AR-1944
DECISION
November 14, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Roger C. Williams 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. The Union filed an opposition to the Agency's exceptions.
Customs employees are paid for overtime and holiday work pursuant to the Act of February 13, 1911, 19 U.S.C. § 267 ("1911" overtime or holiday pay). A grievance was filed claiming that customs inspectors who were assigned to work an 8:00 p.m. to 4:00 a.m. shift, spanning 2 calendar days, were denied "1911" holiday pay for their work from 8:00 p.m. until midnight on Veterans Day, November 11, 1987. The grievance also claimed that the Agency had changed the way that "1911" holiday pay was to be calculated without notifying the Union. The Arbitrator sustained the grievance and directed the Agency to pay each grievant an additional 2 days' pay per holiday and to calculate holiday nighttime pay in the future in the same manner as such pay was calculated prior to November 11, 1987.
We conclude that the award is not contrary to law, rule or regulation, or otherwise deficient under the Statute. Accordingly, we will deny the Agency's exceptions.
II. Background and Arbitrator's Award
This case involves customs inspectors who were assigned to work an 8:00 p.m. to 4:00 a.m. shift during a week that included a mid-week holiday, and who were not excused from work on the holiday. The grievance was filed regarding the November 11, 1987 Veterans Day holiday; the Arbitrator also included the subsequent November 26, 1987 Thanksgiving holiday because the same pay calculation practice was used for that holiday. The customs inspectors worked from 8:00 p.m. on November 10 until 4:00 a.m. on November 11. The customs inspectors then held themselves available for work for an additional 4 hours, as is required for work on holidays. The customs inspectors returned to work their next shift at 8:00 p.m. November 11, 1987, and worked until 4:00 a.m. November 12, 1987.
Prior to November 11, 1987, customs inspectors working the 8:00 p.m. to 4:00 a.m. shift on a mid-week holiday would have received 4 extra days' pay for the holiday work described above. Previously, the employees were paid 2 days' holiday pay for working from midnight to 4:00 a.m., as prescribed in the holiday pay provisions of 19 U.S.C. § 267 and 19 C.F.R. § 24.16(h), and 2 days' holiday nighttime pay for working from 8:00 p.m. to midnight. The basis for the holiday nighttime pay was that those hours were work "in excess of an aggregate of 8 hours" on the holiday, because the employees had already worked from midnight to 4:00 a.m. and had held themselves available for assignment to additional overtime services from 4:00 a.m. until 8:00 a.m., as required by Agency regulation. Award at 11.
For Veterans Day 1987, the port director designated the inspectors' 8:00 p.m. November 10 to 4:00 a.m. November 11 shift as their holiday. The inspectors received 2 extra days' pay for the holiday work. However, the inspectors received no additional pay for holding themselves available until 8:00 a.m. on November 11, and no extra pay for the work from 8:00 p.m. until midnight on November 11, 1987. The Agency maintained that the previous holiday pay computation was in error because the inspectors were working a regularly scheduled shift from 8:00 p.m. to 4:00 a.m., and because the Agency was authorized by Executive Order No. 11582 (Exec. Order No. 11582), reprinted in 5 U.S.C. § 6103 note and Comp. Gen. No. B-202626 (June 15, 1982) (unpublished) to designate one of the inspectors' shifts as their holiday.
Before the Arbitrator, the Union contended that the Agency violated the parties' agreement by not paying the inspectors in accordance with 19 U.S.C. § 267 and 19 C.F.R. § 24.16 for the hours worked on Veterans Day 1987. The Union argued that the Agency's designation of one of the inspectors' shifts as their Veterans Day holiday was contrary to law and regulation because 19 C.F.R. § 24.16(h) defines "holiday" as "the 24 hours between midnight to midnight of the" calendar holiday. Id. at 12. The Union also argued that the designation was not authorized by the fact that the inspectors were working their regularly scheduled shift because 19 C.F.R. § 24.16(a) states that "no regular tour of duty shall embrace any part of a . . . holiday." Id. To support its contentions, the Union relied on the Supreme Court's interpretation of 19 U.S.C. § 267 in United States v. Myers, 320 U.S. 561 (1944) (Myers).
The Union also contended that the Agency violated the parties' national agreement and committed an unjustified and unwarranted personnel action by unilaterally altering the method of computing compensable holiday hours without affording the Union advance notice and an opportunity to bargain over the impact and implementation of the change. The Union argued that the inspectors would not have suffered a loss in holiday overtime compensation but for the Agency's violation of the agreement.
At arbitration, the Agency contended that the inspectors were paid for the Veterans Day holiday in accordance with law, regulation, and the parties' agreement. The Agency claimed that prior to Veterans Day 1987, the inspectors had improperly been paid holiday nighttime pay for working from 8:00 p.m. until midnight. Before the Arbitrator, the Agency also contended that it was authorized to designate one of the inspectors' shifts as their holiday for the purpose of determining their "1911" holiday pay. The Agency relied on Exec. Order No. 11582 and several decisions of the Comptroller General.
The Agency also argued that it was not obligated to give the Union notice of the proposed change in holiday pay computation or the opportunity to bargain over the impact and implementation of the change because the Agency was correcting an improper pay practice.
The Arbitrator framed the issues to be resolved as:
(1) whether or not the Agency violated the National Agreement by designating one of Grievants' regular shifts as their Veterans Day holiday and paying them extra compensation on the basis of the designation, and
(2) whether or not the Agency violated the National Agreement by changing the hours for which extra compensation was paid without giving the Union advance notice of the change and an opportunity to bargain over the implementation or impact of the change.
Id. at 19.
The Arbitrator found that the Agency violated the parties' national agreement when it designated the 8:00 p.m. to 4:00 a.m. shift that began on November 10, 1987 as the grievants' Veterans Day holiday and paid them only 2 days' extra compensation for working the shift instead of paying them 4 days' extra compensation for the work that they performed between midnight and midnight on the calendar holiday. Id. at 19-20.
The Arbitrator found that the Agency's designation of one shift as the inspectors' holiday was not authorized by law, regulation or Executive order, and that the compensation paid the inspectors for the holiday was less than the extra compensation that was prescribed by 19 U.S.C. § 267, 19 C.F.R. § 24.16, and Agency regulation. The Arbitrator concluded that the Agency failed to compensate the inspectors in accordance with applicable laws and regulations and, therefore, violated the parties' national agreement. Id. at 20.
The Arbitrator relied on 19 U.S.C. § 267 (the "1911" law) and 19 C.F.R. § 24.16 to reach his conclusions. The Arbitrator found that the "1911" law provides for extra compensation for work on holidays at a rate based on 2 additional days' pay for holiday duty. The Arbitrator stated that the law uses the plain meaning of the word "holiday" and does not provide for designation of a shift as the holiday. Id. The Arbitrator also examined 19 C.F.R. § 24.16, which states that "employees shall not receive overtime compensation for services performed on regular tours of duty at night, but no regular tour of duty shall embrace any part of a . . . holiday." The regulation defines the period as "midnight to midnight of the . . . holiday" and also provides that holiday nighttime pay is to be paid for work in excess of an aggregate of 8 hours "during the 24 hours of a . . . holiday." Id. at 21. The Arbitrator also noted that the regulation does not provide for the designation of a shift as the holiday.
The Arbitrator reviewed the Agency's regulations regarding holiday pay and found that they were consistent with his reading of the above-cited law and regulation. Id. at 22.
Finally, the Arbitrator discussed Exec. Order No. 11582 as it applied to the case before him. The Arbitrator found that Exec. Order No. 11582 "deals solely with excusing employees from work on holidays, and does not deal with pay for working on holidays." Id. (emphasis in original). The Arbitrator found that the Order addressed how to record an employee's leave usage on a tour of duty that spanned midnight on a holiday, and distinguished that matter from the issue of extra pay for working on a holiday. Id. at 22-23. The Arbitrator stated that "the Comptroller General Decisions which have held otherwise have given Executive Order 11582 an overly broad construction." Id.
The Arbitrator found that the Agency violated the parties' national agreement "by designating one of the Grievants' regular shifts as their Veterans Day holiday and paying them extra compensation on the basis of the designation, and by changing the hours for which extra compensation was paid without giving the Union advance notice of the change and an opportunity to bargain over the implementation or impact of the change." Id. at 23-24.
The Arbitrator stated that the contractual violations resulted in a monetary loss to the grievants, and the appropriate remedy was to award the grievants the amount of pay that they lost. The Arbitrator calculated that the grievants "were also entitled to be paid two days' holiday nighttime pay for working from 8 p.m. to 12 midnight on a calendar holiday after they worked from 12 midnight to 4 a.m. and held themselves available for additional assignments from 4 a.m. to 8 a.m. The evidence does not prove that Grievants did not hold themselves available[.]" Id. at 24.
III. First Exception
A. Positions of the Parties
1. Agency's Exception
The Agency contends that the Arbitrator's finding that the designation of one of the grievants' 8:00 p.m. to 4:00 a.m. shifts as the holiday for the purpose of computing extra compensation was not authorized by 19 U.S.C. § 267, 19 C.F.R. § 24.16 or Exec. Order No. 11582 is contrary to law. The Agency argues that the "1911" law does not prohibit the designation of a shift as the inspectors' holiday, because the law authorizes the Agency to establish shifts and sets the compensation for work on Sundays or holidays as 2 additional days' pay. Exceptions at 6.
The Agency argues that the Supreme Court held in Myers that the "1911" holiday compensation for the hours worked during a regularly scheduled shift on a holiday does not constitute "overtime" hours, but that "overtime" and compensation for "overtime" is applicable to holidays only when inspectors remain at work longer than 9 hours (with a 1 hour lunch break). Id. at 8. The Agency also argues that 19 U.S.C. § 267, as interpreted by the Supreme Court in Myers, does not mean that all Sunday and holiday work for which extra compensation is due is "overtime." Id. at 10. The Agency claims that its compensation of the inspectors for the holiday with a total of 3 days' pay (2 days' extra pay plus the regular day's pay) was consistent with the "1911" law. Id. at 11.
The Agency also argues that the fact that the "1911" law is silent regarding designation of shifts as holidays does not mean that the Agency's action was contrary to law. The Agency maintains "that it was not only authorized to apply [Exec. Order No.] 11582, but was mandated to do so." Id. at 8. The Agency states that to the extent any of its own regulations could be construed as contrary to law and the Code of Federal Regulations, its own regulations are null and void. Id. at 9-10.
The Agency maintains that it did not act "arbitrarily or without authority" when it decided to designate one shift as the inspectors' holiday. Id. at 11. The Agency states that it relied on Exec. Order No. 11582 and several Comptroller General decisions, including Comp. Gen. No. B-114643 (Oct. 5, 1953) (unpublished). The Agency "submits that the Arbitrator's unreasoned assertions concerning the applicability of [Exec. Order No.] 11582 in this case borders [sic] upon the absurd." Id. at 12. The Agency alleges that the Arbitrator's award is contrary to law and should be set aside.
2. Union's Opposition
The Union contends that the Arbitrator's award is not contrary to law, regulation or Exec. Order No. 11582. The Union argues that the Arbitrator properly found that 19 U.S.C. § 267 does not authorize the Agency to designate one shift as the holiday for purposes of paying the inspectors less in "1911" holiday pay. Opposition at 8. The Union specifically addresses the award's compliance with 19 U.S.C. § 267 and with the Supreme Court's holding in Myers. Id. The Union quotes a portion of the Myers decision regarding Section 5 of the "1911" law:
The proviso of [§] 5 does not give the Collector of Customs authority to make assignments which deprive inspectors of this Sunday and holiday pay. It authorizes adjustments of hours but specifically forbids alteration of overtime pay. It is silent as to Sundays and holidays which leaves the earlier grant of extra compensation for those days in effect. Overtime pay is also applicable to Sundays and holidays when inspectors work longer than nine hours with one hour for food and rest. The rate of overtime extra compensation on Sundays and holidays is the same as the rate for week[ ]days.
Id. at 13 (quoting Myers, 320 U.S. at 575) (Union's emphasis omitted). The Union argues that the Arbitrator found, just as the Supreme Court did, that the "1911" law did not authorize the Agency to make holiday assignments that deprive the employees of the statutorily mandated holiday "1911 overtime" pay. Opposition at 13.
According to the Union, the Arbitrator correctly found that the designation of one of the grievants' 8:00 p.m. to 4:00 a.m. shifts as the holiday for the purpose of computing extra compensation was not authorized by Exec. Order No. 11582. The Union submits that the Arbitrator's finding is entirely consistent with Exec. Order No. 11582 as written. In the alternative, the Union argues that the Executive Order, as applied by the Agency in this case, is contrary to 19 U.S.C. § 267 and, therefore, is invalid. Id. at 22-23.
The Union states that the Executive Order defines "workday" to mean those hours that comprise the employee's "regular daily tour of duty." Id. at 23. The Union argues that this definition of workday cannot apply to customs inspectors working "1911 overtime" because, under "1911 overtime," "no part of an employee's 'regular tour of duty shall embrace any part of a Sunday or holiday . . . .'" Id. (quoting 19 C.F.R. § 24.16(a)) (emphasis omitted). According to the Union, the Agency is likewise not allowed to include any regular tour of duty within the 24 hours of a Sunday or holiday, pursuant to 19 C.F.R. § 24.16(b). Id. at 24. Interpreted in this manner, the Union contends, the Code of Federal Regulations and the Executive Order are in harmony.
However, to the extent that Exec. Order No. 11582 could be interpreted to allow the Agency to establish a regular tour of duty on a Federal holiday as an employee's holiday for purposes of computing "1911 overtime" holiday compensable hours, the Union argues that the Executive Order is void as contrary to 19 U.S.C. § 267 and its implementing regulations. Id. at 25. The Union argues that the President may not prescribe procedures by Executive order that nullify validly enacted congressional policies. The Union asserts that an Executive order cannot supersede a statute. The Union also asserts that the President, in exercising Executive power, must avoid action that conflicts with prior governing statute. The Union concludes that any Executive order in conflict with statute cannot be controlling. Opposition at 25-26.
The Union contends that the interpretation of Exec. Order No. 11582 proffered by the Agency would allow designation of regular tours of duty and extra compensation computation in direct conflict with the "1911 law", 19 U.S.C. § 267, as interpreted by the Supreme Court in Myers, and with 19 C.F.R. § 24.16. Therefore, the Union argues, the Executive Order, to the extent that it has been interpreted and applied by the Agency to the facts of the instant case, is not controlling and is void as in conflict with statute and regulation. Id. at 27.
The Union contends that the Comptroller General decisions relied on by the Agency are inapposite because those decisions deal with pay questions arising under the Federal Employees Pay Act of 1945, 5 U.S.C. § 901, or under 5 U.S.C. § 5546, rather than under 19 U.S.C. § 267 applying to customs inspectors. The Union argues that one question in an unpublished advisory opinion, Comp. Gen. No. B-114643, is of "little, if any, persuasive value" because the answer to the question is "void of legal analysis or stated rationale . . . . It utterly fails to offer any analysis of 19 U.S.C. 267 and its implementing regulations, and their relationship with the Executive Order." Id. at 29. The Union also distinguishes this answer because it speaks only to a hypothetical employee's entitlement to "holiday pay" rather than the extra compensation available to customs inspectors as "overtime" or "1911 extra compensation" under 19 U.S.C. § 267. Id.
B. Analysis and Conclusion
We find that the Agency has not established that the Arbitrator's award is deficient. Rather, we find that the Arbitrator's award is consistent with applicable law, 19 U.S.C. § 267, and regulation, 19 C.F.R. § 24.16. We also find that the Arbitrator's interpretation and application of the "1911" law is consistent with the Supreme Court's decision in Myers. See also Ferguson v. Port Huron & Sarnia Ferry Co., 13 F.2d 489, 493-94 (E.D. Mich. 1926) (the overtime pay for services between 5 p.m. and 8 a.m. applies to services between those hours on Sunday and holidays, although this section provides additional overtime pay for such days).
We find no support for the Agency's claim that it was authorized or mandated to designate one shift as the employees' holiday on Veterans Day 1987. The Executive orders relied on by the Agency regarding designation of shifts for holidays are concerned with the designation of a holiday for the purposes of recording leave taken, rather than the computation of pay for work on a holiday. We find that the Agency has misapplied instructions pertaining to leave to the holiday overtime issue. The Agency has not demonstrated that it was required to select a particular shift as the holiday for purposes of the "1911" statute.
The Supreme Court's extended analysis of 19 U.S.C. § 267 in Myers is instructive. In that decision, the Court examined and applied the Act of 1911 to customs inspectors for Sunday and holiday pay, among other things. The Court considered the intent of the Act of 1911, and found "that the statutes create an obligation on the part of the United States to pay the inspector such sums as they may earn under their provisions." Myers, 320 U.S. at 567 (footnote omitted). The Court then examined the Act's provisions for nighttime service for Sundays and holidays. Id., 320 U.S. at 568. The Court concluded that the intention of Congress was to allow extra compensation only when there are overtime services in the sense of work hours in addition to the regular daily tour of duty without regard to the period within the 24 hours when the regular daily tour is performed. Id., 320 U.S. at 571. In addition to the excerpt included in the Union's opposition, the Court summarized as follows:
We are led to the conclusion that overtime, as applied to week days, refers to hours longer than the daily limit of 8 A.M. to 5 P.M., nine hours with one hour for food and rest. Furthermore, these tours of duty under the proviso are movable within the twenty-four hour period in accordance with prevailing working hours and the requirements of the service.
Id., 320 U.S. at 573-74. The Court concluded by saying that "[t]he inspectors in addition to their regular salaries for week days are entitled to the statutory additional pay for overtime, Sundays and holidays." Id., 320 U.S. at 576.
We find the Court's extensive analysis in Myers more persuasive than in an unpublished advisory opinion of the Comptroller General, Comp. Gen. No. B-114643 (Oct. 5, 1953). The opinion applies the effect of section 6 of Exec. Order No. 10358 (1952) to an overtime situation for a customs inspector. That Executive Order, which was the predecessor to Exec. Order No. 11582, dealt primarily with observance of holidays for leave purposes. Executive Orders No. 10358 and No. 11582 pertain to leave issues, rather than to pay or overtime matters. Nevertheless, the Comptroller General's opinion applied only Executive Order No. 10358 without also discussing the effect of the Act of 1911. Because the Comptroller General's advisory opinion does not apply the Act of 1911 simultaneously with the Executive Order and does not explain the differing result it obtains compared to Myers, we find that the Comp. Gen. No. B-114643 is not persuasive.
For the above stated reasons, we find that the Arbitrator's award is consistent with law and regulation. The Agency's exception is denied.
IV. Second Exception
A. Positions of the Parties
1. Agency's Exception
The Agency contends that the Arbitrator's finding that the Agency's action constituted changes in administrative procedures requiring notice to the Union and impact and implementation bargaining under the parties' national agreement is contrary to law. The Agency argues that "the rates of employee compensation are established by law, and cannot be negotiated under the [Statute]." Exceptions at 14 (emphasis in original). The parties' national agreement binds the administration of the agreement to laws and Government-wide regulations then in effect. The Agency maintains that the change in holiday compensation was based upon its determination that the prior method of compensating the inspectors for work on a mid-week holiday was erroneous and improper under existing legal authority. The Agency maintains that (1) it had no obligation to bargain in this instance, (2) the Arbitrator failed to find that the Agency had changed a condition of employment established by past practice, and (3) "the Arbitrator's decision is void of any factual finding on this issue and merely states a bare and unreasoned conclusion." Id. at 15-16.
2. Union's Opposition
The Union contends that the Arbitrator correctly found that the Agency had violated the parties' national agreement by not providing advance notice to the Union regarding its decision on calculating customs inspectors' holiday pay and by not affording the Union an opportunity to engage in impact and implementation bargaining. The Union asserts that the Agency has misstated the issue and argues that the Agency's exception constitutes nothing more than disagreement with the Arbitrator's interpretation of the parties' agreement, and is an attempt to relitigate the merits of the Agency's claim. To the extent that the Agency argues that the award violates law, the Union states that "the Agency's assertion is entirely erroneous, and borders on the absurd." Opposition at 32.
The Union points out that if it is determined that the existing practice was contrary to law or Government-wide regulation, the Agency may take legitimate steps to conform to lawful requirements. The Union argues, however, that while an agency may be relieved of its duty to bargain over the substance of the decision to conform to law, the agency must bargain over the impact and implementation of the decision. Id. at 32-33.
B. Analysis and Conclusion
The record in this case reveals that the Agency designated the grievants' regular shift as the holiday, which resulted in the loss of pay which they otherwise would have received. We conclude that the Agency changed its method of calculating pay for holidays without consideration for the parties' agreement, without advance notice to the Union, and without affording the Union an opportunity to engage in impact and implementation bargaining.
Even if the Agency had been correct in its belief that the previous method of calculating pay for customs inspectors working on holidays was unlawful, the Agency was not absolved of its obligation to provide advance notice to the Union and to engage in impact and implementation bargaining. If an existing practice is unlawful or contrary to law or Government-wide regulation, an agency may take legitimate steps to conform to lawful requirements. U.S. Department of Interior, Bureau of Reclamation, 20 FLRA 587, 589 (1985). However, under such circumstances, an agency must fulfill its obligation to bargain as to the impact and implementation of the decision to conform to law or regulation. U.S. Patent and Trademark Office, 31 FLRA 952, 955 (1988), aff'd in part, rev'd and remanded in part as to other matters sub nom. Patent Office Professional Association v. FLRA, 872 F.2d 451 (D.C. Cir. 1989). Therefore, the Arbitrator's determination that the Agency violated the parties' agreement and failed to provide advance notice to the Union and an opportunity to conduct impact and implementation bargaining is correct. Accordingly, the Agency's second exception is denied.
V. Third Exception
A. Positions of the Parties
1. Agency's Exception
The Agency contends that the Arbitrator's award violates the Back Pay Act, 5 U.S.C. § 5596. The Agency maintains that its decision concerning the proper computation of "1911" holiday pay for the inspectors was consistent with applicable law and regulation and did not constitute an unjustified or unwarranted personnel action under the Back Pay Act. Exceptions at 19. The Agency argues that "[e]ven if the Authority finds that the [Agency's] action in this case constitutes a 'personnel action' under the Back Pay Act, [the Union] has failed to show that the 'monetary loss' was a direct result of such action." Id. at 18 (emphasis omitted).
The Agency states that "[t]he Arbitrator's conclusion that the back pay award was the appropriate remedy for the grievants, without [making] the necessary factual finding in support of the 'but for' determination, was contrary to law an[d] should be set aside." Id. at 20. The Agency asserts that even if the grievants were affected by an unwarranted personnel action, the Arbitrator's award is deficient because the award failed to make necessary factual findings concerning the grievants' availability for overtime for the period between 4:00 a.m. and 8:00 a.m. Id.
2. Union's Opposition
The Union contends that the Agency's exception that the award is contrary to the Back Pay Act constitutes nothing more than disagreement with the Arbitrator's findings and conclusions and an impermissible attempt to relitigate the merits of the case. Opposition at 34. The Union maintains that the Arbitrator's award meets all of the standards for an award of backpay set out in the Back Pay Act and Authority precedent interpreting the Act. The Union asserts that a violation of a collective bargaining agreement constitutes an unjustified and unwarranted personnel action. Id. at 36. The Union contends that (1) the Arbitrator found that the grievants were the subject of the unjustified and unwarranted personnel action, (2) the action resulted in a reduction in pay to the affected employees, and (3) absent the action the employees would not have each lost 2 days' holiday nighttime pay. Id. at 38.
B. Analysis and Conclusion
We find that the award is not contrary to the Back Pay Act. In order for an award of backpay to be authorized under the Back Pay Act, an arbitrator must make the following determinations: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; (2) the personnel action resulted in the withdrawal or reduction of all or part of the grievant's pay, allowances, or differentials; and (3) but for such action, the grievant otherwise would not have suffered the withdrawal or reduction. For example, U.S. Department of the Navy, Long Beach Naval Shipyard, Long Beach, California and Federal Employees Metal Trades Council, 34 FLRA 311, 313 (1990).
The Arbitrator found that the grievants were affected by an unjustified or unwarranted personnel action when the Agency violated the parties' national agreement by designating one shift as the employees' holiday on Veterans Day 1987 and changing the method of calculating holiday pay without advance notice to the Union and without conducting impact and implementation bargaining. The Arbitrator also found that as a result of the holiday shift designation and the revised method of calculating "1911" holiday pay, the grievants received 2 days' less pay for Veterans Day 1987 work. The Arbitrator made this determination because the grievants had already performed the work during the November 10-12, 1987 period, and were instructed to resubmit their records using the revised computation method after completion of the work. The Arbitrator found that using the previous computation method, the grievants would have received 4 extra days' "1911" pay.
Accordingly, we find that the Arbitrator's award is consistent with the requirements of the Back Pay Act. The Agency's third exception is denied.
VI. Decision
The Agency's exceptions are denied.
FOOTNOTES:
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have footnotes.)