21:0410(55)AR - Naval Air Rework Facility, Norfolk, Virginia. and IAM, Local Lodge No. 39 -- 1986 FLRAdec AR



[ v21 p410 ]
21:0410(55)AR
The decision of the Authority follows:


 21 FLRA No. 55
 
 NAVAL AIR REWORK FACILITY 
 NORFOLK, VIRGINIA
 Activity
 
 and
 
 INTERNATIONAL ASSOCIATION OF 
 MACHINISTS AND AEROSPACE WORKERS, 
 LOCAL LODGE NO. 39
 Union
 
                                            Case No. 0-AR-1006
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on an exception to the award of
 Arbitrator H. Morton Rosen filed by the Department of the Navy (the
 Agency) under section 7122(a) of the Federal Service Labor-Management
 Relations Statute and part 2425 of the Authority's Rules and
 Regulations.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    The grievance alleged that the Activity failed to allocate overtime
 impartially, in accordance with the parties' collective bargaining
 agreement, during a three-month period.  The grievance claimed that an
 individual who had been temporarily promoted to foreman for the months
 in question, performed the work of a machinist during overtime, thereby
 depriving three other machinists of overtime work.
 
    The Arbitrator determined that the Activity had violated the
 agreement by allowing the temporary foreman to do the work of
 nonsupervisory personnel during periods of overtime.  The Arbitrator
 noted that it was not clear from the overtime record whether the entries
 constituted overtime that might have been offered and declined and,
 further, that there was no evidence that any of the three employees were
 actually available and willing to work on each occasion that the foreman
 worked overtime.  Nevertheless, the Arbitrator found that the Activity's
 actions directly caused the three employees to be deprived of overtime
 pay that they might have earned had the foreman not worked overtime
 during that period.  Accordingly, as his award, the Arbitrator awarded
 one hundred and six hours of retroactive overtime pay to be divided
 equally among the three affected employees.
 
                              III.  EXCEPTION
 
    In its exception, the Agency contends that the award violates the
 Back Pay Act, 5 U.S.C. Section 5596, because the Arbitrator made no
 finding that any of the employees would have worked any specific
 overtime had the Activity not violated the agreement, and that he
 therefore improperly awarded them backpay for overtime that they might
 have worked.
 
                       IV.  ANALYSIS AND CONCLUSIONS
 
    It is well-established that in order for an award of backpay to be
 authorized under the Back Pay Act, the arbitrator must determine not
 only that the aggrieved employee was affected by an unjustified or
 unwarranted personnel action, but also that such personnel action
 directly resulted in the withdrawal or reduction in the pay, allowances,
 or differentials that the employee otherwise would have earned or
 received.  E.g., U.S. Army Aberdeen Proving Ground and Local 2424,
 International Association of Machinists and Aerospace Workers, AFL-CIO,
 19 FLRA No. 35 (1985).
 
    In this case, although the Arbitrator determined that the Activity
 violated the parties' agreement and that the violation directly affected
 the three employees, he failed to make all of the findings necessary for
 an award of backpay.  Specifically, he failed to find that but for the
 violation the grievants would have in fact performed the overtime work
 and received overtime pay.  Jefferson Barracks National Cemetery, St.
 Louis, Missouri and National Association of Government Employees, Local
 R14-116, 13 FLRA 703 (1984).  On the contrary, the Arbitrator found that
 there was no evidence that any of the three employees were actually
 available and willing to work every time the foreman worked overtime.
 Consequently, there is an insufficient legal basis for an award of
 backpay in this case.  The Authority therefore concludes that the
 Arbitrator's award of retroactive overtime pay is deficient as contrary
 to the Back Pay Act.
 
                               IV.  DECISION
 
    According