21:0410(55)AR - Naval Air Rework Facility, Norfolk, Virginia. and IAM, Local Lodge No. 39 -- 1986 FLRAdec AR
[ v21 p410 ]
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.