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28 FLRA NO. 36

NAVAL AIR REWORK FACILITY
MARINE CORPS AIR STATION
CHERRY POINT, NORTH CAROLINA

                    Activity

     and

INTERNATIONAL ASSOCIATION
OF MACHINISTS AND AEROSPACE
WORKERS

                   Union

Case No. O-AR-1328

DECISION

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator Paul J. Fasser, Jr. filed by the Department of the Navy (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.

II. Background and Arbitrator's Award

The grievance alleged that the Activity violated the parties' collective bargaining agreement when it denied the grievant, a Mobile Equipment Dispatcher, the opportunity to work overtime on May 10, 1986. The grievance also alleged that the grievant was denied the overtime work in reprisal for filing several other grievances concerning overtime. The Arbitrator found that the Activity violated the parties' agreement when it failed to assign a Mobile Equipment Dispatcher to dispatch the mobile equipment in operation on the night of May 10, 1986. However, he further found no evidence of reprisal against the grievant for filing grievances. The Arbitrator noted that the grievant was high in overtime in  his Shop, but ruled that because it was "the Grievant who protested the (Activity's) failure to assign a Mobile Equipment Dispatcher to work on the evening of Saturday, May 10, 1986, the grievant was to be paid as if he had worked the overtime shift."

III. Exception

The Agency contends that the award is contrary to the Back Pay Act, 5 U.S.C. 5596, because the Arbitrator failed to find that the grievant would have worked the overtime but for the violation of the agreement.

IV. Analysis and Conclusion

We agree with the Agency's contentions that the award is contrary to the Back Pay Act. In order for an award of backpay to be authorized by the Back Pay Act, the arbitrator must determine that the aggrieved employee was affected by an unjustified or unwarranted personnel action; that the personnel action directly resulted in a withdrawal or reduction in the grievant's pay, allowances or differentials; and that but for such action, the grievant otherwise would not have suffered the loss. U.S. Army Aberdeen Proving Ground and Local 2424, International Association of Machinists and Aerospace Workers, AFL - CIO, 19 FLRA 258 (1985).

In this case, the Arbitrator determined that the Activity violated the parties' agreement by failing to schedule a Mobile Equipment Dispatcher on May 10, 1986. However, he did not find that but for the Activity's violation of the parties' agreement, the grievant would have performed the overtime work and received overtime pay. The Arbitrator determined that because it was the grievant who protested the Activity's failure to assign a Mobile Equipment Dispatcher, he should receive the overtime pay. That determination does not constitute the requisite finding that he would have performed the work. Consequently, the award of overtime pay to the grievant is contrary to the Back Pay Act. See Norfolk Naval Shipyard, Portsmouth, Virginia and Tidewater Virginia Federal Employees Metal Trades Council, 21 FLRA No. 39 (1986).  

V. Decision

Accordingly, for the above reasons, the Arbitrator's award is set aside.

Issued, Washington, D.C., July 29, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

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