Norfolk Naval Shipyard and Tidewater Virginia Federal Employees Metal Trades Council (Authority decision, April 16, 1986)

Final FLRA decision. The Authority sets aside an arbitration award of overtime backpay. Under 5 U.S.C. § 7123(a)(1), ordinary judicial review is generally unavailable for an order concerning an arbitration award unless it involves an unfair labor practice under § 7116; this decision does not decide one.

Plain-English summary

A Norfolk Naval Shipyard employee grieved the loss of overtime on an asbestos removal project after she was on sick leave when assignments were made. An arbitrator found a contract violation and awarded pay for twelve overtime hours. The Authority held that the Back Pay Act required a finding that the employee would actually have worked those hours absent the violation. The arbitrator said she should have been assigned or asked to work but did not find that she would have performed the work. The Authority set aside the award of backpay.

Decision snapshot

• Authority: Back Pay Act, 5 U.S.C. § 5596.
• Outcome: Twelve-hour overtime backpay award set aside.
• Key point: A lost overtime opportunity supports backpay only when the employee would have performed the work but for the violation.

Full text (FLRA public release)

[ v21 p307 ]

21:0307(39)AR

The decision of the Authority follows:

21 FLRA No. 39

NORFOLK NAVAL SHIPYARD,
PORTSMOUTH, VIRGINIA
Activity

and

TIDEWATER VIRGINIA FEDERAL
EMPLOYEES METAL TRADES COUNCIL
Union

Case No. 0-AR-1056

DECISION

I. STATEMENT OF THE CASE

This matter is before the Authority on an exception to the award of Arbitrator Robert J. Ables 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 denied the grievant the opportunity to work overtime on an asbestos rip-out project because she was absent on sick leave on the day the overtime assignments were made. The grievance also alleged that during later changes in the overtime assignments made after the grievant had returned to work a less qualified employee was chosen instead of the grievant. The Arbitrator found that the Activity violated pertinent provisions of the parties' collective bargaining agreement when it failed to select the grievant for the overtime assignment and ruled that "the grievant should have been assigned or, at least, been requested to perform overtime work on the second shift." He sustained the grievance and as a remedy ordered the Activity to pay the grievant as though she had worked 12 hours of overtime.

III. EXCEPTION

As its exception, the Agency contends that the award is contrary to the Back Pay Act, 5 U.S.C. Section 5596, because the Arbitrator failed to find that the grievant would have worked 12 hours of overtime but for the violation of the agreement.

IV. ANALYSIS AND CONCLUSION

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 the withdrawal or reduction of the grievant's pay, allowances or differentials, and that but for such action, the grievant otherwise would not have suffered the withdrawal or reduction. 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, the Arbitrator determined that the Activity violated the parties' agreement by denying the grievant overtime. However, he did not find specifically that but for the Activity's violation of the parties' agreement, the grievant would have performed the overtime work and received overtime pay. That is, the Arbitrator's finding that the grievant should have been assigned or should have been requested to perform the overtime does not constitute the requisite finding that she would have performed the work. Consequently, the award of retroactive overtime pay to the grievant is contrary to the Back Pay Act. See Jefferson Barracks National Cemetery, St. Louis, Missouri and National Association of Government Employees, Local R14-116, 13 FLRA 703 (1984).

V. DECISION

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

Issued, Washington, D.C., April 16, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY