Philadelphia Naval Shipyard and Philadelphia Metal Trades Council (Authority decision, April 28, 1988)

Final FLRA decision. The Authority denies the union's exception to an arbitration award that found an improper shift change but declined backpay. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award is generally excluded from judicial review unless it involves an unfair labor practice under 5 U.S.C. § 7116. This decision does not decide an unfair labor practice.

Plain-English summary

The Philadelphia Naval Shipyard moved 10 employees from the night shift because of their attendance records. An arbitrator found that using a shift change as discipline violated the labor agreement but declined to award the night shift pay differential. The union challenged the lack of backpay. The Authority found that the union had not shown the employees would have earned the extra pay but for the violation, because they had no right to remain on that shift. It denied the exception, leaving the grievance win and the denial of backpay in place.

Decision snapshot

• Authority: 5 U.S.C. §§ 5596 and 7122(a).
• Outcome: Union's backpay exception denied; arbitrator's award left in place.
• Key point: A contract violation alone did not establish that the employees would have earned night shift pay absent the violation.

Full text (FLRA public release)

[ v31 p1289 ]

31:1289(118)AR

The decision of the Authority follows:

31 FLRA NO. 118
31 FLRA 1289

28 APR 1988

PHILADELPHIA NAVAL SHIPYARD

Activity

and

PHILADELPHIA METAL TRADES COUNCIL

Union

Case No. 0-AR-1494

DECISION

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator Barbara Zausner Tener filed by the union 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 Activity did not file an opposition.

The Arbitrator sustained the grievance and found that the Activity violated the parties' collective bargaining agreement when it transferred 10 unit employees from the third (night) shift. The Arbitrator denied the Union's request for backpay for the benefits that the employees would have received had they remained on the third shift.

For the reasons stated below, the Union's exception to the Arbitrator's failure to grant backpay is denied.

II. Background and Arbitrator's Award

The Union filed a grievance after the Activity reassigned 10 unit employees from the third shift to other shifts. The Union contended that the reassignment violated a section of the parties' collective bargaining agreement which states that "(t)he employer will not use a shift change as a disciplinary measure." Arbitrator's Award at 2. As a remedy, the Union sought the additional pay which the employees would have received had they remained on the third shift.

The issue before the Arbitrator was whether the Activity violated the parties' agreement when it removed the employees from the third shift, and if so, what should the remedy be. The Arbitrator found that the grievants were reassigned from the third shift because of their attendance records and that this action violated the parties' agreement because the Activity improperly used a shift change instead of corrective discipline.

The Arbitrator also determined that an award of backpay was not permitted in this case. She noted that in order to award backpay, she was required to find that but for a breach of the contract, the grievants would have earned the amounts sought. The Arbitrator found that the employees had no contractual right to remain on the third shift. She found that: (1) voluntary acceptance of a third shift assignment did not give an employee the right to remain on the shift indefinitely; (2) the Activity had the right to rotate the employees off that shift; and (3) the Activity had the right to deny employee requests to remain on that shift.

The Arbitrator sustained the grievance and directed the Activity to evaluate the request of any grievant who wished to return to the third shift under the applicable regulation and consistent with any contractual limitations.

III. Exception

The Union asserts that the Arbitrator failed to consider the provisions of the Back Pay Act, 5 U.S.C. 5596. The Union contends that the Activity's improper removal of the grievants from the third shift resulted in a monetary loss and that the grievants were entitled to monetary damages under the Back Pay Act.

IV. Discussion

We conclude that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122 (a) of the Statute; that is, that the award is contrary to law, rule, or regulation or that it is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations.

The Arbitrator concluded that there was no basis on which to find that the grievants would have earned additional pay but for the violation of the parties' agreement. The Union has failed to establish that the Back Pay Act requires an award of backpay in this case and that the award is, therefore, contrary to law. The Union's exception constitutes nothing more than disagreement with the Arbitrator's reasoning and conclusion and provides no basis for finding the award deficient. See, for example, American Federation of Government Employees, AFL - CIO International Council of U.S. Marshals Service Locals and The Department of Justice, U.S. Marshals Service, 5 FLRA 542, 549 (1981) (no basis to award backpay because the union had not demonstrated that the award was contrary to the Back Pay Act). See also Social Security Administration and American Federation of Government Employees, SSA General Committee, 30 FLRA 381 (1987) (exceptions which attempt to relitigate the merits of the case before the Authority and which constitute nothing more than disagreement with the arbitrator's reasoning and conclusions provide no basis for finding the award deficient).

Accordingly, the Union's exception is denied.

Issued, Washington, D.C., April 28, 1988.

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY