U.S. Department of the Navy, Long Beach Naval Shipyard, Long Beach, California and Federal Employees Metal Trades Council (Authority decision, January 17, 1990)

Final FLRA decision. The Authority modifies an arbitration award by striking an order for overtime pay. 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

A Long Beach Naval Shipyard employee was removed from a scheduled sea trial without notice and worked a regular shift instead. An arbitrator found that the shipyard violated its labor agreement and ordered payment for 19½ hours of overtime the employee expected to work. The Authority held that the Back Pay Act required a finding that the employee would actually have worked that overtime but for the violation. An expectation of work did not establish that required link. The Authority struck the overtime pay remedy and left the rest of the award undisturbed.

Decision snapshot

• Authority: Back Pay Act, 5 U.S.C. § 5596; arbitration exceptions under § 7122(a).
• Outcome: Award modified to remove 19½ hours of overtime pay.
• Key point: Expected overtime alone does not support backpay without a finding that the employee would have worked it absent the violation.

Full text (FLRA public release)

[ v34 p311 ]
34:0311(59)AR

The decision of the Authority follows:

34 FLRA NO. 59

U.S. DEPARTMENT OF THE NAVY
LONG BEACH NAVAL SHIPYARD
LONG BEACH, CALIFORNIA

and

FEDERAL EMPLOYEES METAL TRADES COUNCIL

0-AR-1624

DECISION

January 17, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Robert M. Leventhal. A grievance was filed over cancellation by the Long Beach Naval Shipyard (the Activity) of the grievant's scheduled assignment to work a sea trial. The grievance sought payment for all the overtime pay the grievant would have received had he worked the sea trial. The Arbitrator found that the Activity violated the collective bargaining agreement and directed that the Activity pay the grievant 19 1/2 hours of overtime pay.

The Department of the Navy (the Agency) filed exceptions under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations on behalf of the Activity. The Federal Employees Metal Trades Council (the Union) did not file an opposition to the exceptions.

We conclude that the award of overtime pay is contrary to the Back Pay Act. Accordingly, we will strike that portion of the award.

II. Background and Arbitrator's Award

The grievant was scheduled to work a sea trial which began on September 29, 1987. When the grievant reported to the ship for the sea trial assignment on September 29, 1987, he was told that he was no longer scheduled for this assignment and was directed to leave. He then reported to his normal work location and worked an 8-hour shift. The sea trial was conducted without the grievant.

A grievance was filed over the Activity's failure to notify the grievant that his scheduled assignment to the sea trial had been canceled. The grievance sought payment for all the overtime pay the grievant would have received if he had worked the sea trial. The grievance was submitted to arbitration on the stipulated issues of (1) whether management violated the collective bargaining agreement by canceling the grievant's assignment for the sea trial, and (2) if so, what is the appropriate remedy.

The Arbitrator found that the Activity violated the collective bargaining agreement by canceling the grievant's work assignment. The Arbitrator ruled that management was responsible for properly notifying the grievant about any changes in his work schedule and that no notice was given the grievant that his scheduled assignment to work the trial had been canceled. The Arbitrator determined that because the grievant relied on the schedule assigning him to work and had "an expectation to work," he was entitled to be compensated. Award at 9-10. Accordingly, the Arbitrator directed the Activity to pay the grievant 19 1/2 hours of overtime pay.

III. Exceptions

The Agency contends that the Arbitrator's award is contrary to the Back Pay Act, 5 U.S.C. 5596. The Agency maintains that the Arbitrator failed to make the finding required under the Back Pay Act in order to award backpay. The Agency claims that the Arbitrator failed to find that but for the unwarranted personnel action, the grievant would not have suffered the loss of pay, allowances, or differentials. The Agency argues that the Arbitrator did not find, and could not have found, that but for the failure to notify the grievant that his assignment had been canceled, the grievant would have worked overtime on the sea trial and received overtime pay.

The Agency also contends that the award is contrary to management's right to assign work under section 7106(a)(2)(B) of the Statute and that the award fails to draw its essence from the collective bargaining agreement.

IV. Analysis and Conclusions

We conclude that the award of overtime pay is contrary to the Back Pay Act.

In order for an award of backpay to be authorized under the Back Pay Act, the arbitrator must make the following determinations: (1) the aggrieved employee was affected by an unjustified or unwarranted agency personnel action; (2) the personnel action directly resulted in the withdrawal or reduction of all or part of the grievant's pay, allowances, or differentials; and (3) but for such action, the grievant otherwise would not have suffered the withdrawal or reduction. For example, Navy Public Works Center, Norfolk, Virginia and Tidewater Virginia Federal Employees Metal Trades Council, 33 FLRA 592, 598 (1988) (Navy Public Works Center).

The Arbitrator determined that the Activity violated the parties' collective bargaining agreement by failing to properly notify the grievant that his assignment to the sea trial had been canceled. The Arbitrator also determined that the grievant relied on the schedule assigning him to the sea trial and that the grievant had "an expectation to work." Award at 9-10. These determinations do not constitute the finding required by the Back Pay Act that but for the violation of the collective bargaining agreement, the grievant would have performed overtime work and received overtime pay. See Navy Public Works Center, 33 FLRA at 599.

A finding of a violation of a collective bargaining agreement coupled with only an "expectation" by the grievant of the receipt of pay, allowances, or differentials is not a sufficient basis on which to award backpay. See Department of Defense Dependents Schools, Panama Region and The Panama Canal Federation of Teachers, Local 29, 25 FLRA 629, 630 (1987) (the grievant's "reasonable expectation" of a certain level of pay was not a sufficient basis on which to award backpay); American Federation of Government Employees, Local 12 and United States Department of Labor, 15 FLRA 543, 544 (1984) (the grievant's "probable expectation" of a promotion was not a sufficient basis on which to award a retroactive promotion with backpay). A finding that a grievant expected to work is not a finding that the grievant would have worked but for the violation of the collective bargaining agreement.

The Arbitrator did not find that but for the violation of the collective bargaining agreement, the grievant would have worked overtime. Rather, the Arbitrator awarded overtime pay to the grievant based only on the grievant's "expectation to work." Therefore, the Arbitrator's award of 19 1/2 hours of overtime pay is contrary to the Back Pay Act. 1 Accordingly, we will modify the award to strike that portion of the award ordering overtime pay.

V. Decision

The award is modified by striking that portion of the award directing that the Activity pay the grievant 19 1/2 hours of overtime pay.

FOOTNOTES

Footnote 1 In view of this decision, it is unnecessary to address the Agency's other exceptions to the award.