U.S. Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina and International Association of Machinists and Aerospace Workers, Lodge 2297 (Authority decision, September 30, 1992)

Final FLRA decision. The Authority denies the agency's exceptions to an arbitration award under 5 U.S.C. § 7122(a). 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 resolve an unfair labor practice.

Plain-English summary

A Cherry Point depot employee was detailed to another division and was not offered overtime in his usual division. An arbitrator found that the depot had violated its agreement to assign overtime fairly and equitably, and awarded the employee pay for 170 lost overtime hours. The depot challenged the award under the Back Pay Act, arguing that the arbitrator had not established the required link between the contract violation and lost pay. The Authority found that link implicit in the award and rejected the depot's challenge to the number of hours. It denied the exceptions, leaving the backpay award in place.

Decision snapshot

• Authority: Arbitration exceptions under 5 U.S.C. § 7122(a); Back Pay Act, 5 U.S.C. § 5596.
• Outcome: Agency's exceptions denied; 170-hour overtime backpay award stands.
• Key point: The arbitrator's findings established that the contract violation caused the lost overtime pay, even without an explicit “but for” statement.

Full text (FLRA public release)

[ v45 p1324 ]
45:1324(132)AR

The decision of the Authority follows:

45 FLRA NO. 132

U.S. DEPARTMENT OF THE NAVY
NAVAL AVIATION
DEPOT
CHERRY POINT, NORTH CAROLINA
(Agency)

and

INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS LODGE 2297 (Union)

0-AR-2280

DECISION

Before Chairman
McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Charles H. Frost filed by 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. The Union filed an opposition to the Agency's exceptions.

The Arbitrator sustained a
grievance in which the grievant
claimed that he was denied the opportunity to work overtime in his assigned organization while he was on detail to another organization. The Arbitrator ordered the Agency to pay the

grievant for 170 hours of overtime work. The Agency filed exceptions with the Authority asserting that the Arbitrator's award is contrary to the Back Pay Act, 5 U.S.C. 5596. For the following reasons, we will deny the Agency's exceptions.

II. Background and Arbitrator's Award

The grievant was detailed from his duty station in the 960 Division to a duty station in the 670 Division. The detail lasted from March 4, 1991, until July 1, 1991. While on the detail, the grievant was not offered overtime work in his old duty station in the 960 Division. He filed a grievance claiming that he had lost the opportunity to perform 170 hours of overtime work. In the grievance, the grievant asserted that another employee in the 960 Division who had also been detailed to the 670 Division had been assigned overtime work in the 960 Division while on detail to the 670 Division. The grievant charged that the Agency had violated

Article 23, Section 1 of the parties' collective bargaining agreement by not assigning him overtime work in a fair and equitable manner. 1

The grievance was not resolved and was submitted to arbitration. The parties were unable to agree on an issue and the Arbitrator framed the issue as follows:

Did the (Agency) violate Article 23, Section 1 of the agreement when it did not afford (g)rievant the opportunity to work overtime while he was detailed to another division between March 4, 1991 and July 1, 1991. If so, what should the remedy be?

Award at
5.

The Arbitrator noted that the parties entered into stipulations as to the facts underlying the grievance, including a stipulation that "(t)his grievance is based on the lost opportunity to work 170 hours overtime." Id. at 3, Stipulation 3. The parties also stipulated that another employee in the 960 Division worked overtime in the 960 Division on April 27 and June 8, 1991, while on detail to the 670 Division.

The Union asserted before the Arbitrator that the grievant had been told by his former supervisor that employees detailed outside the 960 Division were not eligible for overtime assignments within that division while on detail, yet another detailed employee had received overtime assignments within the 960 Division on two occasions while on detail to another division. The Union claimed, therefore, that the grievant was not treated fairly and equitably as required by the agreement. The

Agency contended before the Arbitrator that the policy of the 960 Division was to not assign regular or overtime work to employees while they were detailed to another division. Therefore, the Agency argued, there was no obligation to assign overtime work in the 960 Division to the grievant while he was on detail to another division and the grievant was not entitled to 170 hours of retroactive overtime pay, regardless of whether another employee in a similar situation was erroneously assigned overtime work in the 960 Division by a supervisor.

The Arbitrator
found that the circumstances of the case showed that the Agency acted in good faith toward the grievant and did not deny him overtime opportunity as a result of "any ulterior motive." Award at 9. The Arbitrator noted that the agreement was silent concerning relief for Agency errors in

assigning overtime and stated:

(U)nder these circumstances, it is
implied that the parties
intended to vest in the Arbitrator the authority to fashion the form of relief which would be equitable and which would afford content and meaning to the parties(') agreement.

Id. at 10.
He noted that in cases in which a grievant is harmed by an agency's violation of a contract, "the person deprived of the contract benefit should be made whole for the loss (and is) entitled to compensatory damages, no more and no less." Id.

The Arbitrator then
examined the provisions of the parties' collective bargaining agreement dealing with the assignment of overtime and concluded that based on the record, the grievant was entitled to have been offered overtime in the 960 Division. The Arbitrator noted the testimony showing that other employees in situations similar to that of the grievant had been offered overtime work. The Arbitrator also noted that management's statement of overtime policy for the 960 Division was issued after the grievance in this case was filed and left open the question of whether one division can establish an overtime policy that is different from the policies of other divisions.

Noting awards by other arbitrators giving grievants monetary remedies for management violations of overtime policies, the

Arbitrator made the following award:

1. The (Agency) violated Article
   23, Section 1, of the
   agreement when it did not afford (g)rievant the opportunity to work overtime while he was detailed to another division between March 4, 1991 and July 1, 1991.

2. Grievant shall be paid
   for 170 hours at the applicable
   overtime rate.

Id. at 18.

III. Positions of the Parties

A. The Agency

The Agency
contends that the award is contrary to the Back Pay Act. In support of its contention, the Agency asserts that the Arbitrator failed to make the required causal connection between a violation of the parties, collective bargaining agreement and the failure of the grievant to be given overtime work to which he was entitled. The Agency maintains that "the

award does not make clear whether, but for the detail, the grievant would have received the overtime." Exceptions at 5.

The Agency also contends
that the Arbitrator failed to
provide a rational basis for his award and did not provide the degree of articulation required by Authority precedent to support awards of backpay under the Back Pay Act. According to the

Agency, "the (A)rbitrator leaped from an analysis of whether a contract violation had occurred directly to a determination of the award ... (and) neglected to explain how he arrived at an award of 170 hours overtime pay and why such an award was warranted." Id. at 6-7. The Agency asserts that the award of 170 hours of overtime pay "is inconsistent with a realistic assessment of the amount of overtime the grievant would have

worked(,)" as that number represents the total amount of overtime hours the grievant could have worked if he had been offered and accepted all possible assignments. Id. at 7. The Agency maintains that "the (A)rbitrator has not sought to argue that the grievant would have earned that amount of overtime, but rather that he was entitled to it as damages." Id. at 8.

B. The Union

The Union contends that the Agency's exceptions are untimely filed and should be dismissed. Regarding the merits of the Agency's exceptions, the Union denies that the award is contrary

to the Back Pay Act and maintains that the Arbitrator found that the Agency committed an unjustified and unwarranted personnel action by violating the parties' collective bargaining agreement and that the violation resulted in a reduction in overtime pay the grievant would have received.

The
Union contends that the award of 170 hours of overtime pay is correct and is what the grievant "normally" would have received for purposes of the Back Pay Act. Opposition at 1. The Union notes that there is no provision under the Back Pay Act for deducting times during which an employee might have been absent for sickness or might have elected not to work. The Union argues that the parties agreed in the stipulations of facts

submitted to the Arbitrator that the amount of 170 hours of overtime pay was claimed by the grievant and that the stipulations "clearly establish a causal connection between the (g)rievant's detail and an entitlement to the 170 hours of overtime." Id. at 2.

IV. Analysis and Conclusions

A. Preliminary Matter

We find no merit in the Union's contention that the Agency's exceptions were untimely filed. The time limit for

filing exceptions to an arbitration award is 30 days beginning on the date the award is served on the filing party. 5 C.F.R. 2425.1(b). The date of service is the date the arbitration award is deposited in the U.S. mail or is delivered in person. 5 C.F.R. 2429.27(d). The record in this case indicates that the Arbitrator's award, although dated April 1, 1992, was mailed to the parties on April 7, 1992, as evidenced by the postmark on the envelope containing the Arbitrator's award. See Exceptions,

Attachment 1. The 30-day period for filing exceptions to the award began on April 7. 1992, and expired on May 6, 1992. 5 C.F.R. 2425.1(b). As the award was served by mail, 5 additional days were added to the due date. 5 C.F.R. 2429.22. Therefore, any exception to the award had to be either postmarked by the U.S. Postal Service or received in person at the Authority no later than May 11, 1992, in order to be timely filed. The Agency's

exceptions were delivered to the Authority on that date and are, therefore, timely filed. See National Federation of Federal Employees, Council of Veterans Administration Locals and U.S. Department of Veterans Affairs, 45 FLRA 38 (1992).

B. The Award Is Not Contrary to the Back Pay Act

Under the Back Pay Act, an award of backpay is authorized only when the grievant has been affected by an unjustified or unwarranted agency personnel action that has resulted in the withdrawal or reduction of all or part of the grievants pay, allowances, or differentials. The Authority has held that, in order to award backpay, an arbitrator must find that: (1) the aggrieved employee was affected by an unjustified or unwarranted

personnel action; (2) the personnel action directly resulted in the withdrawal or reduction of the grievants pay, allowances, or differentials; and (3) but for such action, the grievant otherwise would not have suffered the withdrawal or reduction. For example, U.S. Department of Health and Human Services, Family Support Administration, Washington, D.C. and National Treasury Employees Union, Local 250, 42 FLRA 347, 357 (1991). In this case, the Arbitrator made the required findings for an award of

backpay.

The Arbitrator specifically found that the Agency violated the parties' agreement regarding the assignment of overtime by

failing to distribute overtime fairly and equitably. Violation of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action under the Back Pay Act. See U.S. Department of Justice, Immigration and Naturalization Service and American Federation of Government Employees, National Immigration and Naturalization Service Council, 42 FLRA 222, 232 (1991). Where it is established that employees entitled to overtime under a collective bargaining agreement do not receive that overtime because of a violation of the collective bargaining agreement by an agency, an arbitrator can find that those employees are entitled to compensation for the lost overtime. See Federal Employees Metal Trades Council and U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 39 FLRA 3 (1991). Therefore, the Arbitrator's award, based on the Agency's violation of the collective bargaining agreement, meets the first requirement for an award of backpay under the Back Pay Act.

Further, the Arbitrator found that the Agency had given other employees the opportunity to work overtime in the 960

Division while those employees were on detail outside the 960 Division. Consequently, the Arbitrator stated that he was "compelled to support the position of the Union." Award at

16. We conclude that the Arbitrator
    effectively found that,
    because of the Agency's unwarranted and unjustified personnel action, the grievant was deprived of overtime compensation that he would have received if the Agency had not failed to comply with Article 23, Section 1 of the agreement. Although the Arbitrator did not state specifically that the loss of overtime compensation would not have occurred but for the Agency's violation of the agreement, he made the required finding of a direct causal connection between the two events when he found that the record in the case supported the Union's position that the grievant was unfairly deprived of overtime opportunities

because other employees similarly situated were assigned overtime.

An arbitrator is not required to make an explicit "but for" finding that there is a direct causal connection between an agency's improper act and the loss of pay by an employee. Such a causal connection can also be implicit in the arbitrator's award. See American Federation of Government Employees, Local 31 and U.S. Department of Veterans Affairs, Medical Center, Cleveland, Ohio, 41 FLRA 514, 517 (1991). In this case, the Arbitrator found that there was a direct causal connection between the

Agency's violation of the agreement and the grievants loss of the

opportunity to work overtime. Further, the Arbitrator implicitly found that, but for the violation of the agreement, the grievant would have worked that amount of overtime. Therefore, the award satisfies the second and third requirements for the award of backpay to the grievant.

We find no merit in the Agency's contentions that the award is contrary to the Back Pay Act because the Arbitrator improperly calculated the amount of overtime the grievant would have worked if the Agency had offered him the opportunity to work overtime in the 960 Division while he was on detail. The grievant claimed that he would have worked 170 hours of overtime if he had been given the opportunity and the parties stipulated that "(t)his

grievance is based on the lost opportunity to work 170 hours (of)

overtime." Award at 3. Further, the Agency concedes that there was a "possible total of 170 hours of overtime" available during the period in question. Exceptions at 7. The Agency's exception with regard to the amount of backpay awarded the grievant constitutes mere disagreement with the Arbitrator's finding that the grievant was entitled to backpay for 170 hours of lost overtime and provides no basis for finding the award deficient. See National Federation of Federal Employees, Local 259 and U.S. Department of the Army, Corps of Engineers, Memphis District, Memphis, Tennessee, 45 FLRA 773, 779 (1992) (mere disagreement with an arbitrator's reasoning and conclusions and findings of fact provides no basis for finding an award deficient under section 7122(a) of the Statute).

Further, we disagree with the Agency's contention that the Arbitrator's award of backpay to the grievant for 170 hours of

overtime work constitutes an improper award of damages. The Arbitrator's award is based on the stipulations of the parties that the grievant claimed entitlement to that amount of overtime and the fact that a total of 170 hours of overtime was available during the time period in question. The Arbitrator found that the grievant would have performed that amount of overtime work if he had been given the opportunity. The Arbitrator's award of backpay for 170 hours of overtime work does nothing more than reimburse the grievant for the lost overtime pay. We find nothing in the award that supports the Agency's contention that the Arbitrator

awarded damages instead of reimbursement of pay to which the grievant was entitled. See U.S. Department of the Interior, Bureau of Reclamation, Great Plains Region and International Brotherhood of Electrical Workers, Local 1759, 42 FLRA 902 (1991), request for reconsideration denied, 43 FLRA 314 (1991). Consequently, this contention provides no basis for finding the

award deficient.

In conclusion, the Agency's exceptions fail to establish that the Arbitrator's award is contrary to the Back Pay Act or otherwise deficient. Accordingly, we will deny the exceptions.

V. Decision

The Agency's exceptions are denied.

FOOTNOTES

Footnote 1 Article 23, Section 1 of the parties' collective bargaining agreement provides: The Employer agrees that the provisions of this agreement and all rules and regulations

controlling working conditions and benefits for members of the bargaining unit will be administered fairly and equitably. Award at 7.