21:0307(39)AR - Norfolk Naval Shipyard, Portsmouth, Virginia. And Tidewater Virginia FEMTC -- 1986 FLRAdec AR
[ v21 p307 ]
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'