31:1289(118)AR - Philadelphia Naval Shipyard and Philadelphia MTC -- 1988 FLRAdec AR



[ 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 t