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 grievan