33:0592(75)AR - - Navy Public Works Center Norfolk, Virginia and Tidewater Virginia FEMTC - - 1988 FLRAdec AR - - v33 p592
[ v33 p592 ]
The decision of the Authority follows:
33 FLRA No. 75
FEDERAL LABOR RELATIONS AUTHORITY
NAVY PUBLIC WORKS CENTER NORFOLK, VIRGINIA
TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL
October 28, 1988
Before Chairman Calhoun and Member McKee.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator J. Ross Hunter, Jr. The Navy Public Works Center (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. The Tidewater Virginia Federal Employees Metal Trades Council (the Union) filed an opposition to the Agency's exceptions.
The Arbitrator awarded the grievant backpay to compensate him for the Agency's failure to distribute overtime fairly and equitably as required by the parties' agreement. For the reasons discussed below, we conclude that the award must be set aside because it violates the Back Pay Act.
II. Background and Arbitrator's Award
This case arose at the Navy Public Works Center (PWC), a part of the Norfolk Naval Station. The PWC's function is to repair and maintain all types of equipment, including trucks, buses, cranes, and floating derricks, owned or used at the station or elsewhere by the U.S. Navy. About 15 to 20 trade craftsmen, who are members of the Tidewater Virginia Federal Employees Metal Trades Council, work at the PWC.
In 1986, extensive overhaul of the No. 217 floating derrick was undertaken. The grievant was assigned to test run and inspect an engine for use on the derrick and order the parts necessary for installation of the engines and generator. However, the actual repair work was assigned to two other employees who were on the roster of employees customarily assigned to waterfront work.
On September 29, 1986, a grievance was filed asserting that under the parties' agreement, management was required to (1) distribute work fairly and equitably, (2) distribute overtime fairly and equitably, and (3) pay the grievant for any overtime "that occurs on the job." Award at 2. According to the grievant, management violated Article 32, Section 1, requiring that employees be treated fairly and equitably, and Article 14, Sections 1, 2, 3, and 4, concerning the assignment of overtime. In support, the grievant argued that the repair work on the No. 217 derrick was available when he was assigned to drive cars and work on a truck in the shop.
The Arbitrator stated that the parties submitted the following issues to him:
Whether or not the Employer by the assignment of the 217 overtime work violated the above cited provisions of the Agreement, and If so, what shall the remedy be?
Award at 4. In reaching his decision, the Arbitrator looked to Article 14, Section 2 of the collective bargaining agreement:
. . . overtime will be distributed as fair and equitable [sic] as practical among all employees within the unit, within their shop, work center, shift and job rating, insofar as the character of the work permits. Employees assigned to overtime work must be qualified to perform the assignment in an effective and expeditious manner. It is recognized that certain factors, i.e. temporary assigned duty . . . continuity on jobs of short duration . . . peculiar . . . skill requirements, etc. may cause imbalance in the distribution of overtime, which shall be brought into equitable balance at the earliest opportunity. Nothing in this section shall be construed as alleviating the continuing intent and responsibility of the Employer to distribute overtime fairly and equitably.
Award at 3.
Initially, the Arbitrator noted that the agreement was not clear as to the appropriate group of employees within which overtime must be equitably distributed. Award at 4. However, he concluded that the grievant's appropriate group consisted of the grievant and the two employees assigned to work on the No. 217 derrick. Award at 5. According to the Arbitrator, the parties stipulated that these three employees were "probably . . . comparably qualified to perform the 217 installation work in an effective and expeditious manner." Award at 7. The Arbitrator found that management properly assigned the repair work on No. 217 derrick to the other employees in the grievant's group. Id. Furthermore, he found that management "was justified, in order to preserve continuity on that job of expectant short duration, to assign the needed overtime work to them." Id. Thus, the Arbitrator found that the Agency did not violate the parties' agreement in assigning overtime work on the No. 217 derrick.
In addition, the Arbitrator found that the Agency had not met its obligation under the parties' agreement to bring overtime distribution into an equitable balance at the earliest opportunity. He found that overtime records showed the grievant had approximately 135 fewer hours of overtime than the other two employees at the end of September 1986. Award at 5. The Arbitrator noted that during the grievance procedure, three Agency managers who answered the grievance stated that the overtime imbalance should be corrected in the near future. Award at 6. However, the Arbitrator calculated that by the end of 1986 the imbalance between the grievant and the two other employees was greater than it had been at the end of September. The Arbitrator held that the imbalance had the effect of "tolling the application of the past practice of the parties that all overtime goes back to zero at the end of the calendar year." Award at 9.
The Arbitrator concluded that sufficient overtime existed to correct the imbalance among the three employees during 1987. Although 28.5 more hours of overtime were assigned to the grievant that year than were assigned to the other two employees, the Arbitrator found that the Agency failed to achieve an equitable balance during 1987. The Arbitrator also concluded that the end of 1987 was the end of a reasonable period in which the Agency could correct the overtime imbalance. Award at 10. Since the parties' agreement failed to specify a remedy to enforce "an implied duty of the Employer to recompense the employee," the Arbitrator determined that he was required to fashion a remedy. Id.
The Arbitrator found that a monetary award was appropriate. Further, he found that since the parties' agreement does not require an absolute equality in overtime, a division of overtime within 10 percent of a perfect balance in overtime among the three employees was fair and equitable. The Arbitrator combined the overtime records for 1986 and 1987 and found that the grievant had a "median between [the other two employees] of 178.75 hours. Ninety percent thereof is 160.875 hours." Id. Thus, the Arbitrator directed the Agency to pay the grievant "an amount equal to the overtime pay he would have been entitled to for 160.875 hours of overtime work spread evenly over the twenty-four months comprised within the years 1986 and 1987." Award at 10-11.
III. Agency's Exceptions
The Agency excepts to the award on two grounds:
1. The arbitrator exceeded his authority in deciding an issue not before him and awarding a remedy on that issue.
2. The Award is contrary to law, specifically, the Back Pay Act, 5 U.S.C. § 5596.
Agency's Exceptions at 5.
First, the Agency argues that the Arbitrator went beyond the issue submitted for arbitration by engaging "in a general policing of the overtime assignment provisions" for 1986 and 1987. Agency's Exceptions at 7. According to the Agency, the issue submitted by the parties was "[w]hether or not the Employer by the assignment of the 217 overtime work violated the above cited provisions of the Agreement and, if so, what shall the remedy be?" Id. The Agency asserts that the Arbitrator found that the Agency did not violate the agreement concerning the work on No. 217 derrick and then determined, inappropriately, that management had not abided by the agreement's overtime provisions in 1986 and 1987. According to the Agency, the Arbitrator had no authority to examine overtime assignments generally after finding no violation of the overtime assignment on No. 217 derrick. The Agency argues that by examining overtime assignments through 1987 the Arbitrator exceeded the authority granted him by the parties.
Second, the Agency argues that the award does not meet the standards required for an award of backpay under the Back Pay Act, 5 U.S.C. § 5596. The Agency asserts that the Arbitrator did not determine that the grievant was affected by an unjustified or unwarranted personnel action which 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. The Agency points out that the Arbitrator failed to make findings that the grievant was entitled to specific overtime assignments, was qualified to perform such assignments, and was available and willing to work these assignments.
Furthermore, the Agency asserts that the formula devised by the Arbitrator to award backpay to the grievant is violative of the Back Pay Act because it creates an overtime entitlement for work that was never performed, or available to be performed, by anyone. Agency's Exceptions at 11. The Agency states that rather than using the total overtime worked and deriving a distribution that would account for those hours, the Arbitrator averaged the number of overtime hours of the other employees and assumed that the grievant should have worked the same number of hours, adjusted by 10 percent. Thus, the Agency argues that the number of hours used for the backpay determination exceeds the total number of overtime hours worked. Agency's Exceptions at 11-12. Finally, the Agency asserts that even if management has an implied duty to recompense the grievant for the inequitable assignment of overtime, the agreement cannot be interpreted or applied in a manner contrary to law.
IV. Union's Opposition
The Union requests that the Authority affirm the Arbitrator's award. According to the Union, the Arbitrator did not exceed his authority and the award is not contrary to the Back Pay Act.
The Union disagrees with the Agency's statement of the issue. Specifically, the Union asserts that it did not enter any joint submission of the issue with the Agency. Union's Opposition at 2. Rather, the Union states that it framed the issue in its closing written argument as "[t]he issue is clear--Management must abide by the grievance decisions issued [during the earlier steps in the procedure]. The overtime must be balanced by the end of the calendar year 1986--which requires a payment to [the grievant] of 228.5 hours of overtime." Id.
According to the Union, the Arbitrator appropriately saw the grievance as one of correcting an overtime imbalance. The Union states that the grievant's claim was that overtime assignments were inequitable and that the overtime assignment on the No. 217 derrick greatly increased the imbalance. Union's Opposition at 1. The Union asserts that the Arbitrator correctly found that the Agency had the right to assign overtime on the No. 217 derrick to employees other than the grievant. The Union claims that the Arbitrator also found that the Agency's obligation to distribute overtime fairly and equitably among the t