34:0311(59)AR - NAVY, LONG BEACH NAVAL SHIPYARD, LONG BEACH, CALIFORNIA and FEDERAL EMPLOYEES METAL TRADES COUNCIL -- 1990 FLRAdec AR



[ v34 p311 ]
34:0311(59)AR
The decision of the Authority follows:


 34 FLRA NO. 59
 

                  U.S. DEPARTMENT OF THE NAVY
                   LONG BEACH NAVAL SHIPYARD
                    LONG BEACH, CALIFORNIA

                              and

            FEDERAL EMPLOYEES METAL TRADES COUNCIL

                           0-AR-1624

			   DECISION

     			January 17, 1990

     Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

     This matter is before the Authority on exceptions to the
award of Arbitrator Robert M. Leventhal. A grievance was filed
over cancellation by the Long Beach Naval Shipyard (the Activity)
of the grievant's scheduled assignment to work a sea trial. The
grievance sought payment for all the overtime pay the grievant
would have received had he worked the sea trial. The Arbitrator
found that the Activity violated the collective bargaining
agreement and directed that the Activity pay the grievant 19 1/2
hours of overtime pay.

     The Department of the Navy (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 on behalf of the Activity. The Federal
Employees Metal Trades Council (the Union) did not file an
opposition to the exceptions.

     We conclude that the award of overtime pay is contrary to
the Back Pay Act. Accordingly, we will strike that portion of the
award.

II. Background and Arbitrator's Award

     The grievant was scheduled to work a sea trial which began
on September 29, 1987. When the grievant reported to the
ship for the sea trial assignment on September 29, 1987, he was
told that he was no  longer scheduled for this assignment and was
directed to leave. He then reported to his normal work location
and worked an 8-hour shift. The sea trial was conducted without
the grievant.

     A grievance was filed over the Activity's failure to notify
the grievant that his scheduled assignment to the sea trial had
been canceled. The grievance sought payment for all the overtime
pay the grievant would have received if he had worked the sea
trial. The grievance was submitted to arbitration on the
stipulated issues of (1) whether management violated the
collective bargaining agreement by canceling the grievant's
assignment for the sea trial, and (2) if so, what is the
appropriate remedy.

     The Arbitrator found that the Activity violated the
collective bargaining agreement by canceling the grievant's work
assignment. The Arbitrator ruled that management was responsible
for properly notifying the grievant about any changes in his work
schedule and that no  notice was given the grievant that his
scheduled assignment to work the trial had been canceled. The
Arbitrator determined that because the grievant relied on the
schedule assigning him to work and had "an expectation to work,"
he was entitled to be compensated. Award at 9-10. Accordingly,
the Arbitrator directed the Activity to pay the grievant 19 1/2
hours of overtime pay.

III. Exceptions

     The Agency contends that the Arbitrator's award is contrary
to the Back Pay Act, 5 U.S.C. 5596. The Agency maintains that the
Arbitrator failed to make the finding required under the Back Pay
Act in order to award backpay. The Agency claims that the
Arbitrator failed to find that but for the unwarranted personnel
action, the grievant would not have suffered the loss of pay,
allowances, or differentials. The Agency argues that the
Arbitrator did not find, and could not have found, that but for
the failure to notify the grievant that his assignment had been
canceled, the grievant would have worked overtime on the sea
trial and received overtime pay.

     The Agency also contends that the award is contrary to
management's right to assign work under section 7106(a)(2)(B) of
the Statute and that the award fails to draw its essence from the
collective bargaining agreement. 

IV. Analysis and Conclusions

     We conclude that the award of overtime pay is contrary to
the Back Pay Act.

     In order for an award of backpay to be authorized under the
Back Pay Act, the arbitrator must make the following
determinations: (1) the aggrieved employee was affected by an
unjustified or unwarranted agency personnel action; (2) the
personnel action directly resulted in the withdrawal or reduction
of all or part of the grievant's pay, allowances, or
differentials; and (3) but for such action, the grievant
otherwise would not have suffered the withdrawal or reduction.
For example, Navy Public Works Center, Norfolk, Virginia and
Tidewater Virginia Federal Employees Metal Trades Council, 33
FLRA  592, 598 (1988) (Navy Public Works Center).

     The Arbitrator determined that the Activity violated the
parties' collective bargaining agreement by failing to properly
notify the grievant that his assignment to the sea trial had been
canceled. The Arbitrator also determined that the grievant relied
on the schedule assigning him to the sea trial and that the
grievant had "an expectation to work." Award at 9-10. These
determinations do not constitute the finding required by the Back
Pay Act that but for the violation of the collective bargaining
agreement, the grievant would have performed overtime work and
received overtime pay. See Navy Public Works Center, 33 FLRA  at
599.

     A finding of a violation of a collective bargaining
agreement coupled with only an "expectation" by the grievant of
the receipt of pay, allowances, or differentials is not a
sufficient basis on which to award backpay. See Department of
Defense Dependents Schools, Panama Region and The Panama Canal
Federation of Teachers, Local 29, 25 FLRA  629, 630 (1987) (the
grievant's "reasonable expectation" of a certain level of pay was
not a sufficient basis on which to award backpay); American
Federation of Government Employees, Local 12 and United States
Department of Labor, 15 FLRA  543, 544 (1984) (the grievant's
"probable expectation" of a promotion was not a sufficient basis
on which to award a retroactive promotion with backpay). A
finding that a grievant expected to work is not a finding that
the grievant would have worked but for the violation of the
collective bargaining agreement.

     The Arbitrator did not find that but for the violation of
the collective bargaining agreement, the grievant would 
have worked overtime. Rather, the Arbitrator awarded overtime pay
to the grievant based only on the grievant's "expectation to
work." Therefore, the Arbitrator's award of 19 1/2 hours of
overtime pay is contrary to the Back Pay Act. 1 Accordingly, we
will modify the award to strike that portion of the award
ordering