45:1324(132)AR - - NAVAL AVIATION DEPOT, CHERRY POINT, NORTH CAROLINA and INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS LODGE 2297 - - 1992 FLRAdec AR - - v45 p1324



[ v45 p1324 ]
45:1324(132)AR
The decision of the Authority follows:


45 FLRA NO. 132

U.S. DEPARTMENT OF THE NAVY
NAVAL AVIATION DEPOT
CHERRY POINT, NORTH CAROLINA
(Agency)

and

INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS
LODGE 2297
(Union)

0-AR-2280

DECISION

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an
award of Arbitrator Charles H. Frost filed by the Agency 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 Union filed an opposition to the
Agency's exceptions.

The Arbitrator sustained a grievance in which the grievant
claimed that he was denied the opportunity to work overtime in
his assigned organization while he was on detail to another
organization. The Arbitrator ordered the Agency to pay the
grievant for 170 hours of overtime work. The Agency filed
exceptions with the Authority asserting that the Arbitrator's
award is contrary to the Back Pay Act, 5 U.S.C. 5596. For the
following reasons, we will deny the Agency's exceptions. 

II. Background and Arbitrator's Award

The grievant was detailed from his duty station in the 960
Division to a duty station in the 670 Division. The detail lasted
from March 4, 1991, until July 1, 1991. While on the detail, the
grievant was not offered overtime work in his old duty station in
the 960 Division. He filed a grievance claiming that he had lost
the opportunity to perform 170 hours of overtime work. In the
grievance, the grievant asserted that another employee in the 960
Division who had also been detailed to the 670 Division had been
assigned overtime work in the 960 Division while on detail to the
670 Division. The grievant charged that the Agency had violated
Article 23, Section 1 of the parties' collective bargaining
agreement by not assigning him overtime work in a fair and
equitable manner. 1

The grievance was not resolved and was submitted to
arbitration. The parties were unable to agree on an issue and the
Arbitrator framed the issue as follows:

Did the (Agency) violate Article 23, Section 1 of the
agreement when it did not afford (g)rievant the opportunity to
work overtime while he was detailed to another division between
March 4, 1991 and July 1, 1991. If so, what should the remedy
be?

Award at 5.

The Arbitrator noted that the parties entered into
stipulations as to the facts underlying the grievance, including
a stipulation that "(t)his grievance is based on the lost
opportunity to work 170 hours overtime." Id. at 3, Stipulation 3.
The parties also stipulated that another employee in the 960
Division worked overtime in the 960 Division on April 27 and June
8, 1991, while on detail to the 670 Division. 

The Union asserted before the Arbitrator that the grievant
had been told by his former supervisor that employees detailed
outside the 960 Division were not eligible for overtime
assignments within that division while on detail, yet another
detailed employee had received overtime assignments within the
960 Division on two occasions while on detail to another
division. The Union claimed, therefore, that the grievant was not
treated fairly and equitably as required by the agreement. The
Agency contended before the Arbitrator that the policy of the 960
Division was to not assign regular or overtime work to employees
while they were detailed to another division. Therefore, the
Agency argued, there was no obligation to assign overtime work
in the 960 Division to the grievant while he was on detail to
another division and the grievant was not entitled to 170 hours
of retroactive overtime pay, regardless of whether another
employee in a similar situation was erroneously assigned overtime
work in the 960 Division by a supervisor.

The Arbitrator found that the circumstances of the case
showed that the Agency acted in good faith toward the grievant
and did not deny him overtime opportunity as a result of "any
ulterior motive." Award at 9. The Arbitrator noted that the
agreement was silent concerning relief for Agency errors in
assigning overtime and stated:

(U)nder these circumstances, it is implied that the parties
intended to vest in the Arbitrator the authority to fashion the
form of relief which would be equitable and which would afford
content and meaning to the parties(') agreement.

Id. at 10. He noted that in cases in which a grievant is
harmed by an agency's violation of a contract, "the person
deprived of the contract benefit should be made whole for the
loss (and is) entitled to compensatory damages, no more and no 
less." Id.

The Arbitrator then examined the provisions of the parties'
collective bargaining agreement dealing with the assignment of
overtime and concluded that based on the record, the grievant was
entitled to have been offered overtime in the 960 Division. The
Arbitrator noted the testimony showing that other employees in
situations similar to that of the grievant had been offered
overtime work. The Arbitrator also noted that management's
statement of overtime policy for the 960 Division was issued
after the grievance in this case was filed and left open the
question of whether one division can establish an overtime policy
that is different from the policies of other divisions. 

Noting awards by other arbitrators giving grievants monetary
remedies for management violations of overtime policies, the
Arbitrator made the following award:

1. The (Agency) violated Article 23, Section 1, of the
agreement when it did not afford (g)rievant the opportunity to
work overtime while he was detailed to another division between
March 4, 1991 and July 1, 1991.

2. Grievant shall be paid for 170 hours at the applicable
overtime rate.

Id. at 18.

III. Positions of the Parties

A. The Agency

The Agency contends that the award is contrary to the Back
Pay Act. In support of its contention, the Agency asserts that
the Arbitrator failed to make the required causal connection
between a violation of the parties, collective bargaining
agreement and the failure of the grievant to be given overtime
work to which he was entitled. The Agency maintains that "the
award does not make clear whether, but for the detail, the
grievant would have received the overtime." Exceptions at 5.

The Agency also contends that the Arbitrator failed to
provide a rational basis for his award and did not provide the
degree of articulation required by Authority precedent to support
awards of backpay under the Back Pay Act. According to the
Agency, "the (A)rbitrator leaped from an analysis of whether a
contract violation had occurred directly to a determination of
the award ... (and) neglected to explain how he arrived at an
award of 170 hours overtime pay and why such an award was
warranted." Id. at 6-7. The Agency asserts that the award of 170
hours of overtime pay "is inconsistent with a realistic
assessment of the amount of overtime the grievant would have
worked(,)" as that number represents the total amount of overtime
hours the grievant could have worked if he had been offered and
accepted all possible assignments. Id. at 7. The Agency maintains
that "the (A)rbitrator has not sought to argue that the grievant
would have earned that amount of overtime, but rather that he was
entitled to it as damages." Id. at 8. 

B. The Union

The Union contends that the Agency's exceptions are untimely
filed and should be dismissed. Regarding the merits of the
Agency's exceptions, the Union denies that the award is contrary
to the Back Pay Act and maintains that the Arbitrator found that
the Agency committed an unjustified and unwarranted personnel
action by violating the parties' collective bargaining agreement
and that the violation resulted in a reduction in overtime pay
the grievant would have received.

The Union contends that the award of 170 hours of overtime
pay is correct and is what the grievant "normally" would have
received for purposes of the Back Pay Act. Opposition at 1. The
Union notes that there is no provision under the Back Pay Act
for deducting times during which an employee might have been
absent for sickness or might have elected not to work. The Union
argues that the parties agreed in the stipulations of facts
submitted to the Arbitrator that the amount of 170 hours of
overtime pay was claimed by the grievant and that the
stipulations "clearly establish a causal connection between the
(g)rievant's detail and an entitlement to the 170 hours of
overtime." Id. at 2.

IV. Analysis and Conclusions

A. Preliminary Matter

We find no merit in the Union's contention that the
Agency's exceptions were untimely filed. The time limit for
filing exceptions to an arbitration award is 30 days beginning on
the date the award is served on the filing party. 5 C.F.R.
2425.1(b). The date of service is the date the arbitration award
is deposited in the U.S. mail or is delivered in person. 5 C.F.R.
2429.27(d). The record in this case indicates that the
Arbitrator's award, although dated April 1, 1992, was mailed to
the parties on April 7, 1992, as evidenced by the postmark on the
envelope containing the Arbitrator's award. See Exceptions,
Attachment 1. The 30-day period for filing exceptions to the
award began on April 7. 1992, and expired on May 6, 1992. 5
C.F.R. 2425.1(b). As the award was served by mail, 5 additional
days were added to the due date. 5 C.F.R. 2429.22. Therefore, any
exception to the award had to be either postmarked by the U.S.
Postal Service or received in person at the Authority no later
than May 11, 1992, in order to be timely filed. The Agency's
exceptions were delivered to the Authority on that date and are,
therefore, timely filed. See National Federation of
Federal Employees, Council of Veterans Administration Locals and
U.S. Department of Veterans Affairs, 45 FLRA 38 (1992).

B. The Award Is Not Contrary to the Back Pay Act

Under the Back Pay Act, an award of backpay is authorized
only when the grievant has been affected by an unjustified or
unwarranted agency personnel action that has resulted in the
withdrawal or reduction of all or part of the grievants pay,
allowances, or differentials. The Authority has held that, in
order to award backpay, an arbitrator must find that: (1) the
aggrieved employee was affected by an unjustified or unwarranted
personnel action; (2) the personnel action directly resulted in
the withdrawal or reduction of the grievants pay, allowances, or
differentials; and (3) but for such action, the grievant
otherwise would not have suffered the withdrawal or reduction.
For example, U.S. Department of Health and Human Services, Family
Support Administration, Washington, D.C. and National Treasury
Employees Union, Local 250, 42 FLRA 347, 357 (1991). In this
case, the Arbitrator made the required findings for an award of
backpay.

The Arbitrator specifically found that the Agency violated
the parties' agreement regarding the assignment of overtime by
failing to distribute overtime fairly and equitably. Violation of
a collective bargaining agreement constitutes an unjustified or
unwarranted personnel action under the Back Pay Act. See U.S.
Department of Justice, Immigration and Naturalization Service and
American Federation of Government Employees, National Immigration
and Naturalization Service Council, 42 FLRA 222, 232 (1991).
Where it is established that employees entitled to overtime under
a collective bargaining agreement do not receive that overtime
because of a violation of the collective bargaining agreement by
an agency, an arbitrator can find that those employees are
entitled to compensation for the lost overtime. See Federal
Employees Metal Trades Council and U.S. Department of the Navy,
Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 39 FLRA 3
(1991). Therefore, the Arbitrator's award, based on the Agency's
violation of the collective bargaining agreement, meets the first
requirement for an award of backpay under the Back Pay Act.

Further, the Arbitrator found that the Agency had given
other employees the opportunity to work overtime in the 960
Division while those employees were on detail outside the 960
Division. Consequently, the Arbitrator stated that he
was "compelled to support the position of the Union." Award at
16. We conclude that the Arbitrator effectively found that,
because of the Agency's unwarranted and unjustified personnel
action, the grievant was deprived of overtime compensation that
he would have received if the Agency had not failed to comply
with Article 23, Section 1 of the agreement. Although the
Arbitrator did not state specifically that the loss of overtime
compensation would not have occurred but for the Agency's
violation of the agreement, he made the required finding of a
direct causal connection between the two events when he found
that the record in the case supported the Union's position that
the grievant was unfairly deprived of overtime opportunities
because other employees similarly situated were assigned
overtime.

An arbitrator is not required to make an explicit "but for"
finding that there is a direct causal connection between an
agency's improper act and the loss of pay by an employee. Such a
causal connection can also be implicit in the arbitrator's award.
See American Federation of Government Employees, Local 31 and
U.S. Department of Veterans Affairs, Medical Center, Cleveland,
Ohio, 41 FLRA 514, 517 (1991). In this case, the Arbitrator
found that there was a direct causal connection between the
Agency's violation of the agreement and the grievants loss of the
opportunity to work overtime. Further, the Arbitrator implicitly
found that, but for the violation of the agreement, the grievant
would have worked that amount of overtime. Therefore, the award
satisfies the second and third requirements for the award of
backpay to the grievant.

We find no merit in the Agency's contentions that the award
is contrary to the Back Pay Act because the Arbitrator improperly
calculated the amount of overtime the grievant would have worked
if the Agency had offered him the opportunity to work overtime in
the 960 Division while he was on detail. The grievant claimed
that he would have worked 170 hours of overtime if he had been
given the opportunity and the parties stipulated that "(t)his
grievance is based on the lost opportunity to work 170 hours (of)
overtime." Award at 3. Further, the Agency concedes that there
was a "possible total of 170 hours of overtime" available during
the period in question. Exceptions at 7. The Agency's exception
with regard to the amount of backpay awarded the grievant
constitutes mere disagreement with the Arbitrator's finding that
the grievant was entitled to backpay for 170 hours of lost
overtime and provides n