46:0974(87)AR - - Anniston Army Depot, Anniston, AL and AFGE Local 1945 - - 1992 FLRAdec AR - - v46 p974

[ v46 p974 ]
The decision of the Authority follows:

46 FLRA No. 87










LOCAL 1945





December 18, 1992


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Stephen D. Owens 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 exception.

An employee filed a grievance alleging that the Agency improperly failed to offer him an overtime assignment. The Arbitrator sustained the grievance and awarded the grievant overtime pay. For the following reasons, we conclude that the Agency's exception provides no basis for finding the award deficient. Accordingly, we will deny the exception.

II. Background and Arbitrator's Award

The grievant asserted that the Agency violated the parties' collective bargaining agreement by failing to offer him a 16-hour overtime assignment. When the matter was not resolved, it was submitted to arbitration on the following issue:

Did Management violate Article 11 of the Negotiated Agreement when the Grievant was not assigned to work overtime on the weekend of September 14-15, 1991? If so, what shall be the proper remedy?

Award at 2.

The Arbitrator determined that, under the rotational system for overtime assignments encompassed in the parties' agreement, the grievant should have been offered the disputed overtime assignment. In this regard, the Arbitrator noted that, during the processing of the grievance, the Agency admitted that the grievant should have been offered the overtime. The Arbitrator also noted testimony from the grievant's supervisor that the supervisor intended "to give the overtime to the [g]rievant." Id. at 5.

The Arbitrator noted the Agency's arguments that the grievant "may not . . . have even been available to work the overtime even if he had been asked[]" and that, "[s]ince [the grievant] did not offer any testimony at the hearing, that is a distinct possibility." Id. at 4 (citing Agency post-hearing brief to the Arbitrator). However, the Arbitrator concluded that the grievant "was denied sixteen hours of overtime to which he was entitled." Id. at 5. As a remedy, the Arbitrator rejected an approach whereby the grievant would be offered an opportunity to work 16 hours of overtime. Instead, as his award, the Arbitrator awarded the grievant 16 hours of overtime pay.

III. Positions of the Parties

A. Exception

The Agency contends that the award is contrary to the Back Pay Act, 5 U.S.C. § 5596, because, in the Agency's view, the Arbitrator did not find that the grievant "actually suffered a loss of overtime pay . . . ." Exception at 2. The Agency asserts that there was "no testimony, nor any finding by the [A]rbitrator, that [the grievant] was available and willing to perform the overtime." Id.

B. Opposition

The Union asserts that the Arbitrator made the "but for" finding required under the Back Pay Act for an award of overtime pay. Opposition at 1. Further, the Union claims that the grievant "informed management that he was ready, willing and able to work overtime." Id. at 3.

IV. Analysis and Conclusions

Under the Back Pay Act, 5 U.S.C. § 5596, an award of backpay is authorized only when an arbitrator finds 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 employee's pay, allowances, or differentials; and (3) but for such action, the employee would not have suffered the withdrawal or reduction. See American Federation of Government Employees, Local 31 and U.S. Department of Veterans Affairs, Medical Center, Cleveland, Ohio, 41 FLRA 514, 517 (1991) (VA Cleveland). In our view, the Arbitrator's award in this case satisfies these requirements.

First, a violation of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action. See U.S. Department of the Treasury, Customs Service, South Central Region, New Orleans, Louisiana and National Treasury Employees Union, Chapter 168, 43 FLRA 337, 340 (1991). In this case, the Arbitrator concluded that the Agency violated the parties' agreement by failing to offer the grievant the disputed overtime assignment. Consequently, the Arbitrator's award satisfies the first requirement for an award of backpay.

With respect to the second and third