48:0221(17)AR - - DOD, Defense Logistics Agency, Defense Distribution Region West, Stockton, CA and AFGE, Local 1857 - - 1993 FLRAdec AR - - v48 p221
[ v48 p221 ]
The decision of the Authority follows:
48 FLRA No. 17
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF DEFENSE
DEFENSE LOGISTICS AGENCY
DEFENSE DISTRIBUTION REGION WEST
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
August 13, 1993
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 John B. LaRocco 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.
The Union filed grievances on behalf of two grievants who alleged that they were denied overtime work to which they were entitled. The Arbitrator sustained the grievances and awarded overtime pay to both grievants. For the following reasons, we conclude that the award is contrary to the Back Pay Act, 5 U.S.C. § 5596, and we will set the award aside.
II. Background and Arbitrator's Award
Two employees claimed that the Agency had improperly denied them the opportunity to perform overtime work on September 12 and 13, 1991. The Union filed grievances on their behalf requesting that each grievant be compensated for 16 hours of lost overtime pay. The grievances were not resolved and were submitted to arbitration under the parties' expedited arbitration procedure.
The Arbitrator stated:
The dispute centers on [the g]rievants['] entitlement to be assigned overtime work on September 12 and 13, 1991, as well as [the g]rievants['] availability to perform such overtime service.
Award at 1. The Arbitrator noted that the parties had presented extensive evidence and testimony during the hearing in support of their respective positions. The Arbitrator found that "it would not serve the best interests of the parties to set forth a lengthy opinion summarizing the evidence and analyzing this case except to state that, at the arbitration hearing, due process was afforded to the [g]rievants and the [Agency]." Id. The Arbitrator stated that he had "carefully weighed all the evidence of record and conclude[d] that the grievances must be sustained." Id. The Arbitrator made the following award:
1. The grievances are sustained.
2. The [Agency] shall pay each [g]rievant 17 [sic] hours of pay at the overtime rate but without any Sunday premium pay.
III. Positions of the Parties
A. Agency's Exception
The Agency contends that the award is deficient because it does not satisfy the requirements of the Back Pay Act, 5 U.S.C. § 5596. The Agency argues that under the Back Pay Act, an award of backpay for overtime 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. According to the Agency, "[t]he Arbitrator in this case clearly did not make these findings." Exception at 2. The Agency claims that the award should be set aside because the Authority has consistently set aside awards of backpay in which the arbitrator did not make these required findings.
B. Union's Opposition
The Union contends that the award is not deficient because the Agency "agreed that a short 'yes or no' opinion would be in order." Opposition at 1. According to the Union, "[a]fter agreeing to a short opinion in this expedited case, it is preposterous for the Agency to file an exception." Id.
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. U.S. Department of the Army, Pine Bluff Arsenal, Arkansas and American Federation of Government Employees, Local 953, 47 FLRA 626, 628-29 (1993) (Pine Bluff Arsenal). The finding of a direct causal connection required under the Back Pay Act may be implicit from the record and the award. International Association of Machinists and Aerospace Workers, Lodge 2261 and American Federation of Government Employees, Local 2185 and U.S. Department of the Army, Tooele Army Depot, Tooele, Utah, 47 FLRA 427, 434 (1993).
The Arbitrator stated that the dispute before him centered on whether the grievants were entitled to be assigned overtime work on the 2 days in question, as well as whether the grievants were available to perform such overtime work. The Arbitrator further stated that he "carefully weighed all the evidence of record and conclude[d] that the grievances must be sustained." Award at 1. By sustaining the grievances, the Arbitrator concluded that the grievants were entitled to, and available to perform, overtime. However, the Arbitrator did not state the basis for his finding that the grievants were entitled to overtime.
Under the first part of the test set forth above for determining whether an award of backpay is authorized under the Back Pay Act, an arbitrator must find that an aggrieved employee was affected by an unjustified or unwarranted personnel action. In this regard, a violation of an applicable law, rule, regulation or provis