48:0966(106)AR - - Army, Corpus Christi Army Depot, Corpus Christi, TX and AFGE, Local 2142 - - 1993 FLRAdec AR - - v48 p966

[ v48 p966 ]
The decision of the Authority follows:

48 FLRA No. 106










LOCAL 2142





November 29, 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 Raymond L. Britton 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 grievant filed a grievance seeking night differential pay. The Arbitrator sustained the grievance. For the following reasons, we conclude that the Arbitrator's award is deficient under section 7122(a) of the Statute. Accordingly, we will set aside the award.

II. Background and Arbitrator's Award

The grievant, a prevailing rate electronics mechanic, was assigned to the night shift and was paid night differential in addition to his scheduled rate of pay in accordance with 5 U.S.C. § 5343(f)(1).(1) In September 1991, the grievant was reassigned from the night shift to the day shift and his night differential was terminated.

The grievant filed a grievance alleging that the Agency violated law, Government-wide regulation, and the parties' collective bargaining agreement by involuntarily reassigning him from the night shift to the day shift without written notification of the change. As a remedy, the grievant requested backpay and restoration of night differential. When the grievance was not resolved, it was submitted to arbitration. The Arbitrator stated the issue as "whether the [g]rievant is entitled to retain his night shift or second shift rate of pay when he was transferred from the night shift to the day shift." Award at 6.

According to the Arbitrator, the grievant was reassigned from the night shift to the day shift when the Agency eliminated the night shift. The Arbitrator stated that, under 5 U.S.C. § 5343(f) night differential is part of basic pay. The Arbitrator concluded that "[a]s a result of having been involuntarily reassigned from night shift employment to day shift employment, the [g]rievant lost part of his regular wages, i.e., night differential[.]" Id. at 8. The Arbitrator sustained the grievance and directed the Agency to award the grievant "back pay from the time that he was moved" and "pay retention determined by what his second shift rate of pay should be at the time of proper transfer . . . ." Id. at 9.

III. Positions of the Parties

The Agency asserts that the award is deficient as contrary to, among other things, 5 C.F.R. §§ 536.102 and 104.(2) The Agency contends that the grievant is not entitled to retain night differential pay because: (1) night differential is not a part of an employee's rate of basic pay; and (2) the grievant's rate of basic pay was not reduced when he was transferred from the night shift to the day shift.

The Union argues that the Agency's exceptions constitute an attempt to "retry the case with essentially the same evidence presented at Arbitration[.]" Opposition at 1.

IV. Analysis and Conclusions

An arbitration award is deficient under section 7122(a) of the Statute if the award is contrary to any law, rule, or regulation. U.S. Department of Justice, Immigration and Naturalization Service, Washington, D.C. and American Federation of Government Employees, National Immigration and Naturalization Council, 44 FLRA 343 (1992). For the following reasons, we find that the award is inconsistent with law and Government-wide regulation.

Prevailing rate employees, such as the grievant, are covered by the grade and pay retention provisions of 5 U.S.C. §§ 5361-5366. See 5 U.S.C. § 5361(1). As relevant here, a prevailing rate employee is entitled to pay retention under 5 U.S.C. § 5363 in circumstances where the employee's rate of basic pay is reduced as a result of the agency actions specified in 5 U.S.C. § 5361(a) and 5 C.F.R. § 536.104.(3) Such employee's rate of basic pay for purposes of pay retention under 5 U.S.C. §&n