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62 FLRA No. 2
U. S. Department of the Navy, Puget Sound Naval Shipyard And Intermediate Maintenance Facility, Bremerton, Washington and Bremerton Metal Trades Council, IBEW, Local 574 (Sass, Arbitrator), 0-AR-3998 (January 25, 2007)
The Arbitrator held that the Agency violated a provision of the parties' collective bargaining agreement requiring that overtime be distributed in a fair and equitable manner when it denied the grievant the opportunity to work overtime. As a remedy, the grievant was awarded backpay.
The Authority denied, in part, and dismissed, in part, the Agency's exceptions. First, the Authority denied the Agency's exception that the award violated the Agency's right to assign work under § 7106(a)(2)(B). The Authority noted that in resolving whether an arbitrator's award violates management's rights under § 7106 of the Statute, it applies the two-pronged framework established in 53 FLRA 146 (1997) (BEP). Under prong I, the Authority examines whether the award provides a remedy for a violation of either applicable law, within the meaning of § 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to § 7106(b) of the Statute. Under prong II, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if it had not violated the law or contractual provision at issue. Here, the Authority found that the award satisfied prong I because the contractual provision at issue was negotiated as a procedure under § 7106(b)(2). Noting that the Agency had not argued that the award violated prong II, the Authority denied the Agency's exception.
The Authority also denied the Agency's exception that the award was contrary to the Back ay Act, stating that back pay for overtime improperly denied was an appropriate remedy under the Back Pay Act. Finally, citing 5 C.F.R. § 2429.5, the Authority dismissed the Agency's exception that the award violated its right to determine its organization, finding that issue could have been, but was not raised before the arbitrator.