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19:0258(35)AR - Army Aberdeen Proving Ground and Local 2424, IAM -- 1985 FLRAdec AR

[ v19 p258 ]
The decision of the Authority follows:

 19 FLRA No. 35
                                            Case No. O-AR-721
    This matter is before the Authority on an exception to the award of
 Arbitrator James P. Whyte filed by the Department of the Army (the
 Agency) under section 7122(a) of the Federal Service Labor-Management
 Relations Statute and part 2425 of the Authority's Rules and
    The grievance alleged that the Activity failed to distribute overtime
 duties "equally" in accordance with the parties' collective bargaining
 agreement.  The Arbitrator determined that the Activity had violated the
 agreement by failing to equitably distribute and properly record
 overtime.  The Arbitrator concluded that although the record before him
 did not "provide a valid basis for individual monetary awards," the
 violation of the agreement justified an award of "nominal damages" to
 each grievant.  Accordingly, as his award, the Arbitrator awarded eight
 hours of overtime pay to each of the grievants.
    In its exception, the Agency contends that the award violates the
 Back Pay Act, 5 U.S.C. 5596 because the Arbitrator did not find that but
 for the violation of the agreement each of the grievants would have
 worked eight hours of overtime.  The Authority agrees.
    The Authority has consistently stated that the Back Pay Act requires
 not only a determination that the aggrieved employee was affected by an
 unjustified or unwarranted personnel action, but also a determination
 that such unwarranted action directly resulted in the withdrawal or
 reduction in the pay, allowances, or differentials that the employee
 otherwise would have earned or received.  Thus, in order for an award of
 backpay by an arbitrator to be authorized by the Act, the arbitrator
 must find that an agency personnel action with respect to the grievant
 was unjustified or unwarranted, that such unjustified or unwarranted
 personnel action directly resulted in the withdrawal or reduction of the
 grievant's pay, allowances, or differentials, and that but for such
 action, the grievant otherwise would not have suffered such withdrawal
 or reduction of pay, allowances, or differentials.  E.g., Jefferson
 Barracks National Cemetery, St. Louis, Missouri and National Association
 of Government Employees, Local R14-116, 13 FLRA 703 (1984).  In terms of
 this case, although the Arbitrator determined that the Activity violated
 the parties' agreement, he failed to make the finding necessary for an
 authorized award of backpay.  Specifically, he failed to find that but
 for the Activity's violation of the agreement, each of the grievants
 would have worked and been paid for eight hours of overtime.  The
 Arbitrator's finding that the grievants should be awarded "nominal
 damages" clearly does not constitute the requisite finding and,
 moreover, as indicated above, the Arbitrator concluded that there was
 not a valid basis in the record before him for making the necessary
 determination.  Consequently, the award of overtime pay to the grievants
 is contrary to the Back Pay Act and is set aside.  Issued, Washington,
 D.C., July 25, 1985
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY