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21:0307(39)AR - Norfolk Naval Shipyard, Portsmouth, Virginia. And Tidewater Virginia FEMTC -- 1986 FLRAdec AR

[ v21 p307 ]
The decision of the Authority follows:

 21 FLRA No. 39
                                            Case No. 0-AR-1056
                  I.  STATEMENT OF THE CASE
    This matter is before the Authority on an exception to the award of
 Arbitrator Robert J. Ables filed by the Department of the Navy (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 denied the grievant the
 opportunity to work overtime on an asbestos rip-out project because she
 was absent on sick leave on the day the overtime assignments were made.
 The grievance also alleged that during later changes in the overtime
 assignments made after the grievant had returned to work a less
 qualified employee was chosen instead of the grievant.  The Arbitrator
 found that the Activity violated pertinent provisions of the parties'
 collective bargaining agreement when it failed to select the grievant
 for the overtime assignment and ruled that "the grievant should have
 been assigned or, at least, been requested to perform overtime work on
 the second shift." He sustained the grievance and as a remedy ordered
 the Activity to pay the grievant as though she had worked 12 hours of
                              III.  EXCEPTION
    As its exception, the Agency contends that the award is contrary to
 the Back Pay Act, 5 U.S.C. Section 5596, because the Arbitrator failed
 to find that the grievant would have worked 12 hours of overtime but for
 the violation of the agreement.
                       IV.  ANALYSIS AND CONCLUSION
    In order for an award of backpay to be authorized by the Back Pay
 Act, the arbitrator must determine that the aggrieved employee was
 affected by an unjustified or unwarranted personnel action, that the
 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 the withdrawal or
 reduction.  U.S. Army Aberdeen Proving Ground and Local 2424,
 International Association of Machinists and Aerospace Workers, AFL-CIO,
 19 FLRA No. 35 (1985).  In this case, the Arbitrator determined that the
 Activity violated the parties' agreement by denying the grievant
 overtime.  However, he did not find specifically that but for the
 Activity's violation of the parties' agreement, the grievant would have
 performed the overtime work and received overtime pay.  That is, the
 Arbitrator's finding that the grievant should have been assigned or
 should have been requested to perform the overtime does not constitute
 the requisite finding that she would have performed the work.
 Consequently, the award of retroactive overtime pay to the grievant is
 contrary to the Back Pay Act.  See Jefferson Barracks National Cemetery,
 St. Louis, Missouri and National Association of Government Employees,
 Local R14-116, 13 FLRA 703 (1984).
                               V.  DECISION
    Accordingly, for the above reasons, the Arbitrator's award is set
    Issued, Washington, D.C., April 16, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY