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35:0325(36)AR - - AFGE Local 1857 and Air Force, Sacramento Air Logistics Center, McClellan AFB, CA - - 1990 FLRAdec AR - - v35 p325

[ v35 p325 ]
The decision of the Authority follows:

35 FLRA No. 36











March 29, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator William H. Shea filed by the Agency pursuant to 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 Arbitrator found that the Agency violated the overtime provisions of the collective bargaining agreement. He ruled that the grievant was entitled to backpay for 16 hours of overtime work. The Agency contends that the award is deficient because it is contrary to the Back Pay Act, 5 U.S.C. § 5596. We agree that the award is contrary to the Back Pay Act and we will set aside the award.

II. Background and Arbitrator's Award

In considering a grievance over the assignment of overtime, the Arbitrator rejected the Agency's contention that the grievance was not timely filed and addressed the merits of the grievance. The Arbitrator stated: "The substantive issue in the case is reduced to the question of whether the Agency violated it[s] agreement by failing to offer the grievant the opportunity to work overtime and, was he thereby injured." Award at 1-2.

The Arbitrator noted that the agreement provided that overtime work should be rotated equitably and that supervisors should maintain records of overtime worked or declined by employees. He found that although the agreement did not specifically require supervisors to maintain an overtime roster, it required some documentation of overtime assignments. The Arbitrator found that the grievant's supervisors did not keep an overtime roster and noted the supervisors' testimony that they assigned overtime according to work sheets whenever overtime was needed. Award at 2. The supervisors testified that the grievant was always offered overtime when his turn came up and that he always declined during the period in question.

The grievant testified that he was not even aware that overtime was available during that period and that he only learned that overtime was available by overhearing a fellow employee being asked to work overtime. The Arbitrator found that the "grievant admitted that he was never available for overtime on Thursdays . . . [and that he] was also on limited duty for a week during the period in question." Award at 3.

The Arbitrator stated that taken as a whole the evidence at the hearing did not persuade him that the grievant "was deprived of overtime opportunities to the tune of anything close to the 48 hours the Union is seeking." Id. The Arbitrator stated that he "[did] feel that [the grievant] was in all probability passed over at times[.] The question is on haw [sic] many times he would have accepted the offer to work. Based on the scant evidence of history in this regard, perhaps not many." Id.

The Arbitrator made the following award:

Based on what is, admittedly, pure conjecture, the arbitrator will rule that an award of 16 hours of overtime pay will properly compensate [the grievant] for any injury he may have suffered because of failure on the part of the Employer to strictly follow the terms of its contract.


III. Positions of the Parties

A. Agency's Exception

The Agency contends that the Arbitrator's award is deficient because it is contrary to the Back Pay Act, 5 U.S.C. § 5596. Specifically, the Agency argues that the Arbitrator failed to make the required finding that the grievant was affected by an unwarranted or unjustified personnel action which directly resulted in the loss of pay, allowances or differentials which the grievant otherwise would have received. The Agency states that the Arbitrator "made no finding that 'but for' the Employer's failure to offer the grievant specific overtime assignments, the grievant would have worked and been paid overtime." Exception at 4.

B. Union's Opposition

The Union denies that the Arbitrator's award is contrary to the Back Pay Act and asserts that the Agency's exception only disagrees with the award. The Union maintains that the Arbitrator found that there was a violation of the overtime requirements of the agreement which constituted an unwarranted and unjustified personnel action which caused the grievant to be injured. Further, the Union maintains that the Agency admitted that it committed the unwarranted and unjustified personnel action by granting the grievant 4 of the 52 hours of overtime pay which he originally requested.

IV. Analysis

We find that the award is contrary to the Back Pay Act. In order for an award of backpay to be authorized under the Back Pay Act, an arbitrator must make the following determinations: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; (2) the personnel action resulted in the withdrawal or reduction of all or part of the grievant's pay, allowances, or differentials; and (3) but for such action, the grievant otherwise would not have suffered the withdrawal or reduction. For example, U.S. Department of the Navy, Long Beach Naval Shipyard, Long Beach, California and Federal Employees Metal Trades Council, 34 FLRA 311 (1990) (Long Beach Naval Shipyard).

The Arbitrator found that the Agency violated the agreement by failing to maintain a record of overtime offered to or worked by the grievant and that the grievant "was in all probability passed over at times" for overtime. Id. The Arbitrator concluded that "[b]ased on what is, admittedly, pure conjecture," the grievant was deprived of the opportunity to work overtime for at least 16 hours. Id.

We find that the Arbitrator's award fails to satisfy the requirement of the Back Pay Act that but for the Agency's unjustified or unwarranted personnel action (in this case, the violation of the agreement), the grievant would have been offered specific overtime assignments, performed overtime work and received pay for that work. The Arbitrator admitted that his finding that the grievant was entitled to 16 hours of overtime was based on "pure conjecture." Id. In cases involving the Back Pay Act, the Authority has consistently required that an arbitrator's award be specific as to whether a grievant suffered a reduction in pay as a direct result of improper agency action. See, for example, Long Beach Naval Shipyard (award of overtime based only on grievant's expectation of working overtime does not constitute finding that "but for" violation of the collective bargaining agreement grievant would have worked overtime); Navy Public Works Center, Norfolk, Virginia and Tidewater Virginia Federal Employees Metal Trades Council, 33 FLRA 592 (1988) (arbitrator's award violated the Back Pay Act because the arbitrator awarded the grievant an amount of retroactive overtime pay calculated to bring his yearly total into balance with two other employees); Naval Air Rework Facility, Norfolk, Virginia and International Association of Machinists and Aerospace Workers, Local Lodge No. 39, 21 FLRA 410 (1986) (award contrary to Back Pay Act because arbitrator awarded overtime even though it was not clear that employees were available and willing to work at times in question).

The instant case is similar to the cases cited above. In this case, the Arbitrator awarded the grievant 16 hours of overtime for the Agency's violation of the parties' agreement. However, the Arbitrator did not find that, but for the Agency's violation of the collective bargaining agreement, the grievant would have worked a specific amount of overtime on specific days. Accordingly, we conclude that the award is contrary to the Back Pay Act and must be set aside.

V. Decision

The award is set aside.

(If blank, the decision does not have footnotes.)

 */ The Agency also requested a stay of the award when it filed its exceptions to the award with the Authority on June 19, 1989. Effective December 31, 1986, the Authority's Regulations were revised to revoke those portions pertaining to the filing of requests for stays of arbitration awards (51 Fed. Reg. 45754). Accordingly, no action on the stay request was taken.