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46:0974(87)AR - - Anniston Army Depot, Anniston, AL and AFGE Local 1945 - - 1992 FLRAdec AR - - v46 p974

[ v46 p974 ]
The decision of the Authority follows:

46 FLRA No. 87










LOCAL 1945





December 18, 1992


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 Stephen D. Owens 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.

An employee filed a grievance alleging that the Agency improperly failed to offer him an overtime assignment. The Arbitrator sustained the grievance and awarded the grievant overtime pay. For the following reasons, we conclude that the Agency's exception provides no basis for finding the award deficient. Accordingly, we will deny the exception.

II. Background and Arbitrator's Award

The grievant asserted that the Agency violated the parties' collective bargaining agreement by failing to offer him a 16-hour overtime assignment. When the matter was not resolved, it was submitted to arbitration on the following issue:

Did Management violate Article 11 of the Negotiated Agreement when the Grievant was not assigned to work overtime on the weekend of September 14-15, 1991? If so, what shall be the proper remedy?

Award at 2.

The Arbitrator determined that, under the rotational system for overtime assignments encompassed in the parties' agreement, the grievant should have been offered the disputed overtime assignment. In this regard, the Arbitrator noted that, during the processing of the grievance, the Agency admitted that the grievant should have been offered the overtime. The Arbitrator also noted testimony from the grievant's supervisor that the supervisor intended "to give the overtime to the [g]rievant." Id. at 5.

The Arbitrator noted the Agency's arguments that the grievant "may not . . . have even been available to work the overtime even if he had been asked[]" and that, "[s]ince [the grievant] did not offer any testimony at the hearing, that is a distinct possibility." Id. at 4 (citing Agency post-hearing brief to the Arbitrator). However, the Arbitrator concluded that the grievant "was denied sixteen hours of overtime to which he was entitled." Id. at 5. As a remedy, the Arbitrator rejected an approach whereby the grievant would be offered an opportunity to work 16 hours of overtime. Instead, as his award, the Arbitrator awarded the grievant 16 hours of overtime pay.

III. Positions of the Parties

A. Exception

The Agency contends that the award is contrary to the Back Pay Act, 5 U.S.C. § 5596, because, in the Agency's view, the Arbitrator did not find that the grievant "actually suffered a loss of overtime pay . . . ." Exception at 2. The Agency asserts that there was "no testimony, nor any finding by the [A]rbitrator, that [the grievant] was available and willing to perform the overtime." Id.

B. Opposition

The Union asserts that the Arbitrator made the "but for" finding required under the Back Pay Act for an award of overtime pay. Opposition at 1. Further, the Union claims that the grievant "informed management that he was ready, willing and able to work overtime." Id. at 3.

IV. Analysis and Conclusions

Under the Back Pay Act, 5 U.S.C. § 5596, an award of backpay is authorized only when an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; (2) the personnel action directly resulted in the withdrawal or reduction of the employee's pay, allowances, or differentials; and (3) but for such action, the employee would not have suffered the withdrawal or reduction. See American Federation of Government Employees, Local 31 and U.S. Department of Veterans Affairs, Medical Center, Cleveland, Ohio, 41 FLRA 514, 517 (1991) (VA Cleveland). In our view, the Arbitrator's award in this case satisfies these requirements.

First, a violation of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action. See U.S. Department of the Treasury, Customs Service, South Central Region, New Orleans, Louisiana and National Treasury Employees Union, Chapter 168, 43 FLRA 337, 340 (1991). In this case, the Arbitrator concluded that the Agency violated the parties' agreement by failing to offer the grievant the disputed overtime assignment. Consequently, the Arbitrator's award satisfies the first requirement for an award of backpay.

With respect to the second and third requirements, the "but for" test does not require "a specific recitation of certain words and phrases, such as 'but for[,]'" but rather a finding of a direct connection between an unwarranted or unjustified personnel action and an employee's loss of pay, allowances, or differentials. See VA Cleveland, 41 FLRA at 518. In this regard, the finding of a direct causal connection may be "implicit from the record and the award[.]" Id. at 519.

In this case, the Arbitrator noted the Agency's contention that the grievant may not have been available to work the overtime. Further, the Arbitrator decided that, rather than an offer of a future overtime assignment, the grievant was due 16 hours of overtime pay. We conclude, based on the award as a whole, that the Arbitrator implicitly rejected the Agency's argument that the grievant would not have worked the disputed overtime and found that, but for the Agency's violation of the agreement, the grievant would have received 16 hours' overtime pay. In this connection, we reject as unsupported the Agency's argument that the Arbitrator "found that there was a distinct possibility that the grievant may not have been available to work the overtime." Exception at 3. Instead, we find it clear that the Arbitrator's statement to which the Agency refers was intended as a characterization of the Agency's argument. We note, in this regard, that the Arbitrator's characterization is consistent with the argument in the Agency's post-hearing brief to the Arbitrator, which was cited by the Arbitrator, that "the grievant did not testify in this case. Without his testimony, there can be no finding that he was actually available and willing to work . . . ." Post-Hearing Brief at 6 (attached to Agency's Exception). That the Agency did not include in its argument the words "distinct possibility" is irrelevant in our view.

Based on the foregoing, we conclude that there is established in the award the necessary requirements under the Back Pay Act for the Arbitrator's award of backpay. Accordingly, we will deny the Agency's exception.

V. Decision

The Agency's exception is denied.

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