U.S. Federal Labor Relations Authority

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53:0218(30)AR - - Tidewater Virginia Federal Employees Metal Trades Council and Norfolk Naval Shipyard, Portsmouth, Virginia - - 1997 FLRAdec AR - - v53 p218

[ v53 p218 ]
The decision of the Authority follows:

53 FLRA No. 30















July 30, 1997


Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Robert J. Ables filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator sustained a grievance challenging the denial of overtime work and ordered the Agency to pay the grievant for 30 hours of overtime pay. The Union's exceptions contest the number of hours of overtime pay awarded by the Arbitrator and the failure of the award to include interest.

For the reasons discussed below, we conclude that the Union has failed to establish that the number of hours of overtime pay awarded by the Arbitrator is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions in this regard. However, we conclude that insofar as the award fails to include interest, it is deficient because it is contrary to law. Therefore, we modify the award to provide for the payment of interest.

II. Background and Arbitrator's Award

The Agency and the Union signed a Project Agreement setting forth procedures for granting overtime work. The grievant requested overtime work for 4 hours each day following his assigned duty hours, and on weekends. The Agency did not assign him overtime work. He filed a grievance alleging that the failure to assign him overtime work violated the Project Agreement. The grievance claimed "pay for 12 hours each day, including weekends" for the 3-month period in question. Award at 5.

The Arbitrator found that the grievant had been unjustly denied overtime work. However, he stated that "[u]njust denial of overtime work notwithstanding, the Union's request for back pay for 600 hours, at overtime rates, is grossly inflated." Id. at 12. The Arbitrator found that the grievant would have worked the overtime on a particular crew, and that the crew, which consisted of 20 employees, received 604 hours of overtime during the period in question. The Arbitrator divided the 604 hours by the 20 employees in the crew and found, based thereon, that the grievant should be compensated for 30 hours of overtime.

III. Positions of the Parties

A. Union's Exceptions

The Union contends that the award is based on the Arbitrator's incorrect interpretation of a joint exhibit provided during the hearing. According to the Union, the 604-hour figure used by the Arbitrator to calculate the amount of the grievant's overtime is erroneous because it represents the number of overtime hours worked by the supervisor of the crew, not the total number of overtime hours worked by entire crew, as assumed by the Arbitrator.

As an enclosure to its exceptions, the Union submitted a copy of a list allegedly showing the number of overtime hours worked during the period in question by each of the employees assigned to the crew. According to the Union, using the Arbitrator's method of calculating overtime, the enclosure shows that the grievant is entitled to be paid for 400 hours of overtime. The Union also requests that interest be awarded the grievant, as provided by the Back Pay Act.

B. Agency's Opposition

The Agency contends that the enclosure to the Union's exceptions cannot be considered by the Authority because it was available to the Union before the arbitration hearing but was not submitted to the Arbitrator. The Agency also contends that the Union has not shown that the award is deficient.

IV. Analysis and Conclusions

A. The Award Is Not Based on a Nonfact

We construe the Union's exception that the Arbitrator incorrectly interpreted a joint exhibit as a contention that the award is based on a nonfact. To establish that an award is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993). However, we will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties had disputed at arbitration. Id. at 594 (citing Mailhandlers v. U.S. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)).

The Union asserts that the Arbitrator erred in determining the number of hours of overtime pay to which the grievant was entitled. It is clear that the number of hours of overtime pay to which the grievant was entitled was a determination by the Arbitrator on a factual matter that the parties had disputed at arbitration. Consequently, the Union's assertion provides no basis for finding the award deficient as based on a nonfact. Id. Accordingly, we deny the exception.(*)

B. The Award Is Inconsistent with the Back Pay Act Because It Does Not Include Interest

Under the provisions of the Back Pay Act, 5 U.S.C. § 5596, "interest must be paid" on backpay awards. U.S. Department of Defense, Marine Corps Logistics Base, Barstow, California and American Federation of Government Employees, Local 1492, 37 FLRA 796, 797 (1990). Where a party excepts to an award on the basis that the backpay does not include interest, the Authority will modify the award to add interest. National Border Patrol Council, Local 2913 and U.S. Department of Justice, Immigration and Naturalization Service Border Patrol, 48 FLRA 657, 658-59 (1993). The award in this case does not include interest and, therefore, is deficient as contrary to law. See, e.g., U.S. Department of the Navy, Naval Training Center, Orlando, Florida and International Union of Operating Engineers, Local 673, 53 FLRA No. 15, slip op. at 7 (1997). Consequently, we modify the award to include interest.

V. Decision

The Union's exception contesting the number of hours of overtime pay awarded by the Arbitrator is denied. The Arbitrator's award is modified to include the payment of interest on the backpay award.

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

*/ The enclosure to the Union's exceptions relates to its contention concerning the number of hours of overtime pay to which the grievant was entitled. Because this factual matter was disputed by the parties at arbitration, the enclosure cannot affect the result in this case, rendering moot the question of whether it may be considered.