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B-181972 1 (1976-07-23)

handle is hein.gao/gaobadcvn0001 and id is 1 raw text is: DECISION I FILE: MATTER DIGEST: t ER ,% *. THE COMPTROLLER GENERAL OF THE UNITED STATES WASHINGTON, D.C. 20549 Alii1 B*181972 DATE: JUL 2 3 1976 q OF: Charleston Naval Shipyard - Reconsideration of Arbitrator's Award of Backpay for Night Differential Labor union appealed GAO decision holding arbitrator's award of backpay for night shift work improperly denied to employees in violation of collective bargaining agreement could not be implemented since agency's action was not unjustified or unwarranted personnel action under Back Pay Act and no night work was actually performed. Subsequent decisions have held that omission such as failure to afford opportunity for overtime work in violation of agreement may constitute unjustified or unvarranted personnel action although overtime work was not performed. Therefore, upon reconsideration, arbitrator's award may be implemented where employees were improperly denied assignment to night shift. B-181972, August 28, 1974, reversed. This action is in response to the request of November 10, 1975, from the Federal Employees Metal Trades Council of Charleston for reconsideration of decision B-181972, August 28, 1974, holding that an arbitrator's award of premium pay for night shifts improperly denied to certain employees may not be implemented. The union has requested reconsideration on the basis of subsequent decisions of this Office, B-180010, October 31, 1974 (54 Comp. Gen. 312) and B-180010, August 25, 1975 (55 Comp. Gen. 171). Pursuant to a negotiated collective bargaining agreement, the union and the Charleston Naval Shipyard established a procedure for manning the swing or second shift which operated from 4:15 p.m. to 12:00 p.m. The procedure, as set forth in Article VIII, Section 9, provided that the shift would be manned by volunteers picked on the basis of seniority and rotated every 90 days, with certain exceptions to that procedure. One employee filed a grievance over the fact that the Shipyard had retained three employees on this shift continuously over a 9-month period and thus denied the grievant fair and equitable application of the negotiated agreement. The arbitrator found that the staffing of the swing shift for educational purposes (the three employees were enrolled in college) on a continuing, quasi-permanent basis viblated Article VIII, Section 9, as well as Article IV, Section 3 of the agreement, the latter providing that the agreement will be applied fairly and equitably to all employees. The arbitrator's award of backpay held: PUBLISHED DECISION 55 Comp. Gen.........t 0

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