TWO ROOKIE MISTAKES
A recent FLRA decision opens with these three sentences, “In this case, Arbitrator Anthony R. Orman, found that the Agency violated Article 21, Section 4 of the parties’ collective-bargaining agreement by failing to distribute overtime in a “fair and equitable manner.”[ But he denied the Union’s requested backpay remedy because the Union failed to show which employees were available and would have accepted the opportunity to work the overtime. We find that the Arbitrator’s denial of backpay is not contrary to the Back Pay Act (BPA).
The union made a fundamental mistake by not giving the arbitrator one of two options for a remedy. First, it could have laid out a formula for identifying who was available for overtime and would have accepted it. For example, it could have said retroactive overtime payments should be given to those employees who were a) not on leave the day overtime was to be worked, and b) who have not denied overtime that last two times it was offered to them.
The second option would have been to ask the arbitrator to retain jurisdiction and task the parties to work to identify who would have been available and willing to work or to otherwise settle on who should receive the retroactive overtime payments.
But the other basic mistake made here was by the arbitrator. Normally, when a neutral finds a contract violation with back pay potential but the parties have not put the facts on the table to either identify who should or should not get it, the arbitrator should retain jurisdiction. She would then order the parties to gather more facts and come back to her if they cannot work it out themselves in a designated number of days.