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16:1131(147)AR
The decision of the Authority follows:
16 FLRA NO. 147
IMMIGRATION AND NATURALIZATION
SERVICE, SOUTHERN REGIONAL OFFICE,
DALLAS, TEXAS
Activity
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, NATIONAL INS COUNCIL,
EL PASO, TEXAS
Union
Case No. 0-AR-343
DECISION
This matter is before the Authority on exceptions to the award of Arbitrator Howard V. Finston filed by the Department of Justice (the Agency) on behalf of the Activity under section 7122(a) of the Federal Service Labor - Management Relations Statute and part 2425 of the Authority's Rules and Regulations.
The dispute in this matter concerned the grievant's claims for overtime compensation while they were on temporary detail in Florida in connection with the Cuban Refugee Program. In addition to their regular pay, the grievants, Criminal investigators, were receiving 25 percent premium pay on an annual basis for administratively uncontrollable overtime (AUO) pursuant to 5 U.S.C. 5545(c)(2). 1 While in Florida, [ v16 p1131 ] the grievants worked regular shifts, but were also frequently required to perform pre-shift duties upon notification by the Coast Guard of the arrival of vessels from Cuba. The Activity essentially argued that since the grievants received premium pay for AUO, they were not entitled to additional pay for the pre-shift work, which the Activity claimed was irregular or occasional in nature. The Union essentially argued that the pre-shift work was "regularly scheduled" and, therefore, that overtime pay under 5 U.S.C. 5542(a) 2 in addition to premium pay was warranted.
The Arbitrator factually found that the pre-shift work was predictable several hours in advance and that the work occurred with a high degree of frequency and regularity over a period of several weeks. On the basis of these findings, the Arbitrator was of the judgment that the work more closely conformed to regular overtime than to AUO. As his award, the Arbitrator therefore ruled that the grievants were entitled to receive regular overtime compensation for the pre-shift work.
In its exceptions, the Agency contends, among other things, that the award violates 5 U.S.C. 5545(c)(2). The Authority agrees.
The issue for the Authority in this case is whether, based upon the facts found by the Arbitrator, there was a sufficient legal basis for his award of regular overtime compensation. For the reasons that follow the Authority concludes that the factual findings of the Arbitrator fail to establish that as a matter of law the pre-shift work constituted and was compensable as regularly scheduled overtime rather than as AUO and hence his award is inconsistent with governing law. [ v16 p1132 ]
In John Burich v. The United States, 366 F.2d 984 (Ct. Cl. 1966), cert. denied, 389 U.S. 885 (1967), a case involving a claim for regular overtime pay in addition to premium pay, the Court of Claims described the relationship between the two forms of compensation as follows:
(P)remium compensation and regularly scheduled overtime relate to independent, mutually exclusive, methods for compensating two distinct forms of overtime work. The statute authorizes premium compensation where the hours of duty cannot be controlled administratively; it provides this in lieu of all other forms of premium compensation (i.e., compensation for night and holiday work) except for regularly scheduled overtime duty. Thus, the statute does not preclude an employee from receiving regular (hourly) overtime pay in addition to premium pay, but he cannot claim both for the same work. Neither may he claim hourly compensation for administratively uncontrollable overtime. Under the terms of this statute, administratively uncontrollable overtime falls clearly outside the scope of regularly scheduled overtime.... Id. at 987-88.
The distinction was further explained by the court in the context of the facts of the case as follows:
In claiming entitlement to overtime on an hourly basis, plaintiff emphasizes that his assignments were regularly scheduled. We do not disagree. But the point we would emphasize is that, as a consequence of his regular assignments, he experienced erratic and irregular periods of overtime work. His assignments were received on a daily basis, but neither the nature of the work nor the length of time required in its performance could be ascertained beforehand. To the extend that this work involved overtime, it is clear that such overtime could perhaps be anticipated, but it could not be regulated. And thus the point of distinction is that plaintiff was not assigned overtime; he was assigned a task which might require overtime. Under such circumstances, his additional duty hours represented administratively uncontrollable overtime rather than regularly scheduled overtime.... (P)laintiff does not claim that his overtime work was amenable to administrative control. He claims only that his assignments were "regularly" scheduled. This is not enough. Id. at 988-89
Additionally, the Comptroller General has held that the term "regularly scheduled overtime" means work which is duly authorized in advance and scheduled to recur on successive days or after specified intervals, as distinguished from situations where the schedules are made on a day-to-day, hour-to-hour basis and where the amount of overtime varies with no discernible pattern. The decisions of the Comptroller General have further viewed advance notification of from one to four days as sufficient to constitute scheduled overtime. See, e.g., 48 Comp. Gen. 334 (1968); 52 Comp. Gen. 319 (1972); 59 Comp. Gen. 101 (1979). [ v16 p1133 ]
In terms of this case as already noted, the Arbitrator's award ruling, as a matter of law, that the pre-shift work was compensable as "regularly scheduled overtime" was based upon his factual findings that the work was predictable several hours in advance and occurred with a high degree of frequency and regularity over a period of several weeks. However, the factual findings of the Arbitrator in this case do not constitute the factual determinations that are essential and must be found in order for an award of regularly scheduled overtime compensation to be authorized by law. As indicated by the decisions of the Court of Claims and the Comptroller General interpreting and applying the provisions of law governing the entitlement to such compensation, the factual findings of the Arbitrator fail to establish, under the governing legal principles, that the pre-shift work in this case constituted regularly scheduled overtime.
As held by the court in the Burich case, the fact that the duty could be anticipated and occurred frequently and regularly is insufficient to support a legal conclusion that the work was compensable as "regularly scheduled overtime." In addition, the Arbitrator's findings of fact do not establish, and it is not otherwise apparent from the award, that the pre-shift work was amenable to administrative control by the Agency. Similarly, the Arbitrator's findings that the work was scheduled on a day-to-day basis upon advance notice of some hours by the Coast Guard fails to satisfy the definition of "regularly scheduled overtime" under the decisions of Comptroller General, requiring that the work must be scheduled to recur on successive days or after specified intervals.
Consequently, the Authority concludes that the facts found by the Arbitrator did not establish a sufficient legal basis to support his determination that the pre-shift work was compensable as "regularly scheduled overtime" within the meaning of 5 U.S.C. 5545(c)(2).
Accordingly, the Arbitrator's award is set aside as contrary to 5 U.S.C. 5545(c)(2).
Issued, Washington, D.C., December 27, 1984 Henry B. Frazier III, Acting Chairman Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY
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FOOTNOTES
Footnote 1 5 U.S.C. 5545(c)(2) provides: (c) The head of an agency, with the approval of the Office of Personnel Management, may provide that-- (2) an employee in a position in which the hours of duty cannot be controlled administratively, and which requires substantial amounts of irregular, unscheduled, overtime duty with the employee generally being responsible for recognizing, without supervision, circumstances which require him to remain on duty, shall receive premium pay for this duty on an annual basis instead of premium pay provided by other provisions of this subchapter, except for regularly scheduled overtime, night and Sunday duty, and for holiday duty. Premium pay under this paragraph is determined as an appropriate percentage, not less than 10 percent nor more than 25 percent, of such part of the rate of basic pay for the position as does not exceed the minimum rate of basic pay for GS-10, by taking into consideration the frequency and duration of irregular unscheduled overtime duty required in the position.
Footnote 2 5 U.S.C. 5542(a) provides, in pertinent part: (a) For full-time, part-time and intermittent tours of duty, hours of work officially ordered or approved in excess of 40 hours in an administrative workweek, or ... in excess of 8 hours in a day, performed by an employee are overtime work and shall be paid for, except as otherwise provided by this subchapter.