18:0033(4)AR - AFGE Local 1917 and INS, Justice -- 1985 FLRAdec AR



[ v18 p33 ]
18:0033(4)AR
The decision of the Authority follows:


 18 FLRA No. 4
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 1917 
 Union 
 
 and
 
 UNITED STATES IMMIGRATION AND 
 NATURALIZATION SERVICE, U.S. 
 DEPARTMENT OF JUSTICE 
 Agency
 
                                            Case No. 0-AR-478
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Thomas G. S. Christensen filed by the Agency under section
 7122(a) of the Federal Service Labor-Management Relations Statute and
 part 2425 of the Authority's Rules and Regulations.  /1/
 
    The dispute in this matter concerns the grievants' entitlement under
 8 U.S.C. 1353(a) /2/ to extra compensation for night (5 p.m. to 8 a.m.)
 overtime work.  /3/ The grievants were hired as intermittent, WAE (When
 Actually Employed) Immigration Inspectors depending upon the needs of
 the Agency.  The dispute arose when the grievants were notified that
 they were being rescheduled from full-time, 40-hour a week shifts to
 part-time, 18-hour a week shifts, and that as a result, they would no
 longer receive extra compensation under 5 U.S.C. 1353(a) for night
 overtime but, rather, would receive regular overtime pay under 5 U.S.C.
 5542 /4/ for such work.
 
    The Arbitrator first rejected the Agency's argument that the dispute
 was not arbitrable under the parties' agreement and that the Arbitrator
 was without authority to resolve the dispute, assertedly because the
 negotiated grievance procedure excluded from coverage any matter nor
 subject to management's control and that this matter was controlled by
 law.  The Arbitrator found that the Agency's argument was untimely
 raised under the agreement and, furthermore, that included within the
 definition of grievance in the agreement was any claimed violation,
 misinterpretation or misapplication of any law, rule or regulation
 affecting conditions of employment.  On the merits, the Arbitrator
 determined that the payment of extra overtime compensation under 8
 U.S.C. 1353(a) is not conditioned on whether the employee works
 full-time or part-time, but, rather whether the employee is assigned to
 a regularly scheduled shift.  As his award, the Arbitrator in effect
 directed the Agency to pay part-time inspectors on regularly scheduled
 shifts extra compensation under 8 U.S.C. 1353(a) for night overtime and
 to make whole any part-time inspector who had been denied such
 compensation.
 
    In its exceptions, the Agency first contends that the Arbitrator
 erred and exceeded his authority by finding that the instant dispute was
 arbitrable since it is specifically controlled by law.  However, the
 Agency has failed to establish that the award is deficient.  Thus, the
 grievance is clearly within the coverage of the grievance procedure
 prescribed by the Statute.  See, e.g., American Federation of Government
 Employees, AFL-CIO, National Council of EEOC Locals and Equal Employment
 Opportunity Commission, 10 FLRA 3 (1982) (proposal 1), enforced sub nom.
 EEOC v. FLRA, No. 82-2310 (D.C. Cir. Sept. 21, 1984).  The Authority
 concludes that this exception constitutes nothing more than disagreement
 with the Arbitrator's interpretation and application of the parties'
 collective bargaining agreement and consequently provides no basis for
 finding the award deficient.  E.g., Veterans Administration Hines
 Hospital and Illinois Nurses Association, Hines Unit, 13 FLRA 131
 (1983);  San Antonio Air Logistics Center, Kelly Air Force Base, San
 Antonio, Texas and American Federation of Government Employees, AFL-CIO,
 Local 1617, 9 FLRA 378 (1982).
 
    In another exception, the Agency contends that the award is contrary
 to 8 U.S.C. 1353(a).  The Authority agrees.  It has been expressly
 decided that intermittent, part-time Immigration Inspectors are not
 entitled to additional compensation for night overtime under 8 U.S.C.
 1353(a), since that provision applies only to night overtime performed
 by full-time employees working regular tours of duty.  49 Comp. Gen. 577
 (1977).  Additionally, the Comptroller General has ruled that part-time
 employees are not entitled to the extra compensation even if they are
 working regularly scheduled shifts, B-197533 (July 1, 1980).  Thus, in
 terms of this case, the Arbitrator's award directing that the
 intermittent, part-time Immigration Inspector grievants be paid the
 extra compensation for night overtime is clearly contrary to 8 U.S.C.
 1353(a).
 
    Accordingly, the Arbitrator's award is set aside.  /5/ Issued,
 Washington, D.C., May 14, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Office of Personnel Management (OPM) filed a brief as an
 amicus curiae in this case and the Union filed an opposition to the
 Agency's exceptions and a response to OPM's brief.
 
 
    /2/ 8 U.S.C. 1353(a) provides, in pertinent part:
 
          The Attorney General shall fix a reasonable rate of extra
       compensation for overtime services of immigration officers and
       employees of the Immigration and Naturalization Service who may be
       required to remain on duty between the hours of five o'clock
       postmeridian and eight o'clock antemeridian . . . such rates to be
       fixed on a basis of one-half day's additional pay for each two
       hours or fraction thereof of at least one hour that the overtime
       extends beyond five o'clock postmeridian (but not to exceed two
       and one-half days' pay for the full period from five o'clock
       postmeridian to eight o'clock antemeridian) . . . .
 
 
    /3/ The grievants' entitlement to extra compensation under 8 U.S.C.
 1353(a) for work on Sundays and holidays is not an issue in this matter.
 
 
    /4/ 5 U.S.C. 5542 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 . . . at the following rates:
 
          (1) For an employee whose basic pay is at a rate which does not
       exceed the minimum rate of basic pay for GS-10, the overtime
       hourly rate of pay is an amount equal to one and one-half times
       the hourly rate of basic pay of the employee, and all that amount
       is premium pay.
 
          (2) For an employee whose basic pay is at a rate which exceeds
       the minimum rate of basic pay for GS-10, the overtime hourly rate
       of pay is an amount equal to one and one-half times the hourly
       r