19:0632(80)NG - Radio Officers Union and NOAA -- 1985 FLRAdec NG

[ v19 p632 ]
The decision of the Authority follows:

 19 FLRA No. 80
                                            Case No. O-NG-823
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and presents issues as
 to the negotiability of the following two Union proposals.  /1/ Upon
 careful consideration of the entire record, including the parties'
 contentions, the Authority makes the following determinations.
                             Union Proposal 1
                               HOURS OF WORK
    Article I, Section 15A
    Basic Work Schedule.
          The basic workweek shall conform to 5 U.S.C. 6101.
          1.  The basic workweek shall be scheduled in 8 hour segments,
       40 hours per week, Monday through Friday when possible.
          2.  The working hours for all bargaining unit employees, except
       where mission operations require alterations in scheduling, shall
       be the same on each day and breaks of more than 1 hour in the
       basic workday shall not be allowed.
          3.  Employees assigned to a particular tour of duty, except in
       emergencies, must be notified at least five working days in
          4.  The head of the agency setting the hours to constitute an
       official workweek shall notify the Union ten days in advance of
       any authorization for any unit to alter the basic work schedule of
       bargaining unit employees.
    Article III, Section 5B.
          The standard working day for electronic technicians shall be 8
       hours per day at sea and in port.  A day shall be reckoned from
       midnight to midnight.  Normal hours of work shall be between 0800
       and 1700.  All work performed in excess of the regularly scheduled
       8-hour workday and on Saturdays, Sundays, and holidays shall be
       paid for at the overtime rate.
          When mission requirements dictate, the hours of duty for
       nonwatch-standing unit employees assigned to sea duty shall be 8
       hours in a 12-hour period (0700-1900).  Nonwatch-standing work
       before 0700 and after 1900 will constitute overtime.  When these
       employees are required to work between the hours of midnight and
       0700, they shall be paid overtime for such hours but shall be
       required to turn to at 0700 for their regular day's work without
       additional overtime.  In port, or on the day of arrival or
       departure, when a day working wage marine unit employee is
       required to work between 1900 and 0700, overtime shall be paid for
       such hours and this time shall also count as part of his or her
       8-hour day.  If the employees then works after 0700 and that time
       is in excess of 8 hours, overtime shall be paid for such excess.
       Overtime pay for general schedule employees is governed by FLSA
       and/or Title V. (Only the underscored portions are in dispute.)
    Union Proposal 1 would require the Agency to pay overtime to its
 General Schedule employees /2/ for all work performed on Saturdays,
 Sundays and holidays.  It also would establish that nonwatch-standing
 work between the hours of 1900 and 0700 would constitute overtime work.
    General Schedule employees may be entitled to overtime compensation
 under either 5 U.S.C. 5542, as amended, or the Fair Labor Standards Act
 (FLSA), 29 U.S.C. 201 et seq., as amended.  If an employee is entitled
 to overtime compensation under both laws, he is entitled to receive
 compensation under whichever law provides him with the greater benefit.
 54 Comp.Gen. 371 (1974).  Part 551 of 5 CFR governs pay administration,
 including overtime entitlement, under the Fair Labor Standards Act
 (FLSA).  Part 550, Subpart A, governs, among other things, overtime pay
 for employees covered under title 5 overtime pay provisions, i.e., 5
 U.S.C. 5542.
    The Authority finds, in agreement with the Agency, that Union
 Proposal 1 is outside the duty to bargain.  Under the proposal, those
 employees who work on Saturdays, Sundays and holidays and between the
 hours of 1900 and 0700 would receive overtime compensation regardless of
 whether they had worked in excess of 8 hours a day or forty hours a
 week.  However, under Statute and implementing regulation, overtime is
 authorized to be paid to employees who work in excess of 8 hours a day
 (5 U.S.C. 5542) /3/ or forty hours a week (5 U.S.C. 5542 and 29 U.S.C.
 207(a)(1) /4/ as implemented by 5 CFR 551.501).  /5/ For employees who
 work on Sundays, holidays and at night but not more than 8 hours a day
 or forty hours a week, other statutory provisions specifically provide
 for varying amounts of premium pay.  For example, 5 U.S.C. 5546 provides
 employees who work Sundays or holidays varying amounts of premium pay.
 /6/ Similarly, 5 U.S.C. 5545 provides employees who perform regularly
 scheduled night work a specific amount of premium pay.  /7/ Thus, the
 proposal would provide for overtime compensation in circumstances where
 employees have not met the legal requirements authorizing such payment
 and, in fact, where in some circumstances the statutory provisions
 referenced above authorize specific varying amounts of premium pay as
 opposed to overtime.  Thus, the proposal here relates to matters which
 are specifically provided for by Federal statute, i.e., 5 U.S.C. 5545
 and 5546, and therefore are expressly excluded from the definition of
 conditions of employment under section 7103(a)(14)(C) of the Statute.
 Further, the proposal is inconsistent with 5 U.S.C. 5542 and 29 U.S.C.
 207 and implementing regulation and thus is outside the duty to bargain
 under section 7117(a)(1) of the Statute as well.  Hence, in both
 respects, Union Proposal 1 is not within the duty to bargain.
                             Union Proposal 2
                             COMPENSATORY TIME
          Article I, Section 15D
          If it shall be necessary for an employee to work more than the
       regular working hours, compensatory time off or cash payment shall
       be allowed.  Employees shall choose compensatory time or cash
       payment in writing to the department head.
          All compensatory time accumulated but not used in a calendar
       year will be paid in cash in the last pay period of the year.
       (Only the underlined portion of the proposal is in dispute.)
    By its express language, Union Proposal 2 would allow any bargaining
 unit employee working overtime the option of electing between
 compensatory time or cash payment.  The Agency contends that the
 proposal is inconsistent with regulations promulgated by the Office of
 Personnel Management (OPM) at 5 CFR 551.531(b), /8/ which the Agency
 asserts are Government-wide in effect.
    The regulation cited by the Agency has been promulgated by OPM and
 applies generally to civilian employees of the Federal Government.  /9/
 It is thus a Government-wide rule or regulation within the meaning of
 section 7117(a)(1) of the Statute.  National Treasury Employees Union,
 Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA
 748, 754 (1980).  This regulation requires that an employee's overtime
 entitlement under 5 CFR 550.113 /10/ (which implements title 5 overtime
 entitlements) must be equal to or greater than the employee's overtime
 entitlement under 5 CFR 551.501 /11/ (which implements FLSA overtime
 entitlements) in order for an agency to be able to grant compensatory
 time off to that employee in a subsequent workweek.  Thus, pursuant to
 this regulation, nonexempt employees /12/ whose entitlement to overtime
 pay under the FLSA is greater than their overtime pay entitlement under
 title 5 do not have the option of requesting compensatory time in a
 subsequent workweek in lieu of overtime pay.  In agreement with the
 Agency, the Authority concludes that the proposal, which by its plain
 terms would give employees the option of taking compensatory time in a
 subsequent workweek in lieu of overtime pay without regard to whether
 such employees are precluded from receiving compensatory time under the
 regulation, is inconsistent therewith and, hence, outside the duty to
 bargain pursuant to 7117(a)(1) of the Statute.  See FPM Letter 551-6
 (June 12, 1975).
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the petition for review be, and it
 hereby is, dismissed.  Issued, Washington, D.C., August 12, 1985
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ Pursuant to the Union's withdrawal of Union Proposal 3, the
 Authority has decided to forego the discussion of the arguments
 submitted concerning that proposal.
    /2/ It appears from the record that the unit involved herein contains
 both General Schedule and Wage Marine employees, and that the proposals
 are in dispute insofar as they apply to the General Schedule employees.
 Agency Statement of Position at 6, n. 4.
    /3/ 5 U.S.C. 5542 provides, in relevant part, as follows:
    Sec. 5542.  Overtime rates;  computation
          (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, 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
       rate of the minimum rate of basic pay for GS-10, and all that
       amount is premium pay.
    /4/ 29 U.S.C. 207(a)(1) provides:
    Sec. 207.  Maximum hours
          (a) Employees engaged in interstate commerce;  additional
       applicability to employees pursuant to subsequent amendatory
          (1) Except as otherwise provided in this section, no employer
       shall employ any of his employees who in any workweek is engaged
       in commerce or in the production of goods for commerce, or is
       employed in an enterprise engaged in commerce or in the production
       of goods for commerce, for a workweek longer than forty hours
       unless such employee receives compensation for his employment in
       excess of the hours above specified at a rate not less than and
       one-half times the regular rate at which he is employed.
    /5/ 5 CFR 551.501(a) provides in relevant part:
    Sec. 551.501 Overtime pay.
          (a) Except as otherwise provided in this subpart, an agency
       shall compensate an employee who is not exempt under subpart B of
       this part for all hours of work in excess of 40 in a workweek at a
       rate equal to one and one-half times the employee's hourly regular
       rate of pay.
    /6/ 5 U.S.C. 5546 provides as follows:
    Sec. 5546.  Pay for Sunday and holiday work
          (a) An employee who performs work during a regularly scheduled
       8-hour period of service which is not overtime work as defined by
       section 5542(a) of this title a part of which is performed on
       Sunday is entitled to pay for the entire period of service at the
       rate of his basic pay, plus premium pay at a rate equal to 25
       percent of his rate of basic pay.
          (b) An employee wh