19:0632(80)NG - Radio Officers Union and NOAA -- 1985 FLRAdec NG
[ v19 p632 ]
The decision of the Authority follows:
19 FLRA No. 80 RADIO OFFICERS UNION Union and NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION Agency Case No. O-NG-823 DECISION AND ORDER ON NEGOTIABILITY ISSUES 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 advance. 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 Chairman 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 provisions (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 who performs work on a holiday designated by Federal Statute, Executive order, or with respect to an employee of the government of the District of Columbia, by order of the District of Columbia Council, is entitled to pay at the rate of his basic pay, plus premium pay at a rate equal to the rate of his basic pay, for that holiday work which is not-- (1) in excess of 8 hours; or (2) overtime work as defined by section 5542(a) of this title. (c) An employee who is required to perform any work on a designated holiday is entitled to pay for at least 2 hours of holiday work. (d) An employee who performs overtime work as defined by section 5542(a) of this title on a Sunday or a designated holiday is entitled to pay for that overtime work in accordance with section 5542(a) of this title. (e) Premium pay under this section is in addition to premium pay which may be due for the same work under section 5545(a) and (b) of this title, providing premium pay for nightwork. /7/ 5 U.S.C. 5545 relevantly provides: Sec. 5545. Night, standby, irregular, and hazardous duty differential. (a) Except as provided by subsection (b) of this section, nightwork is regularly scheduled work between the hours of 6:00 p.m. and 6:00 a.m., and includes-- (1) periods of absence with pay during these hours due to holidays; and (2) periods of leave with pay during these hours if the periods of leave with pay during a pay period total less than 8 hours. Except as otherwise provided by subsection (c) of this section, an employee is entitled to pay for nightwork at his rate of basic pay plus premium pay amounting to 10 percent of that basic rate. This subsection and subsection (b) of this section do not modify section 5141 of title 31, or other statute authorizing additional pay for nightwork. (b) The head of an agency may designate a time after 6:00 p.m. and a time before 6:00 a.m. as the beginning and end, respectively, of nightwork for the purpose of subsection (a) of this section, at a post outside the United States where the customary hours of business extend into the hours of nightwork provided by subsection (a) of this section. /8/ 5 CFR 551.531(b) provides as follows: 551.531 Compensatory time off. . . . . (b) An employee who earns an overtime pay entitlement under this subpart may be granted compensatory time off in a subsequent workweek provided: (1) The employee earns overtime entitlement under Sec. 550.113 of this chapter that is equal to or greater than the employee's overtime entitlement under this subpart; and (2) The employee makes a written request to substitute compensatory time off for overtime payment. /9/ See 5 CFR 551.102(d). /10/ 5 CFR 550.113 provides, in relevant part: 550.113 Computation of overtime pay. (a) For each employee whose rate of basic pay does not exceed the minimum rate for GS-10 the overtime hourly rate is 1 1/2 times his hourly rate of basic pay. (b) For each employee whose rate of basic pay exceeds the minimum rate for GS-10 the overtime hourly rate is 1 1/2 times the hourly rate of basic pay at the minimum rate for GS-10. /11/ See note 5, supra. /12/ A "nonexempt employee" is an employee who is covered under the provisions of the FLSA. See 5 CFR 551, Subpart B.