19:1012(117)NG - AFGE Local 2612 and Air Force, HQ, 416th Combat Support Group (SAC), Griffiss AFB, NY -- 1985 FLRAdec NG
[ v19 p1012 ]
19:1012(117)NG
The decision of the Authority follows:
19 FLRA No. 117
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 2612, AFL-CIO
Union
and
DEPARTMENT OF THE AIR FORCE,
HEADQUARTERS, 416th COMBAT
SUPPORT GROUP (SAC), GRIFFISS
AIR FORCE BASE, NEW YORK
Agency
Case No. O-NG-1060
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
relating to the negotiability of two Union proposals. Upon careful
consideration of the entire record, including the parties' contentions,
the Authority makes the following determinations.
Union Proposal 1
Employees held over for overtime will be paid a minimum of four
hours overtime, regardless of actual time worked.
The Union's proposal would establish four hours as the minimum amount
of overtime to be paid an employee who is held over from his shift, even
if the employee does not work the full four hours. In this regard, 5
U.S.C. 5542, which authorizes the payment of overtime for General
Schedule employees, provides in relevant part:
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(.)
. . . .
(b) For the purpose of this subchapter--
(1) Unscheduled overtime work performed by an employee on a day
when work was not scheduled for him, or for which he is required
to return to his place of employment, is deemed at least 2 hours
in duration(.)
Section 5542(a) only authorizes the payment of overtime to an
employee for the actual time duty is performed. /1/ The Authority
addressed 5 U.S.C. 5542 in International Brotherhood of Electrical
Workers, Local 2080, AFL-CIO-CLC and Department of the Army, U.S. Corps
of Engineers, Nashville, Tennessee, 10 FLRA 222, 228-30 (1982) (Union
Proposal 3). In that case, the Authority held that a proposal which
would establish four hours as the minimum amount of callback overtime
was outside the duty to bargain. Specifically, the Authority stated
that 5 U.S.C. 5542(b)(1), which provides that an employee shall be paid
for a minimum of two hours for callback overtime work, creates an
exception to the general rule that overtime payments can be made only
for the actual time duty is performed. /2/ Since the exception set a
maximum of two hours that an employee could be paid for callback
overtime not actually performed, the Authority concluded that the
proposed minimum of four hours overtime was outside the duty to bargain.
/3/
In terms of this case, unlike the exception for callback overtime, no
provision authorizes a minimum number of hours for which an employee
must be compensated when held over from his shift. Consequently, since
Union Proposal 1 would allow an employee to be paid for overtime which
he did not work, the proposal is inconsistent with 5 U.S.C. 5542 and,
pursuant to section 7117 of the Statute, is outside the duty to bargain.
/4/
Union Proposal 2
Union Officers and Stewards will be the last reduced in force
in the same job classification regardless of their retention
rights.
In Association of Civilian Technicians, New York State Council and
State of New York, Division of Military and Naval Affairs, Albany, New
York, 11 FLRA 475, 481-82 (1983( (Union Proposal 4), the Authority found
that a proposal which would require the agency, in the event of a
reduction-in-force (RIF), to give job retention preference to career or
permanent technician employees was outside the duty to bargain.
Specifically, the Authority held that the proposal would violate the
agency's right under section 7106(a)(2)(A) of the Statute to remove
employees in that it would compel the agency to remove employees who
were not career or permanent technicians. /5/ Similarly, the proposal
in dispute herein, by providing that Union Officers and Stewards shall
be the last employees in a given job classification to be removed in the
event of a RIF, would require the Agency to remove those employees who
are not Union Officers and Stewards if it wished to exercise its right.
Thus, for the reasons set forth in Association of Civilian Technicians,
New York State Council, the Authority finds that Union Proposal 2 would
violate the Agency's right under section 7106(a)(2)(A) of the Statute to
remove employees, and, consequently, is outside the duty to bargain.
/6/ See also American Federation of Government Employees, AFL-CIO, Local
1603 and Navy Exchange, Naval Air Station, Patuxent River, Maryland, 3
FLRA 3 (1980).
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 23, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Accord 25 Comp.Gen. 151, 155 (1945) (overtime provision of
Federal Employees Pay Act of 1945, which is the predecessor of and
contains language similar to that in section 5542(a), "clearly
contemplates the actual performance of required duty during the
prescribed overtime period"); 55 Comp.Gen. 629, 632 (1976) (where
employee improperly denied overtime work, Back Pay Act provides
exception to rule that employees may not be compensated for overtime
work when they do not actually perform work during the overtime period).
/2/ The provisions of section 5542(b)(1) apply to General Schedule
employees. The decision in U.S. Corps of Engineers, Nashville,
Tennessee found the Union's proposal to be inconsistent with 5 CFR
532.503(c), which is the equivalent of section 5542(b)(1) for wage grade
employees. Id. at 228-29.
/3/ The Authority's interpretation of section 5542(b)(1) was
supported by unpublished decisions of the Comptroller General B-175452,
May 1, 1972, and B-189163, October 11, 1977.
/4/ In view of the decision herein, it is unnecessary to address the
Agency's additional contentions regarding Union Proposal 1.
/5/ Section 7106(a)(2)(A) provides:
Sec. 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency--
. . . .
(2) in accordance with applicable laws--
. . . .
(A) to . . . remove . . . employees in the agency(.)
/6/ In view of the decision herein, it is unnecessary to address the
Agency's additional contention regarding Union Proposal 2.