31:1184(102)AR - Marine Corps Logistics Base, Barstow, CA and AFGE Local 1482 -- 1988 FLRAdec AR
[ v31 p1184 ]
The decision of the Authority follows:
31 FLRA NO. 102 MARINE CORPS LOGISTICS BASE BARSTOW, CALIFORNIA Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1482 Union Case No. 0-AR-1452 DECISION I. Statement of the Case This matter is before the Authority on an exception to the award of Arbitrator William S. Rule filed by the Department of the Navy (the Agency) on behalf of the Activity under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition. */ The Agency excepts to that part of the Arbitrator's award which states that the grievant was entitled to overtime for work performed between March 12, 1986 and October 30, 1986. For the reasons discussed below, we conclude that the Agency has failed to establish that this part of the award is contrary to law. Accordingly, we deny the exception. II. Background and Arbitrator's Award The grievant worked as a sports specialist for the Activity and was responsible for the sports programs. Occasionally, he served as an official at athletic events held at the base. This additional activity was not a part of his official duties as a sports specialist. When engaged in this activity, he began officiating at 5:00 p.m., 1/2 hour after the end of his workday as a sports specialist. After being disciplined for matters unrelated to the exception before us, he filed grievances which alleged, among other things, that he was entitled to overtime for 22.5 hours worked between 4:30 and 5:00 p.m. for the period March 12, 1986 through October 30, 1986. The Arbitrator determined that the record was insufficient to make an exact determination as to the specific overtime due the grievant. He further found, based on the record, that: (1) the grievant was entitled to overtime for work performed between 4:30 and 5:00 p.m. on September 19, 1986; and (2) the grievant's supervisor was fully aware that the grievant was working from 4:30 to 5:00 p.m. on those days he was to officiate a game at 5:00 p.m. The Arbitrator concluded that the grievant was entitled to overtime for hours not exceeding the 22.5 hours claimed, subject to the right of the Activity to show that the grievant was not at work or did not officiate on any of the dates claimed and to deduct those hours accordingly. The Arbitrator further retained jurisdiction of this particular issue for 60 days to resolve any dispute as to this aspect of the award. III. Positions of the Parties The Agency excepts to the award's grant of overtime pay to the grievant for work performed between 4:30 and 5:00 p.m. during the period of March 12 through October 30, 1986. The Agency does not except to the award of overtime for September 19. The Agency claims that from March through October 1986, the grievant's position was exempt from the Fair Labor Standards Act (FLSA), 29 U.S.C. 201 et seq., and, therefore, his entitlement to overtime pay was governed by 5 U.S.C. 5542(a), which allows pay only for work "officially ordered or approved." The Agency asserts that the Arbitrator's finding that the grievant's supervisor was &fully aware of his after-hours activity, is not sufficient under 5 U.S.C. 5542 to demonstrate that the work was officially ordered or approved, and the award of overtime is, therefore, contrary to law. The Union contends that the Arbitrator correctly found that the grievant was entitled to overtime. IV. Discussion We reject the Agency's contention that the award of overtime compensation is contrary to law. The Agency claims that during the period in question, that is, between March 12 through October 30, 1986, the grievant's position was exempt from the FLSA and, therefore, his entitlement to overtime pay was governed by 5 U.S.C. 5542(a). However, the Agency also states, and the record indicates, that the grievant was not determined to be exempt from coverage of the FLSA until November 1986. Agency Exception at 1; Attachment 3 to Agency Exception. Specifically, the Agency states that "(i)n November 1986 the Grievant . . . was determined to be exempt from coverage of the Fair Labor Standards Act by the Base Position Classification Program Manager"; and that "(p)rior to that, while classified as an FLSA non-exempt employee, he had received a 10 per cent premium in lieu of hourly overtime for a period of time and, after that was discontinued, overtime pay on an hourly basis." Agency Exception at 1.