36:0935(88)AR - - Navy, Naval Air Station, Corpus Christi, TX and NFFE Local 797 - - 1990 FLRAdec AR - - v36 p935



[ v36 p935 ]
36:0935(88)AR
The decision of the Authority follows:


36 FLRA No. 88

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE NAVY

NAVAL AIR STATION

CORPUS CHRISTI, TEXAS

(Activity)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 797

(Union)

0-AR-1799

DECISION

August 31, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator J. Earl Williams. A grievance was filed claiming that the Activity was not compensating Federal firefighters for overtime as required by the Fair Labor Standards Act (FLSA), title 5 of the U.S. Code, and the Code of Federal Regulations (C.F.R.). The Arbitrator denied the grievance.

The Union filed an exception to the award 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 Activity did not file an opposition to the Union's exception.

We conclude that the award is deficient because it is contrary to the FLSA.

II. Background and Arbitrator's Award

The grievance concerns Federal firefighters employed at the Activity. According to the Arbitrator, the firefighters typically work a 72-hour workweek consisting of three 24-hour shifts. Each 24-hour shift consists of regularly scheduled work and standby duty. For this typical weekly schedule, firefighters receive their basic rate of pay and premium pay on an annual basis in the amount of 25 percent of their basic pay for regularly scheduled standby duty pursuant to 5 U.S.C. § 5545(c)(1).

A grievance was filed and submitted to arbitration claiming that the Activity was not compensating firefighters for overtime as required by title 5 of the U.S. Code, the FLSA, and the C.F.R.

Before the Arbitrator, the Union primarily argued that firefighters were being required to work more than 8 hours during their 24-hour shifts and that they were entitled to overtime compensation rather than their annual premium pay. In addition, the Union specifically claimed that firefighters are on duty 288 hours during a 28-day work period and that under the FLSA and 29 C.F.R. § 553.230, they are entitled to overtime compensation for all hours in excess of 212 hours. At arbitration, the Union presented a sample work schedule to show that firefighters were on duty 288 hours during a 28-day work period as evidence that they were entitled to overtime compensation. As a remedy, the Union primarily requested that the Arbitrator order the Activity to compensate firefighters for overtime as required by law.

The Activity contended before the Arbitrator that, consistent with 5 U.S.C. § 5545(c)(1), the firefighters were not entitled to overtime pay in addition to their premium pay on an annual basis for regular standby duty.

The Arbitrator denied the grievance. He ruled that management did not violate law, regulation, or the parties' collective bargaining agreement by allegedly working firefighters more than 8 hours during their 24-hour shift. The Arbitrator determined that the firefighters were not entitled to overtime compensation because they were receiving premium pay on an annual basis for regular standby duty. He found that under 5 U.S.C. § 5545, some work may be performed beyond the 8-hour work period of the 24-hour shift without any compensation required in addition to the annual premium pay. The Arbitrator also cited as support Federal Personnel Manual (FPM) Supplement 990-2, Book 550 (Pay Administration (General)), which he stated "makes clear that an employee drawing premium pay on an annual basis may not receive premium pay for irregular or occasional overtime work." Award at 8.

In addition, the Arbitrator specifically addressed and rejected the Union's claim that firefighters were entitled to overtime compensation under the FLSA for all the hours they were on duty in a 28-day work period in excess of 212 hours. The Arbitrator stated he rejected the claim because the Union had presented as support for its claim the provisions of 29 C.F.R. § 553.230, which he found applies to state and local governments and not the Federal Government. The Arbitrator conceded that "[t]he law covering federal agencies may be the same, but it was not referenced." Id. at 9. The Arbitrator also stated he rejected the Union's claim because the firefighters' receipt of premium pay on an annual basis apparently satisfied any entitlement under the FLSA and because he found 5 U.S.C. § 5545 and FPM Supplement 990-2, Book 550 to be controlling.

III. The Union's Exceptions

The Union contends that the award is contrary to law and regulation. The Union argues that firefighters are entitled to overtime compensation and not annual premium pay for regularly scheduled work in excess of 8 hours during their 24-hour shift. The Union also argues that under the FLSA and implementing regulations at 29 C.F.R. § 553.230, firefighters are entitled to overtime compensation for all hours of duty during a 28-day work period that exceed 212 hours.

IV. Analysis and Conclusions

A. Compensation Scheme of Federal Firefighters

This case requires us to consider the compensation of Federal firefighters. As the courts have recognized, in contrast to the typical general schedule employee who is scheduled for a 40-hour workweek, Federal firefighters typically work six 24-hour shifts, or 144 hours, in every 14-day work period. LaForte v. Horner, 833 F.2d 977, 978 (Fed. Cir. 1987) (LaForte); Zumerling v. Devine, 769 F.2d 745, 746 (Fed. Cir. 1985) (Zumerling); see also International Association of Fire Fighters, Local F-61 and Philadelphia Naval Shipyard, 3 FLRA 438, 446-52 (1980) (discussing in general the work schedules and compensation of Federal firefighters); FPM Letter 551-5, Attachment 2 (discussion of applicable provisions of the FLSA pertaining to employees engaged in fire protection activities). Also unlike the typical employee who is on duty for all working hours, the 24-hour shift of firefighters consists of 8 hours of regularly scheduled work and 16 hours of regularly scheduled standby duty. LaForte, 833 F.2d at 978; Zumerling, 769 F.2d at 746.

Congress provided for these differences in work schedules in the statutes governing the compensation of firefighters. Firefighters receive basic general schedule pay and, in addition, in accordance with 5 U.S.C. § 5545(c)(1), they typically receive premium pay of up to 25 percent of their basic pay in recognition of the substantial portion of their regularly scheduled duty spent in a standby status. Id. This pay structure is based solely on provisions of title 5 of the U.S. Code and existed prior to amendments to the FLSA to include Federal firefighters within its coverage. Zumerling, 769 F.2d at 746.

In 1974, the FLSA was amended to include Federal employees within its coverage. Under section 7(a) of the FLSA, 29 U.S.C. § 207(a), employees are entitled to receive overtime compensation for all hours worked in excess of 40 hours in a workweek at a rate of one and one-half times their regular rate. However, Federal firefighters initially were excepted from the FLSA provisions. LaForte, 833 F.2d at 978-79. Subsequently, the FLSA was amended, effective January 1, 1975, to add section 7(k), 29 U.S.C. § 207(k), which provided an exception to section 7(a) of the FLSA for public agency employees engaged in fire protection services. Id. at 979.

The current version of section 7(k) provides, in pertinent part:

No public agency shall be deemed to have violated subsection (a) of this section with respect to the employment of any employee in fire protection activities . . . if--

(1) in a work period of 28 consecutive days the employee receives for tours of duty which in the aggregate exceed the lesser of (A) 216 hours, or (B) the average number of hours . . . in tours of duty of employees engaged in such activities in work periods of 28 consecutive days in calendar year 1975; or

(2) in the case of such an employee to whom a work period of at least 7 but less than 28 days applies, in his work period the employee receives for tours of duty which in the aggregate exceed a number of hours which bears the same ratio to the number of consecutive days in his work period as 216 hours (or if lower, the number of hours referred to in clause (B) of paragraph (1)) bears to 28 days,

compensation at a rate not less than one and one-half times the regular rate at which he is employed.

Thus, under section 7(k), a Federal firefighter's "overtime" period is calculated based on tours of duty in excess of the statutorily defined maximum work period rather than hours worked in excess of a 40-hour workweek. Zumerling, 769 F.2d at 747.

Since 1978, the operative statutorily defined maximum work period is that attributable to section 7(k)(l)(B): the average number of hours in tours of duty of 28-day work periods in calendar year 1975. As a result of the court's order in Jones v. Donovan, 25 WH Cases 380 (D.D.C. 1981), aff'd per curiam, No. 80-1615 (D.C. Cir. Mar. 2, 1982), the Department of Labor recomputed the average work hours for fire protection employees and determined that the average number of work hours in tours of duty in work periods of 28 consecutive days in 1975 was 212 hours. 48 Fed. Reg. 40519. (1983). Accordingly, effective with the first work period commencing on or after January 1, 1978, the overtime standards for the application of section 7(k) of the FLSA to Federal firefighters are as follows:

For employees engaged in fire protection activities: A tour of duty of 53 hours in a 7-day work period, 212 hours in a 28-day work period, or the same ratio of tour of duty to work periods for any period between 7 and 28 days.

FPM Letter 551-20.

When firefighters are entitled to overtime compensation under the FLSA, the amount is calculated in accordance with the formula outlined in FPM Letter 551-5, Attachment 2. LaForte, 833 F.2d at 979. Furthermore firefighters are entitled to receive the greater pay benefit when the overtime provisions of the FLSA and other Federal pay statutes provide for differing overtime compensation. FPM Letters 551-1; 551-5; accord 54 Comp. Gen. 371 (1974).

B. Application in the Present Case

In view of this compensation scheme, we conclude that the Arbitrator correctly determined that because they received premium pay on an annual basis for regularly scheduled standby duty, the firefighters were not entitled to overtime compensation under title 5 of the U.S. Code. However, we conclude that the Arbitrator's rejection of the Union's claim to overtime compensation under the FLSA is deficient.

Under 5 U.S.C. § 5545(c)(1) and 5 C.F.R. § 550.141, an agency may pay premium pay on an annual basis, instead of overtime compensation for regularly scheduled work, to employees for regularly scheduled standby duty. For the pay to be authorized, employees must be required to remain at or within the confines of their station; this requirement must be a regular part of their job and must be on a regular basis; the requirement to remain at their station must be for more than 40 hours a week; and a substantial part of the time on duty (at least 25 percent) must consist of remaining in a standby status rather than performing actual work. 5 C.F.R. § 550.143; FPM chapter 550, subchapter 1-6. An agency is precluded from paying premium pay on an annual basis when this premium pay over an appropriate period of time would be less than the premium pay otherwise payable for the hours of actual work customarily required. Id. To emphasize that this premium pay is in place of overtime compensation for all work performed during the regularly scheduled tour of duty, 5 C.F.R. § 550.163 provides that an employee receiving this premium pay may not receive premium pay for regular overtime work. Employees receiving this premium pay may receive overtime compensation only for irregular and occasional overtime work performed outside their regularly scheduled tour of duty.

In this case, the Union has failed to establish that the payment to firefighters of premium pay on an annual basis for regularly scheduled standby duty is not authorized under the requirements of 5 U.S.C. § 5545(c)(1) and 5 C.F.R. §§ 550-141-143. Accordingly, the prohibition of 5 C.F.R. § 550.163 applies to preclude the payment of overtime compensation under title 5 of the U.S. Code for work performed during the regularly scheduled tour of duty. Consequently, we find that the Arbitrator correctly denied the Union's claim for overtime compensation under title 5 of the U.S. Code for work allegedly performed during the regularly scheduled 24-hour shift.(1) Therefore, we deny the Union's exception to the extent the Union contends that firefighters are entitled to overtime compensation under title 5 of the U.S. Code.

However, we agree with the Union that, under the FLSA and implementing regulations, firefighters are entitled to overtime compensation for all hours of duty: during a 7-day work period that exceed 53 hours; during a 28-day work period that exceed 212 hours; or during a work period between 7 and 28 days that exceed the same ratio of work period to tour of duty. FPM Letter 551-20. The Arbitrator specifically acknowledged and the record establishes that the firefighters at the Activity are typically scheduled for 288 hours of duty during a 28-day work period. Accordingly, contrary to the Arbitrator's rejection of the Union's claim, the firefighters are entitled to overtime compensation for each 28-day work period in which they were on duty for more than 212 hours. Therefore, we find that the award is deficient to the extent that the Arbitrator rejected the Union's claim to overtime compensation under the FLSA.(2) We will modify the award by vacating it to the extent it denied the Union's claim to overtime compensation under the FLSA.

We make no determination as to the amount of compensation the firefighters are entitled to under the FLSA. That determination must be made in accordance with law, regulation, and this decision in a manner deemed appropriate by the parties in conjunction with the implementation of the award, as modified. See Federal Prison System and American Federation of Government Employees, Local No. 2459, 8 FLRA 103, 105 n.4 (1982); U.S. Department of Justice, Medical Center for Federal Prisoners and American Federation of Government Employees, Local 1612, 11 FLRA 29, 30-31 (1983).

V. Decision

The award is modified by vacating the award to the extent it denied the Union's claim for overtime compensation under the FLSA.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Because we find that the Arbitrator correctly denied the Union's claim under 5 U.S.C. § 5545(c)(1), the Arbitrator's citation to the regulation pertaining to premium pay for administratively uncontrollable overtime (which prohibits overtime compensation for irregular and occasional overtime), rather than for regularly scheduled standby duty, was a harmless error. However, in denying the Union's exception, we in no manner adopt the Arbitrator's statement that firefighters receiving premium pay on an annual basis for regularly scheduled standby duty are precluded from receiving overtime compensation for irregular and occasional overtime. As noted, 5 C.F.R. § 550.163 provides just the opposite.

2. In finding the award deficient, we note that the Arbitrator could not rely on the Union's citation to 29 C.F.R. § 553.230, which, as th