43:1012(85)AR - - Intl. Assoc. of Firefighters, Local 13 and Panama Canal Commission, General Services Bureau, Balboa, Republic of Panama - - 1992 FLRAdec AR - - v43 p1012



[ v43 p1012 ]
43:1012(85)AR
The decision of the Authority follows:


43 FLRA No. 85

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

INTERNATIONAL ASSOCIATION OF FIREFIGHTERS

LOCAL 13

(Union)

and

PANAMA CANAL COMMISSION

GENERAL SERVICES BUREAU

BALBOA, REPUBLIC OF PANAMA

(Agency)

0-AR-2081

DECISION

January 17, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Benjamin B. Rosayn filed by the Agency 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 did not file an opposition.(1)

The Arbitrator was asked to resolve a grievance over the amount of overtime due to firefighters formerly and currently employed by the Agency. The Arbitrator ruled that the firefighters were entitled to backpay for 2 hours of overtime per pay period retroactive to October 1, 1979. He also ruled that firefighters were entitled to overtime for periods in which they were on paid leave and for periods in which the firefighters performed work during designated sleep time.

The Agency has filed exceptions to the Arbitrator's award alleging that the award is contrary to law and regulation and that it fails to meet the requirements of the Back Pay Act. The Agency also contends that the award is deficient because it awards relief to individuals who are not employees and awards backpay beyond the period allowed under the statute of limitations for such an award. Additionally, the Agency asserts that the award is so ambiguous and contradictory that implementation is impossible.

We find that the award is contrary to law insofar as it awards backpay for overtime during periods of annual and sick leave. Agency employees are not covered by the annual and sick leave provisions of title 5 of the United States Code and, consequently, there is no basis for an award of overtime pay based on hours of annual and sick leave under the leave provisions of title 5. The award will be modified by striking that portion of the award. The Agency's remaining exceptions will be denied.

II. Background and Arbitrator's Award

The Union filed a grievance on behalf of firefighters employed in the Agency's Fire Division. The grievance concerned the proper amounts of overtime pay that firefighters were entitled to receive. The Arbitrator stated that the grievance was "substantially contained in the grievance file that was assembled by the [Agency] in accordance with section 17 of Article IX [Grievance and Arbitration Procedures] of the Agreement." Award at 5. The grievance was not resolved and was submitted to arbitration on the following joint statement of issue:

Did the Panama Canal Commission violate the Agreement between Local No. 13, International Association of Firefighters (AFL-CIO) and the Panama Canal Commission and as originally specified in the grievance?

Id. The Arbitrator noted that the grievance covered a period of approximately 10 years and also noted that, at the hearing, the Union claimed "several other related side issues, all of which were based on material included within the original Grievance File[.]" Id.

The grievance had four parts. The first part of the grievance concerned the rate of overtime pay for firefighters under the Fair Labor Standards Act (FLSA). The Union contended that under the savings provision of the Panama Canal Act of 1979, 22 U.S.C. § 3671(a), employees were entitled to maintain the same pay and entitlements after October 1, 1979, that they had received on September 30, 1979. The Union claimed, therefore, that the Agency failed "to compute the F.L.S.A. entitlements for past and present pre-Treaty [Panama Canal Treaty of 1977] bargaining unit employees, on the basis of time and one-half for hours in excess of 216 in a twenty-eight day period, or on the basis of time and one-half for hours in excess of a lesser number of hours (than 216) which the Secretary of Labor has determined is the average number of hours work[ed]." Id. at 6.(2)

The Union contended before the Arbitrator that pre-Treaty firefighter employees were covered by the FLSA until the establishment of the Panama Canal Commission on October 1, 1979, and that, as FLSA-covered employees, they were entitled to overtime computed on the basis of the number of hours worked in excess of 212 hours in a 28-day period instead of the number of hours worked in excess of 216 hours. The Union based its claim on a study conducted by the Secretary of Labor that included non-Federal employees in determining the average number of duty hours in a 28-day work period. As a result of that study, the number of duty hours required before overtime became payable was reduced from 216 to 212, pursuant to an amendment to 29 U.S.C. § 207(k) that became effective on January 1, 1978. See 29 U.S.C. § 207(k), as amended; 29 C.F.R. § 553.1 (1986). The Union maintained that, as a result of the change from 216 to 212 hours, pre-Treaty firefighters were entitled to an additional 2 hours of overtime beginning on January 1, 1978, and continuing until and subsequent to October 1, 1979. The Union also contended that the Agency erred in refusing to pay overtime under the FLSA based on the number of hours worked in excess of 212 hours subsequent to October 1, 1979, because, based on Comptroller General Decision B-205126, Panama Canal Commission - Applicability of Fair Labor Standards Act to Firefighters, (Feb. 28, 1983), the pre-Treaty firefighters who transferred to the Panama Canal Commission on October 1, 1979, were entitled to continue to receive the same overtime payments under the FLSA that they had received prior to that date.

With regard to the first part of the grievance, the Arbitrator ruled "that if not already fully paid, pre-Treaty firefighters subject to Section 7(K) [sic] of the F.L.S.A. are entitled to retroactive and current additional two hours of overtime pay per pay period as per applicable rulings and regulations." Id. at 17. The Arbitrator rejected the Agency's contention that the statute of limitations set forth in 31 U.S.C. § 3702 was applicable in this case. The Arbitrator held that the statute of limitations, which limits claims against the Government filed with the Comptroller General to 6 years, did not apply because the Union had sought to resolve the matter of the Agency's improper denial of overtime pay for approximately 10 years and "[c]onsidering [the Union's] good faith effort, the Union must not be penalized." Id. at 18. The Arbitrator found that "[t]he Union's contention that it has variously complained of the issues informally [] and grieved for over ten years is not contradicted by Management." Id. The Arbitrator referred to a decision of the Court of Claims in which the court accepted a claim for overtime lost as the result of an agency official's misinterpretation of a statute, even though the claim was filed with the Comptroller General outside the statute of limitations. Id. at 18-19, citing Marr v. United States, 106 F. Supp. 204 (Ct. Cl. 1952). The Arbitrator concluded that "the limitations period should not [sic] be tolled because the delay resulted by fault of the administrative agency[.]" Award at 19.

In the second part of the grievance, the Union contended before the Arbitrator that firefighters were entitled to overtime pay for periods in which they were in a paid leave status while on annual leave, sick leave, court leave and military leave, in accordance with the decision of the United States Court of Appeals for the Federal Circuit in Lanehart v. Horner, 818 F.2d 1547 (Fed. Cir. 1987). The Union contended that, based on Lanehart v. Horner, leave with pay provisions under title 5 of the United States Code and the Agency's own regulations apply to pre-Treaty firefighters when determining overtime pay under the FLSA. The Union contended that the Agency representatives exceeded their authority when they attempted to exclude leave with pay from the calculation of overtime pay for pre-Treaty firefighters and that the Agency's decision caused those firefighters to suffer a reduction in the overtime pay to which they were entitled under the FLSA.

As to the second part of the grievance, the Arbitrator ruled that pre-Treaty firefighters "who were transferred to the Panama Canal Commission on October 1, 1979 are entitled to continue to be paid for overtime work under the Fair Labor Standards Act provisions as applied prior to October 1, 1979 and [would] not suffer a reduction in customary and regular pay when on authorized leave (as per the 'grandfather clause')." Id. at 20.

The third part of the Union's grievance concerned the Union's contention that "post-Treaty firefighters who were hired after September 30, 1979 performed the same work as pre-Treaty firefighters and both received Title 5 basic pay and Annual Premium Pay[,]" yet "pre-Treaty firefighters receive the additional '[section] 1231 [of the Panama Canal Act of 1979] payment' while post-Treaty firefighters do not."(3) Award at 20. The Union also charged that the Agency improperly deprived firefighters of overtime pay for occasions when they are awakened and called into duty during the designated sleep time portion of the 24-hour duty day.

The Arbitrator denied the Union's claim that post-Treaty employees were treated unfairly. He ruled that even if there was inequity in the fact that post-Treaty employees did not receive the FLSA benefits provided in section 1231 of the Panama Canal Act, that inequity was caused by the operation of law. The Arbitrator also ruled that the Union's complaint regarding the Agency's failure to pay employees overtime for work performed during their designated sleep time was properly before him.

With regard to sleep time, the Arbitrator found, based on the Union's reliance on Lanehart v. Horner, that the Union was grieving the sleep time issue because "[t]he subject matter of this 'Lanehart case' deals with sleep period and the matter of stand-by status[.]" Id. at 22 (emphasis deleted). The Arbitrator noted that the record indicated that the matter of sleep time had been raised by the Union early in the grievance process. The Arbitrator stated that "the requirement in [Article IX,] Section a(2) [of the parties' collective bargaining agreement] requires sufficient detail to clearly identify the matter being grieved--this requirement, in the Arbitrator's opinion, has been fully met within the written formal grievance." Id. at 28-29

The Arbitrator also noted that under the Back Pay Act, 5 U.S.C. § 5596, "refund for back pay is not permitted nor justified for work performed during (the above-described) sleep-time unless an unjustified or unwarranted personnel action provided the basis for the lost pay." Id. at 26. The Arbitrator found that the matter of overtime pay for work performed during sleep time was not addressed in the parties' collective bargaining agreement. However, he found that "when any firefighter is asked or directed to return to active duty during his allotted sleep-time--such a firefighter is surely entitled to full compensation for active and overtime work." Id. at 31. The Arbitrator ruled that the question of pay for work performed during sleep time "was not extraneous to the grievance and was moreover, presented in sufficient detail to clearly identify the matter being grieved. Therefore, Management shall compensate all bargaining unit employees for overtime work performed during their sleep-time in accordance with applicable regulations." Id.

The fourth part of the grievance concerned the Union's allegation that pre-Treaty and post-Treaty fire officers at the rank of lieutenant, captain, and above who were at grade GS-11 or higher were also entitled to overtime. The Arbitrator found that those officers occupied executive positions that were not covered by the FLSA and he denied the fourth part of the grievance.

The Arbitrator found that:

[I]n not fully bargaining with the Union, [the Agency] has in effect, violated the Collective Bargaining Agreement between the parties affecting adversely and unjustifiably and unwarrantedly resulting in improper personnel action. The grievants (members of the bargaining unit) would have performed their regular and overtime work and not have suffered loss and reduction in pay and would have received their due of overtime and other just pay allowances and differentials.

Therefore, based on the evidence presented during the hearing and in the Post-Hearing Briefs by the parties, the Arbitrator orders and awards as to the five [sic] grieved matters, as follows:

A. To the extent not heretofore paid, employed pre-Treaty firefighters subject to Section 7(k) of the F.L.S.A. are entitled to retroactive and current additional two hours of overtime pay per pay period as per applicable rulings and regulations. Thus, bargaining unit employees shall be made whole by the Panama Canal Commission.

B. The Panama Canal Commission shall make whole each past and present pre-Treaty (September 30, 1979) hired bargaining unit employee who was compensated at less than the mandated contract rate for work performed within any bargaining unit job classification during authorized absences from work under the "leave with pay" provisions of 5 U.S.C. 6303 (Annual Leave), 6307 (Sick Leave), 6322 (Court Leave), and 6323 (Military Leave) and for the duration of the instant Collective Bargaining Agreement and any extensions thereof pay the mandated contract rate for authorized absences under the "leave with pay" provisions of 5 U.S.C. and in accordance with the ruling in Lanehart v. Horner.

C. This portion of the grievance is denied except that the Panama Canal Commission shall compensate all bargaining unit employees for overtime work which may be ordered to be performed during their sleep-time in accordance with all applicable regulations and as per the Agreement between the parties.

D. This portion of the grievance [concerning overtime compensation for fire officers] is denied.

Id. at 35-36.

The Arbitrator also stated that the Union "was not culpably dilatory or negligent in not asserting, pursuing and filing its claims with [the Agency] within six years of accrual--prior to or within the Statute of Limitations." Id. at 36. The Arbitrator added that "the omissions to and violations of said Agreement between the Parties to this dispute were the fault of the administrative agency--the applicable time limitations provisions are not [sic] tolled[.]" Id.

III. Arbitrator's Clarification of the Award

In its request for clarification, the Union asked the Arbitrator to clarify whether the award covered both past and present bargaining unit employees and whether the relief ordered by the Arbitrator was to be retroactive. The Arbitrator responded that he had considered relevant legal and contractual considerations in making his award and that he would not change the award. The Arbitrator stated:

Thus, under "A", past and present pre-Treaty bargaining unit members are entitled to retroactive and current additional two hours of pay per pay period . . . .

Under "B", the award calls for, where required, making whole each and every past and present pre-Treaty bargaining unit employee . . . . in accordance with the ruling in Lanehart v. Horner.

Under "C", each and every bargaining unit employee shall henceforth be compensated for overtime work when and if ordered to be performed during sleep-time periods (in accordance with contractual and Federal applicable regulations).

Again, the Arbitrator wishes to clarify the obvious. That is, there is a mandated statutory dichotomy between the pay-formula and privileges accorded to pre-Treaty hires--by which the Arbitrator is inextricably bound. Also at this point in time, any retroactive compensation awarded--must be based on faulting the [Agency] for an unjustified personnel action in order to stand-up. Hence, only in section "A" and conceivably in section "B" of the award, can this be vindicable.

Clarification of Award at 2 (emphasis in original).

IV. Position of the Agency

The Agency contends that the award is deficient because the Arbitrator exceeded his authority by providing relief to persons who were not bargaining unit employees at the time the grievance was filed on November 25, 1989. The Agency asserts that some of the employees covered by the award retired as many as 10 years before the date of the grievance and are no longer employees and members of the bargaining unit. The Agency maintains that only employees who were members of the bargaining unit on November 25, 1989, are entitled to relief under the award, because the Union could only file grievances on behalf of current and not past members of the bargaining unit.

The Agency contends that the award of backpay retroactive to October 1, 1979, is contrary to the statute of limitations contained in 31 U.S.C. § 3702(b) on claims against the Federal Government. That provision states that, unless otherwise provided, a claim against the Government "must be received by the Comptroller General within 6 years after the claim accrues[.]" Id. The Agency maintains that, under the statute of limitations, the award of backpay cannot extend more than 6 years prior to the filing of the grievance by the Union on November 25, 1989. The Agency contends that the Arbitrator's reliance on Marr v. United States is misplaced because that decision concerned an agency's failure to pay a claim after the claim had been timely filed and an agreement to pay had been made by the agency. The Agency also asserts that the Arbitrator misinterpreted the decision of the Comptroller General in 62 Comp. Gen. 80 (1984) when the Arbitrator ruled that the statute of limitations was extended because the Agency was at fault. The Agency contends that there is no authority for extending the statute of limitations and that the statute of limitations must be strictly construed.

The Agency maintains that the award is also deficient because it fails to meet the Back Pay Act requirement for a finding that the Agency committed an unjustified or unwarranted personnel action that resulted in a loss or reduction of pay by the grievants. The Agency argues that the portion of the award in which the Arbitrator stated that the Agency, "in not fully bargaining with the Union, has in effect, violated the Collective Bargaining Agreement[,]" fails to show that an unwarranted personnel action caused a loss of pay "because the failure to bargain was not an issue." Exceptions at 9-10, quoting from Award at 35.

In response to the Arbitrator's clarification of the award, the Agency repeats its exception that the award is contrary to the Back Pay Act. The Agency maintains that the award remains ambiguous and contradictory because the Arbitrator's "declaration is unequivocal that the record before him did not legally support a finding under the Back Pay Act." Agency's Supplemental Statement at 2. The Agency points out that "even though [the Arbitrator] found no legal justification for an award of back pay, he awarded such pay to all employees under Section A [of the grievance]. As for Section B, not only is there an initial arbitral admission of legal insufficiency for retroactive pay, but even the subsequent award of retroactive pay, if indeed that is what it is, is couched in terms of 'conceivably vindicable.'" Id. at 2-3.

The Agency also takes exception to the Arbitrator's ruling that employees are entitled to additional compensation for periods in which they are in a paid leave status. The Agency concedes that it must provide compensation for periods in which employees are on court leave, under 5 U.S.C. § 6322, and military leave, under 5 U.S.C. § 6323, because bargaining unit employees are covered by those provisions of law. However, the Agency asserts that bargaining unit employees are not covered by the annual leave provisions of 5 U.S.C. § 6303 and the sick leave provisions of 5 U.S.C. § 6307, because the employees are excluded from those provisions by 5 U.S.C. § 6301(2)(iv). The Agency states that "annual leave is regulated in Chapter 630 of the Panama Canal Personnel Manual (PCPM) (Exhibit 2) and the [A]gency does not provide sick leave as such." Exceptions at 13.

The Agency maintains that the court's decision in Lanehart v. Horner does not apply in this case because that decision concerns leave provisions of title 5 of the United States Code which are not applicable to the Agency and because Lanehart v. Horner concerns the FLSA, which ceased to apply to Agency employees on October 1, 1979. The Agency maintains that the issue of overtime for paid leave is controlled by the Agency's regulation in Chapter 630 of the PCPM. The Agency claims that its regulation applies only to the hourly rate of pay to which an employee is entitled while on paid leave and that it must comply with its own regulation. The Agency asserts that there is no provision in the parties' collective bargaining agreement that controls the matter and the regulation "does not guarantee the inclusion of periods of authorized leave in computing hours of work[.]" Exceptions at 17.

The Agency states that the award of overtime pay for work performed during sleep time in accordance with applicable regulations and the parties' collective bargaining agreement "does not appear to require the [A]gency to do anything it is not already doing." Id. at 17. The Agency adds that "the award does not clearly deny the [U]nion's post-hearing request for an additional payment when work is actually performed during sleep time." Id. at 18. The Agency contends that if the Arbitrator's award provides for overtime pay to all employees for work performed during sleep time, then the award is contrary to law and regulation. The Agency points out that the matter of work during sleep time is not covered by the parties' collective bargaining agreement and that under 5 U.S.C. § 5545(c)(1), 5 C.F.R. § 550.141 and the Agency's Timekeeping Regulation No. 93, employees receive annual premium pay "in lieu of all overtime, night, Sunday or holiday compensation for work performed on regularly scheduled workdays." Id. at 18. The Agency asserts that its Timekeeping Regulation No. 93 "makes clear that during unscheduled or irregular hours of duty, the firefighter will be paid overtime compensation for work actually performed during sleep time." Id. at 18-19. The Agency argues that firefighters were not receiving compensation for work during sleep time on regularly scheduled workdays under the FLSA on September 30, 1979, and, therefore, such compensation was not a condition of employment preserved under the savings provision of 22 U.S.C. § 3671(a).

The Agency also contends that the issue of overtime pay for work performed during sleep time was not a part of the Union's grievance and, therefore, was not arbitrable. The Agency maintains that the Arbitrator erroneously found that the sleep time issue was included in the grievance by implication because of the mention of sleep time in Lanehart v. Horner.

As a final exception, the Agency contends that the award is deficient "because it is so incomplete, ambiguous and contradictory [] as to make comprehension and implementation of the award impossible." Id. at 27.

V. Analysis and Conclusions

A. The Award Is Not Incomplete, Ambiguous or Contradictory

The Authority will find an award deficient when it is incomplete, ambiguous, or contradictory so as to make implementation of the award impossible. U.S. Department of Labor, Mine Safety and Health Administration, Southeastern District and American Federation of Government Employees, Local 2519, 40 FLRA 937, 943 (1991). The Agency has not shown that the Arbitrator's award in this case is incomplete, ambiguous, contradictory or impossible to implement and, therefore, has failed to establish that the award is deficient under this standard. The award requires the Agency to pay the firefighters the amounts of overtime compensation to which they are entitled under applicable law and there is no basis on which to conclude that the award cannot be implemented. Particularly, as will be explained below, the fact that certain of the firefighters are no longer employed by the Agency does not bar their recovery under the award. Further, with regard to the award of overtime compensation for work performed during firefighter's sleep time, we note that the original award did not order backpay for sleep time and only ordered that firefighters be compensated for work performed during sleep time "in accordance with all applicable regulations." Award at 36. In his clarification, the Arbitrator specifically held that compensation for overtime work performed during sleep time was not retroactive but was to be paid "henceforth." Clarification of Award at 2. Accordingly, we find no inconsistency or contradiction with regard to the Arbitrator's award concerning sleep time. Consequently, the Agency's exception will be denied.

B. The Arbitrator Did Not Exceed His Authority

An arbitrator exceeds his or her authority when, among other things, the arbitrator resolves an issue not submitted to arbitration or awards relief to persons who are not encompassed within the grievance. See U.S. Department of Health and Human Services, Social Security Administration, Region VI, Dallas, Texas and American Federation of Government Employees, Local 1336, 40 FLRA 644, 649 (1991). In the absence of a stipulation by the parties, arbitrators are accorded substantial deference in the formulation of the issues to be resolved in a grievance. For example, U.S. Department of the Treasury, Internal Revenue Service, Ogden Service Center, Ogden, Utah and National Treasury Employees Union, Chapter 67, 42 FLRA 1034, 1055 (1991); U.S. Department of Transportation, Federal Aviation Administration, Chicago, Illinois and National Air Traffic Controllers Association, 41 FLRA 1441, 1448 (1991) (Federal Aviation Administration).

The Agency has not shown that the Arbitrator exceeded his authority either by addressing an issue that was not before him or by awarding relief to employees who were not covered by the grievance or who were outside the bargaining unit. The issue before the Arbitrator was whether the Agency had violated the parties' collective bargaining agreement over a period of approximately 10 years by failing to pay pre-Treaty firefighters the amounts of overtime pay to which they were entitled under the FLSA and the savings provision of the Panama Canal Act. The grievance was filed on behalf of "past and present pre-Treaty bargaining unit employees." Award at 6.

We conclude that the Agency's argument that the grievance can only cover bargaining unit employees who were actually employed at the time the grievance was filed is without merit. The Authority has held that grievances can cover employees who were in a bargaining unit at the time the matters complained of in the grievance occurred but who had subsequently left the unit. See, for example, Bureau of Indian Affairs and National Federation of Federal Employees, Local 243, 25 FLRA 902, 906 (1987) (arbitrator's award modified to apply only to employees who were in the bargaining unit at the time of the improper agency action that was grieved); Social Security Administration, Mid-America Program Service Center and American Federation of Government Employees, Local 1336, 26 FLRA 292 (1987) (grievance of former employee over reinstatement was arbitrable because the matter was covered by the parties' negotiated grievance procedure). The grievance in this case concerns the Union's claim that past and present employees are entitled to overtime pay they were denied. The Agency has not shown that the Arbitrator exceeded his authority by awarding relief to past employees who were denied the overtime pay to which they were entitled. Those employees were in the bargaining unit at the time the violations complained of occurred and they are entitled to relief under the Arbitrator's award.

Further, the Agency fails to establish that the Arbitrator addressed an issue not before him when he addressed the matter of overtime pay for work performed while on sleep time. The Arbitrator stated that "the Union claim[ed] several other related side issues, all of which were based on material included within the original Grievance File[.]" Award at 5. The Arbitrator determined, therefore, on the basis of the record before him, that overtime pay for work performed on sleep time was a part of the Union's grievance and was included within the overall issue before him. The Arbitrator's determination that the issue of sleep time was properly before him, in the absence of an express stipulation by the parties that excluded that issue, is entitled to great deference. See Federal Aviation Administration, 41 FLRA at 1448. Therefore, the Agency's exception, namely, that the Arbitrator exceeded his authority by addressing an issue not before him, provides no basis for finding the award deficient and will be denied. The Agency is only disagreeing with the Arbitrator's interpretation of the collective bargaining agreement and his determination that the issue was arbitrable under the agreement. As such, the Agency's exception provides no basis for finding the award deficient. See American Federation of Government Employees, Local 3258 and U.S. Department of Housing and Urban Development, Boston, Massachusetts, 38 FLRA 600, 606 (1990).

C. The Award Is Not Contrary to the Back Pay Act

We conclude that the Agency fails to establish that the award is contrary to the Back Pay Act. Under the Back Pay Act, an award of backpay is authorized only when the grievant has been affected by an unjustified or unwarranted agency personnel action that has resulted in the withdrawal or reduction of all or part of the grievant's pay, allowances, or differentials. 5 U.S.C. § 5596. In order to award backpay, an arbitrator must find that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; (2) the personnel action directly resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials; and (3) but for such action, the grievant otherwise would not have suffered the withdrawal or reduction. See, for example, American Federation of Government Employees, Local 31 and U.S. Department of Veterans Affairs, Medical Center, Cleveland, Ohio, 41 FLRA 514, 517 (1991) (VA Cleveland). The Arbitrator's award in this case satisfies the requirements of the Back Pay Act.

The Arbitrator agreed with the Union that FLSA overtime pay is available to pre-Treaty employees "as per [5 U.S.C. § 3671(a)] ('generally no less favorable' provision)" and that pre-Treaty employees are entitled to maintain conditions of employment that are as favorable as those in existence prior to October 1, 1979. Award at 21. The Arbitrator found that pre-Treaty employees had been entitled to overtime pay computed under the FLSA until October 1, 1979, after which time they were no longer covered by the FLSA. Therefore, the Arbitrator concluded that pre-Treaty employees had been affected by an unjustified or unwarranted personnel action when the Agency refused to pay them the additional amount of overtime pay to which they were entitled, prior to October 1, 1979, under the FLSA, 29 U.S.C. § 207(k), and, after October 1, 1979, under the savings provision of 22 U.S.C. § 3671(a).

The Arbitrator found that the Agency violated the FLSA and the savings provision of the Panama Canal Act of 1979 by its failure to pay the pre-Treaty firefighters the amounts of overtime pay to which they were entitled under the FLSA.(4) He ruled that "but for" the Agency's "erroneous action" which "in effect, violated the Collective Bargaining Agreement[,]" the firefighters "would have performed their regular and overtime work and [would] not have suffered loss and reduction in pay and would have received their due of overtime and other just pay[,] allowances, and differentials." Award at 35. Accordingly, we find that the Arbitrator's award contains the requisite findings to support an award of backpay under the Back Pay Act. See U.S. Department of the Treasury, Customs Service, Pembina District, Pembina, North Dakota and National Treasury Employees Union, Chapter 157, 41 FLRA 1420, 1426 (1991); Panama Canal Commission and International Association of Firefighters, Local 13, 41 FLRA 284, 291 (1991). We note that the Agency does not contest the Arbitrator's finding that pre-Treaty firefighters were improperly paid FLSA overtime pay on the basis of 216 hours rather than on the basis of 212 hours for each 28-day period worked, as required by Department of Labor regulations, from the effective date of the change in hours on January 1, 1978, through September 30, 1979. See 48 Fed. Reg. 40518-19 (September 8, 1983).

We reject the Agency's contention that the Arbitrator erroneously based his award on a finding that the Agency failed to bargain. We construe the award as based on more than a failure to bargain. Instead, it is apparent from the entire award that the Arbitrator found that the Agency violated its obligation to maintain the compensation of pre-Treaty employees at the same general level that they were entitled to receive prior to October 1, 1979, in accordance with the FLSA and the savings provision of the Panama Canal Act, 22 U.S.C. § 3671(a), and that, if the Agency had fulfilled its obligations, the employees would have received the overtime pay to which they were entitled.

Therefore, we conclude that the Arbitrator's award of backpay for overtime under the FLSA based on the savings provision of 22 U.S.C. § 3671(a) was proper under the Back Pay Act and the award is not contrary to the Back Pay Act, as alleged by the Agency.

D. The Award Is Not Contrary to 31 U.S.C. § 3702(b)

We reject the Agency's contention that the Arbitrator was barred by the statute of limitations contained in 31 U.S.C. § 3702(b) from awarding backpay to the grievants for a period longer than 6 years prior to the filing of the grievance on November 25, 1989. The 6-year statute of limitations in 31 U.S.C. § 3702(b), known as the Barring Act, "only applies to claims brought before the Comptroller General." Acton v. United States, 21 Cl.Ct. 214, 223 (1990), reversed and remanded on other grounds 932 F.2d 1464 (Fed. Cir. 1991). See also 62 Comp. Gen. 80, 83 (1982) (Barring Act provides that claims against the United States made to the General Accounting Office must be made within 6 years from date accrued).

The issue in this case does not concern a claim made to the Comptroller General and, consequently, the Barring Act does not apply. The Arbitrator issued his award in response to a grievance filed by the Union pursuant to the negotiated grievance procedure. The Arbitrator recognized that the grievance included matters contained in the grievance file and concerned "complex issues--which have been rankling and festering for about 10 long years." Award at 5. He noted that, in addition to the statement of the issue agreed on at the hearing, "the Union claim[ed] several other related side issues, all of which were based on material included within the original Grievance File that was assembled by the Panama Canal Commission in accordance with Section 17 of Article IX of the Agreement." Id. The Arbitrator subsequently referred to the "tangled and complex" nature of the grievances and the fact that, in presenting its case, the Union referred to "various happenings that were related during the past ten years and were linked by either time or implication." Id. at 6. We conclude that the Arbitrator acted within his authority in determining that the grievance covered matters that the Union had grieved in a timely manner and that the remedy was not limited by the 6-year statute of limitations in 31 U.S.C. § 3702(b).

Accordingly, as the Agency fails to demonstrate that the award is contrary to 31 U.S.C. § 3702(b), the Agency's exception will be denied.

E. The Award of Overtime Pay for Periods of Annual Leave and Sick Leave Is Deficient

As part of his award the Arbitrator ordered the Agency to pay pre-Treaty employees backpay for periods in which they were not paid overtime pay while on authorized paid leave, "under the 'leave with pay' provisions of 5 U.S.C. and in accordance with the ruling in Lanehart v. Horner." Award at 35. The Agency concedes that it has a duty to pay overtime for periods of authorized court leave under 5 U.S.C. § 6322 and military leave under 5 U.S.C. § 6323 and does not except to the award to that extent. However, the Agency asserts that the award is deficient in requiring payment of overtime compensation to employees while those employees are on annual leave under 5 U.S.C. § 6303 and sick leave under 5 U.S.C. § 6307, because bargaining unit employees are not covered by those provisions. The Agency maintains that annual leave for employees is governed by the PCPM, Chapter 630, and that there is no paid sick leave similar to the sick leave provided under 5 U.S.C. § 6307 available to bargaining unit employees. Therefore, the Agency asserts, the award is contrary to law because it is based on statutory provisions, 5 U.S.C. §§ 6303 and 6307, which are not applicable. The Agency also argues that Lanehart v. Horner is not applicable in this case.

We agree with the Agency that the award is deficient insofar as it requires overtime pay for periods of annual leave and for employee absence due to sickness. The Arbitrator has applied the annual leave and sick pay provisions of title 5 of the United States Code to pre-Treaty employees of the Agency although, as the Agency points out, those employees are specifically excluded from the annual and sick leave provisions of 5 U.S.C. §§ 6303 and 6307 by 5 U.S.C. § 6301(2)(B)(iv). Consequently, as periods of annual leave and sick leave do not constitute hours of work under the FLSA, 29 U.S.C. § 207(k), the award of overtime pay based on 5 U.S.C. §§ 6303 and 6307 is contrary to the FLSA.

Further, the Arbitrator's reliance on Lanehart v. Horner is misplaced. In that case, the United States Court of Appeals for the Federal Circuit reversed a lower court's decision denying Federal firefighters overtime pay for hours on paid leave. The lower court had ruled that the firefighters, who were covered by the overtime provisions of title 5 and the FLSA, were not entitled to overtime pay under the FLSA for periods of paid leave because the FLSA does not allow overtime for time not actually worked. The Federal Circuit ruled that the employees were entitled to overtime on the basis of title 5, in addition to the FLSA, and were also subject to the leave with pay provisions of 5 U.S.C. §§ 6303, 6307, 6322(a) and 6323(a)(1). The court concluded that "the 'leave with pay' statutes in their purpose and effect prevent any reduction in the customary and regular pay of the appellants, including overtime under Title 29 [FLSA] to which they would be entitled, when appellants are on authorized leave under sections 6303, 6307, 6322 and 6323." 818 F.2d at 1583. Therefore, as Lanehart v. Horner concerns the determination of overtime pay for employees covered by 5 U.S.C. §§ 6303 and 6307, which are not applicable to the bargaining unit employees in this case, there is no basis for awarding those employees overtime pay for periods of paid annual and sick leave under Lanehart v. Horner.

In accordance with the above discussion, we will modify paragraph "B" of the Arbitrator's award to strike the requirement of overtime pay for periods of annual and sick leave under 5 U.S.C. §§ 6303 and 6307 and to strike the requirement that overtime be calculated based on Lanehart v. Horner.

F. The Award of Overtime Pay for Work Performed During Sleep Time Is Not Deficient

In the portion of his award ordering overtime pay for work performed during sleep time, the Arbitrator stated that such payment should be "in accordance with all applicable regulations and as per the agreement between the parties." Award at 36. The Agency asserts that the meaning of this portion of the award is unclear but, if the Arbitrator has awarded compensation for work performed during sleep time on regularly scheduled workdays, the award is contrary to 5 U.S.C. § 5545(c)(1), 5 C.F.R. § 550.141, and the Agency's timekeeping regulation.(5)

We interpret this portion of the award simply as a statement that overtime work performed during employees' sleep time should be compensated in accordance with applicable regulations and the parties' collective bargaining agreement. Certainly, nothing in that part of the award is contrary to law or regulation. Rather, the award specifically requires compliance with law or regulation. Moreover, the Agency's assertion that overtime work performed during sleep time cannot be compensated by overtime pay in addition to annual premium pay under 5 U.S.C. § 5545(c)(1) and 5 C.F.R. § 550.141 is erroneous.

In U.S. Department of the Army, Army Medical Activity, Fort Knox, Kentucky and American Federation of Government Employees, Local 2302, 43 FLRA 102 (1991) (Fort Knox), we discussed the application of 5 U.S.C. § 5545(c)(1) and 5 C.F.R § 550.141 in determining overtime pay for emergency medical technicians who worked a 24-hour tour of duty and who were compensated by premium pay and overtime pay under those provisions of law and regulation. We noted that 5 U.S.C. § 5545(c)(1) permits agencies, with OPM approval, to pay employees on regularly scheduled tours of duty, which include regularly scheduled standby duty, premium pay up to 25 percent of those employees' base pay on an annual basis, in lieu of premium pay provided by other provisions of title 5 of the United States Code, including overtime compensation under 5 U.S.C. § 5542. We concluded that the additional compensation of 25 percent of basic pay is the maximum an employee whose regular tour of duty includes standby duty can receive under 5 U.S.C. § 5545(c)(1), except for irregular or unscheduled overtime duty in excess of the employee's regular tour of duty.

As relevant to the Arbitrator's award in this case, we held in Fort Knox that employees, entitled to annual premium pay because their work schedules, including standby duty, were approved for such pay under 5 U.S.C. § 5545(c)(1), cannot be paid overtime or premium pay under 5 U.S.C. § 5542 or other premium pay provisions unless the work is irregular or occasional duty performed outside the employees' regularly scheduled tour of duty. See 43 FLRA at 116. However, as we pointed out in Fort Knox, if an employee's entitlement to overtime compensation under 5 U.S.C. § 5542 for the hours of actual overtime work performed exceeds the amount of annual premium pay which would otherwise be payable for the performance of standby duties under 5 U.S.C. § 5545(c)(1) and 5 C.F.R. § 550.141, the employee is entitled to overtime compensation rather than standby premium pay. Id. at 116-17.

In other words, employees working under 5 U.S.C. § 5545(c)(1) are entitled to overtime compensation under 5 U.S.C. § 5542 if their pay for the hours actually worked, excluding standby time during which they perform no work, exceeds the amount of annual premium pay to which they would otherwise be entitled for standby duty under 5 U.S.C. § 5545(c)(1). Therefore, employees may earn more under 5 U.S.C. § 5545(c)(1) than they would otherwise be entitled to receive under 5 U.S.C. § 5542; but if, based on hours actually worked, employees covered by 5 U.S.C. § 5545(c)(1) would earn more under 5 U.S.C. § 5542 than under 5 U.S.C. § 5545(c)(1), they must be paid the amount earned under 5 U.S.C. § 5542.

The employees in this case are assigned to a 24-hour tour of duty for which, under 5 U.S.C. § 5545(c)(1) and 5 C.F.R. § 550.141, they are entitled to receive premium pay on an annual basis for work that includes regularly scheduled standby duty with meal time and sleep time. Consequently, under 5 U.S.C. § 5545(c)(1), they are precluded from receiving overtime pay and premium pay for the same hours under other provisions of title 5 of the United States Code. However, as noted above, if those employees actually perform work during times when they would otherwise be sleeping, then they would be entitled to compensation for that work under 5 U.S.C. § 5542, if the computation of pay for that time resulted in a larger amount of pay than they would receive under 5 U.S.C. § 5545(c)(1).

The Agency has not shown that the Arbitrator's award requiring payment for work performed during sleep time is contrary to law and the Agency's exception will be denied.

VI. Decision

The award is modified by striking those portions that refer to 5 U.S.C. §§ 6303 and 6307 and that direct the Agency to pay pre-Treaty employees backpay for periods of annual leave and sick leave under those provisions and in accordance with Lanehart v. Horner. The Agency's exceptions to the remainder of the award are denied.

APPENDIX

22 U.S.C. § 3671 provides, in relevant part, as follows:

§ 3671. Transferred or reemployed employees

(a) Terms and conditions of employment

(1) With respect to any individual employed in the Panama Canal Company or the Canal Zone Government--

(A) who is transferred--

(i) to a position in the Commission

. . . .

the terms and conditions of employment set forth in paragraph (2) of this subsection shall be generally no less favorable, on or after the date of the transfer referred to in subparagraph (A) of this paragraph or the date of the appointment referred to in subparagraph (B) of this paragraph, as the case may be, than the terms and conditions of employment with the Panama Canal Company and Canal Zone Government on September 30, 1979[.]

. . . .

(2) The terms and conditions of employment referred to in paragraph (1) of this subsection are the following:

. . . .

(C) premium pay and night differential[.]

5 U.S.C. § 5545 provides, in relevant part, as follows:

§ 5545. Night, standby, irregular, and hazardous duty differential

(c) The head of an agency, with the approval of the Office of Personnel Management, may provide that--

(1) an employee in a position requiring him regularly to remain at, or within the confines of, his station during longer than ordinary periods of duty, a substantial part of which consists of remaining in a standby status rather than performing work, shall receive premium pay for this duty on an annual basis instead of premium pay provided by other provisions of this subchapter, except for irregular, unscheduled overtime duty in excess of his regularly scheduled weekly tour. Premium pay under this paragraph is determined as an appropriate percentage, not in excess of 25 percent, of such part of the rate of basic pay for the position as does not exceed the minimum rate of basic pay for GS-10 (including any applicable locality-based comparability payment under section 5304 or similar provision of law and any applicable special rate of pay under section 5305 or similar provision of law), (or, for a position described in section 5542(a)(3) of this title, of the basic pay of the position), by taking into consideration the number of hours of actual work required in the position, the number of hours required in a standby status at or within the confines of the station, the extent to which the duties of the position are made more onerous by night, Sunday, or holiday work, or by being extended over periods of more than 40 hours a week and other relevant factors[.]

5 C.F.R. § 550.141 provides as follows:

§ 550.141 Authorization of premium pay on an annual basis.

An agency may pay premium pay on an annual basis, instead of the premium pay prescribed in this subpart for regularly scheduled overtime, night, holiday, and Sunday work, to an employee in a position requiring him or her regularly to remain at, or within the confines of, his or her station during longer than ordinary periods of duty, a substantial part of which consists of remaining in a standby status rather than performing work. Premium pay under this section is determined as an appropriate percentage, not in excess of 25 percent, of that part of the employee's rate of basic pay which does not exceed the minimum rate of basic pay for GS-10 (including any applicable interim geographic adjustment under section 302 of the Federal Employees Pay Comparability Act of 1990 (Pub. L. 101-509) or locality-based comparability payment under 5 U.S.C. 5304 and any applicable special rate of pay under 5 U.S.C. 5305 or similar provision of law).

56 Fed. Reg. 20,342 (1991).




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

1. As discussed more fully below, the Arbitrator clarified his award pursuant to the Union's request. It is well established that an arbitrator may clarify an ambiguous award and restate the basis for an award which conforms to the arbitrator's original findings and that an arbitrator's authority to clarify an award does not depend on a joint request from the parties. See U.S. Department of the Army, Army Information Systems Command, Savanna Army Depot and National Association of Government Employees, Local R7-36, 38 FLRA 1464, 1467 (1991). The Agency's unopposed motion that the Union's request and the Arbitrator's clarification of the award be entered into the record and that the Agency's submission in response to the clarification be considered by the Authority is granted.

2. The Panama Canal Commission was established on October 1, 1979, pursuant to the Panama Canal Act of 1979 (Pub. L. No. 96-70, 93 Stat. 456 (1979). See Panama Canal Commission, 5 FLRA 104, 108-09 (1981) (discussion of the coverage of Commission employees under the Statute). "Pre-Treaty" employees are employees who were employed by the Panama Canal Company on September 30, 1979. Id. at 109 n.3; see also Exceptions at 1.

3. The pertinent text of section 1231 of the Panama Canal Act of 1979, codified at 22 U.S.C. § 3671(a), is set forth in the appendix to this decision.

4. See U.