46:0494(45)AR - - GSA and AFGE, Council 236 - - 1992 FLRAdec AR - - v46 p494



[ v46 p494 ]
46:0494(45)AR
The decision of the Authority follows:


46 FLRA No. 45

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

GENERAL SERVICES ADMINISTRATION

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL 236

(Union)

0-AR-2271

DECISION

November 6, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Jerome H. Ross 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 filed an opposition to the Agency's exception.(1)

The Arbitrator found that the Agency improperly denied nightwork differential pay to General Schedule (GS) employees, who were regularly scheduled for nightwork, while they were on annual leave. The Arbitrator retained jurisdiction of the grievance to resolve any disputes concerning the appropriate remedy.

For the following reasons, we find that the Arbitrator's award is deficient because it is contrary to law and regulation. Accordingly, we will set aside the award.

II. Background and Arbitrator's Award

The facts in this matter are not in dispute. The Agency's practice was to pay a nightwork differential to GS employees who regularly perform nightwork in accordance with 5 U.S.C. § 5545(a).(2) The Agency did not pay a nightwork differential to employees in a "leave with pay" status when those employees took 8 or more hours of such leave during a pay period. The Union filed a grievance that asserted that the Agency improperly denied nightwork differentials to GS employees, who were regularly scheduled for nightwork, while such employees were on annual leave. The grievance was not resolved and was submitted to arbitration.

The Union claimed that under the rationale of Lanehart v. Horner, 818 F.2d 1574 (Fed. Cir. 1987) (Lanehart) and Armitage v. United States, 23 Cl. Ct. 483 (1991) (Armitage), employees were entitled to receive nightwork differentials for hours for which they were on leave where the employees would have qualified for such pay if they had worked those hours. The Union argued that the statutes concerning leave with pay overcome any limitations in 5 U.S.C. 5545(a) that would otherwise reduce the customary and regular pay of the employees.

The Agency maintained that the decisions in Lanehart and Armitage do not involve the issue in this case and, therefore "were not intended to overcome statutes such as section 5545(a), where Congressional intent is clear." Award at 7. The Agency argued that the specific and unambiguous language of section 5545(a) prevails if an employee takes 8 or more hours of leave during a pay period. The Agency also raised a question of arbitrability.

The Arbitrator first found that the grievance was arbitrable. On the merits, the Arbitrator focused on the four statutes that prescribe the rules for paying employees while on leave: 5 U.S.C. § 6303 (annual leave); 5 U.S.C. § 6307 (sick leave); 5 U.S.C. § 6322 (court leave); and 5 U.S.C. § 6323 (military leave).(3)

The Arbitrator noted that in Lanehart the court held that the "leave with pay" statutes "prevent any reduction in the customary and regular pay of the appellants, including overtime pay under [t]itle 29 [29 U.S.C. § 201] to which they would be entitled . . . when appellants are on authorized leave under sections 6303, 6307, 6322 and 6363." Award at 5 (quoting Lanehart).(4) The Arbitrator explained that, in effect, the court found that these statutes covered compensation arising under title 29, notwithstanding the clear title 29 requirement that overtime payments are to be made only for hours worked.

With regard to Armitage, the Arbitrator noted the court's observation that the Office of Personnel Management (OPM) had applied the reasoning of Lanehart to any Federal employee who receives additional compensation for overtime work on a "customary and regular" basis. Award at 6.(5) The Arbitrator further noted that in Armitage, which addressed the claims of law enforcement officers who were regularly scheduled to work Sundays, holidays and overtime hours and who accrued annual and sick leave pursuant to 5 U.S.C. §§ 6303 and 6307, the court relied on the finding in Lanehart, "that the leave with pay statutes overcome the limitation that employees must actually have worked the hours to have them counted in the overtime calculations." Id. (quoting Armitage). Specifically, the Arbitrator noted that the court in Armitage found, based on Lanehart, that the "leave with pay" statutes supersede the specific limitation in 5 U.S.C. § 5546(a) on the payment of Sunday premium pay to those who actually perform work on Sunday.(6)

The Arbitrator determined that Lanehart controlled the issue before him. The Arbitrator noted the court's conclusion that "pay" as used in the leave with pay statutes has "consistently been construed for more than a century as encompassing the total compensation or remuneration normally and regularly received by an employee." Award at 7-8 (quoting Lanehart). The Arbitrator further relied on the conclusion in Lanehart that those statutes "in their purpose and effect prevent any reduction in the customary and regular pay . . . when [employees] are on authorized leave under sections 6303, 6307, 6322 and 6323." Id. at 8 (quoting Lanehart).

The Arbitrator concluded that the specific limitation on the payment of a nightwork differential contained in 5 U.S.C. § 5545(a)(2) was not controlling. Applying Lanehart, the Arbitrator found that although nightwork premium pay for hours of paid leave of 8 or more is not owed under 5 U.S.C. § 5545, it is owed under the provisions of 5 U.S.C. §§ 6303, 6307, 6322 and 6323 as part of the customary and regular pay of the employee. The Arbitrator found that, under Lanehart, leave under the "pay with leave" provisions is treated as if the employee had worked the hours in question. The Arbitrator noted that if the employees had worked they would have received the nightwork pay premium. The Arbitrator concluded that when on leave under sections 6303, 6307, 6322 or 6323, the employees must also receive a nightwork pay premium.

Accordingly, the Arbitrator sustained the grievance. The Arbitrator retained jurisdiction over the grievance to resolve any disputes concerning the appropriate remedy.

III. Positions of the Parties

A. Agency's Exception

The Agency contends that the award is deficient because it is contrary to law and regulation.

The Agency argues that the Arbitrator erred in relying on Lanehart. The Agency asserts that, unlike the provisions before the court in Lanehart, the statute at issue in this case specifically defines "the parameters of nightwork . . . in terms of leave with pay." Exception at 6. Consequently, the Agency contends, unlike the matter before the court in Lanehart, there is a "conflict when attempting to provide remuneration under the leave with pay statutes . . . ." Id. Further, the Agency contends that the legislative history of the night differential law establishes the clear intent of Congress to limit the payment of nightwork differentials during periods of leave.

The Agency also contends that the Arbitrator's award is contrary to 5 C.F.R. § 550.122(b).(7) The Agency argues that this Government-wide regulation states "that an employee is not entitled to night pay differential when there has been a total of eight or more hours of paid leave in that pay period." Exception at 8 (emphasis in original).

B. Union's Opposition

The Union contends that the Arbitrator's award is not contrary to law and regulation. The Union argues that the Agency's exception is based on a disagreement with the Arbitrator's reasoning and provides no basis for finding the award deficient.

IV. Analysis and Conclusions

We conclude that the Arbitrator's award is deficient because the award is contrary to law and regulation. Accordingly, we will set aside the award.

The issue presented in this case is whether certain GS employees of the Agency are entitled to nightwork differential pay when they are in a leave with pay status for 8 hours or more in a pay period. We conclude that they are not. 5 U.S.C. § 5545(a) specifically covers night differential pay and defines nightwork as including only "periods of leave with pay during a pay period [that] total less than 8 hours." Further, 5 C.F.R. § 550.122 expressly limits entitlement to night differential to payment "for a period of paid leave only when the total amount of that leave in a pay period . . . is less than 8 hours." Thus, both the statute that establishes eligibility for nightwork differentials and the regulation interpreting that statute make it clear that an employee can receive night differential pay only when the employee has taken less than 8 hours paid leave in a pay period. In contrast, other pay provisions of title 5, such as 5 U.S.C. § 5546(a) concerning Sunday premium pay, which was addressed in Armitage, do not specify exclusions based on the amount of paid leave taken.

In Federal Personnel Manual Supplement 990-2, subchapter S1-4, OPM discusses night pay authorization, citing to both 5 U.S.C. § 5545 and 5 C.F.R. § 550.122 as the legal and regulatory authorities for granting night pay differentials. With respect to the issue of leave with pay of 8 hours or more, subchapter S1-4 refers only to a Comptroller General decision, 36 Comp. Gen. 734 (1957), which it states held "that night differential cannot be paid to an employee for any period of leave if the aggregate of paid leave taken by such employee during the same period is 8 hours or more." The Comptroller General stated in that decision that the "statute appears to us to be quite explicit in authorizing continuance of night differential during leave with pay only when the leave totals less than 8 hours for the pay period[.]" Id. at 735.

We conclude that the Arbitrator erred in interpreting 5 U.S.C. § 5545(a). In this regard, we disagree with the Arbitrator's reliance on Lanehart. In contrast to this case, the sole issue in Lanehart was the entitlement to pay under leave with pay statutes whose purpose and effect was "not clearly discernible from the language of the statutes." 818 F.2d at 1579. Examining legislative history, where available, and applicable case law, the court concluded that the four leave with pay statutes "prevent any reduction in the customary and regular pay of the appellants, including overtime pay under [t]itle 29 to which they would be entitled, when appellants are on authorized leave under [the leave with pay statutes]." Id. at 1583. Similarly, Armitage held that employees were entitled to Sunday premium pay for hours for which they were regularly scheduled but for which they were on authorized leave. Neither 29 U.S.C. § 207(k), which established eligibility for the overtime pay at issue in Lanehart, nor 5 U.S.C. § 5546(a), which established eligibility for the Sunday premium pay at issue in Armitage, expressly dealt with payment for periods of authorized leave. Rather, the sole issue before each court was the entitlement to pay under the leave with pay statutes. Thus, neither Lanehart nor Armitage addressed the conflict presented by this case between the leave with pay statutes and a premium pay provision that expressly excludes payment during leave periods of 8 hours or more in a pay period.(8)

As the court in Lanehart stated, "when Congress has intended to exclude certain types of remuneration from a pay statute it has done so with clarity." Lanehart, 818 F.2d at 1582. We find that clarity in 5 U.S.C § 5545(a), which specifically limits the payment of a night differential to "periods of leave with pay during a pay period [that] total less than 8 hours." Both OPM and the Controller General have intrepreted the Congressional intent of 5 U.S.C. § 5545(a) as limiting the payment of night differential pay to employees when on paid leave. Accordingly, we conclude that in enacting 5 U.S.C. § 5545(a), Congress intended to preclude the payment of a nightwork differential to GS employees when those employees are in a leave with pay status if they take 8 or more hours of such leave during a pay period.

Accordingly, we conclude that the Arbitrator's award is deficient because it is contrary to 5 U.S.C. § 5545(a) and 5 C.F.R. § 550.122.

V. Decision

The Arbitrator's award is set aside.




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

1. The Union cured a deficiency in the filing of its opposition to the Agency's exception within the time limits provided by the Authority. Accordingly, the Authority has considered the Union's opposition.

2. 5 U.S.C. § 5545(a) provides:

(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.

3. 5 U.S.C. § 6303 provides, in pertinent part (a) An employee is entitled to annual leave with pay . . . .

5 U.S.C. § 6307 provides, in pertinent part: (a) An employee is entitled to sick leave with pay . . . .

5 U.S.C. § 6322 provides, in pertinent part: (a) An employee . . . is entitled to leave, without loss of, or reduction in, pay, leave to which he otherwise is entitled, . . . in connection with a judicial proceeding . . . .

5 U.S.C. § 6323 provides, in pertinent part: (a)(1) [A]n employee . . . is entitled to leave without loss in pay . . . for active duty or engaging in field or coast defense training under sections 502-505 of title 32 as a Reserve of the armed forces or member of the National Guard.

4. In 1974, the Federal Government, as an employer, was brought within the coverage of the Fair Labor Standards Act (FLSA) and, in general, Federal employees became entitled to overtime compensation for any workweek that exceeded 40 hours. 29 U.S.C. §§ 203(e)(2), 207(a) (1982).

5. In Federal Personnel Manual Letter 551-22 (Dec. 23, 1987), OPM applied Lanehart in guidance to agencies regarding the determination of employees' entitlement to overtime pay under the leave with pay statutes.

6. 5 U.S.C. § 5546(a) provides:

An employee who performs work during a regularly scheduled 8-hour period of service which is not overtime work as defi