51:0165(18)AR - - AFGE Local 2214 and Fitzsimmons Army Medical Center, Aurora, CO - - 1995 FLRAdec AR - - v51 p165

[ v51 p165 ]
The decision of the Authority follows:

51 FLRA No. 18





LOCAL 2214










September 18, 1995


Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Justin C. Smith 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 Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator sustained a grievance alleging that the Agency improperly failed to pay employees for regularly scheduled overtime when they were in a leave with pay status.(1)

For the following reasons, we conclude that the Agency has failed to establish that the award is deficient under section 7122(a) of the Statute and we deny the exceptions.

II. Arbitrator's Award

The bargaining unit includes firefighters and other General Schedule (GS) nonexempt employees.(2) The Union filed a grievance on behalf of unit employees alleging that they were being incorrectly denied, as relevant here, payment for regularly scheduled overtime when they were in a leave with pay status.

The issue before the Arbitrator was:

Are [Agency] employees entitled to "regularly scheduled" overtime pay when they are in a leave with pay status?

Award at 7.

The Arbitrator concluded that Lanehart v. Horner, 818 F.2d 1574 (Fed. Cir. 1987) (Lanehart) controlled where, as here, an employee has taken leave during a pay period, but is regularly scheduled for overtime on a recurrent basis. The Arbitrator found that, under Lanehart, employees are entitled to take leave with pay without reduction in their customary pay. The Arbitrator sustained the grievance and issued the following "ruling":

Employees at [the Agency] scheduled for regularly occurring and recurrent overtime shall not have their pay diminished when they are in approved leave with pay status. Employees at [the Agency] scheduled for regular and recurrent overtime would have been properly paid, but for the Agency's inappropriate interpretation and application of the leave with pay provisions of the statute. A make whole remedy is ordered for all employees adversely affected retroactive to six (6) years from the date the Union grievance was filed (i.e. to May 1987). Interest on backpay owed is ordered in accordance with 5 U.S.C. 5596(b)(2)(A) and (B).

Award at 7. As stipulated by the parties, the Arbitrator retained jurisdiction for the interpretation and application of the award.

III. Exceptions

A. Agency's Contentions

The Agency excepts to the award on the ground that it is inconsistent with law to the extent that it awards or could be construed to award backpay for overtime to: (1) firefighters; and (2) other GS nonexempt employees who are regularly scheduled for overtime work but who do not work the overtime hours and are not charged leave for the absence during regularly scheduled overtime.

The Agency agrees with the Arbitrator's award insofar as it requires overtime pay to firefighters who are in a leave with pay status during regularly scheduled overtime. However, the Agency maintains that it has properly paid such overtime. The Agency asserts that absent a finding that the firefighters suffered an unjustified and unwarranted personnel action resulting in the loss of pay, an award of backpay for overtime is contrary to the Back Pay Act, 5 U.S.C. § 5596. Accordingly, the Agency requests that the Authority set aside that portion of the Arbitrator's award that directs or could be construed to award firefighters backpay for overtime during absences in a paid leave status.

As to other GS nonexempt employees, the Agency argues that the Arbitrator erred in relying on Lanehart because the employees involved in that case were firefighters, rather than other GS nonexempt employees. According