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
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE ARMY
FITZSIMMONS ARMY MEDICAL CENTER
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.
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 to the Agency, other GS nonexempt employees do not accrue leave for work during regularly scheduled overtime periods and are not charged leave for absences during overtime periods. The Agency relies on Armitage v. United States, 23 Cl. Ct. 483 (1991), aff'd in part, 991 F.2d 746 (Fed. Cir. 1993) (Armitage).
B. Union's Opposition
The Union states that nothing in the record indicates the amounts of overtime denied any employee. According to the Union, the parties sought the Arbitrator's ruling on a broad question of legal entitlement. The Union states that having received that award, the parties must now apply the award to individual employees and determine whether the employees are due additional backpay for overtime. The Union contends that "[i]f there are any disputes, the Arbitrator has been given the power to resolve them, as shown by the retention of jurisdiction in his award." Opposition at 2-3.
IV. Analysis and Conclusions
The Agency has misinterpreted the Arbitrator's award. The Arbitrator did not determine that any particular employees (either firefighters or other GS nonexempt employees) were entitled to backpay for overtime and did not order backpay for any particular employees. As such, there is nothing in the award to indicate that any grievant is to be paid an amount to which he or she would not be entitled as backpay for overtime. Accordingly, the Agency has failed to demonstrate that the Arbitrator's award is contrary to the Back Pay Act. Cf. U.S. Department of Defense, Dependents Schools, Germany Region and Overseas Education Association, 39 FLRA 13, 19-20 (1991) (the Authority denied an exception contending that the effect of the arbitrator's award would be to double the amount of backpay awarded by another arbitrator, because the award only reimbursed the employees money owed them and did not violate the Back Pay Act).
However, we take this opportunity to clarify applicable principles as to the payment of overtime to employees who are in a leave with pay status. We agree with the Agency that the Arbitrator correctly relied on Lanehart in formulating his award with respect to firefighters, who work an uncommon tour of duty, accrue leave for working overtime periods, and are charged leave for absences during regularly scheduled overtime. They are entitled to receive pay for regularly scheduled and recurrent overtime when they are in a leave with pay status.
Unlike firefighters, however, other GS nonexempt employees who work a regular tour of duty do not accrue leave for performing overtime work and are not charged leave for absences during overtime. In Armitage, the court ruled on these employees' entitlement to overtime when in a leave with pay status during which they were not charged leave for not working the overtime. The court held:
[I]t was not improper for the defendant not to credit plaintiffs' leave accounts for hours of overtime regularly worked and not to debit their accounts for hours of unworked overtime while on authorized absence. Since the plaintiffs were not on leave they are not entitled to overtime under the leave with pay statutes or the rationale of Lanehart. Moreover, plaintiffs are not entitled to overtime pay under the Title 5 overtime provisions, 5 U.S.C. § 5542, or the FLSA overtime provision, 29 U.S.C. § 207. . . . Accordingly, if the employee did not work overtime, the overtime pay statutes do not entitle him to pay.
Armitage, 23 Cl. Ct. at 492. Under Armitage, GS nonexempt employees who work a regular tour of duty and who are not charged leave for absences during overtime assignments are not entitled to overtime pay when they are in a leave with pay status.
Because the Arbitrator's decision did not award backpay to any employee, it is not inconsistent