---

51 FLRA No. 79

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

UNITED STATES DEPARTMENT OF AGRICULTURE

ANIMAL AND PLANT HEALTH INSPECTION SERVICE

PLANT PROTECTION AND QUARANTINE PROGRAM

SEATTLE, WASHINGTON

(Agency)

and

NATIONAL ASSOCIATION OF AGRICULTURE EMPLOYEES

(Union)

0-AR-2621

_____

DECISION

March 25, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman⁽¹⁾, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator M. Zane Lumbley 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 ruled that the Agency's termination of the grievants' scheduled Sunday overtime shifts was not in accordance with applicable law and regulations and ordered that the grievants be paid for the scheduled hours that they were not permitted to work. We conclude that the award is deficient and we set it aside.

II. Background and Arbitrator's Award

The grievants are plant protection and quarantine (PPQ) officers who perform inspection and quarantine services at international ports of entry. On Sunday, November 8, 1992, one grievant was scheduled to work an overtime assignment of 8:00 a.m. to 4:00 p.m. He worked until 11:15 a.m., at which time his supervisor informed him that his shift was terminated for lack of further inspection work and that a later inspection would be handled on a call-out basis. Later that day, he performed and was compensated for the additional inspection work on a call-out basis. On Sunday, November 22, 1992, the other grievant was scheduled to work an overtime shift from 7:00 a.m. to noon. She worked until 11:00 a.m., at which time her supervisor informed her that her shift was terminated for lack of further inspection work. The grievants were not paid for the time remaining on their scheduled shifts, and they filed grievances disputing the terminations. The grievances were submitted together to arbitration on the issue of whether the Agency's termination of the scheduled overtime shifts was in accordance with applicable law and regulations.

At arbitration, the Union argued that under 5 U.S.C. § 6101(a)(3)(A) and 5 C.F.R. part 610, subpart A, specifically 5 C.F.R. § 610.121(a)(1),⁽²⁾ a scheduled overtime shift cannot be changed once it begins unless the Agency determines that completion of the shift would seriously handicap the Agency or substantially increase costs. The Union contended that, therefore, the Agency improperly terminated the shifts because the Agency made no such determination. The Agency argued that section 6101 does not apply to Sunday overtime work and that, as found by the Authority in National Association of Agriculture Employees and U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine, 48 FLRA 639 (1993) (DOA I), reconsideration denied, 48 FLRA 914 (1993) (DOA II),⁽³⁾ 5 C.F.R. part 610, subpart A does not apply to the overtime services of PPQ officers. However, the Agency stipulated that if the Arbitrator found that it had not properly terminated the scheduled overtime shifts, the grievants were entitled to be compensated for the scheduled hours that they were not permitted to work.

The Arbitrator agreed with the decision in DOA II on the coverage of 5 C.F.R. part 610, subpart A. However, he found that the Agency had issued internal directives that adopted the same scheduling requirements of 5 C.F.R. part 610, subpart A. Award at 12-14 (citing DPM chapter 610 and APHIS Directive 4610.1). He ruled that under these requirements, the Agency could not terminate a scheduled overtime shift once it had begun unless the Agency had determined that it would be seriously handicapped in carrying out its functions or that costs would be substantially increased. He found that no such determination had been made in this case. Accordingly, the Arbitrator determined that the Agency had not terminated the grievants' scheduled overtime shifts in accordance with applicable law and regulations and that the terminations constituted unjustified and unwarranted personnel actions. As a remedy, in accordance with the Agency's stipulation, he ordered that the grievants be compensated for the scheduled hours that they were not permitted to work.

III. Exceptions

A. Agency's Contentions

The Agency contends that the award is deficient because it is contrary to law. The Agency asserts that the award is contrary to 7 U.S.C. § 2260 (pertaining to PPQ officer overtime) and the legal advice of the Agency's personnel director. The Agency also asserts that the award is contrary to the decisions of the Authority in DOA I and II and the Comptroller General in Bonucchi, B-224854 (May 16, 1991) (unpublished).

B. Union's Opposition

The Union contends that, as found by the Arbitrator, the Agency was not privileged to terminate the scheduled overtime shifts. The Union also contends that the exceptions should be denied because the award is supported by 5 C.F.R. part 610, subpart A, which the Union asserts applies to overtime services of PPQ officers.

IV. Analysis and Conclusions

In National Association of Agriculture Employees and U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine, 51 FLRA No. 71 (1996) (DOA III), for reasons fully explained there, the Authority held that section 6101 and section 610.121 do not apply to, and thus do not constrain, an agency's ability to terminate, due to lack of work, a Sunday overtime shift before its scheduled end.⁽⁴⁾ Moreover, the Authority concluded that under 5 U.S.C. § 5542, PPQ officers could not be paid for overtime in situations where they are released from work in a manner that does not comply with section 6101 and section 610.121. The Authority also ruled that termination of such a shift without complying with those provisions would not constitute an unjustified or unwarranted personnel action within the meaning of the Back Pay Act, 5 U.S.C. § 5596. In addition, the Authority ruled that termination of a Sunday overtime shift without complying with the Agency's directives implementing section 610.121, on which the Arbitrator in this case relied, similarly would not constitute an unjustified or unwarranted personnel action within the meaning of the Back Pay Act because it was not shown that the Agency directives "were promulgated to independently impose scheduling requirements other than those" in section 610.121. DOA III, slip op. at 8 n.9.

On the basis of the Authority's decision in DOA III, we conclude that the award is deficient. Contrary to the determination of the Arbitrator, applicable law and regulations did not constrain the Agency's ability to terminate the grievants' Sunday overtime shifts and do not entitle the grievants to overtime compensation for hours not worked.⁽⁵⁾ In addition, the Arbitrator's award of backpay is contrary to the Back Pay Act because the Agency's termination of the grievants' Sunday overtime shifts without complying with such law and regulations did not constitute an unjustified or unwarranted personnel action within the meaning of the Back Pay Act. Accordingly, we set aside the award.⁽⁶⁾

V. Decision

The award is set aside.

Concurring Opinion of Member Wasserman

As noted in DOA III, that case was considered and all deliberations were completed prior to the date of my swearing in as a Member of the Authority. As a result, I did not participate in that decision. I agree with the conclusion of my colleagues that the Authority's decision in DOA III is binding precedent and is dispositive of this case. For that reason, I concur in the decision to set aside the Arbitrator's award.

Although I accept DOA III as binding precedent in this case, I am troubled by part of OPM's response in its opinion and its clarification. Under 5 U.S.C. § 6101(a) and implementing regulations at 5 C.F.R. § 610.121(a), assignments to tours of duty must be scheduled 7 days in advance, unless the head of an agency determines that the agency would be seriously handicapped in carrying out its functions or that costs would be substantially increased. "Tour of duty" is defined as the hours of a day and the days of an administrative workweek that constitute an employee's regularly scheduled administrative workweek. 5 C.F.R. § 610.102(h). "[R]egularly scheduled administrative workweek" is defined as the 40-hour basic workweek, plus the period of regular overtime work, if any, required of each employee. 5 C.F.R. § 610.111(a)(2). Accordingly, section 6101 clearly applies to the scheduling of regularly scheduled overtime. I have difficulty accepting OPM's position, expressed in its original opinion, that section 6101 concerns only the initial scheduling of tours of duty and "does not prevent an agency from changing an assigned tour of duty after the workweek begins because of actual work requirements." OPM Opinion at 3.

In its clarification, OPM stated that its views on scheduling hours of work as expressed in AFGE v. OPM, No. 85-4031 (D.D.C. Aug. 7, 1986), are consistent with its current position. In AFGE v. OPM, the court noted that OPM had indicated that:

[N]otwithstanding it may not say so in so many words, subsection (b) [of § 610.121] which permits workweeks to be rescheduled was intended, and is interpreted, by OPM to be qualified by subsection (a) [of § 610.121] directing agency heads to establish conventional workweek schedules except upon a determination that the agency would be seriously handicapped in carrying out its functions or that costs would be substantially increased.

Memorandum Opinion at 5. On this basis, the court concluded that when section 6101 and section 610.121 are read together "it is clear that agency heads must reschedule their employees' workweeks as necessary to accomplish the agency's mission, but only after having first determined that the agency would be seriously handicapped or its costs substantially increased if original work schedules were retained." Id.

I fail to understand why these same requirements do not apply to changes in work schedules, including periods of regularly scheduled overtime, after the workweek has begun. It seems incongruous that Congress would enact such stringent statutory criteria with respect to advance scheduling of workweeks, including periods of regularly scheduled overtime, but intend no such constraints on the ability of an agency to change advance schedules once the workweek has begun. OPM fails to address this apparent inconsistency. It seems to me that OPM's advisory opinion is ultimately guided by its determination that "[h]aving employees report to perform no work and paying them for not working is an absurd result that could not have been intended . . . ." OPM Clarification at 2. I appreciate that such a result may be harsh. Nonetheless, in a case like this where employees have a valid expectancy that they will receive compensation for regularly scheduled work, section 6101 appears to contemplate that they should receive that compensation regardless of the amount of work performed, unless the agency properly reschedules their tour of duty. See Gahagan v. U.S., 19 Cl. Ct. 168 (1989) (court ordered the agency to pay holiday premium pay to employees whose workweeks had been rescheduled to avoid premium pay, in violation of section 6101). Moreover, more astute advance planning by agencies may eliminate the need to pay for work not actually performed, as agencies have the exclusive right to assign work. As a result, I would have expected OPM to have provided a fuller explanation as to why payment is precluded in cases such as this one.

---

---

---

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

1. Member Wasserman's concurring opinion is set forth at the end of this decision.

2. 5 U.S.C. § 6101(a)(3)(A) provides as follows:

Except when the head of an Executive agency . . . determines that his organization would be seriously handicapped in carrying out its functions or that costs would be substantially increased, he shall provide, with respect to each employee in his organization, that--

(A) assignments to tours of duty are scheduled in advance over periods of not less than 1 week[.]

5 C.F.R. § 610.121(a)(1) restates these provisions.

3. The Union filed a petition for review of these decisions in the U.S. Court of Appeals for the D.C. Circuit. The court granted the Authority's motion to remand the cases and the Authority recently issued its decision on remand in National Association of Agriculture Employees and U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine, 51 FLRA No. 71 (1996).

4. In reaching this conclusion, the Authority applied an advisory opinion by the Office of Personnel Management (OPM) interpreting the statutory scheme that Congress entrusted to it to interpret. DOA III, slip op. at 7. In his concurring opinion, Member Wasserman addresses deficiencies in OPM's opinion, and the "incongruous" result it produces. We share his concern in this regard, and note that OPM's opinion was found controlling because it was not "plainly erroneous or inconsistent" with the language of its regulations and was based on a permissible construction of both section 6101 and section 610.121. Id. (quoting FLRA v. U.S. Department of the Treasury, Financial Management Service, 884 F.2d 1446, 1454 (D.C. Cir. 1989) and citing Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 842-45 (1984)).

5. In finding that the Agency's directives implementing section 610.121 did not constrain the Agency, we note that the Arbitrator found that the requirements were the same as those of section 610.121. Nothing before us supports a contrary finding.

6. In view of this decision, we do not address any other contentions of the Agency.

---