51:1088(88)AR - - GPO, Washington, DC and IBEW, Local 121 - - 1996 FLRAdec AR - - v51 p1088



[ v51 p1088 ]
51:1088(88)AR
The decision of the Authority follows:


51 FLRA No. 88

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON, D.C.

(Agency)

and

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS

LOCAL 121

(Union)

0-AR-2647

_____

DECISION

March 29, 1996

_____

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

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Louis Aronin filed by the Agency (GPO) 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 found that 5 U.S.C. § 6101(a)(3)(E) applies to employees of the GPO.(1) For the following reasons, we conclude that the Arbitrator's award is deficient and we set aside the award.

II. Arbitrator's Award

The Union represents a unit of engineers who work various shifts and workweeks, 24 hours a day, 7 days a week, in GPO's Power Branch. The Agency has a practice of adjusting these employees' workweeks in order to have an adequate number of employees at work, both before and after a holiday, without resorting to overtime. This case arose when the Agency changed an employee's days off to avoid payment of overtime for work on a holiday. The Union, relying on 5 U.S.C. § 6101(a)(3)(E), filed a grievance asserting that the Agency had no right to change the employee's basic workweek because of staffing needs related to a holiday. The Agency argued that it was not covered by section 6101(a)(3)(E).

The parties agreed that the only issue before the Arbitrator was:

[W]hether 5 U.S.C. § 6101(a)(3)(E) was applicable to the GPO . . . or whether the failure to list the employees of the GPO in 5 U.S.C. § 5441 (2) meant that the [GPO] was not covered by that provision.

Award at 4.

The Arbitrator stated that section 6101(a)(1) "'does not include an employee or individual excluded from the definition of employee in section 5541(2).'" Id. (emphasis added by the Arbitrator, quoting section 6101). The Arbitrator reviewed the exclusions listed in section 5541(2) and found that none of them referred to GPO employees. The Arbitrator then stated that "[t]he key to a determination of the status of the employees of the [GPO] is not alone in the absence of their exclusion in 5 U.S.C. 5541(2), but a reference to 5 U.S.C. 5349, which is listed as an included group in [section] 6101(a)(1) . . . .'" Id. at 5-6 (emphasis in original). The Arbitrator found that "the employees of the [GPO], who are covered by section 5349[,] are thereby also covered by 5 U.S.C. 6101." Id. at 6. The Arbitrator stated that "[b]ased on the fact that the [GPO] employees are not only not excluded specifically by 5 U.S.C. 5541(2), but are also covered by 5 U.S.C. 5349, they are therefore covered by 5 U.S.C. 6101." Id. at 6-7 (emphasis in original). Consequently, the Arbitrator found that section 6101(a)(3)(E) "is applicable to employees of the [GPO]." Id. at 7.

As his award, the Arbitrator stated: "The provisions of title 5, section 6101(a)(3)(E), relating to hours of work, is [sic] applicable to employees of the [GPO]."(3) Id.

III. Exceptions

A. Agency's Contentions

The Agency asserts that the award is deficient as contrary to law. In this regard, the Agency contends that the Arbitrator's determination that the Agency is covered by section 6101 is based on his incorrect finding that the employees are governed by section 5349. According to the Agency, the employees are not governed by section 5349 but, instead, are covered by 44 U.S.C. § 305 (also referred to as the Kiess Act). Additionally, the Agency claims that the employees are not included under 5 U.S.C. § 5343. In sum, the Agency argues:

The Arbitrator chose to look into [s]ection 5349 after having concluded that the Agency was not covered within the meaning of [s]ection 5541, the section to which both the Agency and the Union referred him in seeking to resolve the issue. . . . Since, by the Arbitrator's own analysis, the Agency is not covered by [s]ection 5541 and because the Agency's employees do not come within the meaning of [s]ection 5349 or [s]ection 5343, . . . the Arbitrator's decision should be reversed as a matter of law . . . .

Exceptions at 10.

B. Union's Opposition

According to the Union, GPO employees are covered by section 6101(a)(1) since they are not in the extensive list of exclusions in 5 U.S.C. 5541. The Union states that "[b]oth the Union and the Agency referred the Arbitrator to section 5541 in seeking to resolve this matter." Opposition at 7. It acknowledges that the Arbitrator erred "in his assumption" that the affected employees are covered by sections 5349 and 5343. Id. at 4. However, the Union claims that the Arbitrator referred to sections 5343 and 5349 "only . . . to show more justification of the GPO's coverage, even though it is not necessary." Id. The Union also claims that the Comptroller General, the GPO, and the Authority "have cited sections 6101 and or 5546 as governing law in numerous cases involving the GPO." Id. at 6.

IV. Analysis and Conclusions

Because the Agency challenges the award's consistency with law, we review the question of whether the award is inconsistent with section 6101(a)(3)(E) de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995), citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994).

Section 6101(a)(3) applies only to "an Executive agency, a military department, or . . . the government of the District of Columbia . . . ." The GPO is not an Executive agency, a military department, or a part of the government of the District of Columbia; it is a legislative agency. Lewis v. Sawyer, 698 F.2d 1261, 1262 (D.C. Cir. 1983). By its terms, therefore, section 6101(a)(3), including subsection (E), does not apply to the GPO.(4) Since section 6101(a)(3)(E) does not apply to the GPO, it is irrelevant whether the employees in this case come within the definition of "employee" under section 6101(a)(1), as found by the Arbitrator.

In this connection, as the Authority stated in National Air Traffic Controllers Association, MEBA, AFL-CIO and U.S. Department of Transportation, Federal Aviation Administration, 51 FLRA 204, 207 (1995), the task of resolving a dispute over the meaning of a statutory provision "begins where all such inquiries must begin: with the language of the statute itself." United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241 (1989) (citation omitted). If the statute's language is plain, that is, if Congress' intent is apparent from the language, "it is also where the inquiry should end, for where . . . the statute's language is plain, the 'sole function of the courts is to enforce it according to its terms.'" Id. (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917)). See also Overseas Education Association v. FLRA, 876 F.2d 960, 974 (D.C. Cir. 1989) ("[u]nless exceptional circumstances dictate otherwise, '[w]hen we find the terms of a statute unambiguous, judicial inquiry is complete.'" (quoting Burlington Northern R.R. Co. v. Oklahoma Tax Commission, 481 U.S. 454, 461 (1987)).

Based on the plain wording of section 6101(a)(3), we find that that section, including subsection (E), does not apply to the GPO. Accordingly, the Arbitrator's award finding that 5 U.S.C. § 6101(a)(3)(E) applies to the GPO employees in this case is contrary to law.

V. Decision

The award is set aside.

Appendix

5 U.S.C. § 6101 provides, in pertinent part, as follows:

§ 6101. Basic 40-hour workweek; work schedules; regulations

(a)(1) For the purpose of this subsection, "employee" includes an employee of the government of the District of Columbia and an employee whose pay is fixed and adjusted from time to time under section 5343 or 5349 of this title, or by a wage board or similar administrative authority serving the same purpose, but does not include an employee or individual excluded from the definition of employee in section 5541(2) of this title, except as specifically provided under this paragraph.

. . . .

(5) The Architect of the Capitol may apply this subsection to employees under the Office of the Architect of the Capitol or the Botanic Garden. The Librarian of Congress may apply this subsection to employees under the Library of Congress.




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

1. 5 U.S.C. § 6101(a)(3)(E) provides:

(3) Except when the head of an Executive agency, a military department, or of the government of the District of Columbia 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 --

. . .

(E) the occurrence of holidays may not affect the designation of the basic workweek[.]

Other pertinent provisions of 5 U.S.C. § 6101(a) are set forth in the Appendix to this decision.

2. The parties agree that the Arbitrator's reference to 5 U.S.C. § 5441 is inadvertent and should be a reference to 5 U.S.C. § 5541.

3. The Arbitrator's award states that section 6101(a)(3) is applicable "to employees of the Government Printing Office." Award at 7. Inasmuch as the only GPO employees involved in this case are the engineers in the unit, we construe his award as applying only to those employees, not to other GPO employees.

4.