51:1385(112)AR - - FAA, Washington, DC and National Air Traffic Controllers Association // [ Dept. of Transportation, Federal Aviation Administration ] - - 1996 FLRAdec AR - - v51 p1385



[ v51 p1385 ]
51:1385(112)AR
The decision of the Authority follows:


51 FLRA No. 112

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, D.C.

(Agency)

and

NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION

(Union)

0-AR-2671

_____

DECISION

June 20, 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 M. David Vaughn 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 over the Agency's refusal to pay Sunday premium pay to employees who take credit hours or compensatory time on a regularly scheduled Sunday shift.

For the following reasons, we conclude that the award is contrary to law and, therefore, is deficient under section 7122(a) of the Statute. Accordingly, we set aside the award.

II. Arbitrator's Award

Air Traffic Control Specialists (ATCSs) have regular shifts which may include work on Sundays. Under 5 U.S.C. § 5546(a) (section 5546(a)), employees who perform work on a Sunday during part of a regularly scheduled shift are entitled to additional premium pay for the whole shift at a rate equal to 25 percent of their rate of basic pay.(1) The Union filed a grievance over the Agency's refusal to pay Sunday premium pay for credit hours or compensatory time taken by ATCSs on regularly assigned Sunday shifts.(2)

The parties stipulated the issue before the Arbitrator as follows:

[w]hether the air traffic controllers who have taken credit hours or compensatory time on a regularly scheduled Sunday shift are being denied Sunday Premium Pay in violation of the Parties' collective agreement and 5 U.S.C. Sec. 5546(a)? If so, what is the appropriate remedy?

Award at 1.

The Arbitrator found that prior to 1993, the Agency did not pay Sunday premium pay to employees who took any type of leave on Sundays on which they were scheduled to work. He determined that the Agency began paying Sunday premium pay for annual and other types of paid leave after the Office of Personnel Management (OPM) issued a Federal Personnel Manual (FPM) Letter following the court's decision in Armitage v. United States, 991 F.2d 746 (Fed. Cir. 1993) (Armitage). The Arbitrator stated that in Armitage the court held that employees who take paid leave on regularly scheduled Sunday shifts are entitled to Sunday premium pay notwithstanding the "performs work" requirement in section 5546(a). The Arbitrator also stated that in Federal Personnel Manual (FPM) Letter 550-79 (Aug. 20, 1993), OPM directed agencies to pay employees Sunday premium pay for a variety of types of paid leave, consistent with Armitage.(3) The Arbitrator noted that the FPM Letter specifically excluded payment of Sunday premium pay for credit/comp time.(4)

The Arbitrator acknowledged that Armitage did not address the status of Sunday premium pay for employees who take credit/comp time. However, he found that there was no meaningful difference between the compensation status of paid leave and credit/comp time. Therefore, he concluded that the principle of Armitage, requiring payment of premium pay to employees who took paid leave on regularly scheduled Sunday shifts, should apply to credit/comp time as well. The Arbitrator found that the Agency's determination not to pay Sunday premium pay to employees using credit/comp time was based on the FPM Letter, but concluded that the FPM Letter lacked supporting rationale.

The Arbitrator sustained the grievance. As a remedy, the Arbitrator required the Agency to identify those ATCS employees who had worked Sundays on or after January 5, 1988, and make them whole for any additional Sunday premium pay that was due them if they took credit/comp time.(5)

III. Exceptions

A. Agency's Contentions

The Agency contends that the award is contrary to law because payment of Sunday premium pay to employees who use credit/comp time is not authorized by section 5546(a) or by Armitage. The Agency also contends that the parties' agreement does not authorize payment of Sunday premium pay to employees using credit/comp time.

B. Union's Position

The Union asserts that the Agency's exceptions merely disagree with the Arbitrator's conclusions and are an attempt to relitigate the grievance before the Authority. The Union contends that the exceptions do not demonstrate that the award is contrary to law and, therefore, do not provide a basis to overturn the award.

IV. Analysis and Conclusions

Because the Agency's exceptions challenge the award's consistency with section 5546(a), we must review the question of law raised by the award and the parties' positions 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).

The statutory basis for Sunday premium pay for ATCSs is 5 U.S.C. § 5546(a). Section 5546(a) states that an employee who performs work during part of a regular shift on a Sunday is entitled to receive Sunday premium pay for the entire shift. Employees using credit/comp time are not performing work and, based solely on the language of section 5546(a), are not entitled to receive Sunday premium pay when they use credit/comp time.

In Armitage, the court ruled that employees on paid leave on a regularly scheduled Sunday shift are entitled to receive the regular and customary pay, that is, the Sunday premium pay, they would have received had they worked on that Sunday shift. Armitage dealt only with annual and sick leave usage; the court was not presented with the issue of other approved paid absences, including the use of credit/comp time.

We find that there is no authority for payment of Sunday premium pay in the circumstances of this case. As set forth above, neither section 5546(a) nor Armitage authorizes Sunday premium pay for use of credit/comp time.(6) Therefore, the Arbitrator's award is inconsistent with section 5546(a) and is deficient as contrary to law under section 7122(a) of the Statute. Accordingly, we will set aside the award. In light of this determination, we need not address the Agency's other contentions.

V. Decision

The Arbitrator's award is set aside.




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

1. Section 5546(a) states:

An employee who performs work during a regularly scheduled 8-hour period of service which is not overtime work as defined by section 5542(a) of this title a part of which is performed on Sunday is entitled to pay for the entire period of service at the rate of his basic pay, plus premium pay at a rate equal to 25 percent of his rate of basic pay.

2. "'[C]redit hours' means any hours, within a flexible schedule established under [5 U.S.C. § 6122], which are in excess of an employee's basic work requirement and which the employee elects to work so as to vary the length of a workweek or a workday[.]" 5 U.S.C. § 6121(4). "Compensatory time" is time off from an employee's scheduled tour of duty, at the employee's request, in lieu of payment for an equal amount of time spent in irregular or occasional overtime work. 5 U.S.C. § 5543(a). Throughout the award, the Arbitrator used the term "credit/comp time" to refer to credit hours and compensatory time and we will do so here.

3. The FPM was abolished on December 31, 1993, but FPM Letter 550-79 was provisionally retained through December 31, 1994. Thereafter, OPM issued regulations on Sunday premium pay for periods of paid leave and excused absence, codified at 5 C.F.R. § 550.171. See 59 Fed. Reg. 66629, 66630 (Dec. 28, 1994) and note 7, infra.

4. Paragraph 8 of FPM Letter 550-79 states:

An employee is not entitled to Sunday premium pay and is not otherwise affected by the Armitage decision when the employee does not take paid leave on a Sunday because the employee is in a nonpay status, is excused from a requirement to perform overtime work, performs no work on a holiday, takes compensatory time off, or uses credit hours under a flexible work schedule.

5. The Arbitrator's determination that the affected employees should be made whole retroactive to January 5, 1988, which is 6 years before the grievance was filed, was based on his application of the 6-year retroactivity period under the Back Pay Act, 5 U.S.C. § 5596. We note that the Agency's appropriation acts for fiscal years 1995 and 1996 contain a provision stating that "none of the funds in this [Appropriation] Act shall be available for paying premium pay under 5 U.S.C. [§] 5546(a) to any [Agency] employee unless such employee actually performed work during the time corresponding to such premium pay[.]" Public Law No. 104-50, 109 Stat. 436, 440; Public Law No. 103-331, 108 Stat. 2471, 2475. The Agency's appropriation act for fiscal year 1994 did not contain a similar limitation. Public Law No. 103-122, 107 Stat. 1198, 1203. In accordance with section 2429.5 of our Regulations, we take official notice of these appropriation acts.

6. We note that the Agency's determination not to pay Sunday premium pay to employees using credit/comp time apparently was not based on the absence of statutory authority to do so, but rather, as the Arbitrator found, on FPM Letter 550-79. In FPM Letter 550-79, OPM provided guidance to agencies on implementing Armitage, and specifically directed agencies not to pay Sunday premium pay when the employee does not take paid leave on a Sunday because the employee takes compensatory time off, or uses credit hours under a flexible work schedule. See note 4 supra. Although FPM Letter 550-79 has expired, it applies in this case. See Landgraf v. USI Film Products, ___ U.S. ___, 114 S. Ct. 1483, 1501-05 (1994) (the Court stated that where the application of a new law would "impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed[,]" the traditional presumption against retroactivity operates to deny such retroactive effect in the absence of clear congressional intent to the contrary). Not applying the FPM Letter in this case would impair rights the Agency possessed when it denied the requested Sunday premium pay. There is no indication in the FPM Sunset Document that OPM