52:0909(91)AR - - HHS, Public Health Service, Navajo Area Indian Health Service, Window Rock, AZ and Laborers' International Union of North America, Navajo Nation Health Care Employees, Local 1376 - - 1997 FLRAdec AR - - v52 p909



[ v52 p909 ]
52:0909(91)AR
The decision of the Authority follows:


52 FLRA No. 91

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

PUBLIC HEALTH SERVICE

NAVAJO AREA INDIAN HEALTH SERVICE

WINDOW ROCK, ARIZONA

(Agency)

and

LABORERS' INTERNATIONAL UNION OF NORTH AMERICA

NAVAJO NATION HEALTH CARE EMPLOYEES

LOCAL 1376

(Union)

0-AR-2756

_____

DECISION

January 31, 1997

_____

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 a clarification award of Arbitrator Howard V. Finston 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.

In his original award, the Arbitrator ordered the Agency to provide the grievants backpay for performing duties that were assigned to them when they were in work status but that continued into the portion of their daily tours of duty when they were in standby status. He directed that the backpay encompass the difference between the overtime premium pay the employees otherwise would have received and the standby premium pay they had received. In his clarification award, the Arbitrator directed that calculations be made for each daily tour of duty on which the grievants performed the assignments.

For the following reasons, we set aside the clarification award and remand the case to the parties, who, absent settlement, should submit the case to the Arbitrator to render a decision consistent with this decision.

II. Background

The grievants are nurses who have a regularly scheduled administrative workweek that includes time in standby status. The grievants frequently work one 16-hour standby shift a week and one or two 48-hour weekend standby shifts a month. They receive their basic rate of pay and premium pay on an annual basis for regularly scheduled standby duty authorized by 5 U.S.C. § 5545(c)(1).(1)

This case involves duties that were assigned to the grievants when they were in their regular work status and that continued into the standby portion of their daily tours of duty. The Union filed a grievance seeking additional compensation for the performance of those duties. The grievance was not resolved, and the parties submitted the following issue to the Arbitrator:

What is the appropriate payment for employees who during their regularly scheduled hours of work, prior to assuming standby duty, are given an assignment that goes beyond their regular shift ending time and overlaps into their standby schedule?

Original Award at 1.

The Arbitrator ordered the Agency to provide the grievants back pay encompassing the difference between the overtime premium pay they otherwise would have received and the standby premium pay they received during the disputed last two years. In fashioning that remedy, he relied on U.S. Department of the Army, Army Medical Activity, Fort Knox, Kentucky and American Federation of Government Employees, Local 2302, 43 FLRA 102 (1991) for the Authority's interpretation of 5 U.S.C. § 5545(c)(1) and 5 C.F.R. § 550.142, which implements that statutory provision. He found that because the assignments at issue were both "common and frequent[,]" they were outside the purpose of standby duty, as set forth in Article XII of the parties' agreement, which is to have employees readily available to respond to unforeseen emergencies. Original Award at 13.

The parties requested that the Arbitrator clarify the manner in which the backpay should be calculated. He responded that the difference between the overtime premium pay and the standby premium pay should be calculated for each daily tour of duty on which the grievants performed the assignments at issue. In his clarification award, the Arbitrator stated:

2. In making these determinations, the parties shall consider each individual work assignment, hour by hour and day by day, by comparing the prorated daily annual standby premium with the amount of overtime that would have been earned on a given day during which an employee worked beyond her regular eight hours and extended into her standby period. As an illustration, if one were to assume that an employee earned $10/hr as regular pay and also earned a 25 percent standby premium of $2.50/hr, total daily compensation would be $100 and the prorated annual standby premium would be $20. Assuming that on a given day, this employee was assigned work that extended beyond 5 p.m. into the standby period, the governing question here is whether that employee worked more than one and one-third hours beyond the regular shift, the point at which overtime pay for those additional hours would exceed the standby premium (i.e., $20, the prorated daily annual standby premium divided by the overtime rate per hour, $15 in this example).

Clarification Award at 1-2. The Arbitrator found that it was proper to calculate the difference between overtime premium pay and standby premium pay in this manner because employees receive those two forms of compensation in their regular pay checks throughout the year and not in an annual lump sum payment.

III. Exceptions

A. Agency's Contentions

The Agency contends that the clarification award is deficient because it is contrary to law and regulations concerning the compensation of employees who are regularly scheduled for standby duty. The Agency also contends that the clarification award is contrary to the parties' collective bargaining agreement, which incorporates such regulations.

Specifically, the Agency asserts that the Arbitrator's order that it calculate the difference between overtime premium pay and standby premium pay for each daily tour of duty on which the grievants performed the assignments at issue is contrary to 5 U.S.C. § 5545(c)(1) and its implementing regulations, 5 C.F.R. §§ 550.141-143 and 550.161. According to the Agency, those provisions authorize agency heads to establish annualized standby pay systems and require that the difference between the two forms of premium pay be calculated over a greater period of time than each daily tour of duty.

The Agency notes that 5 C.F.R. § 550.142 permits payments for standby duty to be made only after that premium pay is compared with other premium pay over a "full cycle of the employee's duties and the full range of conditions in his position[.]" Exceptions at 5 (quoting 5 C.F.R. § 550.142). The Agency argues that a grievant's daily tour of duty, as set forth in the Arbitrator's calculation of backpay, does not reflect that employee's full cycle of duties and the range of conditions in that employee's position.

The Agency also asserts that the Arbitrator's order that it calculate the difference between overtime premium pay and standby premium pay is contrary to Health and Human Services Instruction 550-1, which, according to the Agency, requires it to authorize standby pay by determining its comparative cost with overtime over a period of not less than ninety days. The Agency states that its practice is to calculate such costs over a period of at least six months.

B. Union's Opposition

Initially, the Union contends that the Agency's exceptions should be dismissed as untimely. On the merits, the Union contends that the clarification award is consistent with law, rule and regulation. The Union also notes that arbitrators have great latitude in fashioning remedies. The Union adds that, if the Authority sets aside the clarification award, the grievants will be deprived of a remedy.

IV. Analysis and Conclusions

A. The Agency's Exceptions Were Timely Filed

The time limit for filing exceptions to an arbitration award is 30 days beginning on the date the award is served on the filing party. 5 C.F.R. § 2425.1(b). The date of service is the date the arbitration award is deposited in the U.S. mail or is delivered in person. 5 C.F.R. § 2429.27(d). A 5-day extension is added to the 30-day time limit for filing exceptions if the award is served by mail. 5 C.F.R. §§ 2429.22, 2429.27(d). However, the time limit and the extension are computed separately and, if either time period would expire on a Saturday, Sunday, or Federal legal holiday, the period is deemed not to expire until the end of the next workday. 5 C.F.R. § 2429.21(a); U.S. Department of Housing and Urban Development, Washington, D.C. and American Federation of Government Employees, Local 476, 46 FLRA 878, 880 (1992).

Here, both the 30-day time limit and the 5-day mail period would have expired on a weekend day and, with respect to the latter period, the next workday was Monday, August 7, 1995. As such, the exceptions, which were filed before August 7, are timely.

B. The Clarification Award Is Inconsistent With 5 C.F.R. § 550.142

In his original award, the Arbitrator ordered that the Agency provide the grievants backpay that encompasses the difference between overtime premium pay they otherwise would have received and the standby premium pay they received. As neither party filed exceptions, under section 7122(a), to the original award, it became final and binding.(2) E.g., U.S. Department of Defense, Defense Distribution Region East, New Cumberland, Pennsylvania and American Federation of Government Employees, Local 2004, 51 FLRA 155, 159 (1995); Patent and Trademark Office and Patent Office Professional Association, 22 FLRA 7, 10 (1986). Thus, only the clarification award, and not the original award, is before the Authority.

The Agency disputes the Arbitrator's order in his clarification award that the Agency calculate that difference for each daily tour of duty on which the grievants performed the assignments at issue. As the Agency's exceptions challenge the clarification award's consistency with law and regulation, we review the question of law and regulation 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).

1. 5 C.F.R. §§ 550.141, 550.143 and 550.161

We reject the Agency's contention that the clarification award conflicts with 5 C.F.R. §§ 550.141, 550.143 and 550.161. The first two cited regulations (5 C.F.R. §§ 550.141 and 550.143) relate, respectively, to authorization for premium pay on an annual basis and the determination of positions eligible for such premium pay. Further, 5 C.F.R. § 550.161 pertains to the responsibilities of Government agencies in administering standby premium pay for employees. These regulations have no application to the Arbitrator's order concerning the methodology the Agency must use to calculate the difference between overtime premium pay and standby premium pay in determining standby compensation. Therefore, the clarification award does not conflict with these regulations and they provide no basis for finding the award deficient.

2. 5 C.F.R. § 550.142

5 C.F.R. § 550.142 limits the circumstances in which an agency may pay standby premium pay in lieu of other premium pay. Thus, 5 C.F.R. § 550.142 permits premium pay for standby duty only after it is compared with other premium pay over a "full cycle of the employee's duties and the full range of conditions in his position[.]" The "full cycle of the employee's duties and the full range of conditions in his position," referenced in 5 C.F.R. § 550.142, is the time period applied to find the average amount of time per day the employees performed the disputed assignments. E.g., DeCosta v. U.S., 22 Cl. Ct. 165, 175-76 (1990) (Claims Court determined that a period during which a firefighter performed work beyond 8 hours per day on 25 days was reflective of a full cycle of his job responsibilities and conditions within the meaning of 5 C.F.R. § 550.142). The figure from that calculation is adjusted for the average daily overtime premium pay the employees otherwise would have received. Id. at 167, 177-78. After that adjustment is made, 5 C.F.R. § 550.142 requires a comparison between the amount of the overtime premium pay the employees otherwise would have received for the disputed time period and the standby amount for that period. DeCosta v. U.S., 987 F.2d 1556, 1560 (Fed. Cir. 1993).

The Arbitrator directed a methodology for calculating the difference between overtime premium pay and standby premium pay that did not take into account the time period set forth in 5 C.F.R. § 550.142. Therefore, the clarification award is deficient and we set it aside. We cannot determine on the record before us what that time period should be. Accordingly, we shall remand this case to the parties, who, absent settlement, should submit the case to the Arbitrator for further proceedings consistent with this opinion. E.g., National Association of Government Employees, Local R1-109 and Department of Veterans Affairs, Medical Center, Newington, Connecticut, 51 FLRA 1720, 1723-24 (1996) (Authority found arbitrator applied Government-wide regulation incorrectly and remanded the award for arbitrator to determine whether grievant had met the standard established by the regulation); United States Department of Education and National Council of Department of Education Locals, Council 252, American Federation of Government Employees, Local 2607, 45 FLRA 1144, 1150 (1992) (Authority found arbitrator failed to apply standards in a statutory provision and remanded the award for arbitrator to apply those standards).

On remand, absent settlement, the Arbitrator must determine the time period that reflects the "full cycle of the employee's duties and the full range of conditions in his position," within the meaning of 5 C.F.R. § 550.142. The Arbitrator should apply that time period to find the average amount of time per day the employees performed the disputed assignments. That figure is then adjusted for the average daily overtime premium pay the employees otherwise would have received so that a comparison can be made between the total of the overtime premium pay the employees otherwise would have received for the disputed time period and the standby amount they did receive for that period. The grievants are entitled to the difference, if any, between the overtime premium pay and the standby premium pay.

C. The Award Is Not Inconsistent With the Agency Regulation

Having examined Health and Human Services Instruction 550-1 raised by the Agency, we reject the Agency's contention that the award conflicts with that regulation. We conclude that the regulation, which addresses the authorization of standby premium pay, has no application to the Arbitrator's order concerning the methodology the Agency must use to calculate the difference between the grievants' overtime premium pay and standby premium pay. Therefore, the clarification award does not conflict with the regulation and this exception provides no basis for finding the award deficient.

V. Decision

The clarification award is set aside. We remand the case to the parties for submission to the Arbitrator, absent settlement, for further proceedings consistent with this decision.

APPENDIX

1. 5 U.S.C. § 5545 provides, in relevant part, as follows:

§ 5545. Night, standby, irregular, and hazardous duty differential

(c) The head of an agency, with the approval of the Office of Personnel Management, may provide that--

(1) an employee in a position requiring him regularly to remain at, or within the confines of, his station during longer than ordinary periods of duty, a substantial part of which consists of remaining in a standby status rather than performing work, shall receive premium pay for this duty on an annual basis instead of premium pay provided by other provisions of this subchapter, except for irregular, unscheduled overtime duty in excess of his regularly scheduled weekly tour. Premium pay under this paragraph is determined as an appropriate percentage, not in excess of 25 percent, of such part of the rate of basic pay for the position as does not exceed the minimum rate of basic pay for GS-10 (including any applicable locality-based comparability payment under section 5304 or similar provision of law and any applicable special rate of pay under section 5305 or similar provision of law) (or, for a position described in section 5542(a)(3) of this title, of the basic pay of the position), by taking into consideration the number of hours of actual work required in the position, the number of hours required in a standby status at or within the confines of the station, the extent to which the duties of the position are made more onerous by night, Sunday, or holiday work, or by being extended over periods of more than 40 hours a week, and other relevant factors[.]

2. 5 C.F.R. § 550.141 provides as follows:

§ 550.141 Authorization of premium pay on an annual basis.

An agency may pay premium pay on an annual basis, instead of the premium pay prescribed in this subpart for regularly scheduled overtime, night, holiday, and Sunday work, to an employee in a position requiring him or her regularly to remain at, or within the confines of, his or her station during longer than ordinary periods of duty, a substantial part of which consists of remaining in a standby status rather than performing work. Premium pay under this section is determined as an appropriate percentage, not in excess of 25 percent, of that part of the employee's rate of basic pay which does not exceed the minimum rate of basic pay for GS-10 (including any applicable interim geographic adjustment under section 302 of the Federal Employees Pay Comparability Act of 1990 (Pub. L. 101-509) or locality-based comparability payment under 5 U.S.C. 5304 and any applicable special rate of pay under 5 U.S.C. 5305 or similar provision of law).

3. 5 C.F.R. § 550.142 provides as follows:

§ 550.142 General Restrictions.

An Agency may pay premium pay under § 550.141 only if that premium pay, over a period appropriate to reflect the full cycle of the employee's duties and the full range of conditions in his position, would be:

(a) More than the premium pay which would otherwise be payable under this subpart for the hours of actual work customarily required in his position, excluding standby time during which he performs no work; and (b) Less than the premium pay which would otherwise be payable under this subpart for the hours of duty required in his position, including standby time during which he performs no work.




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