54:0083(12)AR - - Defense Commissary Agency, Fort Lee, Virginia & NAGE Local R4-45 - - 1998 FLRAdec AR - - v54 p83



[ v54 p83 ]
54:0083(12)AR
The decision of the Authority follows:


54 FLRA No. 12

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF DEFENSE

DEFENSE COMMISSARY AGENCY

FORT LEE, VIRGINIA

(Agency)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R4-45

(Union)

0-AR-3019

_____

DECISION

April 29, 1998

_____

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

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Donald H. Doherty 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 the grievance, finding that the Agency improperly scheduled two grievants to work in excess of 6 consecutive workdays. As a remedy, the Arbitrator ordered the Agency to compensate the grievants at the appropriate overtime pay rate. For the reasons set forth below, we conclude that the award is deficient and set it aside.

II. Background and Arbitrator's Award

The administrative workweek for the grievants extended from Sunday through Saturday and their normal basic workweek was Tuesday through Saturday, with Sunday and Monday off. The grievance arose when the Agency scheduled back-to-back workweeks. Specifically, the first grievant worked as follows during the administrative workweeks of June 4-10 and June 11-17, 1995:

JUNE SUNDAY MONDAY TUESDAY WEDNESDAY THURSDAY FRIDAY SATURDAY
4

Off

5

Off

6

X=Worked

7

X

8

X

9

X

10

X

11

X

12

X

13

X

14

OFF

15

OFF

16

X

17

X

The second grievant worked as follows during the administrative workweeks of April 23-29 and April 30-May 6:

APRIL SUNDAY MONDAY TUESDAY WEDNESDAY THURSDAY FRIDAY SATURDAY
23

OFF

24

OFF

25

X

26

X

27

X

28

X

29

X

MAY April 30

X

1

X

2

X

3

X

4

X

5

OFF

6

OFF

Because of a change in schedule, the second grievant also worked a similar schedule during two subsequent administrative workweeks.

The Union filed a grievance alleging that the grievants were entitled to overtime pay for all hours of work in excess of five consecutive workdays. The Agency denied the grievance and the matter was submitted to arbitration on the following issue:

Were the grievants entitled to overtime pay for the hours worked in excess of five consecutive days?

Award at 3.

The Arbitrator found that the grievants were covered by both the overtime provisions of the Fair Labor Standards Act (FLSA), and "[t]itle 5 of the United States Code."(1) Id. at 4. See 29 U.S.C. § 207(a)(1); 5 U.S.C. § 5542. The Arbitrator determined that the grievants were entitled to receive compensation under the law that provided them with the greatest benefit and that it was appropriate to apply the FLSA. The Arbitrator found that the grievants did not work more than five days in any one administrative workweek. Accordingly, he found that the grievants were not entitled to overtime pay under the FLSA.

The Arbitrator next considered whether the grievants were entitled to overtime based on 5 C.F.R. § 610.111(a). Section 610.111(a) provides that "[t]he head of each agency, with respect to each full-time employee . . . shall establish by regulation . . . [a] basic workweek of 40 hours which does not extend over more than 6 of any 7 consecutive days."(2) The Arbitrator found that the grievants had worked in excess of 6 consecutive days and that "[b]y changing the schedules of these grievants so that they were required to work in excess of six consecutive days, the Agency violated the spirit and intent" of that section. Id. at 5. The Arbitrator directed the Agency to compensate the grievants for all hours of work in excess of 6 consecutive days at the appropriate overtime pay rate.

III. Positions of the Parties

A. Agency's Exceptions

The Agency contends that the award is contrary to applicable law and regulation for three reasons. First, the Agency asserts that the grievants' schedules were changed consistent with 5 U.S.C. § 6101(a)(2) and 5 C.F.R. § 610.111(a). The Agency argues, therefore, that the award of overtime is without basis in any law or regulation. In support, the Agency cites Sanford v. Weinberger, 752 F.2d 636 (Fed. Cir. 1985) (Sanford).

Second, the Agency contends that the grievants are not entitled to overtime pay because, as found by the Arbitrator, they did not work more than 40 hours in any one administrative workweek. In support, the Agency cites Sanford and Comptroller General decisions, including Professional Air Traffic Controllers Organization, B-193384 (unpublished) (June 18, 1979), which hold that the number of consecutive days worked by employees that span more than one administrative workweek is irrelevant to the determination of whether an employee is entitled to overtime under law.

Third, the Agency asserts, alternatively, that the parties' agreement does not support the Arbitrator's award.(3) According to the Agency, Article 13 of the agreement, on which the Arbitrator relied, is "nothing more" than a restatement of 5 U.S.C. § 6101(a)(2) and (3). Exceptions at 5.

B. Union's Opposition

The Union states that the Agency violated the agreement when it scheduled the grievants to work in excess of five consecutive days. The Union asserts that the language of Article 13, Section 1 is clear that the "basic workweek will normally consist of five eight (8) hour days, with two consecutive days off." Opposition at 2.

IV. Analysis and Conclusions

Where a party's exceptions involve an award's consistency with law, the Authority must review the questions of law raised by the Arbitrator's award and the parties' exceptions 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).

Under 5 U.S.C. § 5542 and its implementing regulation 5 C.F.R. § 550.111(a), overtime may not be paid unless an employee works more than 40 hours in an administrative workweek or more than 8 hours in a day. In this case, the Arbitrator specifically found, and there is no dispute, "that the grievants did not work more than 5 days, [8 hours on each day,] in any one administrative workweek." Award at 4. The parties do not dispute, in this regard, that the grievants' workweeks properly were designated in advance or that the sixth consecutive workday was the first day of a new administrative workweek. Accordingly, the award is deficient as contrary to 5 U.S.C. § 5542 and its implementing regulations. See U.S. Department of Agriculture, Agricultural Research Service, Plum Island Animal Disease Center and American Federation of Government Employees, Local 1940, 47 FLRA 975, 978 (1993) (citing Sanford).

Even assuming the Arbitrator properly found that the Agency's action in changing the grievant's schedules violated the "spirit and intent" of section 610.111 (Award at 5), this would not provide a basis for an award of overtime because "no monetary damages can be awarded against the [Government] unless some provision of law commands the payment . . . ." Sanford, 752 F.2d at 639. The Arbitrator found no basis for the payment of overtime under the FLSA and there is no dispute on this issue. Further, as discussed above, there is no basis for payment under 5 U.S.C. § 5542(a). Consequently, even assuming a violation of section 610.111, the award of overtime would be deficient. Id. at 639-40.(4)

Based on the above, we find that the award is contrary to law.

V. Decision

The Arbitrator's award is set aside.

APPENDIX

5 U.S.C. § 5542 provides in pertinent part