54:0584(59)AR - - DOT, FAA, Washington DC & National Air Traffic Controllers Association [ DOT = Department of Transportation; FAA = Federal Aviation Administration ] - - 1998 FLRAdec AR - - v54 p584



[ v54 p584 ]
54:0584(59)AR
The decision of the Authority follows:


54 FLRA No. 59

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-2967

_____

DECISION

July 10, 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 Laurence M. Evans 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 failure to pay Sunday premium pay to employees in a continuation of pay (COP) status. Sunday premium pay, set forth in 5 U.S.C. § 5546(a), provides employees an additional rate of 25 percent of their hourly rate of basic pay for all regularly scheduled non-overtime hours actually worked on Sunday.

For the reasons set forth below, we conclude that the award is deficient under section 7122(a) of the Statute because it is inconsistent with the Agency's appropriation acts for fiscal years 1995 through 1998. Because the award is contrary to law, we set aside the award.

II. Background and Arbitrator's Award

A. Facts Giving Rise to this Grievance

In 5 U.S.C. § 8118, Congress provided for employees disabled as a result of a work place accident to continue to remain in a COP status for up to 45 days of the disability. The Secretary of Labor, in regulations promulgated at 20 C.F.R. § 10.205(d), provided that this pay is to include, among other things, Sunday premium pay for employees who have Sunday included as part of their regularly scheduled work week.

In Armitage v. U.S., 991 F.2d 746 (Fed. Cir. 1993) (Armitage), the court resolved a dispute between the Federal "leave with pay" statutes--5 U.S.C. §§ 6303 (annual leave) and 6307 (sick leave)--and the statutory requirement set forth in 5 U.S.C. § 5546(a) that an employee "performs work" to receive Sunday premium pay. Id. at 748. The court held that the "leave with pay" statutes precluded any reduction in pay for those regularly scheduled hours for which the employee is charged annual or sick leave. Id. at 749-50. Thus, the court ruled, employees regularly scheduled to work on a Sunday were entitled to premium pay when taking leave on Sunday.

After Armitage, Congress, in the Agency's fiscal year 1995 appropriation act, directed the Agency not to pay employees Sunday premium pay unless the employees actually performed work on Sunday. The appropriation act provision stated:

Provided further, That none of the funds in this 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[.]

Pub. L. No. 103-331, 108 Stat. 2471, 2475. The same provision was contained in the Agency's appropriation acts for fiscal years 1996 and 1997. Pub. L. No. 104-205, 110 Stat. 2951, 2956; Pub. L. No. 104-50, 109 Stat. 436, 440.(1) The Agency's appropriation act for fiscal year 1994 did not contain a similar limitation. Pub. L. No. 103-122, 107 Stat. 1198, 1203.

The Agency, relying on the provision in the 1995 appropriation act, refused to pay Sunday premium pay to employees in a COP status.

On December 6, 1996, the Union filed a national grievance over the Agency's decision to discontinue Sunday premium pay for employees in a COP status. The Agency denied the grievance and the matter was submitted to arbitration. The parties stipulated the following issue for arbitration:

Has the [Agency] violated Title 5 USC Chapter 81 by not including Sunday premium pay in the salary calculations for employees in a [COP] status?

Award at 2.

B. Arbitrator's Award

The Arbitrator found that the Agency's appropriation acts did not negate 5 U.S.C. § 8101 or the implementing regulations set forth at 20 C.F.R. § 10.205(d). The Arbitrator concluded that employees in a COP status are entitled to receive Sunday premium pay for regularly scheduled non-overtime hours that the employees would have worked on Sunday. Accordingly, the Arbitrator sustained the grievance.

The Arbitrator determined that Armitage, which concerned annual and sick leave, has nothing to do with COP. The Arbitrator concluded that because Armitage did not address COP, the Agency's appropriation acts that were modified as a result of Armitage were not intended to repeal the COP benefits.

According to the Arbitrator, the legislative history of the Agency's 1995 appropriation act shows that the Congressional budgeting committee only wanted to undo the Armitage decision. The Arbitrator stated:

Presumably, to Members of Congress, the thought that air traffic controllers, normally scheduled to work on Sundays, could take annual leave . . . . and still be paid the 25 percent Sunday premium was upsetting and actionable. As a direct consequence of the Armitage decision . . .  Congress, in passing [the Agency's appropriation acts], specifically provided, at least for [Agency] employees, that Sunday premium pay . . . could not be paid unless the employee actually worked on a Sunday.

Award at 3.

The Arbitrator concluded that Congress, in placing the limitation in the Agency's appropriation act to rectify the holding in Armitage, intended only to limit Sunday premium pay for employees who voluntarily took annual and sick leave. The Arbitrator noted that "[r]evoking Sunday premium pay for employees who do not work on Sunday because they voluntarily take leave . . . is one thing; revoking an entitlement flowing from the Federal workers' injury compensation program . . . is quite another thing." Id. at 6. Therefore, the Arbitrator found that the Agency's appropriation act did not limit the payment of Sunday premium pay to employees in a COP status.

In this case, a stipulated record was submitted to the Arbitrator. Stipulation No. 7 contained references to Section 5 of the Memorandum of Agreement (MOA), which provided, in pertinent part: "Employees will earn Sunday premium pay at an additional rate of 25 percent of their hourly rate of basic pay for all non-overtime hours actually worked on Sunday." Award at 6 n.5. The Arbitrator noted that, with regard to Stipulation No. 7, "I am not sure what significance, if any, the parties' May 22, 1996, [MOA] has in resolving this matter." Id. The Arbitrator also stated "[i]n my view, Section 5 of the MOA does nothing more than codify by mutual agreement what Congress intended to do when it enacted the various [Agency] appropriation acts[.]" Id.

The Arbitrator sustained the grievance and ordered that the employees in a COP status since October 1, 1995, be made whole under the Back Pay Act for the Sunday premium pay that they would have otherwise received. The Arbitrator determined that but for the Agency's action, the employees in a COP status would have received Sunday premium pay.

III. Positions of the Parties

A. Agency's Exceptions

The Agency contends that the award is contrary to its appropriation acts for fiscal years 1995 through 1997. The Agency asserts that the language of the appropriation acts clearly and unambiguously makes the performance of actual work on a Sunday a precondition for the receipt of Sunday premium pay. The Agency further asserts that if the legislation is unambiguous, and the legislative history does not reveal a congressional intent contrary to the apparent meaning of the legislation, that meaning is controlling. The Agency claims that this case parallels, among others, an earlier one in which Congress inserted language into the Agency's appropriation act--National Treasury Employees Union et al. v. Devine, 733 F.2d 114, 120 (D.C. Cir. 1984).

The Agency notes that in the 1996 appropriation act, Congress mandated that the Agency develop and implement a new personnel system, which was exempted from all of Title 5 of the United States Code except, as pertinent here, Chapter 81, relating to compensation for work injury. The Agency states that although the Agency was not exempted from 5 U.S.C. Chapter 81, the provision for Sunday premium pay for employees in a COP status is not contained therein.

The Agency further claims that the award is inconsistent with the Back Pay Act. The Agency contends that, based on the arguments above, because the employees were not entitled to receive Sunday premium pay, there was no agency action that deprived the employees of a differential to which they were entitled and, thus, no award of backpay is justified.

Finally, the Agency contends that the award is based on nonfacts, because the Arbitrator made two erroneous findings, but for which a different result would have been reached. The Agency further contends that the issue submitted to the Arbitrator required him to determine whether the Agency violated law, and that once this question was answered, the Arbitrator was without authority to proceed further and develop a remedy.

B. Union's Opposition

The Union asserts that employees injured on the job are entitled to have their regular pay continued for a period not to exceed 45 calendar days. The Union further asserts that this COP is to include Sunday premium pay.

The Union also contends that in the 1996 appropriation act, Congress mandated that the Agency develop and implement a new personnel system. Under that requirement, the Agency's new personnel system was exempted from all of Title 5 of the United States Code except, as pertinent here, Chapter 81, relating to compensation for work injury. Therefore, the Union suggests that if Congress wanted to exempt the Agency from paying employees in a COP status Sunday premium pay, Congress would have exempted the Agency from Chapter 81.

According to the Union, the Agency's nonfact exception misconstrues the Arbitrator's finding and is "entirely irrelevant" in establishing a nonfact under Authority precedent. Opposition at 5. As to the Agency's exception that the Arbitrator exceeded his authority, the Union maintains that the Arbitrator was within his authority to include a remedy in his award.

IV. Analysis and Conclusions

As the exception involves the award's consistency with law, the Authority must review questions of law raised by the Agency's exception and the Arbitrator's award de novo. See 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 Arbitrator found that the 1995 appropriation act provision was intended to offset the effect of the decision in Armitage, which dealt only with annual and sick leave. Accordingly, the Arbitrator held that the proscription on payment of Sunday premium pay pertained only to annual and sick leave, and not to COP. We disagree with the Arbitrator's finding for the following reasons.

First, the award is inconsistent with the plain wording of the appropriation acts, which wording provides that no funds be used to pay Sunday premium pay to an employee unless the employee actually performs work on Sunday. This language does not by its terms allow any exception to its coverage. See, e.g., Pub. L. No. 103-331, 108 Stat. 2471, 2475. Where the plain wording of legislation is unambiguous, and the legislative history does not reveal a congressional intent that differs from the plain meaning, that meaning is controlling. The Authority has consistently applied the plain meaning of similar statutes. See U.S. Department of Transportation, Federal Aviation Administration, Washington, D.C. and National Air Traffic Controllers Association, 51 FLRA 1385 (1996) (denying Sunday premium pay to employees who took credit hours or compensatory time). Because the award requires the Agency to make disbursements for Sunday premium pay even though the Agency's appropriation acts for fiscal years 1995 through 1998 revoked the Agency's authority to do so, the award is inconsistent with the provision. See U.S. Department of the Army, U.S. Army Corps of Engineers, North Pacific Division and United Power Trades Organization, 52 FLRA 670, 675 (1996) (award of Sunday premium pay was inconsistent with appropriation act).

Second, even assuming it is appropriate to consider the legislative history, the legislative history is not inconsistent with the plain wording of the acts. See H.R. Rep. No. 103-543, at 45-46 (1994). The legislative history shows that Congress believed that Armitage was wrongly decided, and that the actual performance of work, at least for Agency employees, is necessary for any payment of Sunday premium pay under 5 U.S.C. § 5546(a).(2) In short, the legislative history suggests that Armitage was a catalyst to ensuring that the Agency's employees did not receive Sunday premium pay unless they actually performed work on Sunday. Contrary to this Union claim, the legislative history does not suggest that Congress intended to limit the ban on Sunday premium pay, unless work is actually performed, to the leave situations involved in Armitage.

In addition, the legislative history indicates that Congress intended the appropriation act provision to save money that could be used to improve staffing. The legislative history explained that if the Agency were not required to pay Sunday premium pay for "time not actually worked," then the Agency would be able to retain more first-line air traffic control supervisors and maintenance technicians. See H.R. Rep. No. 103-543, at 46. In our view, "time not actually worked" encompasses paid non-work time such as annual leave, sick leave, compensatory time off, or COP. This Congressional intention is not advanced by the interpretation of the legislative history advanced by the Arbitrator.

For the above stated reasons, we find that the award is inconsistent with the Agency's appropriation acts for fiscal years 1995 through 1998. Because the award is inconsistent with law, it is set aside. In light of this determination, we need not also address the Agency's other contentions.

V. Decision

We conclude that the award is deficient under section 7122(a) of the Statute because it is inconsistent with the Agency's appropriation acts for fiscal years 1995 through 1998. Because the award is contrary to law, we set aside the award.




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

1. The same provision is also contained in the Agency's fiscal year 1998 appropriation act. Pub. L. No. 105-66, 111 Stat. 1429. In accordance with section 2429.5 of the Authority's Regulations, we take official notice of this appropriation act.

2.