American Federation of Government Employees, Local 1815 (Union) and U.S. Department of the Army, Army Aviation Center, Fort Rucker, Alabama (Agency)

[ v56 p992 ]

56 FLRA No. 171

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1815
(Union)

and

U.S. DEPARTMENT OF THE ARMY
ARMY AVIATION CENTER
FORT RUCKER, ALABAMA
(Agency)

0-AR-3310

_____

DECISION

December 22, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman; Dale Cabaniss and Carol Waller Pope, Members.

Decision by Chairman Wasserman for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Mark L. Lurie filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator denied a grievance that claimed overtime compensation for firefighters. We find that the Union fails to establish that the award is deficient. Accordingly, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      The grievants are employed as firefighters. They have a biweekly tour of duty of 90 hours, consisting of five 18-hour days of Monday, Wednesday, and Friday of one week and Tuesday and Thursday of the other week. The schedule for each workday is for 8 hours of work and 10 hours of standby duty. Pursuant to 5 U.S.C. § 5545(c)(1) and 5 C.F.R. § 550.141 (text included in the appendix to this decision), the grievants receive premium pay on an annual basis for the regularly scheduled standby duty. Prior to January 1995, their biweekly tour of duty was 108 hours, and they received annual premium pay of 15 percent. After the change in their tour of duty, the Office of Personnel Management reduced their rate of annual premium pay to 5 percent. The grievants filed a grievance disputing their compensation.

      The Arbitrator noted that the parties stipulated to the following core issue: "Whether the Grievants performed 18 hours of actual work during their shift or, instead, eight hours of actual work and 10 hours of Standby time." Award at 8. On this basis, the Arbitrator viewed the grievance as concerning whether the activities performed by the grievants while on standby duty constituted hours of work that should have been compensated as overtime pay under the Fair Labor Standards Act (FLSA). The Arbitrator determined that the grievants had failed to sustain their burden of proof. He ruled that their work schedules were consistent with the provisions "upon which their pay arrangement was premised" and denied the grievance. Id. at 17. In view of this denial of the grievance, the Arbitrator rejected the Union's requests for night differential pay and attorney fees.

III.     Positions of the Parties

A.     Union's Exceptions

      As a preface to its exceptions to the Arbitrator's award, the Union states that the "firefighters had no problem with the payment of the 5% premium pay paid for working longer than ordinary periods of time beyond 8 in a day and 40 hours work in a week." Exceptions at 1. Instead, the Union contends that the award is deficient because the grievants were entitled to overtime compensation under the FLSA and to night differential pay and because the Arbitrator failed to address the Union's claim for an adjustment of leave. Specifically, the Union argues that under 5 C.F.R. § 551.431 and the parties' collective bargaining agreement, all of the hours of the grievants' tour of duty constituted hours of work for which they were entitled to be compensated. In support, the Union has attached numerous documents as enclosures to its exceptions.

B.     Agency's Opposition

      Although the Agency maintains that "it is unclear exactly what basis, under 5 U.S.C. § 7122(a), the union is arguing for a finding that the arbitrator's award [is] deficient," the Agency contends that the Union's exceptions should be denied because they constitute mere disagreement with the Arbitrator's evaluation of the evidence and testimony and his reasoning and conclusions in denying the grievance. Opposition at 12. The Agency also argues that the issue of annual and sick leave was not part of the jointly stipulated issue before the Arbitrator and that consequently, the Arbitrator did [ v56 p993 ] not exceed his authority by not addressing the issue of leave.

      In addition, the Agency objects to a number of the Union's enclosures to its exceptions. The Agency contends that many of the enclosed documents could have been, but were not submitted to the Arbitrator. Consequently, the Agency moves to strike this evidence under section 2429.5 of the Authority's Regulations.

IV.     Analysis and Conclusions

A.     Agency's motion to strike

      The Agency objects to the grievance form dated April 12, 1996, and enclosures 1-5, 8-11, 19, and 22. [n1]  Opposition at 9. Section 2429.5 of the Authority's Regulations provides that the Authority will not consider any evidence, which was not presented in the proceedings before the arbitrator.

      All of the disputed documents were in existence at the time of the arbitration hearing, but there is no indication in the record that they were submitted to the Arbitrator. Accordingly, we will not consider the April 12 grievance form and the disputed enclosures, except for enclosure 19. See United States Dep't of Health and Human Services, Social Sec. Admin., N.Y. Region, 52 FLRA 328, 329 (1996) (in the absence of any indication in the record that disputed evidence had been submitted to the arbitrator, the Authority refused to consider the evidence under section 2429.5). Enclosure 19 is a copy of 29 C.F.R. § 785.15, which implements the FLSA, and is offered to support the Union's exception that contends that the award is contrary to the FLSA. Consequently, in contrast to the other disputed documents, we find that the document was appropriately submitted by the Union as support for its exceptions. See Assoc. of Civilian Technicians, Mich. State Council, 32 FLRA 1207, 1210 (1988) (FLRA refused to exclude copy of a regulation that was central to the resolution of exceptions even though regulation was not submitted to the arbitrator).

B.     The Union fails to establish that the award is deficient.

      In accordance with the Union's own preface to its exceptions, we construe the Union's exceptions as contending that the award is deficient because the Arbitrator failed to award overtime compensation and night differential pay under the FLSA and because the Arbitrator exceeded his authority by failing to address the issue of annual and sick leave. For the reasons that follow, we deny both exceptions.

1.     The Union fails to establish that the Arbitrator exceeded his authority by not addressing the issue of annual and sick leave.

      Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration. See, e.g., Sport Air Traffic Controllers Organization, 51 FLRA 1634, 1638 (1996). The Arbitrator stated that the core issue had been stipulated by the parties as whether the grievants performed 18 hours of actual work during their shift or 8 hours of work and 10 hours of standby time. The Union does not dispute this stipulation. In view of this stipulation that does not include any issue relating to leave, the Union's claim that "[t]he arbitrator failed to address and rule on the annual/sick leave part of the grievance" provides no basis for finding that the Arbitrator exceeded his authority. Exceptions at 2. Accordingly, we deny this exception. See Sport Air Traffic Controllers Organization, 55 FLRA 771, 774 (1999) (because the union failed to establish that the submitted issue included the disputed claim, the union provided no basis for finding that the arbitrator failed to resolve an issue submitted to the arbitrator).

2.     The Union fails to establish that the grievants are entitled to overtime compensation under the FLSA or night premium pay.

      As explained in United States Dep't of the Navy, Naval Air Station, Corpus Christi, Tex., 36 FLRA 935, 937-39 (1990), the work schedules of federal firefighters are different from the schedules of the typical general schedule employee. Unlike the typical general schedule employee who is scheduled for a 40-hour workweek, firefighters typically work several extended shifts in every 14-day work period. As noted, the grievants in this case have a biweekly tour of duty of five 18-hour shifts. Also unlike the typical general schedule employee who is on duty for all working hours, the shifts of firefighters typically consist of periods of work and periods of standby. In this case, the schedule of each workday is for 8 hours of work and 10 hours of standby duty.

      Congress provided for these differences in work schedules in the statutes governing the compensation of firefighters. [n2]  Firefighters receive basic general schedule pay and, in addition, in accordance with 5 U.S.C. § 5545(c)(1), they typically receive annual premium pay [ v56 p994 ] of up to 25 percent of their basic pay in recognition of the substantial portion of their regularly scheduled duty spent in standby status. This pay structure is based solely on provisions of title 5 of the U.S. Code and existed prior to amendments to the FLSA to include federal firefighters within its coverage.

      Under section 7(a) of the FLSA, 29 U.S.C. § 207(a), employees who are covered by the FLSA are entitled to receive overtime compensation for all hours worked in excess of 40 hours in a workweek at a rate of one and one-half times their regular rate. However, under section 7(k), 29 U.S.C. § 207(k), a federal firefighter's "overtime period" is calculated based on tours of duty in excess of a statutorily defined maximum work period rather than hours worked in excess of a 40-hour workweek. See 29 U.S.C. § 207(k) (text included in the appendix). The overtime standard for the application of section 7(k) in terms of the biweekly tour of duty in this case is 106 hours. See 29 U.S.C. § 207(k); 48 Fed. Reg. 40,518 (1983) (text included in the appendix).

      The applicability of section 7(k) is reflected in the overtime provisions of 5 C.F.R. § 551.501. Under these provisions, a firefighter who receives annual premium pay for standby duty under section 5545(c)(1) is not entitled to receive overtime under the FLSA on the basis of work in excess of 40 hours in a workweek. See 5 C.F.R. § 551.501(a)(5) (text included in the appendix). This approach to compensation of firefighters is reiterated in section 551.541, which specifies that for firefighters who are receiving annual premium pay under section 5545(c)(1) and who are covered by the FLSA, their FLSA overtime standards are those specified in section 7(k). See 5 C.F.R. § 551.541(a) (text included in the appendix). In addition, firefighters who are covered by the FLSA have their overtime compensation computed solely under the FLSA, without regard to the overtime provisions of title 5. See, e.g., United States Dep't of Defense, Defense Mapping Agency, Aerospace Ctr. St. Louis, Mo., 43 FLRA 147, 148 n.1 (1991) (the Federal Employees Pay Comparability Act of 1990 eliminated the requirement to perform overtime computations under both title 5 and the FLSA for covered employees; instead, overtime pay for employees covered by the FLSA is to be computed only under the FLSA).

      An examination of this compensation scheme for federal firefighters who are covered by the FLSA and who are receiving annual premium pay under section 5545(c)(1) persuades us that this case is governed by the overtime standards of section 7(k) of the FLSA. We reach this conclusion even though the parties and the Arbitrator never mention the grievants' entitlement to overtime in terms of section 7(k). In sum, we apply section 7(k) as the overtime standard for this case and conclude that the Union fails to establish any entitlement to overtime compensation under the FLSA.

      Because the grievants are receiving annual premium pay under section 5545(c)(1), to be entitled to overtime pay under the FLSA, the grievants must meet the applicable standard of section 7(k). The standard of section 7(k) for a biweekly tour of duty is 106 hours. Thus, even when, in accordance with section 551.541, every hour of their tour of duty is considered in determining whether they are entitled to overtime compensation, the grievants' 90-hour biweekly tour of duty is short of the standard of 106 hours. Therefore, even though the Arbitrator did not analyze this case in terms of section 7(k), the Union has not established that the Arbitrator's failure to award the grievants overtime compensation is contrary to the FLSA.

      In addition, although the Union contends in its exception that the grievants were entitled to night differential pay, the Union does not address its basis for claiming night differential pay. However, we note that under 5 C.F.R. § 550.163(a) (text included in the appendix), employees receiving annual premium pay under section 5545(c)(1) may not receive premium pay for night work. Consequently, the Union has not established that the Arbitrator's failure to award the grievants night differential pay is deficient.

      Accordingly, we deny this exception.

V.     Decision

      The Union's exceptions are denied. [ v56 p995 ]


APPENDIX

5 U.S.C. § 5545 pertinently provides:

(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.

5 C.F.R. § 550.141 pertinently provides:

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.

29 U.S.C. § 207(k) pertinently provides:

No public agency shall be deemed to have violated subsection (a) of this section with respect to the employment of any employee in fire protection activities . . . if--
(1) in a work period of 28 consecutive days the employee receives for tours of duty which in the aggregate exceed the lesser of (A) 216 hours, or (B) the average number of hours . . . in tours of duty of employees engaged in such activities in work periods of 28 consecutive days in calendar year 1975; or
(2) in the case of such an employee to whom a work period of at least 7 but less than 28 days applies, in his work period the employee receives for tours of duty which in the aggregate exceed a number of hours which bears the same ratio to the number of consecutive days in his work period as 216 hours (or if lower, the number of hours referred to in clause (B) . . . bears to 28 days,
compensation at a rate not less than one and one-half times the regular rate at which he is employed.

48 Fed. Reg. 40,518 (1983) pertinently provides:

For employees engaged in fire protection activities, the average number of hours in tours of duty in work periods of 28 consecutive days in 1975 was 212 hours[.]

5 C.F.R. § 551.501(a)(5) provides:

(a) An agency shall compensate an employee who is not exempt under subpart B of this part for all hours of work in excess of 8 in a day or 40 in a workweek at a rate equal to one and one-half times the employees hourly regular rate of pay, except that an employee shall not receive overtime compensation under this part-
. . . .
(5) On the basis of hours of work in excess of 40 hours in a workweek for an employee engaged in fire protection . . . when the employee is receiving compensation under 5 U.S.C. 5545(c)(1)
. . . .

5 C.F.R. § 551.541(a) provides:

(a) An employee engaged in fire protection activities . . . shall be paid at a rate equal to one and one-half times the employee's hourly regular rate of pay for those hours in a tour of duty which exceed the overtime standard for a work period specified in section 7(k) of the [FLSA} or which are in excess of 40 hours in a workweek for such an employee who does not receive compensation for those hours of work under 5 U.S.C. 5545(c)(1)
. . . .

5 C.F.R. § 550.163(a) pertinently provides:

An employee receiving premium pay on an annual basis under § 550.141 may not receive premium pay for . . . work at night . . . under any other section of this subpart.