U.S. Government Printing Office, Washington, D.C. (Agency) and Sheet Metal Workers International Association, Local 100 (Union)

[ v57 p299 ]

57 FLRA No. 64

U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON, D.C.
(Agency)

and

SHEET METAL WORKERS INTERNATIONAL
ASSOCIATION, LOCAL 100
(Union)

0-AR-3362

_____

DECISION

June 26, 2001

_____

Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members. [n1] 

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Richard I. Bloch 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 found that the Agency violated the parties' collective bargaining agreement by discontinuing its practice of including a night-shift differential in calculations of certain employees' overtime pay. For the reasons that follow, we find that the Agency has failed to show that the award is deficient under section 7122(a) of the Statute. Therefore, we deny the exceptions.

II.     Background and Arbitrator's Award

      The Government Printing Office (GPO) employees at issue in this case are weekday day-shift employees who are sometimes required to work overtime on weekend nights. Overtime pay is computed based on the employees' basic rate of pay, which does not include premium pay for night work. However, a practice developed of treating the weekday day-shift employees as if they were detailed to night-shift positions when they worked overtime at night on weekends. This enabled the Agency to include a night-shift differential in the employees' basic rate of pay for purposes of calculating their overtime pay, thereby entitling the employees to greater overtime pay than they would have received without the differential.

      The Agency notified the Union that it intended to discontinue this practice. The Union filed a grievance, which was not resolved and was submitted to arbitration. The Arbitrator did not frame the issues to be resolved. The Union argued that the discontinuation of the practice violated Article I-D of the parties' agreement. [n2]  The Agency acknowledged the practice but contended that it was contrary to 5 U.S.C. § 5544 (hereinafter § 5544") and thus could be discontinued. [n3] 

      The Arbitrator found that § 5544 does not serve to establish compensation for weekend shifts at the GPO and does not foreclose the parties from agreeing to a compensation scheme that somehow exceeds the minimum overtime rate established by Section 5544. Award at 7. The Arbitrator also found that the parties had engaged in a compensation practice that was consistent and continuous, having survived over a period of some twenty years and three separate collective bargaining agreements, all of which promised to maintain `the rates paid for overtime'. Id. at 8. The Arbitrator concluded that the disputed practice had risen to the level of contractual status and thus was fully binding on the parties. Id. Accordingly, the Arbitrator sustained the grievance and directed the Agency to make whole all affected employees.

III.     Positions of the Parties

A.     Agency Exceptions

      Responding to an argument previously made by the Union before the Arbitrator, see Tab C of Exceptions, the Agency contends that the Authority has jurisdiction in this case because it involves a grievance filed pursuant to a grievance procedure negotiated under § 7121 of the Statute.

      On the merits, the Agency argues that the award is contrary to § 5544 because the Arbitrator directed the Agency to compute the employees' overtime pay on the night rate of pay, which the employees did not earn. According to the Agency, the Comptroller General has [ v57 p300 ] held that agencies have no authority to establish overtime pay rates greater than one and one-half times the basic rate of pay. In support of its arguments, the Agency cites Abramson v. U.S., 40 Fed. Cl. 204, 206-11 (1998) (Abramson), Matter of Gov't Printing Office, 1978 WL 9921, *2-*3 (GPO), and Acting Comptroller Gen. Yates to the Sec'y of War, 24 Comp. Gen. 39 (1944) (Sec'y of War).

      The Agency also argues that there was no evidence that the parties ever bargained over the disputed practice. Rather, the Agency states that Article I-D means only that it will continue to pay employees overtime at a rate of one and one-half times the basic rate of pay.

B.     Union Opposition

      The Union argues that the Authority lacks jurisdiction in this matter because the parties' agreement was negotiated, and approved by the Joint Committee on Printing (hereinafter the Joint Committee), pursuant to 44 U.S.C. § 305 (hereinafter § 305"). [n4]  According to the Union, under that statute, disagreements regarding compensation must be submitted to the Joint Committee, whose decision is final. In support, the Union cites Judge Wald's concurrence in Lewis v. Sawyer, 698 F.2d 1261 (D.C. Cir. 1983).

      On the merits, the Union contends that the Arbitrator correctly held that § 5544 does not invalidate compensation agreements reached pursuant to § 305. Noting that employees who are entitled to overtime pay under both title 5 and the Fair Labor Standards Act (FLSA) must be paid under the statute that provides them with the greater benefit, the Union claims that the Agency offered no support . . . that the relationship between [§ 305] collective bargaining authority and applicable pay entitlements under [t]itle 5 should not be accorded the same `greater benefit' treatment. Opposition at 11. According to the Union, § 305 permits parties to agree to a greater overtime entitlement than that provided by title 5.

      With regard to the Agency's assertion that the parties never bargained over the disputed practice, the Union asserts that there was no need for bargaining over specifics of the disputed practice, because [e]verybody knew about the practice, and both sides obviously were content to continue it. Opposition at 18, 17, 18.

IV.     Analysis and Conclusions

A.     Contrary to the Union's claim, the Authority has jurisdiction over the exceptions.

      GPO is an agency that is covered by the terms of the Statute. 5 U.S.C. § 7103(a)(3). The Statute requires that collective bargaining agreements provide that any grievance not satisfactorily settled under the negotiated grievance procedure shall be subject to binding arbitration, 5 U.S.C. § 7121(b)(1)(C)(iii), and directs the Authority to resolve exceptions to awards that result from binding arbitration, 5 U.S.C. § 7105(a)(2)(H).

      There is no dispute that this case was brought pursuant to the negotiated grievance procedure set forth in the parties' agreement. The Union argues, however, that § 305 precludes the Authority from addressing the Agency's exceptions because those exceptions should be before the Joint Committee. Under the plain language of § 305, the Joint Committee performs two functions: (1) it approves (and thereby renders effective) the parties' wage agreements; and (2) if the parties fail to reach such agreements, then it hears the parties' appeals and renders a final decision regarding wages.

      In the instant case, the parties are not seeking to have a wage agreement approved and rendered effective, nor have they failed to reach a wage agreement. Rather, they have sought an arbitral interpretation of their existing wage agreement, which has already been approved by the Joint Committee. There is no indication in the text of § 305 that, once the parties have reached a wage agreement that has been approved by the Joint Committee, only the Joint Committee has the authority to interpret and enforce that agreement. Thus, the plain language of § 305 does not provide a basis for the Authority to decline jurisdiction. [n5] 

      Further, the record contains no support for concluding that § 305 precludes the Authority from exercising jurisdiction here. The Union relies on Judge Wald's concurring opinion in Lewis v. Sawyer, 698 F.2d 1261, [ v57 p301 ] which states that GPO has no duty to bargain over furloughs under the Statute because the procedures for negotiating (and appealing refusals to negotiate) over wages, salaries, and compensation of GPO employees, including decisions regarding furloughs, are specifically provided for by § 305. Id. at 1264. As discussed previously, the case now before the Authority involves neither the negotiation of, nor an appeal of a refusal to negotiate, the employees' compensation. Rather, this case involves exceptions to an arbitral interpretation of the parties' existing agreement. Nothing in Judge Wald's concurring opinion indicates that, once the parties have reached agreement with respect to compensation, such an agreement is unenforceable in arbitration under the Statute, or that the Authority lacks jurisdiction to resolve exceptions to such an award.

      Therefore, the Union has not demonstrated that § 305 deprives the Authority of jurisdiction to resolve the exceptions.

B.     The award does not fail to draw its essence from the parties' agreement.

      The Agency asserts that the Arbitrator misinterpreted Article I-D of the parties' agreement. We construe this assertion as an argument that the award fails to draw its essence from the parties' agreement. In order for an award to be found deficient as failing to draw its essence from a collective bargaining agreement, it must be established that the award: (1) cannot in any way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      The Agency acknowledges that its practice has been to include night-shift premiums in the rate of basic pay for the purpose of calculating overtime. See Award at 4. The Arbitrator interpreted Article I-D's language that [t]he rates paid for overtime work shall remain in effect, as incorporating that practice into the parties' agreement. Id. Given the Agency's acknowledgment that its practice was to pay employees these premiums, and the language of Article I-D, the Agency does not explain how the Arbitrator's interpretation of Article I-D as requiring continuation of this practice is implausible, irrational, or unconnected to the wording of the agreement. Accordingly, the Agency has not demonstrated that the award fails to draw its essence from the parties' agreement.

C.     The award is not contrary to 5 U.S.C. § 5544.

      The Authority reviews the questions of law raised by the award and the Agency's exceptions de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority assesses whether the Arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In conducting that assessment, the Authority defers to the Arbitrator's underlying factual findings. See id.

      For the following two reasons, we reject the Agency's argument that the award is inconsistent with § 5544.

      First, while § 5544 addresses overtime rates of pay, providing that overtime is calculated based on one and one-half times the basic hourly rate of pay, that is precisely the way that overtime is calculated in this case. Although the parties dispute how to calculate the basic rate of pay, nothing in § 5544 or its implementing regulations, 5 C.F.R. part 532, addresses how to calculate the basic rate of pay. Thus, nothing in § 5544 or part 532 precludes the parties from establishing basic rates of pay through negotiation that include a differential computed in the manner incorporated into the parties' agreement. [n6] 

      The authority relied on by the Agency is not to the contrary. In Abramson, 40 Fed. Cl. at 206-11, the Court of Federal Claims held that § 5544 applies to GPO employees. However, the court did not address how basic rates of pay are calculated. Further, although in GPO, 1978 WL 9921, *2-*3, the Comptroller General held that § 5544 precludes GPO employees from agreeing to overtime wages greater than one and-one half times their basic rate of pay, GPO was based on the reasoning [ v57 p302 ] set forth in Matter of the Dep't of Interior, 57 Comp. Gen. 259 (1978), which was subsequently reversed. See In the Matter of Dep't of Interior, 58 Comp. Gen. 198, 201 (1979) (Interior). Thus, GPO is no longer viable precedent. Finally, in Sec'y of War, 24 Comp. Gen. 39, the Comptroller General held that an agency that has an established night differential for night shift employees cannot exclude that differential from the basic rate of pay when calculating overtime entitlement under a predecessor statute to § 5544. The Comptroller General did not hold, however, that agencies are precluded from negotiating over these matters. Further, the predecessor statute did not address the "basic rate of pay." See id. at 42 ("the regular hours of labor shall not be more than forty per week; and all overtime shall be compensated for at the rate of not less than time and one half.").

      Second, even assuming that § 5544 specifies the calculation of basic rates of pay, the award is not deficient. In this connection, as previously discussed, the parties' agreement was negotiated pursuant to § 305(a), which expressly provides for negotiations over "rate of wages, including compensation for night and overtime work." Section 305(a) does not establish any monetary limitations on the parties' authority to bargain over rates of wages, including compensation for night and overtime work. If § 5544 were read as the Agency suggests, limiting overtime pay to time-and-a-half and mandating precisely how the basic rate of pay should be computed, then the right to bargain over overtime compensation and differentials set forth in § 305(a) would be meaningless. In particular, there would be nothing for parties to bargain, because these matters would be precisely set by § 5544. Reading § 5544 in this manner would be contrary to the "fundamental principle of statutory construction that `effect must be given, if possible, to every word, clause, and sentence of a statute.' . . . so that no part will be inoperative or superfluous, void, or insignificant." Indianapolis Power and Light Co. v. Interstate Commerce Comm'n, 687 F.2d 1098, 1101 (7th Cir. 1982) (quoting from 2A Sutherland, Stat. Const., § 46.6).

      The conclusion that bargaining agreements under § 305 may provide pay that exceeds the minimum entitlements provided by other statutes is supported by the Supreme Court's decision in United States v. Kelly, 342 U.S. 193, 195 (1952) (Kelly). In particular, the Court concluded in that case that GPO employees covered by § 305 may reach enforceable wage agreements entitling them to "gratuity pay," even though such pay is not provided by an applicable law. [n7]  Id. Consistent with Kelly, the fact that affected employees are not entitled -- by § 5544 or other law -- to inclusion of a night differential in night overtime does not mean that employees covered by § 305 are precluded from reaching agreements providing for that differential. [n8] 

      Based on the foregoing, we conclude that the award is not inconsistent with § 5544.

V.     Decision

      The Agency's exceptions are denied.


File 1: Authority's Decision in 57 FLRA No. 64
File 2: Opinion of Chairman Cabaniss


Footnote # 1 for 57 FLRA No. 64 - Authority's Decision

   Chairman Cabaniss' dissenting opinion, is set forth at the end of this decision.


Footnote # 2 for 57 FLRA No. 64 - Authority's Decision

   Article I-D of the parties' agreement provides, in pertinent part: The rates paid for overtime work shall remain in effect. Award at 4.


Footnote # 3 for 57 FLRA No. 64 - Authority's Decision

   5 U.S.C. § 5544 provides, in pertinent part, that: [t]he overtime hourly rate of pay is computed as follows: . . . If the basic rate of pay of the employee is fixed on a basis other than an annual or monthly basis, multiply the basic hourly rate of pay by not less than one and one-half.


Footnote # 4 for 57 FLRA No. 64 - Authority's Decision

   44 U.S.C. § 305(a) provides, in pertinent part, that:

the rate of wages, including compensation for night and overtime work, . . . shall be determined by a conference between the Public Printer and a committee selected by the trades affected, and the rates and compensation so agreed upon shall become effective upon approval by the Joint Committee on Printing. When the Public Printer and the committee representing a trade fail to agree as to wages, salaries, and compensation, either party may appeal to the Joint Committee on Printing, and the decision of the Joint Committee is final. . . .

Footnote # 5 for 57 FLRA No. 64 - Authority's Decision

   We note that the Union's argument that the Authority lacks jurisdiction because only the Joint Committee on Printing can resolve any disagreements as to compensation, appears to undermine the jurisdiction of the Arbitrator to award the relief sought by the Union. Opposition at 6. It is unclear how, if only the Joint Committee on Printing can resolve the parties' dispute, then there could be a basis for concluding that the Arbitrator could resolve it.


Footnote # 6 for 57 FLRA No. 64 - Authority's Decision

   To the extent that part 532 may require the computation of overtime for these employees under the FLSA, rather than § 5544, see 5 C.F.R. § 532.503(a)(1), we note that the regulations implementing the FLSA - 5 C.F.R. part 551 - also do not address how to calculate the basic rate of pay. Although 5 C.F.R. § 551.511 defines the regular rate of pay for computing overtime under the FLSA, nothing in part 551 equates the regular rate of pay with the basic rate of pay under § 5544. While there is no basis for concluding that the Office of Personnel Management (OPM) intended to use a different term (regular rate of pay) to describe the basic rate of pay, even assuming that OPM intended to conflate the two terms, the regulations set forth in part 551 state that employees who are entitled to overtime pay under both part 551 and any authority outside of title 5, United States Code, shall be paid under whichever authority provides the greater overtime pay entitlement in the workweek. 5 C.F.R. § 551.513. As § 305 is an authority outside title 5, it would prevail over the FLSA if it provides greater overtime entitlement than the FLSA.


Footnote # 7 for 57 FLRA No. 64 - Authority's Decision

   Kelly involved employees whose wages were fixed by agreement pursuant to 44 U.S.C. § 40, which was re-numbered § 305. See United States v. Bergh, 352 U.S. 40, 47 (1956).


Footnote # 8 for 57 FLRA No. 64 - Authority's Decision

   We disagree with our dissenting colleague's assertion, relying on Abramson, 40 Fed. Cl. 204, that § 5544 contains a limit on § 305. Although Abramson held that § 5544 applies to GPO employees, it did not hold that GPO employees covered by § 305(a) are limited to compensation provided by § 5544. In other words, while GPO employees may not be denied the overtime to which they are entitled under § 5544, that does not preclude them from receiving greater amounts of overtime pay if greater amounts have been negotiated pursuant to § 305(a). We note our dissenting colleague's assertion that the Statute provides employees with the ability to negotiate over wages. However, unlike § 305, the Statute does not explicitly provide parties with the right to negotiate over wages, including compensation for night and overtime work, and reading the Statute as limited by § 5544 would not render meaningless any of the bargaining rights set forth