Tidewater Virginia Federal Employees, Metal Trades Council, International Brotherhood of Electrical Workers, Local 734 (Union) and United States, Department of the Navy, Navy Public Works Center, Norfolk, Virginia (Agency)

[ v58 p573 ]

58 FLRA No. 141

TIDEWATER VIRGINIA FEDERAL EMPLOYEES
METAL TRADES COUNCIL
INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS
LOCAL 734
(Union)

and

UNITED STATES
DEPARTMENT OF THE NAVY
NAVY PUBLIC WORKS CENTER
NORFOLK, VIRGINIA
(Agency)

0-AR-3637

_____

DECISION

June 5, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This matter is before the Authority on an exception to an award of Arbitrator George R. Gray filed by the Union under § 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 exception.

      The Arbitrator denied the grievance, finding that the grievant was not entitled to military leave for overtime shifts that were not part of the grievant's regularly scheduled workweek. For the reasons that follow, we deny the Union's exception.

II.     Background and Arbitrator's Award

      The grievant, who has a regularly scheduled Monday through Friday workweek, filed a grievance alleging that the Agency improperly failed to pay him military leave for weekend overtime shifts he was unable to accept due to inactive duty training. The grievance was unresolved and submitted to arbitration, where the Arbitrator framed the issue as: "Whether the grievant . . . was entitled to compensation for overtime not worked while on weekend military duty." Award at 2.

      The Arbitrator denied the grievance, finding that the grievant was not entitled to military leave under 5 U.S.C. § 6323 because the overtime shifts at issue were not a part of his regularly scheduled workweek. [n1]  The Arbitrator explained that "in all of the [Office of Personnel Management (OPM)] sites related to military leave and cross referenced sites with other agencies, . . . use of military leave for . . . inactive duty training [i]s directed toward utilization of military leave during the regular workweek." [n2]  Id. at 9. Applying the parties' agreement, the Arbitrator determined that because the "overtime days . . . specified in [the] grievance were not mandatory days of work[,]" the days were not part of the grievant's regularly scheduled workweek. [n3]  Id. at 8. Accordingly, the Arbitrator concluded that the weekend overtime at issue did not "appear to qualify as military leave as described in 5 U.S.C. [§] 6323[,]" and denied the grievance. Id. at 10.

III.     Positions of the Parties

A.     Union's Exception

      The Union contends that the Arbitrator's conclusion that the grievant is not entitled to military leave is inconsistent with § 6323. [n4]  In this regard, the Union argues that the grievant is entitled to military leave for the overtime shifts at issue because he could have worked these shifts and received pay if not for his training obligations.

B.     Agency's Opposition

      The Agency argues that the overtime the grievant alleges he lost due to weekend military training does not qualify for military leave under § 6323 because it was not regularly scheduled. In this regard, the Agency argues that the overtime was not regularly scheduled because it was not scheduled in advance of the administrative [ v58 p574 ] workweek; did not arise on successive days or after specified intervals; did not recur in a predictable, discernable pattern; and was voluntary in nature.

IV.     The award is not contrary to 5 U.S.C. § 6323.

      The Authority reviews questions of law raised by exceptions to an arbitrator's award de novo. NTEU, Chap. 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. Id.

      Section 6323 of Title 5 provides the statutory authority to grant up to fifteen days of military leave to reservists of the uniformed services who are civilian employees of the Federal Government. NATCA, 55 FLRA 765, 767 (1999). The purpose of § 6323 is to prevent a reduction in an employee's "customary and regular pay" because of absences due to military leave. Lanehart v. Horner, 818 F.2d 1574, 1582-83 (Fed. Cir. 1987) (interpreting the four "leave with pay" statutes found in Title 5 at sections 6303, 6307, 6322, and 6323). "Pay," as used in § 6323, is the "total compensation or remuneration normally and regularly received" by an employee. Id. at 1582.

      Pursuant to the leave with pay statutes -- which include § 6323 -- employees are entitled to all compensation, including premium overtime pay, they would normally receive as part of their regularly scheduled workweeks. Armitage v. United States, 991 F.2d 746, 750-51 (Fed. Cir. 1993); Lanehart v. United States, 818 F.2d 1574; see also AFGE, Local 2214, 51 FLRA 165, 168 (1995) (applying Lanehart and Armitage and stating that employees are "entitled to receive pay for regularly scheduled and recurrent overtime when they are in a leave with pay status") (emphasis added). The United States Court of Appeals for the Federal Circuit has further stated that employees are not entitled to overtime pay under the leave with pay statutes when overtime hours are irregularly performed and not regularly recurring. Abbott v. United States, 204 F.3d 1099, 1102 (Fed. Cir. 2000).

      Applying this precedent, an employee is entitled to military leave under § 6323 for hours of work -- including overtime hours -- that constitute a customary and recurrent portion of the employee's regularly scheduled workweek. The Arbitrator found that the days for which the grievant sought military leave are not part of his regularly scheduled workweek. Applying the Arbitrator's finding, to which we defer, to the standard under §6323, set forth above, the Arbitrator's award is consistent with that section. [n5] 

      Based on the foregoing, we conclude that the Arbitrator's award is not contrary to 5 U.S.C. § 6323, and deny the exception.

V.     Decision

      The Union's exception is denied.



Footnote # 1 for 58 FLRA No. 141 - Authority's Decision

   5 U.S.C. § 6323(a)(1) provides, in relevant part, that "an employee . . . is entitled to leave without loss in pay, time, or performance or efficiency rating for . . . inactive-duty training . . . as a Reserve of the armed forces or member of the National Guard.


Footnote # 2 for 58 FLRA No. 141 - Authority's Decision

   OPM has interpreted § 6323 as providing entitlement to military leave only where an employee is unable to attend mandatory hours of work. See OPM, Military Leave, available at http://www.opm.gov/oca/leave/HTML/military.HTM.


Footnote # 3 for 58 FLRA No. 141 - Authority's Decision