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

[ v59 p273 ]

59 FLRA No. 42

UNITED STATES
GOVERNMENT PRINTING OFFICE,
WASHINGTON, D.C.
(Agency)

and

SHEET METAL WORKERS
INTERNATIONAL ASSOCIATION,
LOCAL 100
(Union)

0-AR-3362
(57 FLRA 299 (2001))

_____

ORDER
DISMISSING MOTION
FOR RECONSIDERATION

September 30, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.      Statement of the Case

      This matter is before the Authority on a motion for reconsideration of the Authority's decision in United States Gov't Printing Office, Wash., D.C., 57 FLRA 299 (2001) (Chairman Cabaniss dissenting) (Printing Office), filed by the Agency under § 2429.17 of the Authority's Regulations. The Union did not file an opposition.

      For the following reasons, we dismiss the motion for reconsideration.

II.     Background

      In Printing Office, 57 FLRA 299, the Authority resolved exceptions to an arbitral award enforcing a wage and overtime agreement reached pursuant to 44 U.S.C. § 305 (§ 305). [n2]  The Government Printing Office (GPO) employees covered by the agreement are weekday, day-shift employees who sometimes are required to work overtime on weekend nights. The Agency developed a practice of treating them as if they are detailed to night-shift positions when they work overtime on weekend nights. This enabled the Agency to include a night-shift differential in the employees' basic rates of pay for purposes of calculating their overtime pay. That is, in order to calculate employees' pay for overtime on weekend nights, the Agency added a night-shift differential to their basic rate of pay and multiplied that rate by one and one-half.

      In the award reviewed by the Authority in Printing Office, the Arbitrator found that this longstanding practice had contractual status and was binding on the parties. On exceptions to the Authority, the Agency argued that the award was contrary to 5 U.S.C. § 5544 (§ 5544). [n3]  The Authority rejected that claim for two reasons.

      First, the Authority stated that the Agency calculates the employees' overtime pay based on one and one-half times the basic rate of pay, as required by § 5544, and that the parties' dispute involved whether the Agency could include a night-shift differential in the employees' basic rate of pay for the purpose of calculating overtime. In this connection, the Authority held that "nothing in § 5544 or its implementing regulations, 5 C.F.R. part 532, addresses how to calculate the basic rate of pay." 57 FLRA at 301. Also in this connection, the Authority rejected the Agency's reliance on In re Gov't Printing Office, 1978 WL 9921 (GPO), stating that GPO was "no longer viable precedent" because it "was based on the reasoning set forth in [In re Dep't of Interior, 57 Comp. Gen 259 (1978) (Interior I)], which was subsequently reversed" in In re Dep't of the Interior, 58 Comp. Gen. 198 (1979) (Interior II). Printing Office, 57 FLRA at 301-02.

      Second (and alternatively), the Authority held that, even assuming that § 5544 specifies how basic rates are calculated, the parties' agreement was negotiated pursuant to § 305(a), which expressly provides for negotiations over the "rate of wages, including compensation for night and overtime work." Id. at 302. In this regard, the Authority held that if § 5544 were read as "limiting overtime pay to time-and-a-half and mandating precisely [ v59 p274 ] 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" -- i.e., "there would be nothing for parties to bargain, because these matters would be precisely set by § 5544." Id.

      Subsequent to the Authority's decision in Printing Office, the Agency requested that the Comptroller General issue a decision indicating whether the Authority correctly found that GPO was no longer viable. In response, the Comptroller General held that Interior II did not undermine the reasoning of GPO. See In re Calculating Overtime Pay Rates for Gov't Printing Office Employees, 2003 WL 1240502 *2 (Calculating Overtime Pay). The Comptroller General explained the sequence of cases as follows.

      First, the Comptroller General stated that Interior I held that § 5544 applied to prevailing rate employees who establish their wages pursuant to § 9(b) of Public Law 92-392, and thus, that those employees could not establish overtime pay at greater than one and one-half times the basic hourly rate of pay. [n4]  See Calculating Overtime Pay, 2003 WL 1240502 *4.

      Second, the Comptroller General stated that GPO, 1978 WL 9921, extended the holding of Interior I to GPO employees. Specifically, the Comptroller General explained that GPO held that § 5544 applies to employees who negotiate their wages pursuant to § 305, and accordingly, those employees cannot establish overtime rates at greater than one and one-half times the basic rate of pay. See Calculating Overtime Pay, 2003 WL 1240502 *4.

      Third, the Comptroller General stated that, in Interior II, 58 Comp. Gen. 198 -- after enactment of the Civil Service Reform Act of 1978, providing that § 9(b) employees may negotiate their pay without regard to § 5544 -- the Comptroller General "overrul[ed] [Interior I] as it pertained to prevailing rate employees who negotiated their wages pursuant to section 9(b) of Public Law 92-392." Calculating Overtime Pay, 2003 WL 1240502 *4.

      In Calculating Overtime Pay, the Comptroller General explained that because GPO employees are not § 9(b) employees, "the section 9(b) exemption . . . does not apply to GPO employees" and, as a result, Interior II did not overrule either GPO or Interior I, to the extent that it pertains to GPO employees. Calculating Overtime Pay, 2003 WL 1240502 *5.

III.     Motion for Reconsideration

      After receiving the Comptroller General's decision in Calculating Overtime Pay, the Agency filed a motion for reconsideration of Printing Office. The Agency acknowledges that its motion was not filed within ten days of the decision in Printing Office, as required by 5 C.F.R. § 2429.17 (§ 2429.17). [n5]  However, the Agency claims that extraordinary circumstances warrant waiving the time limit pursuant to 5 C.F.R. § 2429.23(b) (§ 2429.23(b)). [n6]  In this connection, the Agency states that the Comptroller General's decision in Calculating Overtime Pay renders erroneous the Authority's decision in Printing Office. The Agency also claims that it filed its motion for reconsideration within a reasonable time after issuance of the Calculating Overtime Pay decision. [n7]  For support, the Agency cites Dep't of Veterans Affairs, Veterans Affairs Med. Ctr., Jackson, Miss., 49 FLRA 171, 175 (1994) (Veterans Affairs), reconsideration denied, 49 FLRA 701 (1994), aff'd sub nom. NFFE, Local 589 v. FLRA, 73 F.3d 390 (D.C. Cir. 1996).

      With regard to the merits of the request for reconsideration, the Agency contends that extraordinary circumstances exist for granting reconsideration because the Authority erred in its conclusion of law. Specifically, the Agency claims that the Authority erred in finding that GPO, 1978 WL 9921, is no longer viable precedent, and that this finding was the "linchpin of the Authority's decision[.]" Motion for Reconsideration at 5. According to the Agency, overtime must be calculated by "using 150% the rate of pay received by an employee during the forty (40) hour workweek preceding the overtime . . . regardless of the time of day or night the overtime is worked." Id. at 4.

IV.     Analysis and Conclusion

      Section 2429.23(b) provides, in pertinent part, that the Authority "may waive any expired time limit . . . in [ v59 p275 ] extraordinary circumstances." The Agency contends that extraordinary circumstances for waiving the time limit for filing a request for reconsideration are present here because: the Comptroller General's decision in Calculating Overtime Pay renders erroneous the Authority's decision in Printing Office; and the Agency filed its motion within a reasonable period after receiving the Calculating Overtime Pay decision. For the following reasons, we find that the Agency has not demonstrated extraordinary circumstances that warrant waiving the expired time limit.

      First, although Comptroller General decisions possess "precedential value," they are not binding on the Authority. NAGE, Local R5-136, 57 FLRA 220, 222 n.7 (2001) (citing AFGE, AFL-CIO, Local 3231, 25 FLRA 600 (1987)). Thus, even assuming that the Comptroller General's decision in Calculating Overtime Pay conflicts with the Authority's legal conclusion in Printing Office, we are not required to follow Calculating Overtime Pay.

      Second, the Authority's statement in Printing Office that was challenged in Calculating Overtime Pay -- that GPO is no longer viable precedent -- was not central to either of the Authority's alternative holdings in Printing Office. In this regard, the Authority's first, alternative holding, that § 5544 does not establish the basic rate of pay, was based on an interpretation of the wording of § 5544, not on GPO. In this regard, the Authority made the disputed statement regarding GPO only after concluding that § 5544 does not establish the basic rate of pay. See 57 FLRA at 301-02. The Authority's second, alternative holding --that, even assuming § 5544 specifies the calculation of basic rates of pay, reading § 5544 as setting both the overtime and basic rates of pay would render meaningless the bargaining rights set forth in § 305(a) -- did not even mention GPO. See id. at 302. Because the Authority's challenged statement was not central to either of the Authority's alternative holdings in Printing Office, the allegation that the statement was in error can provide no basis for reversing Printing Office.

      Third, permitting the Agency to file its motion nearly two years after the Authority issued its decision in Printing Office would conflict with Congress' preference for final and binding arbitration. Cf. AFGE, Local 507, 58 FLRA 378, 380 (2003) (Chairman Cabaniss dissenting) (citing Overseas Educ. Ass'n v. FLRA, 824 F.2d 61, 66 (D.C. Cir. 1987), and discussing "Congress' intent that arbitration awards be final"). Consistent with this preference, the Authority does not review arbitration awards on the basis of evidence that comes into existence after arbitration because such evidence "is not a sufficient ground for `vitiating the required finality of the original award[,]'" even if the evidence might result in a different award. AFGE, Local 2004, 55 FLRA 6, 9 (1998) (citation omitted). The principle favoring finality in arbitration supports a conclusion that we should not waive the expired time limit after such a significant time has passed. In this regard, waiving the time limit would encourage parties to file motions for reconsideration many years after the Authority has issued a decision.

      The Agency relies on Veterans Affairs, 49 FLRA at 175, where the Authority found that extraordinary circumstances warranted waiving an expired time limit because: (1) an intervening court decision rendered incorrect the Authority's previous decision; and (2) the moving party filed the request for reconsideration within a reasonable period after the court decision issued. See id. However, Veterans Affairs is distinguishable from the instant case. In this connection, Veterans Affairs involved an intervening court decision, not a Comptroller General decision. More importantly, Veterans Affairs was an unfair labor practice case involving an outstanding Authority order, subject to direct judicial enforcement under § 7123 of the Statute, directing that the respondent take certain actions and cease and desist from other actions; the instant case does not involve such an order. See IRS, Wash., D.C., 47 FLRA 1091, 1108 (1993) ("the Authority's decision in an unfair labor practice proceeding is subject to direct judicial enforcement under section 7123(b) while an arbitrator's decision is subject to enforcement only if an unfair labor practice charge is filed for failure to comply with the award").

      Finally, the Agency did not request the Comptroller General's decision in Calculating Overtime Pay until more than two months after the Authority issued its decision in Printing Office. In this connection, the Authority issued its decision in Printing Office on June 26, 2001, and the Agency did not seek guidance from the Comptroller General until September 13, 2001. See Motion for Reconsideration at 2. Moreover, the Agency did not file its motion for reconsideration within ten days of receiving the Comptroller General's decision in Calculating Overtime Pay. Section 2429.17 does not address how many days a party has to file a motion for reconsideration after issuance of a decision by a body other than the Authority. Nevertheless, we find that the Agency's failure to request the Comptroller General's guidance promptly after the Authority's decision in Printing Office -- and its failure to file its motion for reconsideration within ten days of receiving the Comptroller General's decision in Calculating Overtime Pay [ v59 p276 ] -- supports a conclusion that we should not waive the expired deadline here.

      For the foregoing reasons, we deny the Agency's request to waive the expired time limit, and we dismiss the motion for reconsideration.

V.     Order

      The Agency's motion for reconsideration is dismissed.


Dissenting Opinion of Chairman Cabaniss:

      Contrary to the majority, I would find that the circumstances here justify accepting an otherwise untimely request for reconsideration. In the underlying case the Authority ascribed a certain meaning to a particular decision issued by the Comptroller General. Sometime well after the expiration of the period for filing a request for reconsideration, the Comptroller General issued an opinion that disagreed with the meaning ascribed by the Authority to that earlier noted Comptroller General decision. Based upon that subsequent Comptroller General opinion disagreeing with how the Authority interpreted that earlier Comptroller General decision, the Agency now asks the Authority to reconsider the decision in which the Authority ascribed an erroneous meaning to the earlier Comptroller General decision.

      In these circumstances, I would find that a valid basis exists under § 2429.23 of the Authority's regulations to waive the ten day time limit established by our regulations (§ 2429.17) for filing requests for reconsideration. In doing, so, however, and while I still agree with my dissent in the underlying case, I believe that the Agency has not shown that extraordinary circumstances exist for setting aside the majority's decision in the underlying case.



Footnote # 1 for 59 FLRA No. 42 - Authority's Decision

   Chairman Cabaniss' dissenting opinion is set forth at the end of this decision. We note that Member Armendariz was not a Member of the Authority at the time of the decision in 57 FLRA 299.


Footnote # 2 for 59 FLRA No. 42 - Authority's Decision

   Section 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."


Footnote # 3 for 59 FLRA No. 42 - Authority's Decision

   Section 5544 provides, in pertinent part: "The overtime hourly rate of pay is computed as follows: . . . If the basic rate of pay 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 59 FLRA No. 42 - Authority's Decision

   Certain prevailing rate employees negotiate pay and pay practices in accordance with § 9(b) of the Prevailing Rate Systems Act and § 704 of the Civil Service Reform Act of 1978. See, e.g., Int'l Bhd. of Elec. Workers, Gov't Coordinating Council No. 1, 57 FLRA 7, 7 (2001).


Footnote # 5 for 59 FLRA No. 42 - Authority's Decision

   Section 2429.17 provides, in pertinent part, that a motion for reconsideration "shall