United States, Department of Justice, U.S. Immigration, and Naturalization Service, Kansas City, Missouri (Agency) and American Federation of Government Employees, Local 3983 (Union)

[ v59 p574 ]

59 FLRA No. 102

UNITED STATES
DEPARTMENT OF JUSTICE
U.S. IMMIGRATION
AND NATURALIZATION SERVICE,
KANSAS CITY, MISSOURI
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 3983
(Union)

0-AR-3710

_____

DECISION

January 15, 2004

_____

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 exceptions to an award of Arbitrator Leonard C. Bajork filed by the Agency under § 7122 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' agreement by interrupting criminal investigators during their lunch periods without permitting the investigators to include the time spent responding to those interruptions in calculating their unscheduled duty hours for purposes of law enforcement availability pay (availability pay). As remedies, the Arbitrator directed the Agency to pay investigators $100 and to allow them to include the time spent responding to supervisor-initiated interruptions during lunch periods in calculating their number of unscheduled duty hours.

      For the following reasons, we find that the awards of $100 are contrary to law, and we deny the Agency's remaining exceptions.

II.     Background and Arbitrator's Award

      Congress enacted the Law Enforcement Availability Pay Act of 1994 (the LEAP Act) (codified at, inter alia, 5 U.S.C. §§ 5542(d) & 5545a), in order to establish a uniform system of compensation for the excessive and unusual hours worked by Federal criminal investigators. [n1]  See Bradley v. United States, 42 Fed. Cl. 333, 334-35 (1998). Under the LEAP Act, eligible investigators receive a 25 percent increase in their base pay (including locality pay) to compensate for: (1) all on-call time; (2) all unscheduled overtime; and (3) the first two hours of scheduled overtime during a day in the investigator's workweek. See id. at 335. To be eligible for the 25 percent availability pay, investigators must demonstrate that they either "worked," or were "available to work," an annual minimum average of "unscheduled duty hours." 5 U.S.C. § 5545a(d). Specifically, the total number of unscheduled duty hours that an investigator worked, or was available to work, in a year is divided by the number of regular work days, and if the resulting number is at least two unscheduled duty hours per work day, then the investigator may receive availability pay. See id. Unscheduled duty hours are hours that are neither "[p]art of the 40-hour basic workweek of the investigator" nor "[r]egularly scheduled overtime hours compensated under 5 U.S.C. § 5542 and § 550.111." 5 C.F.R. § 550.182(a)(1), (2).

      As relevant here, the Agency informed investigators that they were not permitted to include any part of their lunch periods in calculating their number of unscheduled duty hours for purposes of demonstrating their entitlement to availability pay. The Union filed a grievance, which was unresolved and submitted to arbitration, where the parties stipulated the issues as follows:

Did the Agency violate Article 17I. of the negotiated agreement by denying Special Agents from claiming LEA (Law Enforcement Availability) work when requiring them to carry and respond to communication devices or perform their duties during their unpaid lunch period?[ [n2] ]
If so, what shall the remedy be?

Award at 4.

      The Arbitrator found that, under Articles 17I. and 29(3) of the parties' agreement, investigators' lunch periods constitute "unscheduled" time because they are [ v59 p575 ] intended to be duty-free. [n3]  Id. at 5. The Arbitrator determined that the Agency requires investigators to carry electronic communication devices and respond to interruptions during their lunch periods. In this connection, the Arbitrator found "no credible evidence on the record" to support the Agency's claim that investigators are not generally required to be available for work during their lunch periods. Id. at 6. The Arbitrator concluded that the Agency violated the parties' agreement by interrupting investigators during lunch periods and that time spent responding to such interruptions constitutes compensable, "unscheduled work." Id. at 9. In reaching this conclusion, the Arbitrator stated that title 5 of the United States Code "poses no limitations on employee claims for LEA pay resulting from supervisor telephone calls during their lunch periods." Id. at 8. As remedies, the Arbitrator ordered the Agency to pay $100 to each investigator at the facility at issue "as consideration for the unwarranted interruptions suffered[,]" and to allow investigators to include time spent responding to supervisor-initiated interruptions during lunch periods in calculating their number of unscheduled duty hours for purposes of availability pay. Id. at 9.

III.     Positions of the Parties

A.     Agency Exceptions

      The Agency argues that the awards of $100 are contrary to 5 U.S.C. § 5542(d) because investigators who receive 25 percent availability pay are entitled to overtime compensation, over and above their availability pay, only for pre-scheduled overtime hours greater than ten hours per workweek. In addition, the Agency argues that the direction to permit investigators to include time spent responding to lunchtime supervisor-initiated interruptions in calculating their unscheduled duty hours is contrary to 5 U.S.C. §§ 5545a(c) and (d) and 5542(d), and 5 C.F.R. § 550.182(a), (c) and (d). In this connection, citing Office of Personnel Management guidelines entitled "Lunch or Other Meal Periods" (the OPM guidelines), the Agency contends that LEA hours may not be earned during bona fide meal periods. Further, the Agency claims that it has determined that investigators are not generally required to be available for unscheduled duty during lunch periods. Finally, the Agency maintains that, even if the time spent responding to interruptions were creditable, it may be credited only in 1/4 hour increments under 5 C.F.R. § 550.112(a)(2).

B.     Union Opposition

      The Union agrees that the $100 awards are contrary to law, noting that there is no evidence that the Agency's actions resulted in a loss of pay to investigators. However, the Union contends that the Arbitrator correctly ordered the Agency to allow investigators to include time spent responding to supervisor-initiated interruptions during lunch in calculating their unscheduled duty hours. In this connection, the Union states that the investigators were ordered to be reachable by their supervisors during their lunch periods, demonstrating that the Agency required investigators to be available to work during those periods. Finally, the Union disputes the Agency's statement that time may be credited in 1/4 hour increments only.

IV.     Analysis and Conclusions

      The Agency asserts that the award is contrary to law. The Authority reviews questions of law de novo. See NTEU, Chapter 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. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

A.     Awards of $100

      The Arbitrator stated that the $100 awards were "consideration for the unwarranted interruptions suffered." Award at 9. The Agency interprets the awards as constituting awards of overtime pay, and the Union does not dispute that interpretation. Accordingly, for the purposes of this decision, we construe the $100 awards as constituting awards of overtime pay.

      Investigators who are paid 25 percent availability pay under the LEAP Act may receive overtime pay, over and above their availability pay, only for scheduled work hours that are either "in excess of 10 hours on a day during such investigator's basic 40 hour workweek[,]" or "on a day outside such investigator's basic 40 hour workweek[.]" 5 U.S.C. § 5542(d)(A), (B). The Arbitrator did not find, and the Union does not claim, that the investigators at issue here have worked in excess of ten hours on their regular workdays or on days outside their basic forty-hour workweeks. Thus, there is no basis for awarding the investigators overtime pay here, and the awards of $100 are contrary to law. [ v59 p576 ]

B.     Direction to permit investigators to credit supervisor-initiated interruptions

      Under the LEAP Act, investigators are entitled to 25 percent availability pay if they demonstrate that they either worked, or were available to work, an annual minimum average of unscheduled duty hours. See 5§  § 5545a(d) and (h). As noted above, the total number of unscheduled duty hours worked or available to work in a year is divided by the number of regular work days, and if the resulting number is at least two unscheduled duty hours per work day, then the investigator may receive availability pay. See id. Unscheduled duty hours are hours that are neither part of the investigator's "40-hour basic workweek" nor "[r]egularly scheduled overtime hours compensated under 5 U.S.C. 5542 and § 550.111." 5 C.F.R. § 550.182(a)(1), (2). In order to be considered to be "performing work," an investigator "must be performing work as officially ordered or approved, including work performed without specific supervisory preapproval, if circumstances require the criminal investigator to perform the duty to meet the needs of the employing agency, subject to agency policies and procedures (including any requirements for after-the-fact validation or approval)." 5 C.F.R. § 550.182(c).

      The award directs the Agency to permit investigators to include time spent responding to supervisor-initiated interruptions during lunch in calculating their total number of unscheduled duty hours. There is no basis for concluding either that the time spent responding to these supervisor-initiated interruptions is not "officially ordered or approved," or that the investigators are not being required "to perform the duty to meet the needs of the employing agency." Further, the Agency does not assert that the award is contrary to any Agency policies or procedures. Instead, the Agency relies on OPM guidance providing that "bona fide meal periods are not actual hours of work for criminal investigators who receive law enforcement availability pay[.]" Exceptions, Exhibit 3 at 2 ("Lunch or Other Meal Periods"). However, as the same OPM guidance confirms, "[u]npaid meal periods must provide bona fide breaks in the workday." Id. As the award permits investigators to credit only time during which they are required to perform work -- i.e., time that does not constitute a bona fide break in the workday -- it is not contrary to the OPM guidance. Thus, the Agency's reliance on the OPM guidance provides no basis for finding the award deficient.

      The Agency provides no other argument that time spent responding to supervisor-initiated interruptions cannot constitute "hours worked" within the meaning of the LEAP Act. Further, there is no claim that the lunch periods are part of the 40-hour basic workweek for which investigators are paid, or that they are regularly scheduled overtime hours for which the investigators are compensated under 5 U.S.C. § 5542 and 5 C.F.R. § 550.111. In these circumstances, we conclude that the time spent responding to supervisor-initiated interruptions constitutes "unscheduled duty hours worked" by the investigators, and that the direction to permit the investigators to include that time in calculating their unscheduled duty hours is not deficient.

      With regard to the Agency's citation to 5 U.S.C. § 5542(d) and 5 C.F.R. § 550.112, those provisions concern, respectively, the conditions under which investigators may be paid for overtime work and the increments in which that overtime pay must be calculated. Other than the awards of $100, which we have found contrary to law, the award does not involve a direction to pay the investigators for overtime. Instead, the remaining, challenged portion of the award involves the Arbitrator's direction to permit investigators to include time spent responding to supervisor-initiated interruptions in calculating their unscheduled duty hours for purposes of availability pay. Because this portion does not involve whether the investigators are entitled to overtime pay, over and above their 25 percent availability pay, § 5542(d) and § 550.112 are inapposite here. Thus, contrary to the Agency's argument, the requirement in § 550.112(a)(2) that time be credited in 1/4 hour increments does not apply here.

      For the foregoing reasons, we find that the Arbitrator's direction that the Agency permit investigators to credit time spent responding to supervisor-initiated interruptions is not contrary to law.

V.     Decision

      The awards of $100 are set aside, and the Agency's remaining exceptions are denied. [ v59 p577 ]


Appendix

5 U.S.C. § 5542, "Overtime rates; computation," provides, in pertinent part:

(d) In applying subsection (a) of this section with respect to any criminal investigator who is paid availability pay under section 5545a-
     (1) such investigator shall be compensated under such subsection (a), at the rates there provided, for overtime work which is scheduled in advance of the administrative workweek-
          (A) in excess of 10 hours on a day during such investigator's basic 40 hour workweek; or
          (B) on a day outside such investigator's basic 40 hour workweek; and
     (2) such investigator shall be compensated for all other overtime work under section 5545a.

5 U.S.C. § 5545a, "Availability pay for criminal investigators," provides, in pertinent part:

     (a) For purposes of this section--
          (1) the term "available" refers to the availability of a criminal investigator and means that an investigator shall be considered generally and reasonably accessible by the agency employing such investigator to perform unscheduled duty based on the needs of an agency[.]
. . . .
          (3) the term "unscheduled duty" means hours of duty a criminal investigator works, or is determined to be available for work, that are not--
               (A) part of the 40 hours in the basic work week of the investigator; or
               (B) overtime hours paid under section 5542 . . . .
(b) The purpose of this section is to provide premium pay to criminal investigators to ensure the availability of criminal investigators for unscheduled duty in excess of a 40 hour work week based on the needs of the employing agency.
(c) Each criminal investigator shall be paid availability pay as provided under this section. Availability pay shall be paid to ensure the availability of the investigator for unscheduled duty. The investigator is generally responsible for recognizing, without supervision, circumstances which require the investigator to be on duty or be available for unscheduled duty based on the needs of the agency. Availability pay provided to a criminal investigator for such unscheduled duty shall be paid instead of premium pay provided by other provisions of this subchapter, except premium pay for regularly scheduled overtime work as provided under section 5542, night duty, Sunday duty, and holiday duty.
(d)(1) A criminal investigator shall be paid availability pay, if the average of hours described under paragraph (2)(A) and (B) is equal to or greater than 2 hours.
      (2) The hours referred to under paragraph (1) are-
               (A) the annual average of unscheduled duty hours worked by the investigator in excess of each regular work day; and
               (B) the annual average of unscheduled duty hours such investigator is available to work on each regular work day upon request of the employing agency.
. . . .
(e)(1) Each criminal investigator receiving availability pay under this section and the appropriate supervisory officer, . . . shall make an annual certification to the head of the agency that the investigator has met, and is expected to meet, the requirements of subsection (d).
. . . .
     (h) Availability pay under this section shall be-
          (1) 25 percent of the rate of basic pay for the position . . . .

5 C.F.R. § 550.111, "Authorization of overtime pay," provides, in pertinent part:

(f)(1) Except as provided in paragraph (f)(2) of this section, for any criminal investigator receiving availability pay under § 550.181, overtime work means actual work that is scheduled in advance of the administrative workweek - [ v59 p578 ]
          (i) In excess of 10 hours on a day containing hours that are part of such investigator's basic 40-hour workweek; or
          (ii) On a day not containing hours that are part of such investigator's basic 40-hour workweek.
     (2) Notwithstanding paragraph (f)(1) of this section, all overtime work scheduled in advance of the administrative workweek on a day containing part of a criminal investigator's basic 40-hour workweek must be compensated under this section if both of the following conditions are met:
          (i) The overtime work involves protective duties authorized by section 3056(a) of title 18, United States Code, or section 2709(a)(3) of title 22, United States Code; and
          (ii) The investigator performs on that same day at least 2 consecutive hours of overtime work that are not scheduled in advance of the administrative workweek and are compensated by availability pay.
     (3) Any work that would be overtime work under this section but for paragraphs (f)(1) and (f)(2) of this section will be compensated by availability pay under § 550.181.

5 C.F.R. § 550.112, "Computation of overtime work," provides, in pertinent part:

The computation of the amount of overtime work of an employee is subject to the following conditions:
(a) Time spent in principal activities. . . . Overtime work in principal activities shall be credited as follows:
     . . . .
     (2) A quarter of an hour shall be the largest fraction of an hour used for crediting irregular or occasional overtime work under this subpart. When irregular or occasional overtime work is performed in other than the full fraction, odd minutes shall be rounded up or rounded down to the nearest full fraction of an hour used to credit overtime work.

5 C.F.R. § 550.182, "Unscheduled duty," provides, in pertinent part:

(a) Unscheduled Duty Hours. For the purpose of availability pay, unscheduled duty hours are those hours during which a criminal investigator performs work, or (except for a special agent in the Diplomatic Security Service) is determined by the employing agency to be available for work, that are not--
     (1) Part of the 40-hour basic workweek of the investigator; or
     (2) Regularly scheduled overtime hours compensated under 5 U.S.C. 5542 and § 550.111.
. . . .
(c) Actual work hours. To be considered to be performing work under paragraph (a) of this section, a criminal investigator must be performing work as officially ordered or approved, including work performed without specific supervisory preapproval, if circumstances require the criminal investigator to perform the duty to meet the needs of the employing agency, subject to agency policies and procedures (including any requirements for after- the-fact validation or approval).
(d) Availability Hours. To be considered available for work under paragraph (a) of this section, a criminal investigator must be determined by the employing agency to be generally and reasonably accessible to perform unscheduled duty based on the needs of the agency. Generally, the agency will place the investigator in availability status by directing the investigator to be available during designated periods to meet agency needs, as provided by agency policies and procedures. Placing the investigator in availability status is not considered scheduling the investigator for overtime hours compensated under 5 U.S.C. 5542 and § 550.111. Availability hours may include hours during which an investigator places himself or herself in availability status to meet the needs of the agency, subject to agency policies and procedures (including any requirements for after-the-fact validation or approval). . . .