United States, Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia (Agency) and American Federation of Government Employees, Local 987 (Union)

[ v60 p115 ]

60 FLRA No. 26

UNITED STATES
DEPARTMENT OF THE AIR FORCE
WARNER ROBINS AIR LOGISTICS CENTER
ROBINS AIR FORCE BASE, GEORGIA
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 987
(Union)

0-AR-3799

_____

DECISION

July 30, 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 Nicholas Duda, Jr. filed by the Agency under § 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' memorandum of agreement (MOA) by not permitting employees to earn compensatory time for certain overtime hours. To remedy the violation, the Arbitrator ordered the Agency to rescind two memoranda concerning overtime and compensatory time and to issue a new memorandum superceding them. For the following reasons, we find that the award is deficient and we modify the award accordingly.

II.      Background and Arbitrator's Award

      The grievance alleged that the Agency violated the parties' MOA and 5 U.S.C. § 5543 by denying employees' requests for compensatory time for certain overtime performed on Sunday. [n1]  When the grievance was not resolved, the matter was submitted to arbitration on this stipulated issue: "Are employees who are covered by the Fair Labor Standards Act [(FLSA)] who work overtime on Sunday entitled to [c]ompensatory [t]ime instead of overtime [p]ayment for such work?" Award at 2.

      Initially, the Arbitrator acknowledged that under 5 U.S.C. § 5543, employees may elect to either earn compensatory time or be paid at the overtime rate for "irregular or occasional overtime work." Id. at 10. The Arbitrator also acknowledged that applicable regulations define "irregular or occasional overtime work" as overtime work that is "not scheduled in advance of the employee's workweek." Id. The Arbitrator found that the Agency was not prohibited from granting compensatory time for regularly scheduled overtime and stated that "the Union had made clear it wanted the option for scheduled and planned [overtime] just as it had been receiving for irregular and occasional [overtime] and wanted no distinction between the two types." Id. at 11. Accordingly, the Arbitrator found that the MOA permits employees to elect to receive compensatory time for overtime whether or not the overtime is irregular or occasional. Id.

      Based on the foregoing, the Arbitrator sustained the grievance and ordered the Agency to rescind two memoranda concerning overtime and compensatory time and to issue a new memorandum superseding them, consistent with his findings, decision, and award.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency claims that the Arbitrator misstated the parties' stipulated issue, which the Agency claims was "[a]re employees who are covered by the [FLSA] and who work overtime on Sunday which is scheduled before Sunday, entitled to compensatory time instead of overtime payment for such work?" Exceptions at 2 (emphasis added). According to the Agency, the Arbitrator omitted the italicized words. Nevertheless, the [ v60 p116 ] Agency asserts that the Arbitrator "analyzed the correct issue." Id.

      The Agency also claims that the award is contrary to law. Specifically, the Agency asserts that 5 U.S.C. § 5543 authorizes employees to elect to receive compensatory time "only for `time spent in irregular or occasional overtime work[,]'" which the Agency claims is defined in 5 C.F.R. § 551.501(c) as "work that is not scheduled in advance of the employee's workweek." Exceptions at 4, 6. According to the Agency, its administrative workweek "begins at one minute past midnight on Sunday and continues until midnight on the following Saturday." Id. at 4. Therefore, the Agency asserts that "overtime worked on Sunday that was scheduled prior to that Sunday is not `irregular or occasional' . . . [and] an employee subject to the FLSA cannot chose to take compensatory time off in lieu of overtime payment for such work." Id. The Agency argues that the award is deficient because it permits employees to choose compensatory time for overtime work that is not irregular or occasional, as defined in 5 C.F.R. § 551.501(c).

B.     Union's Opposition

      The Union argues that the Agency's interpretation of the compensatory time statute is "at odds" with 5 U.S.C. § 6123, which provides that employees who work flexible tours of duty "may receive compensatory time in lieu of overtime pay `whether or not irregular or occasional in nature.'" Opposition at 2. The Union also disputes the Agency's interpretation by noting that 5 C.F.R. § 551.531(a) uses the qualifying words "irregular or occasional overtime work," while subsection (c) of that same provision, which provides that "an agency may not require that an employee be compensated for overtime work . . . with . . . compensatory time[,]" does not. Id. Therefore, the Union argues that the law permits employees to choose compensatory time "whether or not the overtime is irregular and occasional." Id.

IV.     Analysis and Conclusions

A.     The Arbitrator did not exceed his authority.

      We construe the Agency's claim that the Arbitrator misstated the parties' stipulated issue as a claim that the Arbitrator exceeded his authority. Under Authority precedent, arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority, or award relief to those not encompassed within the grievance. See AFGE, Local 1617, 51 FLRA 1645, 1647 (1996). Although the Agency claims that the Arbitrator omitted certain words from the parties' stipulated issue, the Agency also asserts that the Arbitrator "analyzed the correct issue." Exceptions at 2. Consequently, the Agency has not demonstrated that the Arbitrator exceeded his authority by failing to resolve an issue submitted to him in arbitration, and we deny the Agency's exception.

B.     The award is contrary to law.

      When an exception involves an award's consistency with law, the Authority reviews any question of law raised by the exception and the award 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 the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See United States Dep't of Def., Dep'ts of the Army and the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      5 U.S.C. § 5542(a) provides that overtime work "shall be paid for, except as otherwise provided by this subchapter[,]" at overtime pay rates. Section 5543(a)(1) provides that an agency head "may . . . on request of an employee, grant the employee compensatory time off from his scheduled tour of duty instead of payment under section 5542 . . . for an equal amount of time spent in irregular or occasional overtime work . . . ." "Irregular or occasional" overtime work is defined as "overtime work that is not scheduled in advance of the employee's workweek." 5 C.F.R. § 551.501(c). The Agency claims that the award is contrary to these statutory and regulatory provisions because it permits employees to receive compensatory time for overtime work that is not irregular or occasional. [n2] 

      With one exception, the applicable statutes and regulations permit compensatory time only for overtime work that is irregular or occasional, as defined in the implementing regulations. In this regard, § 5542(a) requires payment of overtime and § 5543 is an exception to the requirement to pay overtime, which exception applies only to irregular and occasional overtime work. This construction is consistent with the Comptroller General's interpretation of § 5543(a)(1) as permitting compensatory time only for overtime work that is irregular or occasional. See Matter of: Compensatory [ v60 p117 ] Time Off for Regularly Scheduled Overtime, 1983 WL 27561 at *2 (1983), citing 53 Comp. Gen. 264, 268 (1973).

      The one exception is that, as the Union notes, 5 U.S.C. § 6123 allows agencies to grant compensatory time to employees on flexible work schedules regardless of whether the overtime is irregular or occasional. [n3]  However, § 6123 applies only to employees working flexible work schedules. As such, the Union is incorrect in asserting that § 6123 means that § 5543(a)(1) does not limit the availability of compensatory time -- for employees not on flexible schedules -- to irregular or occasional overtime work.

      The Union is also incorrect in relying on 5 C.F.R. § 551.531(c), which provides that "[a]n agency may not require that an employee be compensated for overtime work . . . with an equivalent amount of compensatory time . . . ." This is because there is no claim here that the Agency is requiring compensatory time; the dispute involves the Agency's refusal to grant compensatory time. Therefore, this regulation is inapplicable. Further, although 5 C.F.R. § 551.531(c) does not contain the words "irregular or occasional," 5 C.F.R. § 551.531(a) expressly uses them. When constructing statutes and regulations, the Authority is required to give meaning to every word in the provision it is constructing. See, e.g., United States Gov't Printing Office, Wash., D.C., 57 FLRA 299, 302 (2001). By its terms, 5 C.F.R. § 551.531(a) gives agencies discretion to grant requests for compensatory time only for overtime work that is irregular or occasional.

      In sum, with the exception of employees on a flexible work schedule subject to § 6123, agencies are permitted under § 5543(a)(1) to grant compensatory time only for irregular and occasional overtime work. There is no assertion or evidence that the employees at issue here work flexible work schedules and in interpreting the MOA, the Arbitrator did not specify that the disputed provision applies only to employees that work under flexible work schedules. Consequently, the Arbitrator's award conflicts with § 5543 to the extent it requires the Agency to grant employees not on a flexible schedule compensatory time for overtime work that is not irregular and occasional.

      Based on the foregoing, we conclude that the award is deficient to the extent that it requires the Agency to grant compensatory time to employees who work regular -- not flexible -- work schedules, for regularly scheduled overtime work.

V.      Decision

      The award is modified to apply only to employees who work flexible work schedules.



Footnote # 1 for 60 FLRA No. 26 - Authority's Decision

   5 U.S.C. § 5543(a)(1) states that:

The head of an agency may . . . on request of an employee, grant the employee compensatory time off from his scheduled tour of duty instead of payment under section 5542 or section 7 of the Fair Labor Standards Act of 1938 for an equal amount of time spent in irregular or occasional overtime work[.]
5 U.S.C. § 5543(b) states that:
The head of an agency may, on request of an employee, grant the employee compensatory time off from the employee's scheduled tour of duty instead of payment under section 5544 or section 7 of the Fair Labor Standards Act of 1938 for an equal amount of time spent in irregular or occasional overtime work. An agency head may not require an employee to be compensated for overtime work with an equivalent amount of compensatory time-off from the employee's tour of duty.

Footnote # 2 for 60 FLRA No. 26 - Authority's Decision

   The Union does not dispute the Agency's claim that Sunday overtime