Federal Aviation Administration (Activity) and Federal Aviation Science and Technological Association (Union)  

 2 FLRA No. 87
 
 FEDERAL AVIATION ADMINISTRATION
 Activity
 
 and
 
 FEDERAL AVIATION SCIENCE AND
 TECHNOLOGICAL ASSOCIATION
 Union
 
                                            FLRC No. 78A-147
 
                 DECISION ON APPEAL FROM ARBITRATION AWARD
 
                            BACKGROUND OF CASE
 
    ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER CONCERNED A
 CLAIM FOR OVERTIME PAY BY TWO GS-12 EMPLOYEES (THE GRIEVANTS) WORKING AT
 THE AGENCY'S FACILITY NEAR ASHTON, IDAHO.  THE DISPUTE AROSE WHEN A
 SNOWSTORM MADE IT IMPOSSIBLE FOR THE NEXT SCHEDULED CREW TO RELIEVE THE
 GRIEVANTS.  CONSEQUENTLY, THE GRIEVANTS WERE DIRECTED TO WORK AN
 ADDITIONAL TOUR OF DUTY WHICH ENCOMPASSED AN 8 HOUR PERIOD OF STANDBY
 TIME.  DURING THE STANDBY PERIOD, THE GRIEVANTS DID NOT PERFORM ANY
 WORK.  FOLLOWING THE STANDBY PERIOD, THE GRIEVANTS RETURNED TO WORK.
 THEREAFTER, THEY CLAIMED AN ENTITLEMENT TO OVERTIME PAY FOR THE TIME
 SPENT ON STANDBY.  THE AGENCY, HOWEVER, REJECTED THE CLAIM FOR
 COMPENSATION RELYING ON THE COMPTROLLER GENERAL'S TWO-THIRDS RULE WHICH
 PERMITS AN AGENCY TO TREAT 8 HOURS OF STANDBY TIME OUT OF A 24 HOUR
 PERIOD OF WORK AS EATING AND SLEEPING TIME AND THUS NOT COMPENSABLE
 TIME.  THE MATTER ULTIMATELY WENT TO ARBITRATION.
 
                            ARBITRATOR'S AWARD
 
    THE ARBITRATOR ISSUED A 2-PART AWARD.  PART 2 OF HIS AWARD, DENYING A
 THIRD GRIEVANT'S CLAIM FOR OVERTIME PAY, IS NOT AT ISSUE IN THIS CASE.
 IN PART 1 OF THE AWARD, THE ARBITRATOR DETERMINED THAT THE AGENCY
 VIOLATED THE PARTIES' NEGOTIATED AGREEMENT /1/ IN APPLYING THE
 COMPTROLLER GENERAL'S TWO-THIRDS RULE.
 
    IN ORDER TO REMEDY THE VIOLATION, THE ARBITRATOR DIRECTED THE AGENCY
 TO PAY THE GRIEVANTS OVERTIME FOR THE 8 HOURS OF STANDBY TIME IN
 DISPUTE.  THE ARBITRATOR REASONED THAT THE STANDBY TIME IN DISPUTE WAS
 "UNSCHEDULED STANDBY TIME" AS OPPOSED TO "SCHEDULED STANDBY TIME," BUT
 THAT THERE WAS "NO REASON TO DISTINGUISH" ONE FROM THE OTHER.  THUS, HE
 FOUND THAT "(S)INCE THE GRIEVANTS DO NOT RECEIVE PREMIUM PAY (UNDER 5
 U.S.C. 5545(C)(1)) IN LIEU OF OVERTIME FOR UNSCHEDULED STANDBY TIME,
 THEY ARE ENTITLED TO RECEIVE ACTUAL OVERTIME PAYMENT (UNDER 5 U.S.C.
 5542) FOR THE STANDBY TIME SPENT ON THE NIGHT OF JANUARY 5-6, 1978."
 
                              AGENCY'S APPEAL
 
    THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD WITH
 THE FEDERAL LABOR RELATIONS COUNCIL.  THIS CASE WAS PENDING BEFORE THE
 COUNCIL ON DECEMBER 31, 1978.  IN ACCORDANCE WITH SECTION 2400.5 OF THE
 TRANSITION RULES OF THE FEDERAL LABOR RELATIONS AUTHORITY (44 FED.REG.
 44741) AND SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (92 STAT. 1215), THE RULES OF PROCEDURE OF THE FEDERAL
 LABOR RELATIONS COUNCIL, 5 C.F.R.PART 2411(1978), REMAIN OPERATIVE WITH
 RESPECT TO THE PRESENT CASE EXCEPT THAT THE WORD "AUTHORITY" IS
 SUBSTITUTED, AS APPROPRIATE, WHEREVER THE WORD "COUNCIL" APPEARS IN SUCH
 RULES.  UNDER SECTION 2411.32 OF THE RULES AS SO AMENDED, THE AUTHORITY
 ACCEPTED THE AGENCY'S PETITION FOR REVIEW WHICH EXCEPTED TO THE AWARD ON
 THE GROUND THAT THE AWARD VIOLATES APPLICABLE LAW.  /2/ THE UNION FILED
 A BRIEF.
 
                                  OPINION
 
    SECTION 2411.37(A) OF THE AMENDED RULES OF PROCEDURE PROVIDES:
 
    (A) AN AWARD OF AN ARBITRATOR SHALL BE MODIFIED, SET ASIDE IN WHOLE
 OR IN PART, OR REMANDED
 
    ONLY ON GROUNDS THAT THE AWARD VIOLATES APPLICABLE LAW, APPROPRIATE
 REGULATION, OR THE ORDER,
 
    OR OTHER GROUNDS SIMILAR TO THOSE APPLIED BY THE COURTS IN PRIVATE
 SECTOR LABOR-MANAGEMENT
 
    RELATIONS.
 
    AS PREVIOUSLY STATED, THE AUTHORITY ACCEPTED THE AGENCY'S PETITION
 FOR REVIEW WHICH EXCEPTED TO THE AWARD ON THE GROUND THAT THE AWARD
 VIOLATES APPLICABLE LAW.  SINCE THE CIVIL SERVICE COMMISSION WAS
 RESPONSIBLE FOR PRESCRIBING REGULATIONS CONCERNING THE MATTERS INVOLVED
 IN THIS CASE, AND SINCE UNDER SECTION 902(B) OF THE CIVIL SERVICE REFORM
 ACT OF 1978 /3/ THIS APPEAL MUST BE RESOLVED AS IF THE CIVIL SERVICE
 REFORM ACT HAD NOT BEEN ENACTED, THE AUTHORITY REQUESTED FROM THE OFFICE
 OF PERSONNEL MANAGEMENT (THE SUCCESSOR AGENCY TO THE CIVIL SERVICE
 COMMISSION WITH RESPECT TO THE MATTERS INVOLVED HEREIN) AN
 INTERPRETATION OF CIVIL SERVICE COMMISSION REGULATIONS AS THEY PERTAIN
 TO PART 1 OF THE ARBITRATOR'S AWARD.  THE OFFICE OF PERSONNEL MANAGEMENT
 REPLIED IN RELEVANT PART AS FOLLOWS:
 
    THE GRIEVANTS IN THIS CASE, JOHN STEVENS AND RUSSELL HUNTER, ARE
 ELECTRONIC TECHNICIANS
 
    ASSIGNED TO AN FAA LONG RANGE RADAR SITE IN IDAHO.  THEIR REGULARLY
 SCHEDULED WEEKLY TOUR OF
 
    DUTY IS PERFORMED IN TWO INTERVALS OF 28 HOURS, EACH CONSISTING OF A
 10-HOUR PERIOD OF ACTUAL
 
    WORK, FOLLOWED BY AN 8-HOUR PERIOD OF STANDBY DUTY (SLEEP PERIOD) AND
 ANOTHER 10-HOUR PERIOD
 
    OF ACTUAL WORK.  FOR THIS REGULARLY SCHEDULED TOUR OF DUTY THE
 GRIEVANTS RECEIVE THEIR BASIC
 
    RATE OF PAY (GS-12) PLUS ANNUAL PREMIUM PAY AT A RATE OF 25 PERCENT
 IN ACCORDANCE WITH 5
 
    U.S.C. 5545(C)(1) AND 5 C.F.R. 550.141-144.  THIS ANNUAL PREMIUM PAY
 IS IN LIEU OF ALL OTHER
 
    PAY UNDER SUBCHAPTER V OF CHAPTER 55 OF TITLE 5, UNITED STATES CODE,
 EXCEPT FOR "IRREGULAR,
 
    UNSCHEDULED OVERTIME DUTY IN EXCESS OF (THEIR) REGULARLY SCHEDULED
 WEEKLY TOUR OF DUTY." IN
 
    THIS CASE, THE ANNUAL PREMIUM PAY UNDER 5 U.S.C. 5545(C)(1) IS IN
 LIEU OF ALL OTHER PREMIUM
 
    PAY FOR THE TWO HOURS OF REGULARLY SCHEDULED OVERTIME WORK PERFORMED
 DURING EACH OF THE FOUR
 
    10-HOUR PERIODS OF ACTUAL WORK;  FOR SUNDAY, HOLIDAY, AND NIGHT WORK;
  AND FOR REMAINING AT
 
    THEIR DUTY STATION FOR LONGER THAN ORDINARY PERIODS OF DUTY INVOLVING
 STANDBY DUTY.
 
    ON JANUARY 5, 1978, THE GRIEVANTS WERE NEARING THE END OF A REGULARLY
 SCHEDULED 28-HOUR
 
    TOUR OF DUTY WHEN, DUE TO A SEVERE STORM WHICH IMPEDED ACCESS BY A
 RELIEF CREW, THE GRIEVANTS
 
    WERE REQUESTED BY THEIR SUPERVISOR TO PERFORM AN ADDITIONAL PERIOD OF
 "IRREGULAR, UNSCHEDULED
 
    OVERTIME DUTY" WHICH INVOLVED BOTH ACTUAL WORK AND STANDBY DUTY.  MR.
 STEVENS' ADDITIONAL TOUR
 
    OF DUTY OF 20 HOURS CONSISTED OF 6 HOURS OF ACTUAL WORK, 8 HOURS OF
 STANDBY DUTY, AND 6 HOURS
 
    OF ACTUAL WORK.  HE THEN RESUMED HIS NEXT REGULARLY SCHEDULED 28-HOUR
 TOUR OF
 
    DUTY.  MR. HUNTER'S ADDITIONAL TOUR OF DUTY OF 24 1/2 HOURS CONSISTED
 OF 6 HOURS OF ACTUAL
 
    WORK, 8 HOURS OF STANDBY DUTY AND 10 1/2 HOURS OF ACTUAL WORK.  IT IS
 UNDISPUTED THAT THE
 
    GRIEVANTS PERFORMED NO ACTUAL WORK DURING THE STANDBY PERIOD OF THEIR
 ADDITIONAL TOUR OF DUTY.
 
    THE AGENCY PAID THE GRIEVANTS OVERTIME PAY FOR THE ADDITIONAL PERIOD
 OF "IRREGULAR,
 
    UNSCHEDULED OVERTIME DUTY" AS PROVIDED IN 5 U.S.C. 5542.  IN
 COMPUTING THE "HOURS OF WORK" FOR
 
    PURPOSES OF THIS SECTION, THE AGENCY APPLIED THE TWO-THIRDS RULE IN
 ACCORDANCE WITH PARAGRAPH
 
    S1-3D OF BOOK 610 OF FPM SUPPLEMENT 990-2.  THUS, MR. STEVENS WAS
 PAID OVERTIME UNDER 5
 
    U.S.C. 5542 FOR 12 HOURS OF HIS 20-HOUR TOUR OF DUTY AND MR.  HUNTER
 WAS PAID FOR 16 1/2 HOURS
 
    OF HIS 24 1/2-HOUR TOUR OF DUTY.
 
    THE GRIEVANTS ALLEGED THAT THEY WERE ENTITLED TO OVERTIME PAY FOR THE
 8 HOURS OF
 
    UNSCHEDULED STANDBY DUTY IN ADDITION TO THE OVERTIME PAY THEY
 RECEIVED FOR THE REMAINING HOURS
 
    OF THE ADDITIONAL TOUR OF DUTY WHICH THEY PERFORMED ON JANUARY 5-6,
 1978.  THE ARBITRATOR
 
    FOUND NO REASON TO DISTINGUISH UNSCHEDULED STANDBY TIME FROM
 SCHEDULED STANDBY TIME IN THE
 
    CIRCUMSTANCES OF THIS CASE.  ACCORDINGLY, THE ARBITRATOR AWARDED THE
 GRIEVANTS ACTUAL OVERTIME
 
    PAYMENT UNDER 5 U.S.C. 5542 FOR THE 8 HOURS OF STANDBY TIME THEY
 SPENT ON THE NIGHT OF JANUARY
 
    5-6, 1978.
 
    IT IS A WELL ESTABLISHED PRINCIPLE THAT FEDERAL EMPLOYEES WHO PERFORM
 LONGER THAN ORDINARY
 
    TOURS OF DUTY INVOLVING STANDBY STATUS ARE ENTITLED TO COMPENSATION
 FOR SUCH TIME UNDER THE
 
    PROVISIONS OF EITHER 5 U.S.C. 5545 OR 5 U.S.C. 5542.  SECTION
 5545(C)(1) PROVIDES THAT AN
 
    EMPLOYEE WHO SPENDS TIME IN A "STANDBY STATUS RATHER THAN PERFORMING
 WORK" MAY BE COMPENSATED
 
    ON AN ANNUAL BASIS INSTEAD OF RECEIVING PREMIUM PAY PROVIDED BY OTHER
 PROVISIONS OF THIS
 
    SUBCHAPTER.  THOSE "OTHER PROVISIONS" OF THE SUBCHAPTER HAVE BEEN
 INTERPRETED TO MEAN THE
 
    REGULAR OVERTIME PROVISION CONTAINED IN 5 U.S.C. 5542.  SEE COMP.
 GEN. UNPUB. DEC. B-170264,
 
    DECEMBER 21, 1973.  SEE ALSO FARLEY V. U.S., 131 CT.CL.  776(1955).
 
    FURTHERMORE, THE COURTS HAVE RULED THAT AN EMPLOYEE WHO IS REQUIRED
 TO REMAIN FOR A 24-HOUR
 
    PERIOD AT HIS DUTY STATION IN A STANDBY STATUS IS ENTITLED ON THE
 BASIS OF THE TWO-THIRDS RULE
 
    TO COMPENSATION FOR 16 OF THOSE HOURS.  ENGLAND ET. AL. V. U.S., 133
 CT.CL. 768(1956) AND
 
    DETLING V. U.S., 193 CT.CL. 125(1970).  UNDER THE TWO-THIRDS RULE,
 TIME SPENT SLEEPING OR
 
    EATING, DURING WHICH NO SUBSTANTIAL LABOR IS PERFORMED, IS NOT
 COMPENSABLE.  GAEKE V. U.S.,
 
    136 CT.CL. 756(1956).  ARMSTRONG V. U.S., 144 CT.CL. 659(1959);  AND
 COLLINS V. U.S., 141
 
    CT.CL. 573 (1958).  IN COLLINS, THE PLAINTIFFS WERE PAID UNDER THE
 PROVISIONS OF THE
 
    TWO-THIRDS RULE WHICH HAS BEEN ADOPTED BY THE CIVIL SERVICE
 COMMISSION (NOW THE OFFICE OF
 
    PERSONNEL MANAGEMENT) AS "A CONVENIENT METHOD OF DETERMINING THE
 COMPENSATION OF MEN ENGAGED
 
    IN DUTIES REQUIRING ROUND-THE-CLOCK PRESENCE." SUPRA, AT 575.
 
    IN THE INSTANT CASE, THE GRIEVANTS ARE IN RECEIPT OF ANNUAL PREMIUM
 PAY FOR THEIR REGULARLY
 
    SCHEDULED TOUR OF DUTY UNDER 5 U.S.C. 5545(C)(1).  THE ADDITIONAL
 PERIOD OF "IRREGULAR,
 
    UNSCHEDULED OVERTIME DUTY" MEETS THE EXCEPTION TO SECTION 5545 AND
 THEREFORE MUST BE PAID
 
    PURSUANT TO 5 U.S.C. 5542.  IN SECTION 5542, "HOURS OF WORK" IN
 EXCESS OF 40 HOURS IN AN
 
    ADMINISTRATIVE WORKWEEK, OR IN EXCESS OF 8 HOURS IN A DAY ARE
 OVERTIME WORK.  FOR DETERMINING
 
    THE "HOURS OF WORK" FOR OVERTIME PAY UNDER THAT SECTION, THE AGENCY
 MAY PROPERLY APPLY THE
 
    TWO-THIRDS RULE TO A TOUR OF DUTY OF 24 HOURS (OR MULTIPLES THEREOF).
  THE INSTRUCTIONS FOR
 
    USE OF THE TWO-THIRDS RULE ARE CONTAINED IN PARAGRAPH S1-3D BOOK 610
 OF FPM SUPPLEMENT 990-2.
 
    THE ARBITRATOR FOUND THAT THE COMPTROLLER GENERAL DECISIONS THAT
 ESTABLISH THE PRINCIPLE OF
 
    THE TWO-THIRDS RULE, AND PARAGRAPH S1-3D OF BOOK 610 OF FPM
 SUPPLEMENT 990-2 ADDRESS ONLY
 
    REGULARLY SCHEDULED STANDBY DUTY, AND THEREFORE ARE NOT DIRECTLY
 APPLICABLE TO PERIODS OF
 
    UNSCHEDULED STANDBY DUTY.  WE DO NOT AGREE.  AS PREVIOUSLY ARGUED,
 EMPLOYEES WHO PERFORM
 
    STANDBY DUTY ARE ENTITLED TO OVERTIME PAY UNDER EITHER 5 U.S.C.  5542
 OR 5545(C)(1), AND A
 
    PERIOD OF "IRREGULAR, UNSCHEDULED OVERTIME DUTY" WHICH MEETS THE
 EXCEPTION TO SECTION 5545
 
    MUST BE PAID UNDER SECTION 5542.  MOREOVER, THE TWO-THIRDS RULE IS
 PROPER FOR DETERMINING THE
 
    "HOURS OF WORK" FOR REGULARLY SCHEDULED TOURS OF DUTY OF 24 HOURS
 (ROUND-THE-CLOCK PRESENCE)
 
    COMPENSABLE UNDER SECTION 5542. IT THEREFORE FOLLOWS THAT THE
 TWO-THIRDS RULE WOULD BE PROPER
 
    FOR DETERMINING "HOURS OF WORK" FOR AN ADDITIONAL PERIOD OF
 "IRREGULAR, UNSCHEDULED OVERTIME
 
    DUTY" UNDER SECTION 5542 AS WELL.  THIS PRINCIPLE HAS BEEN EXPRESSED
 IN OPM INSTRUCTIONS FOR
 
    COMPARING THE OVERTIME PAY ENTITLEMENTS UNDER TITLE 5 AND THE FAIR
 LABOR STANDARDS ACT (FLSA)
 
    FOR EMPLOYEES ENGAGED IN FIRE PROTECTION ACTIVITIES OR LAW
 ENFORCEMENT ACTIVITIES IN FPM
 
    LETTER 551-5, DATED JANUARY 15, 1975 (SEE SECTION B OF ATTACHMENT 3,
 AND EXAMPLE 1, SITUATIONS
 
    B AND D, AND EXAMPLE 2, SITUATIONS B AND D, IN ATTACHMENT 4 OF FPM
 LETTER 551-5).
 
    IN HIS AWARD, THE ARBITRATOR FOCUSED ON THE NARROW ISSUE OF THE
 PERIOD OF UNSCHEDULED
 
    STANDBY DUTY, RATHER THAN ON THE ENTIRE ADDITIONAL TOUR OF DUTY
 PERFORMED BY THE GRIEVANTS IN
 
    THIS CASE.  IT IS CLEAR FROM THE FACTS OUTLINED ABOVE THAT THE
 GRIEVANTS PERFORMED ACTUAL WORK
 
    AND STANDBY DUTY DURING THIS ADDITIONAL PERIOD OF "IRREGULAR,
 UNSCHEDULED OVERTIME DUTY", AND
 
    THAT THEY PERFORMED NO SUBSTANTIAL LABOR DURING THE PERIOD OF
 UNSCHEDULED STANDBY DUTY.  THE
 
    FACT THAT THE GRIEVANTS RECEIVED ANNUAL PREMIUM PAY UNDER 5 U.S.C.
 5545(C)(1) FOR THEIR
 
    REGULARLY SCHEDULED TOUR OF DUTY DOES NOT CREATE, BY ANALOGY OR
 OTHERWISE, AN OBLIGATION FOR
 
    THE AGENCY TO PAY OVERTIME UNDER 5 U.S.C. 5542 FOR THE PERIOD OF
 UNSCHEDULED STANDBY DUTY WHEN
 
    NO WORK IS PERFORMED.  THE ANNUAL PREMIUM PAY WHICH THE GRIEVANTS
 RECEIVE FOR REGULARLY
 
    SCHEDULED TOURS OF DUTY, INCLUDING REGULARLY SCHEDULED STANDBY
 PERIODS, IS NOT OVERTIME
 
    PAYMENT FOR THE HOURS SPENT IN STANDBY DUTY PER SE.  RATHER, THIS
 ANNUAL PREMIUM PAY UNDER 5
 
    U.S.C. 5545 IS PAYMENT IN LIEU OF ALL OTHER PREMIUM PAY THAT THEY
 WOULD OTHERWISE RECEIVE
 
    DURING THEIR REGULARLY SCHEDULED TOURS OF DUTY, INCLUDING STANDBY
 DUTY.
 
    THUS, THE AGENCY PROPERLY DEDUCTED 8 HOURS FROM THE ADDITIONAL
 UNSCHEDULED TOUR OF DUTY FOR
 
    WHICH THE GRIEVANTS RECEIVED OVERTIME PAY UNDER 5 U.S.C. 5542.  MR.
 HUNTER PERFORMED
 
    ADDITIONAL DUTY OF 24 1/2 HOURS, AND THE APPLICATION OF THE
 TWO-THIRDS RULE IN HIS CASE
 
    ENTITLED HIM TO 16 1/2 HOURS OF OVERTIME PAY.  WHILE THE ADDITIONAL
 TOUR OF DUTY OF
 
    MR. STEVENS WAS ONLY 20 HOURS, HE IMMEDIATELY COMMENCED ANOTHER
 REGULARLY SCHEDULED 28-HOUR
 
    TOUR OF DUTY AT "STRAIGHT TIME PAY" (BASIC RATE OF PAY).  THUS, THE
 20 HOURS OF "IRREGULAR,
 
    UNSCHEDULED OVERTIME DUTY," WHEN COMBINED WITH THE FIRST 4 HOURS OF
 REGULAR DUTY WHICH IS
 
    COMPENSABLE AT THE EMPLOYEE'S BASIC RATE OF PAY, RESULTS IN A
 CONTINUOUS PERIOD OF DUTY OF 24
 
    HOURS WHICH IS NOT COMPENSABLE UNDER 5 U.S.C. 5545(C)(1).  THEREFORE,
 THE APPLICATION OF THE
 
    TWO-THIRDS RULE ENTITLED HIM TO 12 HOURS OVERTIME PAY PURSUANT TO 5
 U.S.C. 5542 IN ADDITION TO
 
    HIS BASIC RATE OF PAY FOR 4 HOURS OF REGULARLY SCHEDULED WORK DURING
 THIS 24-HOUR PERIOD.
 
    FOR THE REASONS STATED ABOVE, THE ARBITRATOR'S AWARD OF "ACTUAL
 OVERTIME" PURSUANT TO 5
 
    U.S.C. 5542 FOR THE 8 HOURS DURING WHICH THE GRIEVANTS PERFORMED NO
 LABOR VIOLATES 5
 
    U.S.C. 5542, AS INTERPRETED IN COURT DECISIONS AND DECISIONS OF THE
 COMPTROLLER GENERAL, AS
 
    WELL AS IN SUPPLEMENTAL GUIDANCE ISSUED BY THE COMMISSION (OPM).
 
    BASED ON THE FOREGOING INTERPRETATION OF THE OFFICE OF PERSONNEL
 MANAGEMENT, WE CONCLUDE THAT PART 1 OF THE ARBITRATOR'S AWARD VIOLATES
 APPLICABLE LAW AND, THEREFORE, MUST BE SET ASIDE.
 
                                CONCLUSION
 
    FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2411.37(B) OF THE
 AMENDED RULES OF PROCEDURE, WE HEREBY SET ASIDE PART 1 OF THE
 ARBITRATOR'S AWARD.  /4/
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 21, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ THE PROVISION OF THE PARTIES' AGREEMENT FOUND TO HAVE BEEN
 VIOLATED WAS ARTICLE 33, SECTIONS 1 AND 9.  SECTION 1 PROVIDES:
 
    EMPLOYEES SHALL BE COMPENSATED FOR OVERTIME WORK PERFORMED IN
 ACCORDANCE WITH APPLICABLE
 
    LAW AND REGULATIONS, AND IN ACCORDANCE WITH THE APPLICABLE LAW AND
 REGULATIONS WHICH PRODUCE
 
    THE MAXIMUM COMPENSATION.
 
    SECTION 9 PROVIDES:
 
    WHENEVER AN EMPLOYEE IS HELD ON DUTY BEYOND HIS/HER REGULAR SHIFT,
 THE EMPLOYEE WILL BE
 
    COMPENSATED FOR THIS WORK IN SIX (6) MINUTE INCREMENTS.  ANY
 IRREGULAR OVERTIME OF LESS THAN
 
    THE SIX (6) MINUTE INCREMENT SHALL BE DROPPED ON A WEEKLY BASIS.
 
    /2/ THE AGENCY REQUESTED AND THE AUTHORITY GRANTED, PURSUANT TO
 SECTION 2411.47(F) OF THE AMENDED RULES OF PROCEDURE, A STAY OF THE
 AWARD PENDING DETERMINATION OF THE APPEAL.
 
    /3/ THE CIVIL SERVICE REFORM ACT OF 1978, PUB. L. NO. 95-454, SEC.
 902(B), 92 STAT. 1224, PROVIDES:
 
    (B) NO PROVISION OF THIS ACT SHALL AFFECT ANY ADMINISTRATIVE
 PROCEEDINGS PENDING AT THE
 
    TIME SUCH PROVISION TAKES EFFECT.  ORDERS SHALL BE ISSUED IN SUCH
 PROCEEDINGS AND APPEALS
 
    SHALL BE TAKEN THEREFROM AS IF THIS ACT HAD NOT BEEN ENACTED.
 
    /4/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
 BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
 APPLICATION OF RELATED PROVISIONS OF THE NEW STATUTE OR THE RESULT WHICH
 WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
 STATUTE RATHER THAN THE ORDER.