15:0586(127)AR - INS, Justice and AFGE Local 1917 -- 1984 FLRAdec AR

 15 FLRA No. 127
 
 IMMIGRATION AND NATURALIZATION
 SERVICE, U.S. DEPARTMENT OF JUSTICE
 Agency
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1917, AFL-CIO
 Union
 
                                            Case No. O-AR-430
 
                                 DECISION
 
    This matter is before the Authority on an exception to the award of
 Arbitrator Susan T. Mackenzie filed by the Agency under section 7122(a)
 of the Federal Service Labor-Management Relations Statute (the Statute)
 and part 2425 of the Authority's Rules and Regulations.  The Union filed
 an opposition.  /1/
 
    The dispute in this matter concerns the Union's allegation that the
 grievant, a GS-12 Criminal Investigator, and other employees similarly
 situated, were improperly denied full compensation for all of the
 overtime hours they had worked during a number of pay periods.  /2/ The
 Agency essentially contended that the alleged loss of overtime
 compensation resulted from the fact that 5 U.S.C. 5547 /3/ and 5 CFR
 550.105 /4/ imposed a pay cap or ceiling on the maximum rate of pay that
 could be paid in the pay periods involved.  The Agency further contended
 that it was also prohibited from granting compensatory time off in lieu
 of pay for the alleged unpaid overtime.
 
    The Arbitrator determined that while the limitation imposed by 5
 U.S.C. 5547 and 5 CFR 550.105 was applicable in the particular pay
 periods where the pay cap was reached, there was no restriction on
 deferred payment for overtime earned but not paid because of the
 limitation and, therefore, that compensation could be made in either pay
 or compensatory time off in any subsequent period where the pay cap
 would not be exceeded.  As her award, the Arbitrator ruled that the
 grievant had not been fully compensated for overtime hours worked and
 directed the Agency to compensate the grievant and other similarly
 situated employees for such uncompensated time in either pay or
 compensatory time off.
 
    As its exception the Agency alleges that the award is contrary to 5
 U.S.C. 5547 and 5 CFR 550.105.  The Authority agrees.
 
    In Sullivan v. The United States, 665 F.2d 1012 (Ct.Cl. 1981), one of
 the claims denied by the Court of Claims was that of an employee who
 contended that although he had worked 88 hours of overtime in a
 particular pay period he had been paid as if he had worked only 45
 overtime hours and, therefore, that he had been wrongfully denied
 compensation for the remaining 43 hours because of the limitation
 imposed by 5 U.S.C. 5547.  In denying the claim, the court held:
 
          The flaw in (the employee's) argument is that he is not paid
       pursuant to a single statute which provides an hourly rate for
       specific services performed;  his entitlement to pay is derived
       from numerous statutes and regulations which must be read
       together.  These statutes and regulations, including section 5547,
       provide a maximum compensation for the position held by (the
       employee), which compensation he has received in full.  Section
       5547 does not deprive (the employee) of any vested rights or
       otherwise take anything away from him.  (Footnote omitted.) Id. at
       1015, 1016.
 
    Further, the Comptroller General has held that compensatory time off
 which may be granted to an employee in lieu of monetary compensation for
 overtime work is subject to the same aggregate salary limitation imposed
 on employees by 5 U.S.C. 5547.  See 37 Comp.Gen. 362 (1957).  See also
 60 Comp.Gen. 198 (1981).
 
    Thus, in terms of this case, under the decision of the Court of
 Claims in the Sullivan case and the decisions of the Comptroller
 General, the grievant was fully compensated for all hours worked in the
 pay periods involved when he received the maximum compensation provided
 under 5 U.S.C. 5547 for such periods and any further pay or compensatory
 time off was barred not only in that period but in any subsequent pay
 period as well.
 
    Consequently, the Arbitrator's award finding that the grievant had
 not been fully compensated for overtime hours worked in the pay periods
 where the pay cap was imposed and directing that the grievant and other
 similarly situated employees be compensated for such time in a
 subsequent pay period is contrary to 5 U.S.C. 5547, as interpreted and
 applied by the Court of Claims and the Comptroller General, and is
 likewise contrary to the implementing regulatory provision, 5 CFR
 550.105.
 
    Accordingly, the award is set aside.
 
    Issued, Washington, D.C., August 28, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ In its opposition the Union asserts, among other things, that the
 Agency's exception, which was filed by the Department of Justice, should
 be dismissed because the Department of Justice was not a "party" to the
 arbitration proceeding and therefore lacked standing to file the
 exception.  However, the Authority finds that the exception was properly
 filed by the Agency on behalf of one of its organizational elements.
 See U.S. Department of Justice, Immigration and Naturalization Service
 and American Federation of Government Employees, Local 1917, 14 FLRA No.
 86, n.1, (1984).
 
 
    /2/ As determined by the Arbitrator, the grievant and the other
 similarly situated employees were exempt from coverage under the Fair
 Labor Standards Act.
 
 
    /3/ 5 U.S.C. 5547 provides:
 
          An employee may be paid premium pay under sections 5542,
       5545(a)-(c), and 5546(a), (b) of this title only to the extent
       that the payment does not cause his aggregate rate of pay for any
       pay period to exceed the maximum rate for GS-15. . . .
 
 
    /4/ 5 CFR 550.105, which implements 5 U.S.C. 5547, essentially tracks
 the language of the statutory provision.