[ v15 p586 ]
The decision of the Authority follows:
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.