18:0033(4)AR - AFGE Local 1917 and INS, Justice -- 1985 FLRAdec AR
[ v18 p33 ]
The decision of the Authority follows:
18 FLRA No. 4 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1917 Union and UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, U.S. DEPARTMENT OF JUSTICE Agency Case No. 0-AR-478 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Thomas G. S. Christensen filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. /1/ The dispute in this matter concerns the grievants' entitlement under 8 U.S.C. 1353(a) /2/ to extra compensation for night (5 p.m. to 8 a.m.) overtime work. /3/ The grievants were hired as intermittent, WAE (When Actually Employed) Immigration Inspectors depending upon the needs of the Agency. The dispute arose when the grievants were notified that they were being rescheduled from full-time, 40-hour a week shifts to part-time, 18-hour a week shifts, and that as a result, they would no longer receive extra compensation under 5 U.S.C. 1353(a) for night overtime but, rather, would receive regular overtime pay under 5 U.S.C. 5542 /4/ for such work. The Arbitrator first rejected the Agency's argument that the dispute was not arbitrable under the parties' agreement and that the Arbitrator was without authority to resolve the dispute, assertedly because the negotiated grievance procedure excluded from coverage any matter nor subject to management's control and that this matter was controlled by law. The Arbitrator found that the Agency's argument was untimely raised under the agreement and, furthermore, that included within the definition of grievance in the agreement was any claimed violation, misinterpretation or misapplication of any law, rule or regulation affecting conditions of employment. On the merits, the Arbitrator determined that the payment of extra overtime compensation under 8 U.S.C. 1353(a) is not conditioned on whether the employee works full-time or part-time, but, rather whether the employee is assigned to a regularly scheduled shift. As his award, the Arbitrator in effect directed the Agency to pay part-time inspectors on regularly scheduled shifts extra compensation under 8 U.S.C. 1353(a) for night overtime and to make whole any part-time inspector who had been denied such compensation. In its exceptions, the Agency first contends that the Arbitrator erred and exceeded his authority by finding that the instant dispute was arbitrable since it is specifically controlled by law. However, the Agency has failed to establish that the award is deficient. Thus, the grievance is clearly within the coverage of the grievance procedure prescribed by the Statute. See, e.g., American Federation of Government Employees, AFL-CIO, National Council of EEOC Locals and Equal Employment Opportunity Commission, 10 FLRA 3 (1982) (proposal 1), enforced sub nom. EEOC v. FLRA, No. 82-2310 (D.C. Cir. Sept. 21, 1984). The Authority concludes that this exception constitutes nothing more than disagreement with the Arbitrator's interpretation and application of the parties' collective bargaining agreement and consequently provides no basis for finding the award deficient. E.g., Veterans Administration Hines Hospital and Illinois Nurses Association, Hines Unit, 13 FLRA 131 (1983); San Antonio Air Logistics Center, Kelly Air Force Base, San Antonio, Texas and American Federation of Government Employees, AFL-CIO, Local 1617, 9 FLRA 378 (1982). In another exception, the Agency contends that the award is contrary to 8 U.S.C. 1353(a). The Authority agrees. It has been expressly decided that intermittent, part-time Immigration Inspectors are not entitled to additional compensation for night overtime under 8 U.S.C. 1353(a), since that provision applies only to night overtime performed by full-time employees working regular tours of duty. 49 Comp. Gen. 577 (1977). Additionally, the Comptroller General has ruled that part-time employees are not entitled to the extra compensation even if they are working regularly scheduled shifts, B-197533 (July 1, 1980). Thus, in terms of this case, the Arbitrator's award directing that the intermittent, part-time Immigration Inspector grievants be paid the extra compensation for night overtime is clearly contrary to 8 U.S.C. 1353(a). Accordingly, the Arbitrator's award is set aside. /5/ Issued, Washington, D.C., May 14, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member --------------- FOOTNOTES$ --------------- /1/ The Office of Personnel Management (OPM) filed a brief as an amicus curiae in this case and the Union filed an opposition to the Agency's exceptions and a response to OPM's brief. /2/ 8 U.S.C. 1353(a) provides, in pertinent part: The Attorney General shall fix a reasonable rate of extra compensation for overtime services of immigration officers and employees of the Immigration and Naturalization Service who may be required to remain on duty between the hours of five o'clock postmeridian and eight o'clock antemeridian . . . such rates to be fixed on a basis of one-half day's additional pay for each two hours or fraction thereof of at least one hour that the overtime extends beyond five o'clock postmeridian (but not to exceed two and one-half days' pay for the full period from five o'clock postmeridian to eight o'clock antemeridian) . . . . /3/ The grievants' entitlement to extra compensation under 8 U.S.C. 1353(a) for work on Sundays and holidays is not an issue in this matter. /4/ 5 U.S.C. 5542 provides, in pertinent part: (a) For full-time, part-time and intermittent tours of duty, hours of work officially ordered or approved in excess of 40 hours in an administrative workweek, or . . . in excess of 8 hours in a day, performed by an employee are overtime work and shall be paid for . . . at the following rates: (1) For an employee whose basic pay is at a rate which does not exceed the minimum rate of basic pay for GS-10, the overtime hourly rate of pay is an amount equal to one and one-half times the hourly rate of basic pay of the employee, and all that amount is premium pay. (2) For an employee whose basic pay is at a rate which exceeds the minimum rate of basic pay for GS-10, the overtime hourly rate of pay is an amount equal to one and one-half times the hourly rate of the minimum rate of basic pay for GS-10, and all that amount is premium pay. /5/ In view of this decision, it is not necessary to address the Agency's other exceptions to the award.