[ v19 p823 ]
The decision of the Authority follows:
19 FLRA No. 100 UNITED STATES DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE Agency and IMMIGRATION AND NATURALIZATION SERVICE COUNCIL, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2805 Union Case No. O-AR-807 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Rosalyn M. Chapman 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 parties stipulated and submitted to arbitration the issue of whether the Activity had violated the parties' collective bargaining agreement by failing to pay the grievants a night pay differential. According to the Arbitrator, the grievants are immigration detention officers with a regularly scheduled tour of duty of 8 a.m. to 4:30 p.m. The grievance in this case was filed as a result of the refusal of the Activity to pay night differential pay for hours worked by the grievants between 6 p.m. and 6 a.m. although the Activity paid the grievants overtime compensation for all hours worked beyond 4:30 p.m. The Arbitrator acknowledged that the resolution of the grievance was governed by 5 U.S.C. 5545(a), providing a 10% night differential for "regularly scheduled work between the hours of 6:00 p.m. and 6:00 a.m." Citing the decision in Aviles v. U.S., 151 Ct.Cl. 1 (1960), the Arbitrator acknowledged that although the nightwork of the grievants had not been scheduled as part of their administrative workweek, the grievants were entitled to night differential pay if the nightwork should have been scheduled as part of their regular work. Thus, the Arbitrator determined for purposes of section 5545(a) that regularly scheduled work is work that is regular, habitual, and recurring to the extent that it should be scheduled as part of the regular workweek even if it is irregular and unforeseeable as to specific timing and date. With respect to the grievants, the Arbitrator ruled that they have been regularly, habitually, and recurringly performing nightwork as part of their regular duty assignments and that consequently the nightwork could and should have been formally scheduled. In this respect, the Arbitrator rejected the Activity's contention that under 5 CFR 550 and 610, the disputed nightwork was not of the sort that should have been scheduled as part of the grievants' regularly scheduled administrative workweek. The Arbitrator therefore held that the disputed nightwork was regularly scheduled within the meaning of section 5545(a) and that by failing to pay the grievants a night differential, the Activity had violated governing law and derivatively the parties' collective bargaining agreement. Accordingly, as her award, the Arbitrator ordered payment to the grievants of night differential pay retroactive to August 10, 1977, with interest at the lawful rate from the date of the award. As one of its exceptions, the Agency contends that by ordering the payment of night differential pay in the circumstances of this case, the award is contrary to 5 U.S.C. 5545(a) and implementing regulation. The Authority agrees. Pursuant to 5 U.S.C. 5548 and 6101(c), the Office of Personnel Management (OPM) is authorized to prescribe regulations necessary for the administration of premium pay and hours of duty. In accordance with this authority, OPM in 1983 revised regulations pertaining to an agency's responsibility to establish regularly scheduled workweeks for its employees and to an employee's entitlement to premium pay for regularly scheduled work. OPM stated the purpose of the revisions to be to clarify the definition of the term "regularly scheduled" and the relationship between an agency's requirement to establish workweeks for its employees and an employee's entitlement to premium pay for that work. 48 Fed.Reg. 3931 (1983). For purposes of the Federal Employees Pay Act of 1945, as amended (codified in 5 U.S.C. 55 and 61), including specifically 5 U.S.C. 5545(a), OPM has defined regularly scheduled work as work which has been scheduled in advance as part of the employee's regularly scheduled administrative workweek. 5 CFR 610.102(g); accord Anderson v. U.S., 201 Ct.Cl. 660 (1973). In recognition of the principle of the Court of Claims established in Aviles v. U.S., which was cited by the Arbitrator, that the omitting of work from a scheduled tour of duty does not necessarily make such work occasional or irregular, the governing regulations provide that regularly scheduled work includes any work that should have been scheduled as part of an employee's regularly scheduled administrative workweek. 48 Fed.Reg. 3932; see 5 CFR 610.121(b). Thus, the head of the agency or an official who has been delegated the authority to schedule the work of employees is obligated to reschedule an employee's tour of duty when it is known in advance of an administrative workweek that there will be a different work requirement in that workweek. Correspondingly, the failure to reschedule the workweek in such circumstances cannot deprive employees to any entitlement to premium pay for regularly scheduled work. 5 CFR 610.121(b); 48 Fed.Reg. 3932-33. However, for an employee to be entitled to premium pay in this respect for a period of work as regularly scheduled work, notwithstanding that the work was not scheduled in advance, 5 CFR 610.121(b)(3) prescribes: (I)t must be determined that the head of the agency: (i) Had knowledge of the specific days and hours of the work requirement in advance of the administrative workweek, and (ii) had the opportunity to determine which employee had to be scheduled, or rescheduled, to meet the specific days and hours of that work requirement. In promulgating these regulatory revisions, OPM specifically addressed whether the revised regulations would be prospective only. Because the purpose of the revisions was to clarify the meaning of the term "regularly scheduled" that was originally intended by the Federal Employees Pay Act, OPM declared the revisions to apply retroactively. Specifically, OPM ruled as follows: (A)ll claims for the payment of premium pay for "regularly scheduled" work (including work performed during prior periods) should be settled based on the definition of this term as clarified in these regulations. 48 Fed.Reg. 3933. In terms of this case, the Authority finds that the awarding of night differential pay by the Arbitrator was not based on the definition of "regularly scheduled" work required to have been applied and that consequently the award is deficient as contrary to 5 U.S.C. 5545(a) and 5 CFR 550, subpart A and part 610, subpart A. As noted, the Arbitrator determined that the grievants were entitled to night differential pay for the disputed nightwork as regularly scheduled work because the nightwork was regular, habitual, and recurring, notwithstanding that it was not scheduled in advance. However, this finding does not constitute the determinations that must be made pursuant to 5 CFR 610.121(b)(3) in order to entitle an employee to night differential pay for nightwork that was not scheduled in advance. Having rejected the application of 5 CFR 610, the Arbitrator failed to determine that on the part of responsible agency officials, there was both knowledge of the specifics of the nightwork and an opportunity to schedule or reschedule particular employees to meet the specific days and hours of the required nightwork. Indeed, the Arbitrator determined to the contrary when she noted that work may be "regularly scheduled . . . even if it is . . . unforeseeable as to specific date and time," Award at 12, and when she found as to one of the most common nightwork duties that management personnel "usually d(id) not know more than 24 hours ahead of time when aliens, who (grievants) must transport from the airport, w(ould) be arriving," Award at 6. Consequently, the award is deficient as contrary to governing law and regulation and is set aside. /2/ Issued, Washington, D.C., August 19, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Office of Personnel Management (OPM) filed a brief as an amicus curiae. /2/ In view of this decision, it is not necessary that the Authority address the Agency's other exceptions to the award including the exception that the award of interest is contrary to law. In this regard, however, the Authority notes the settled rule that an award of interest is generally proscribed. See Portsmouth Naval Shipyard and Federal Employees Metal Trades Council, 7 FLRA 30 (1981).