19:0823(100)AR - Justice, INS and INS Council, AFGE Local 2805 -- 1985 FLRAdec AR

 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).