[ v19 p1012 ]
The decision of the Authority follows:
19 FLRA No. 117 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2612, AFL-CIO Union and DEPARTMENT OF THE AIR FORCE, HEADQUARTERS, 416th COMBAT SUPPORT GROUP (SAC), GRIFFISS AIR FORCE BASE, NEW YORK Agency Case No. O-NG-1060 DECISION AND ORDER ON NEGOTIABILITY ISSUES The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and presents issues relating to the negotiability of two Union proposals. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. Union Proposal 1 Employees held over for overtime will be paid a minimum of four hours overtime, regardless of actual time worked. The Union's proposal would establish four hours as the minimum amount of overtime to be paid an employee who is held over from his shift, even if the employee does not work the full four hours. In this regard, 5 U.S.C. 5542, which authorizes the payment of overtime for General Schedule employees, provides in relevant part: Sec. 5542. Overtime rates; computation (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(.) . . . . (b) For the purpose of this subchapter-- (1) Unscheduled overtime work performed by an employee on a day when work was not scheduled for him, or for which he is required to return to his place of employment, is deemed at least 2 hours in duration(.) Section 5542(a) only authorizes the payment of overtime to an employee for the actual time duty is performed. /1/ The Authority addressed 5 U.S.C. 5542 in International Brotherhood of Electrical Workers, Local 2080, AFL-CIO-CLC and Department of the Army, U.S. Corps of Engineers, Nashville, Tennessee, 10 FLRA 222, 228-30 (1982) (Union Proposal 3). In that case, the Authority held that a proposal which would establish four hours as the minimum amount of callback overtime was outside the duty to bargain. Specifically, the Authority stated that 5 U.S.C. 5542(b)(1), which provides that an employee shall be paid for a minimum of two hours for callback overtime work, creates an exception to the general rule that overtime payments can be made only for the actual time duty is performed. /2/ Since the exception set a maximum of two hours that an employee could be paid for callback overtime not actually performed, the Authority concluded that the proposed minimum of four hours overtime was outside the duty to bargain. /3/ In terms of this case, unlike the exception for callback overtime, no provision authorizes a minimum number of hours for which an employee must be compensated when held over from his shift. Consequently, since Union Proposal 1 would allow an employee to be paid for overtime which he did not work, the proposal is inconsistent with 5 U.S.C. 5542 and, pursuant to section 7117 of the Statute, is outside the duty to bargain. /4/ Union Proposal 2 Union Officers and Stewards will be the last reduced in force in the same job classification regardless of their retention rights. In Association of Civilian Technicians, New York State Council and State of New York, Division of Military and Naval Affairs, Albany, New York, 11 FLRA 475, 481-82 (1983( (Union Proposal 4), the Authority found that a proposal which would require the agency, in the event of a reduction-in-force (RIF), to give job retention preference to career or permanent technician employees was outside the duty to bargain. Specifically, the Authority held that the proposal would violate the agency's right under section 7106(a)(2)(A) of the Statute to remove employees in that it would compel the agency to remove employees who were not career or permanent technicians. /5/ Similarly, the proposal in dispute herein, by providing that Union Officers and Stewards shall be the last employees in a given job classification to be removed in the event of a RIF, would require the Agency to remove those employees who are not Union Officers and Stewards if it wished to exercise its right. Thus, for the reasons set forth in Association of Civilian Technicians, New York State Council, the Authority finds that Union Proposal 2 would violate the Agency's right under section 7106(a)(2)(A) of the Statute to remove employees, and, consequently, is outside the duty to bargain. /6/ See also American Federation of Government Employees, AFL-CIO, Local 1603 and Navy Exchange, Naval Air Station, Patuxent River, Maryland, 3 FLRA 3 (1980). Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the petition for review be, and it hereby is, dismissed. Issued, Washington, D.C., August 23, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Accord 25 Comp.Gen. 151, 155 (1945) (overtime provision of Federal Employees Pay Act of 1945, which is the predecessor of and contains language similar to that in section 5542(a), "clearly contemplates the actual performance of required duty during the prescribed overtime period"); 55 Comp.Gen. 629, 632 (1976) (where employee improperly denied overtime work, Back Pay Act provides exception to rule that employees may not be compensated for overtime work when they do not actually perform work during the overtime period). /2/ The provisions of section 5542(b)(1) apply to General Schedule employees. The decision in U.S. Corps of Engineers, Nashville, Tennessee found the Union's proposal to be inconsistent with 5 CFR 532.503(c), which is the equivalent of section 5542(b)(1) for wage grade employees. Id. at 228-29. /3/ The Authority's interpretation of section 5542(b)(1) was supported by unpublished decisions of the Comptroller General B-175452, May 1, 1972, and B-189163, October 11, 1977. /4/ In view of the decision herein, it is unnecessary to address the Agency's additional contentions regarding Union Proposal 1. /5/ Section 7106(a)(2)(A) provides: Sec. 7106. Management rights (a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency-- . . . . (2) in accordance with applicable laws-- . . . . (A) to . . . remove . . . employees in the agency(.) /6/ In view of the decision herein, it is unnecessary to address the Agency's additional contention regarding Union Proposal 2.