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19:1012(117)NG - AFGE Local 2612 and Air Force, HQ, 416th Combat Support Group (SAC), Griffiss AFB, NY -- 1985 FLRAdec NG

[ v19 p1012 ]
The decision of the Authority follows:

 19 FLRA No. 117
                                            Case No. O-NG-1060
    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.
    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.
                             Union Proposal 2
          Union Officers and Stewards will be the last reduced in force
       in the same job classification regardless of their retention
    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
                                       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.