23:0589(81)AR - Franklin Lodge No. 2135, IAM and Bureau of Engraving and Printing, Treasury -- 1986 FLRAdec AR

 23 FLRA No. 81
 
 FRANKLIN LODGE NO. 2135 
 INTERNATIONAL ASSOCIATION OF MACHINISTS 
 AND AEROSPACE WORKERS, AFL-CIO
  Union
 
 and
 
 BUREAU OF ENGRAVING AND PRINTING 
 U.S. DEPARTMENT OF THE TREASURY
 Agency
 
                                            Case No. 0-AR-1101
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on an exception to the award of
 Arbitrator Fred Blackwell 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.  The Union filed an opposition.
 /1/
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    The grievance in this case arose as a result of a year-end shutdown
 at the Agency.  During the period of the shutdown, employees were given
 the option of requesting annual leave or leave without pay, of
 scheduling sick leave, if appropriate, or of being furloughed, a nonpay
 status.  The grievant, a prevailing rate employee under 5 U.S.C. Section
 5349, did not exercise any leave option and was furloughed for the day
 of Monday, December 31, 1984.  He was in a holiday pay status on
 Tuesday, January 1, 1985, and a regular pay status for the following
 regularly scheduled workdays of Wednesday, Thursday, and Friday.  On
 January 2, the Agency posted a work schedule for Saturday, January 5,
 which included the grievant.  The grievant and other employees who had
 been in a furlough status on December 31 were advised that to receive
 overtime pay for Saturday, they had to change their status on Monday,
 December 31, from furlough to annual leave in order that their Saturday
 work would be in excess of 40 hours of work in an administrative
 workweek.  The procedures governing Saturday work also provided an
 employee the option of removing his or her name from the assignment
 list.  The grievant did not change his furlough status of December 31.
 He also did not remove his name from the Saturday schedule and instead
 worked 8 hours on Saturday, January 5.  When he was compensated at
 straight-time rates, he filed a grievance which was submitted to
 arbitration claiming that the Agency's refusal to pay him at the
 overtime rate for the 8 hours of Saturday work violated Article 6,
 section 6 of the parties' collective bargaining agreement.  Article 6,
 section 6 provides that "(a)ll work performed on Saturday or Sunday will
 be paid at overtime rates."
 
    The Arbitrator generally agreed with the Agency that Article 6,
 section 6 could not be applied without reference to other provisions of
 the agreement and to applicable law and regulation governing the payment
 of overtime pay.  Nevertheless, he determined that in this case the
 Agency had violated the agreement.  He found that in view of the
 grievant's furlough, the Agency was obligated to have omitted the
 grievant from the Saturday work schedule and that the failure to take
 such action constituted a mishandling of the grievant's rights in
 violation of Article 6, section 6.  He further found that this
 mishandling was not offset by the grievant choosing not to remove his
 name from the Saturday work schedule and not convert his furlough status
 of December 31 to annual leave.  The Arbitrator therefore ruled that in
 these circumstances the grievant's Saturday work on January 5
 constituted overtime work under the provisions of Article 6, section 6.
 Accordingly, as his award, the Arbitrator sustained the grievance and
 directed the Agency to pay the grievant at the overtime rate for the
 work performed on Saturday, January 5, 1985.
 
                              III.  EXCEPTION
 
    In its exception the Agency primarily contends that the award of
 overtime pay to the grievant is contrary to applicable law and
 regulation governing the payment of overtime pay to prevailing rate
 employees.  The Agency argues that under governing law and regulation,
 the grievant could be paid overtime pay only if his hours of work,
 counting his work hours on Saturday, January 5, exceeded 40 hours in the
 administrative workweek.  The Agency maintains that under 5 CFR Section
 532.503, all regularly scheduled workdays during which an employee is in
 a nonpay status are not considered hours of work in determining whether
 the employee is entitled to overtime pay for work performed in excess of
 40 hours in the week.  Thus, the Agency asserts that the grievant's work
 on Saturday did not exceed 40 hours in the workweek and that
 consequently the Arbitrator's enforcement of the parties' collective
 bargaining agreement to compel payment of overtime pay for such work is
 deficient.
 
                       IV.  ANALYSIS AND CONCLUSIONS
 
    We agree with the Agency.  Employees, as the grievant in this case,
 whose pay is fixed and adjusted in accordance with prevailing rates
 under 5 U.S.C. Section 5349, are entitled to overtime pay pursuant to 5
 U.S.C. Section 5544 and 5 CFR part 532, subpart E.  As relevant to this
 case, an employee is entitled to overtime pay for hours of work in
 excess of 40 hours in a week.  In determining whether an employee is
 entitled to overtime pay for work performed in excess of 40 hours in a
 week, 5 CFR Section 532.503(b)(3) provides as follows:
 
          Hours during which an employee is absent from duty on leave
       without pay during a time when he/she otherwise would have been
       required to be on duty shall not be considered hours of work in
       determining whether he/she is entitled to overtime pay for work
       performed in excess of eight hours in a day or 40 hours in a week.
 
    In view of this provision, we similarly find that all hours of a
 regularly scheduled workday during which an employee is in a nonpay
 status, such as on furlough, are not to be considered hours of work in
 determining whether the employee is entitled to overtime pay for work
 performed in excess of 40 hours in a week.  In terms of this case,
 Monday, December 31, 1984, cannot be considered in determining whether
 the grievant was entitled to overtime pay for work performed in excess
 of 40 hours in the workweek in dispute because he was in a nonpay status
 on that day as a result of having been furloughed.  Thus, by working 8
 hours on Saturday, January 5, 1985, the hours of work of the grievant
 only equaled rather than exceeded 40 hours in the disputed workweek.
 Thus, under 5 U.S.C. Section 5544 and 5 CFR part 532, subpart E, payment
 of overtime pay to the grievant for the hours of work on Saturday,
 January 5 was precluded by law and regulation.  /2/
 
    Accordingly, the Arbitrator's award of overtime pay to the grievant
 for the hours of work on Saturday, January 5, 1985, is deficient as
 contrary to 5 U.S.C. Section 5544 and 5 CFR part 532, subpart E.
 Although the Arbitrator could properly determine that the Activity had
 violated Article 6, section 6, he could not properly enforce that
 provision in fashioning a remedy for the violation to direct the payment
 of overtime pay to the grievant when not authorized by law.  See, for
 example, Social Security Administration and American Federation of
 Government Employees, AFL-CIO, 16 FLRA 552 (1984) (holding that while an
 arbitrator could properly find that an agency's denial of a within-grade
 increase was in violation of the parties' agreement, he could not
 properly fashion a remedy which was contrary to applicable law).
 Furthermore, the payment of overtime pay is not authorized as an award
 of backpay under the Back Pay Act, 5 U.S.C. Section 5596, because there
 is no unwarranted action that directly resulted in the grievant not
 working overtime and receiving overtime pay when he otherwise would have
 done so.
 
                               V.  DECISION
 
    For these reasons, the Arbitrator's award is modified to strike the
 direction to pay the grievant the overtime rate for his work on
 Saturday, January 5, 1985.  /3/
 
    Issued, Washington, D.C. October 16, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
    (1) In its opposition the Union contends that the Agency's exception
 was untimely.  However, the Authority has determined that under section
 2425.1(b) and 2429.22 of the Authority's Rules and Regulations, the
 Agency's exception was timely filed.
 
    (2) Prevailing rate employees who are nonexempt under the Fair Labor
 Standards Act (FLSA), 29 U.S.C. Section 201 et seq., are also eligible
 for overtime pay under the provisions of FLSA as implemented for Federal
 employees in 5 CFR part 551 and are entitled to be paid overtime under
 the provisions which provide them the greater overtime benefit.  5 CFR
 Section 532.503(a)(1).  It is uncertain whether the grievant is a
 nonexempt employee under FLSA.  However, assuming that he is nonexempt,
 payment of overtime pay to the grievant for the hours of work on
 Saturday, January 5 was likewise precluded under FLSA.  Employees who
 are not exempt are entitled to overtime pay for all hours of work in
 excess of 40 hours in a workweek.  5 CFR Section 551.501.  However, paid
 periods of nonwork for holidays are not considered hours of work under
 FLSA.  5 CFR Section 551.401(b).  Consequently, with the paid holiday of
 January 1, 1985, included in the disputed workweek, payment of overtime
 pay to the grievant was precluded under FLSA and implementing
 regulations regardless of the Arbitrator's view of the Activity's
 treatment of the grievant in relation to Monday, December 31.
 
    (3) In view of this decision, it is not necessary that the Authority
 address the other contentions of the Agency in its exception.