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The decision of the Authority follows:
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.