U.S. Federal Labor Relations Authority

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The decision of the Authority follows:

28 FLRA NO. 70






Case No. 0-AR-1311


I. Statement of the Case

This matter is before the Authority on exceptions to the January 15, 1987, award of Arbitrator Kinard Lang filed by the Union under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations.

II. Background and Arbitrator's Award

A grievance was filed and submitted to arbitration alleging that the Activity violated the parties' collective bargaining agreement when the three grievants were not assigned to participate in sea trials of certain equipment aboard the USS Luce. The first sea trial period began on February 22, 1983; the second trial period began on March 10, 1983.

With regard to the first sea trial, the Arbitrator found convincing evidence that management had made the prerequisite determination that participation of two of the grievants was essential. The Arbitrator further found that management's subsequent action in not assigning the two grievants to that trial was not fair and equitable, as required by the parties' agreement. The Arbitrator therefore concluded that management violated the agreement by that action. As a remedy, the Arbitrator determined, based on the evidence and testimony, that the pertinent provision of the parties' agreement regarding compensation provided bargaining unit employees 16 hours of straight-time pay for every 24 hours aboard a ship at sea.

As to the second sea trial, which began on March 10, the Arbitrator found that the evidence concerning management's determination of the "essentiality" of the three grievants was inconclusive.

Accordingly, as his award, the Arbitrator sustained the grievance of the two grievants who were improperly denied assignment to the first sea trial, "commencing on February 22, 1983, and concluding on or about February 26, 1983." The Arbitrator awarded those grievants 16 hours of straight-time compensation, at their then applicable rate of pay, for every 24 consecutive hours they would have spent aboard the USS Luce during that trial. The Arbitrator denied the grievance of the third grievant as to the February 22 sea trial and the grievance of all three as to the March 10 trial.

III. First Exception

A. Position of the Parties

In its first exception, the Union argues that the Arbitrator erred in not awarding the two successful grievants partial overtime compensation. The Union maintains that employees who have participated in previous sea trials have been paid 8 hours of straight-time pay and 8 hours of overtime pay for every 24 consecutive hour period from Monday through Friday, and 16 hours of overtime pay for every 24 consecutive hour period from Saturday through Sunday, during the sea trials.

B. Analysis and Conclusions

A Federal employee may be entitled to overtime compensation under 5 U.S.C. 5542 for "hours of work" in excess of 40 hours in an administrative workweek or 8 hours in a day. Overtime compensation for Federal employees is also authorized under the Fair Labor Standards Act (FLSA), 29 U.S.C. 201 et seq., for nonexempt employees. Nonexempt employees may be entitled to overtime compensation under the FLSA for "hours worked" in excess of 40 hours a week. When employees are entitled to overtime under both Title 5 and the FLSA, they are to be paid under the statute which gives them the greater benefit. Federal Prison System and American Federation of Government Employees, Local No. 2459, 8 FLRA 103 (1982); U.S. Department of Justice, Medical Center for Federal Prisoners and American Federation of Government Employee, Local 1612, 11 FLRA 29 (1983).

The record does not disclose the statutory basis for the payment of overtime to the grievants. However, regardless of whether their compensation is computed under 5 U.S.C. 5542 or the FLSA, the compensation due the grievants must necessarily include some overtime pay. The record shows that the grievants would have received compensation for more than 8 hours per day, and because of the length of the sea trial, more than 40 hours overall. Accordingly, it is clear that the computation of their backpay under applicable law must include overtime. Since the arbitration award limits their backpay recovery to straight-time compensation, it is deficient as a matter of law. The actual computation of the backpay due the grievants must, of course, be made in accordance with the law and regulations applicable to them.

IV. Other Exceptions

A. Position of the Parties

In its other exceptions, the Union contends that the Arbitrator erred when he denied one of the grievants compensation for the March 10 sea trial; and when he assertedly concluded that the first sea trial period was from February 22 to 26, rather than through February 27.

B. Analysis and Conclusions

As to the Union's exception to the award concerning the March 10 sea trial, we find that the Union's contention constitutes nothing more than disagreement with the Arbitrator's finding that the evidence was inconclusive to establish an entitlement of any of the three grievants to participate in that sea trial. It is well established that exceptions which merely constitute disagreement with an arbitrator's evaluation of the evidence presented or disagreement with an arbitrator's findings of fact or reasoning and conclusions based on the evidence presented provide no basis for finding an award deficient. For example, Local 1919, American Federation of Government Employees and Veterans Administration National Cemetery, Farmingdale, Long Island, New York, 12 FLRA 605 (1983); Federal Correctional Institution, Petersburg, Virginia and American Federation of Government Employees, Local 2502, Petersburg, Virginia, 13 FLRA 108 (1983).

As to the Union's exception to the Arbitrator's purported conclusion concerning the duration of the first sea trial, we find that the Union has misinterpreted the award. We note that the Arbitrator described the end of the period in general terms as on or about February 26, and that the  Arbitrator clearly awarded the successful grievants compensation for every 24 consecutive hours they would have spent aboard the USS Luce during that first sea trial.

Accordingly, these exceptions must be denied.

V. Decision

For the reasons stated above, with respect to that part of the Arbitrator's award which limited the backpay of the two grievants who were improperly denied assignment to the first sea trial to straight-time pay, we modify the award to provide that those grievants are to be paid at appropriate straight-time and overtime rates for 16 hours of work for every 24 consecutive hours they would have spent aboard the USS Luce during that trial, consistent with applicable law, implementing regulations and the parties' collective bargaining agreement.

The Union's other exceptions are denied.

Issued, Washington, D.C., August 13, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member