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45:0106(10)AR - - AFGE Local 1923 and HHS, SSA, Baltimore, MD - - 1992 FLRAdec AR - - v45 p106

[ v45 p106 ]
The decision of the Authority follows:

45 FLRA No. 10




LOCAL 1923









June 10, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Fred Blackwell filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.

The Union filed a grievance seeking overtime compensation for 18 grievants who allegedly were improperly assigned to shifts requiring them to work more than 40 hours per week without overtime pay. The Arbitrator sustained the grievance and awarded backpay for uncompensated overtime.

For the following reasons, we conclude that the Arbitrator's award is deficient under section 7122(a) of the Statute. Accordingly, we will set aside the award.

II. Background and Arbitrator's Award

In August 1986, the 18 grievants were transferred to the Agency from another Federal agency. Both before and after their transfers, the grievants worked the same rotating shift, requiring them to work periods of 7 and 6 consecutive days. Neither the Agency nor the prior employer paid the grievants overtime based on that schedule. However, the grievants received night differential pay, Sunday premium pay, and holiday pay, as appropriate.

In June 1990, the Union filed a grievance alleging that management failed to assign the grievants to a basic workweek of 5 consecutive 8-hour workdays, Monday through Friday, as required by the parties' agreement, and improperly denied the grievants appropriate overtime.1/ As a remedy, the Union sought backpay, including interest on all overtime, differentials, and/or premium pay. When the grievance was not resolved, it was submitted to arbitration.

The Arbitrator defined the issue as follows:

[W]hether the [g]rievants are entitled to backpay for unpaid overtime that should have been paid due to [g]rievants regularly working a basic workweek of more than five consecutive 8-hour workdays by virtue of their being assigned by the Agency to weekly rotating shifts comprised of seven (7) days on-two (2) off, seven days on-two off, and six (6) days on-four (4) off.

If so, what shall the remedy be?

Award at 15.

The Arbitrator determined, as relevant here, that the "central question" before him was whether the grievants' shift assignments, under which the grievants "did not work more than five (5) days in any administrative workweek[,]" were consistent with the parties' agreement and the Fair Labor Standards Act (FLSA).2/ Id. at 18-19. The Arbitrator found, in this regard, that the grievants' Sunday through Saturday administrative workweek was authorized by Office of Personnel Management (OPM) regulations3/ and Article 10, Section 1A of the parties' agreement. Id. at 19. However, the Arbitrator decided that the FLSA was "paramount to the authorities authorizing the Agency's establishment of the administrative workweek . . . and that . . . Article 10, Section 1B [] remains operative notwithstanding the existence of the Agency administrative workweek/basic workweek."4/ Id.

The Arbitrator found that the Agency's administrative workweek "conflicts sharply" with 29 C.F.R. § 778.104, a Department of Labor (DOL) regulation implementing the FLSA.5/ Id. at 20. The Arbitrator stated that the conflict between "the workweek defined by the . . . DOL regulation" and the Agency's administrative/basic workweek, "is self-evident." Id. at 21.

Based on the foregoing, the Arbitrator found that the disputed shift assignments and denial of overtime pay violated the parties' agreement, the FLSA, and 29 C.F.R. § 778.104. He held that the shift assignments constituted an unwarranted personnel action which resulted in the reduction in overtime compensation which the grievants would have received "but for the said violations and unwarranted personnel action." Id. at 23. As his award, the Arbitrator sustained the grievance and directed the Agency to "pay appropriate backpay to [g]rievants for all overtime improperly denied during the grievance period." Id.

III. Agency's Exceptions

The Agency asserts that the award: (1) is contrary to 29 U.S.C § 207(a)(1) and OPM regulations implementing the FLSA in the Federal sector;6/ and (2) conflicts with applicable case law, particularly Sanford v. Weinberger, 752 F.2d 636 (Fed. Cir. 1985). The Agency contends that the Arbitrator could not properly award backpay because of his finding that the grievants worked no more than 40 hours in any administrative workweek.

IV. Union's Opposition

The Union argues that the Agency's exceptions constitute an attempt "to re-arbitrate the merits of this case" before the Authority. Opposition at 9.

V. Analysis and Conclusions

An arbitration award is deficient under section 7122(a) of the Statute if the award is contrary to any law, rule, or regulation. U.S. Department of Justice, Immigration and Naturalization Service, Washington, D.C. and American Federation of Government Employees, National Immigration and Naturalization Council, 44 FLRA 343 (1992). For the following reasons, we find that the backpay award is inconsistent with 29 U.S.C. § 207(a)(1) and 5 C.F.R. § 551.501(a) and (b).

Under 29 U.S.C. § 207(a)(1), employees may not be employed for more than 40 hours "in any workweek" unless they are compensated at one and one-half times their normal rate for any work in excess of 40 hours. 5 C.F.R. § 551.501(a) restates the requirements of 29 U.S.C. § 207(a)(1).7/ 5 C.F.R. § 551.501(b) defines an employee's "workweek" as a fixed and recurring period of 168 hours, or seven consecutive 24-hour periods, and states that this "workweek" is the same as the "administrative workweek" defined in 5 C.F.R. § 610.102.8/

The Arbitrator found that the grievants "did not work more than five [8-hour] days consecutively or more than five days in any administrative week . . . ." Award at 20. Under 29 U.S.C. § 207(a)(1) and 5 C.F.R. § 551.501(a) and (b), no entitlement to overtime pay arises unless an employee works in excess of 40 hours in a 7-day workweek/administrative workweek. In this regard, Sanford v. Weinberger addressed a similar question concerning employees' entitlement to overtime under the FLSA for working 7 consecutive days. In finding that the employees were not entitled to additional overtime, the court held that:

it is within the parameters of the administrative workweek designated in advance by the [agency] that it must be determined whether plaintiffs were paid the proper amount of overtime. The number of consecutive days worked by employees, spanning more than one administrative workweek, is irrelevant to this determination.

752 F.2d at 638.

Although the grievants were required to work periods in excess of 5 consecutive 8-hour days, the Arbitrator found that the grievants did not work more than 5 days in any administrative workweek. Consequently, no legal or regulatory grounds exist for the Arbitrator's finding that the Agency was obligated to pay the grievants overtime. Accordingly, the award of overtime is deficient as contrary to the FLSA and implementing regulations and will be set aside. Compare National Association of Government Employees, Local R1-109 and Veterans Administration Medical Center, Newington, Connecticut, 35 FLRA 206 (1990), order denying motion for reconsideration, 36 FLRA 233 (1990) (award of premium pay under Back Pay Act set aside where arbitrator determined that agency violated parties' agreement by scheduling grievant to work 7 consecutive days but made no finding that violation resulted in improper denial of overtime).

VI. Decision

The award is set aside.

(If blank, the decision does not have footnotes.)

1/ The agreement provides, in pertinent part:

Article 10, Hours of Work and Overtime

Section 1 - Hours of Work

A. The administrative workweek shall be a period of seven (7) consecutive calendar days beginning on Sunday.

B. The basic workweek for full[-]time employees shall be five (5) consecutive 8-hour workdays, Monday through Friday; however, installations operating on some other weekly schedule as of the effective date of this agreement may continue such operation.

Award at 4.

2/ The relevant portion of the FLSA, 29 U.S.C. § 207(a)(1), provides:

. . . no employer shall employ any of his employees . . . for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.

3/ The pertinent OPM regulation, 5 C.F.R. § 610.102(a), provides:

(a) "Administrative workweek" means a period of 7 consecutive calendar days designated in advance by the head of an agency under section 6101 of title 5, United States Code.

4/ The parties stipulated that the grievants are covered by the FLSA.

5/ 29 C.F.R. § 778.104 provides, in pertinent part:

The Act takes a single workweek as its standard and does not permit averaging of hours over 2 or more weeks. Thus, if an employee works 30 hours one week and 50 hours the next, he must receive overtime compensation for the overtime hours worked beyond the applicable maximum in the second week, even though the average number of hours worked in the 2 weeks is 40. . . .

6/ The Agency cites 5 C.F.R. § 610.102(a), which appears at n.3, and 5 C.F.R. § 551.501(b), which provides:

An employee's "workweek" is a fixed and recurring period of 168 hours--seven consecutive 24-hour periods. It need not coincide with the calendar week but may begin on any day and at any hour of a day. For employees subject to Part 610 of this chapter, the workweek shall be the same as the administrative workweek defined in § 610.102 of this chapter.

7/ 5 C.F.R. § 551.501(a) requires that an employee who is covered by the FLSA be compensated "for all hours of work in excess of 8 in a day or 40 in a workweek at a rate equal to one and one-half times the employee's hourly regular rate of pay[.]"

8/ A "workweek" is defined by DOL in 29 C.F.R. § 778.105 also as "a fixed and regularly recurring period of 168 hours--seven consecutive 24-hour periods," which "need not coincide with the calendar week but may begin on any day and at any hour of the day."