47:0218(14)NG - - Intl. Organization of Masters, Mates and Pilots and Navy, Chief of Naval Operations, Washington, DC - - 1993 FLRAdec NG - - v47 p218

[ v47 p218 ]
The decision of the Authority follows:

47 FLRA No. 14















March 26, 1993


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns a single proposal that would allow bargaining unit employees to convert payment for overtime work to leave days. For the reasons that follow, we find that the proposal is nonnegotiable.

II. Preliminary Matter

The Union filed a petition for review that did not comply with the Authority's Rules and Regulations. By Order dated June 19, 1992, the Authority directed the Union to cure the deficiencies, which the Union timely accomplished.

The Agency contends that the Authority's June 19 Order failed to indicate that the time period for filing the Agency's statement of position did not begin to run until the Agency received the perfected petition. In the Agency's view, the Authority's failure to so indicate suggests that the Authority has changed its practice of allowing the 30-day filing period to begin when an agency receives a perfected petition. The Agency argues that this changed policy would prejudice the Agency because it forces the Agency either to prepare a statement of position on an appeal, which may be dismissed, or to wait until it receives a perfected petition from the Union, leaving the Agency a significantly reduced period of time in which to prepare a statement of position. The Agency claims that the Union's failure to follow the Authority's Rules and Regulations has penalized the Agency.

The Agency's arguments lack merit. The Authority has held that where a petition for review contains procedural deficiencies, an agency has 30 days to file its statement of position from the date it receives the perfected petition. See, for example, Service Employees International Union, Local 200-B and U.S. Department of Veterans Affairs Medical Center, Syracuse, New York, 44 FLRA 821, 823 (1992). There has been no change in the Authority's position on this matter. In fact, the Authority advised the Agency that, after the Union timely corrected the deficiencies in its petition for review, the Agency had 30 days after receipt of the Union's perfected petition in which to file its statement of position. The Authority's records reveal that the Agency timely filed its statement of position. Accordingly, we conclude that there was no prejudice to the Agency.

III. Background

The Union represents a nationwide bargaining unit composed of civilian chief pilots and pilots employed by the Department of the Navy. These employees are licensed ship masters and are responsible for moving all classes of vessels in and out of naval harbors. Under 5 U.S.C. § 5102(c)(8), these employees are excluded from Chapter 51 of Title 5 of the United States Code and are not paid in accordance with the General Schedule pay rates established in 5 U.S.C. § 5332. See 5 U.S.C. § 5331(b). In addition, except for section 5348, relating to crews of vessels, the employees are not paid in accordance with the prevailing rate systems provisions contained in 5 U.S.C. § 5341-5349. 5 U.S.C. § 5348(a), which governs the pay of the employees represented by the Union, provides that:

the pay of officers and members of crews of vessels excepted from chapter 51 of this title by section 5102(c)(8) of this title shall be fixed and adjusted from time to time as nearly as is consistent with the public interest in accordance with prevailing rates and practices in the maritime industry.

According to the Agency, the actual rates of pay for the pilots are set by the Department of Defense Wage Fixing Authority and are based on a survey of wages paid to pilots employed outside the Department of the Navy.

In May 1992, the parties were engaged in negotiations regarding a new collective bargaining agreement. A negotiability dispute arose over the following proposal, which would permit bargaining unit employees to convert overtime pay to leave days.

IV. The Proposal

At a Pilot's option, the Pilot may designate that overtime earned for a thirty (30) day period be converted to leave days. The dollar amount of the overtime must be calculated to pay each day's pay exactly. The Pilot must take bought leave before taking annual leave and must have it off the books at the end of each calendar year. If he cannot take bought leave before the year end, he will be paid the overtime rate expended to buy the leave which cannot be taken, receiving the payment on 31 December.

A. Positions of the Parties

1. The Agency

Initially, while acknowledging that the negotiation of wages is not at issue in this case, the Agency rejects the Union's reliance on Fort Stewart Schools v. FLRA, 495 U.S. 641 (1990) (Fort Stewart), as a basis on which to find the proposal negotiable. The Agency asserts that Fort Stewart did not extend the bargaining obligation to pay or benefits that are fixed by law. In support, the Agency relies on Department of the Navy, Military Sealift Command v. FLRA, 836 F.2d 1409 (3d Cir. 1988) (Military Sealift Command).

The Agency further claims that the proposal conflicts with applicable laws and Government-wide regulations in a variety of ways. First, the Agency contends that the proposal is nonnegotiable because it is inconsistent with 5 U.S.C. chapter 55, subchapter V, which establishes the legal requirements for payment of premium pay to Federal employees. Under this authority, the Agency claims that Federal employees may be compensated for overtime work in one of two ways: (1) an employee may be paid for overtime at the rates specified by law; or (2) certain employees may be granted compensatory time in an amount equal to the time spent in overtime work. The Agency maintains that the bargaining unit employees in this case are not permitted to earn compensatory time in lieu of overtime pay because they are expressly excluded from the coverage of 5 U.S.C. § 5543, which establishes the authority for granting compensatory time to certain employees. The Agency argues that even if employees were entitled to compensatory time under 5 U.S.C. § 5543, such time could only be taken in amounts equal to the time worked on an overtime basis. The Agency claims that the proposal would impermissibly grant "one and one half hours off work for each hour of overtime worked[.]" Statement of Position at 10.

The Agency maintains that section 5544 is the only statutory provision governing overtime compensation that applies to bargaining unit employees and that that section does not provide for compensatory time in lieu of overtime pay. The Agency further states that provisions contained in the Code of Federal Regulations (C.F.R.) require that employees who are exempt from the Fair Labor Standards Act (FLSA), such as bargaining unit employees, must be paid overtime in accordance with 5 U.S.C. § 5544. In addition, the Agency claims that other provisions contained in the C.F.R. authorize compensatory time, but only for employees covered by 5 U.S.C. § 5541(2) or for prevailing rate employees who work a flexible schedule under 5 U.S.C. § 6122. The Agency claims that bargaining unit employees are not encompassed by either provision and, therefore, are not entitled to compensatory time under the applicable regulatory provisions.

The Agency also argues that to the extent the proposal would allow employees to convert overtime pay into "leave days[,]" the Union has requested that overtime pay be converted to administrative leave. Statement of Position at 4. The Agency contends, in this regard, that it is not authorized to grant the employees administrative leave in lieu of overtime pay. According to the Agency, the term administrative leave refers to a situation where an employee is granted excused absence without loss of pay or use of accrued leave. The Agency argues that Federal Personnel Manual (FPM) Chapter 630, subchapter 11, authorizes excused absence only in situations where it is in the Government's interest to allow an employee to participate in some activity without having to use annual or sick leave. The Agency cites donating blood or voting as examples of activities for which an excused absence may be granted. The Agency further claims that there is no authority in law or regulation that permits an employee to earn administrative leave and use that leave in a manner similar to annual or sick leave. The Agency relies on the Authority's decision in American Federation of Government Employees, AFL-CIO, National Council of VA Locals and Veterans Administration, 29 FLRA 515 (1987), remanded as to other matters sub nom. Veterans Administration v. FLRA, No. 88-1727 (D.C. Cir. Sept. 27, 1988), decision on remand, 33 FLRA 472 (1988), for the proposition that it is not appropriate to grant administrative leave or excused absence to employees in lieu of compensatory time. While the Agency acknowledges that the parties have negotiated administrative leave benefits for various purposes, the Agency contends that those negotiated provisions, unlike the substance of the proposal, are consistent with FPM Chapter 630.

Finally, the Agency claims that although the Union did not specifically propose that employees be allowed to convert overtime pay to annual leave, such an interpretation would render the proposal nonnegotiable. The Agency states that bargaining unit employees are covered by the provisions of 5 U.S.C. chapter 63, which governs leave for Federal employees. The Agency claims that the amount of annual leave that employees may accrue is established in 5 U.S.C. § 6303 and that there is no authorization for employees to accrue annual leave in excess of the amount statutorily provided.

2. The Union

The Union contends that the proposed conversion of "overtime payment into administrative leave" is negotiable. Petition for Review at 1. The Union explains that the proposal is intended to protect the existing benefit of time and one-half payment for overtime while allowing the Agency to obtain employee services without actually incurring the cost of overtime.

The Union disputes the Agency's reliance on Military Sealift Command. According to the Union, Military Sealift Command was overruled by the Supreme Court's decision in Fort Stewart, which "made the wages and benefits of prevailing rate employees negotiable conditions of employment." Response at 2. In this regard, the Union explains that the wages of bargaining unit employees are set under 5 U.S.C. § 5348(a), which means that they are set according to prevailing industry rates and practices. The Union states that a practice exists in the commercial maritime industry that allows employees to convert overtime pay, dollar-for-dollar, to additional vacation time. The Union argues that because such a conversion is an industry practice, it is negotiable for bargaining unit employees under section 5348(a).

The Union also maintains that it is not seeking compensatory time for employees. Rather, the Union reiterates that it is merely seeking to bargain over an existing industry practice. The Union also argues that the Agency has wide latitude to grant administrative leave for various activities and that it has negotiated such leave, as evidenced by various provisions in the parties' agreement.

B. Analysis and Conclusions

Under section 7117(a)(1) of the Statute, we will find a proposal nonnegotiable if it is inconsistent with Federal law or a Government-wide rule or regulation. For the following reasons, we conclude that the proposal is inconsistent with a Government-wide regulation.

Initially, we note that in its petition for review, the Union states that the proposal is intended to permit the exchange of overtime payment for administrative leave. The Union's statement is consistent with the plain wording of the proposal, which is silent as to the type of leave to which the employees' overtime pay would be converted. Accordingly, the Union's statement of intent is adopted for the purposes of this decision. Interpreting the proposal in this manner, we find that the proposal is inconsistent with regulations governing administrative leave. Therefore, we conclude that the proposal is nonnegotiable.

The Authority previously has described the circumstances under which agencies are authorized to grant administrative leave or, more correctly, brief periods of excused absence without charge to leave or loss of pay, consistent with FPM chapter 630, subchapter 11. See, for example, National Federation of Federal Employees, Local 2119 and U.S. Department of the Army, Rock Island Arsenal, Rock Island, Illinois, 42 FLRA 993, 996-97 (1991). Examples of the appropriate use of excused absences include short periods of time resulting from agency closures and participation in counseling and/or treatment sessions relating to an agency's drug testing program. See id.; National Treasury Employees Union and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 41 FLRA 1106 (1991), petition for review dismissed sub nom. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms v. FLRA, 953 F.2d 687 (D.C. Cir. 1992). The granting of administrative leave is restricted to the circumstances described in the FPM. There is no provision in the FPM authorizing th