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50:0330(53)AR - - NTEU, Chapter 24 and IRS - - 1995 FLRAdec AR - - v50 p330

[ v50 p330 ]
The decision of the Authority follows:

50 FLRA No. 53














April 11, 1995


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Alan Walt 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. The Agency filed an opposition to the Union's exception.

The Arbitrator found that the parties' agreement pertaining to alternative work schedules was contrary to law to the extent that it allowed employees to earn credit hours by working on a holiday.

We find that the Arbitrator's award is deficient under section 7122(a) of the Statute, and we modify the award accordingly.

II. Arbitrator's Award

The parties entered into an agreement providing that employees working certain alternative work schedules could elect to earn up to 8 credit hours for working on nonduty days, identified as Saturdays, Sundays, and holidays. Until 1992, employees who worked on holidays to earn credit hours in accordance with the agreement received their basic pay for the holiday and up to 8 credit hours. The employees were not compensated at premium pay rates for holiday work.

In 1992, the Agency terminated the provision of the agreement allowing employees to earn credit hours by working on a holiday during what otherwise would be their normal work hours without notifying the Union of this decision. The Union filed a grievance contesting the termination.

The grievance was submitted to arbitration where the Union argued that the Agency improperly terminated the agreement provision because the credit hours provision was consistent with law. The Agency argued that the provision was inconsistent with both the Federal Employees Flexible and Compressed Work Schedules Act of 1982, Pub. L. No. 97-221, 96 Stat. 227 (codified at 5 U.S.C. §§ 6101 note, 6106, 6120-6133) (the Work Schedules Act), and 5 U.S.C. § 5546 (section 5546).

The Arbitrator rejected the Agency's argument regarding the Work Schedules Act, but found that employees were barred from earning credit hours on holidays by section 5546(b) and (c).(1) The Arbitrator determined that when employees work on a holiday, section 5546 mandates that the employing agency pay them premium pay. Finding that nothing in the Work Schedules Act modified section 5546 to allow employees to earn credit hours in lieu of premium pay for work performed on a holiday, the Arbitrator ruled that the parties' agreement pertaining to credit hours for holiday work violated section 5546 and that the Agency was justified in terminating that provision.

III. Exception

A. Union's Contentions

The Union contends that the award is deficient because the parties' agreement is fully enforceable under the Statute, unless it conflicts with the Work Schedules Act. The Union asserts that as section 5546 is not part of the Work Schedules Act, it was not a proper basis on which to deny the grievance. The Union also disagrees with the Arbitrator's determination that section 5546 prohibits compensation with credit hours rather than premium pay.

B. Agency's Opposition

The Agency contends that the Arbitrator correctly determined that section 5546 prohibits the earning of credit hours on holidays.

IV. Analysis and Conclusions

As the exception involves the award's consistency with law, we must review the questions of law raised by the Arbitrator's award and the Union's exception de novo. U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994).

The legislative history of the Work Schedules Act shows that Congress intended alternative work schedules to be fully negotiable, subject only to the provisions of the 1982 Act itself. S. Rep. No. 365, 97th Cong. 2d Sess. 14-15 (1982), reprinted in 1982 U.S.C.C.A.N. (96 Stat.) 576-77. Consistent with the legislative history, the Authority has held that alternative work schedule provisions are fully negotiable, subject only to the Work Schedules Act or other laws superseding the Act. American Federation of Government Employees, Local 1934 and Department of the Air Force, 3415 ABG, Lowry AFB, Colorado, 23 FLRA 872, 874 (1986) (Lowry AFB). For example, the Authority has consistently held since Lowry AFB that the Statute does not provide a basis on which to find a contractual alternate work schedule provision nonnegotiable or unenforceable. E.g., U.S. Environmental Protection Agency, Research Triangle Park, North Carolina and American Federation of Government Employees, Local 3347, 43 FLRA 87, 92-93 (1991).

In addition, in Illinois National Guard v. FLRA, 854 F.2d 1396, 1405 (D.C. Cir. 1988) (Illinois National Guard), the court held that a portion of the National Guard Technicians Act, 32 U.S.C. § 709(g)(2) (Technicians Act), which provides that "[n]otwithstanding . . . any other provision of law, the Secretary concerned may . . . prescribe the hours of duty for technicians[,]" constituted "a narrow exception to the broadly stated bargaining requirement of the [Work] Schedules Act." The Authority adopted that decision in National Guard Bureau and Adjutant General, State of Pennsylvania, 35 FLRA 48 (1990).(2)

In this case, it is apparent that section 5546 is not a law superseding the Work Schedules Act. Moreover, there is no assertion, or other basis on which to conclude, that section 5546 constitutes an exception to the Work Schedules Act on the same basis as the Technicians Act, that is, on the basis that it grants the Agency "unfettered discretion." Illinois National Guard, 854 F.2d at 1402. Accordingly, section 5546 does not provide a basis on which to deny enforcement of the parties' contractual provision and the award is deficient insofar as the Arbitrator refused to enforce the provision. Without addressing whether the disputed contractual provision is consistent with section 5546, we modify the award to sustain the grievance, and we remand the case to the parties for submission to the Arbitrator for consideration of a remedy, absent settlement.

V. Decision

The award is modified by substituting "sustained" for "denied" in the first paragraph of the award. The case is remanded to the parties for further proceedings consistent with this decision.

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

1. Section 5546(b) and (c) provides:

(b) An employee who performs work on a holiday designated by Federal Statute [or] Executive order . . . is entitled to pay at the rate of his basic pay, plus premium pay at a rate equal to the rate of his basic pay, for that holiday work which is not--

(1) in excess of 8 hours; or

(2) overtime work as defined by section 5542(a) of this title.

(c) An employee who is required to perform any work on a designated holiday is entitled to pay for at least 2 hours of holiday work.

2. Accordingly, we modify Lowry AFB insofar as necessary to permit consideration of laws such as 32 U.S.C. § 709(g)(2) that constitute exceptions to the broadly stated bargaining requirement of the Act.