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The decision of the Authority follows:
52 FLRA No. 61
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION
November 27, 1996
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Paul J. Fasser, Jr., 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 Regulations. The Union filed an opposition to the Agency's exceptions.
The Arbitrator's award ordered the Agency to provide the employees backpay encompassing night differential for all hours of work scheduled between the hours of 6 p.m. and 6 a.m. even though the amount of work performed between those hours was less than scheduled because the employees elected to use flexitime. For the following reasons, we conclude that the award is deficient under section 7122(a) of the Statute because it is contrary to law. Accordingly, we set aside the award.
II. Background and Arbitrator's Award
Air traffic controllers are scheduled to work during an administrative workweek, which is a period of 7 consecutive calendar days encompassing 40 hours' work. The schedule is posted in advance of the administrative workweek. Article 37, section 4 of the parties' collective bargaining agreement provides a 10 percent night differential for "work performed between the hours of 6 p.m. and 6 a.m."(1)
The Union filed a grievance asserting that employees scheduled to work hours between 6 p.m. and 6 a.m. were entitled to night differential for those scheduled hours even if they used flexitime to begin work earlier than their assigned shifts and, as result, worked fewer hours after 6 p.m. than scheduled. The Union relied on an FAA Order, which stated that employees were to be paid a 10 percent night differential for "any regularly scheduled work performed between 6 p.m. and 6 a.m.," and a 1984 letter in which the Office of Personnel Management (OPM) concluded that, where a controller scheduled to work the day shift exchanged (after the beginning of a workweek) shifts with a controller scheduled to work the night shift, both are entitled to night differential. Award at 4. In that letter, OPM stated that voluntary shift changes should be treated the same as management-directed shift changes because the voluntary changes required management approval.(2)
The Arbitrator stated that the issue before him was "essentially":
Should a Controller who is scheduled to work hours which fall between 6 p.m. and 6 a.m. and who voluntarily uses the flexitime arrangement at the Controller's Facility to change the scheduled starting time so as to work less time in the period covered by the night differential be paid the night differential for the time not worked?
Award at 13. The Arbitrator granted the grievance, concluding that the Agency was required to pay night differential for scheduled hours between 6 p.m. and 6 a.m., even if the hours were not worked because a controller elected to use flexitime. The Arbitrator relied on the fact that, under Article 37, section 4 of the parties' agreement, there are other situations where night shift employees who do not perform work during the scheduled shift are paid the differential. The Arbitrator also relied on the 1984 OPM letter. The Arbitrator stated that the situation described in the 1984 OPM letter "closely parallel[ed]" the present case because in both cases, the schedule was changed after the administrative workweek had begun, and the change, although voluntary, was management-controlled. Id. at 15.
The Arbitrator ordered backpay for night differential that employees would have received but for the Agency's violation of the parties' agreement. The Arbitrator determined that, if useful records for the appropriate pay periods were unavailable, then the parties should meet in each facility to determine an approximate "lump sum" to be paid to controllers who had been denied proper payment. Id. at 17.
A. Agency's Contentions
The Agency argues first that the award is deficient on the grounds that it is contrary to law and regulation.
In particular, the Agency asserts that it is not permitted to pay night differential for hours not worked except in the circumstances listed in 5 U.S.C. § 5545(c),(3) and that those circumstances do not exist in this case. The Agency also argues that 5 U.S.C. § 6123(c)(1)(4) does not permit the payment of night differential for hours that are not actually worked under a flexible work schedule. According to the Agency, the OPM Letter is inapplicable in this case because the Letter concerns voluntary shift changes approved by management, whereas this case concerns an employee's election to change starting or quitting time pursuant to a flexitime system. In addition, the Agency argues that the award is contrary to 5 C.F.R. § 610.111(d), which, according to the Agency, provides that the hours actually worked constitute "regularly scheduled work for premium pay and hours of duty purposes."(5)
In addition, the Agency argues that the portion of the award requiring the parties to determine an approximate lump sum to be paid to certain employees violates 5 C.F.R. § 550.805(a)(2),(6) which implements the Back Pay Act, 5 U.S.C. § 5596. According to the Agency, backpay is not subject to negotiations.
Second, the Agency argues that, in ordering payment for work not performed, the Arbitrator disregarded the plain language of Article 37, section 4 of the parties' agreement. As such, the Agency claims that the award fails to draw its essence from the agreement.
B. Union's Opposition
The Union argues that an entitlement to night differential may exist even though 5 U.S.C. §§ 6123(c) and 5545(a) do not expressly provide for payment of the differential. The Union also contends that bargaining unit members meet the criteria for night differential set forth in 5 U.S.C. § 6123(c)(1).
In addition, the Union disputes the Agency's claim that neither 5 U.S.C. § 5545(a) nor 5 U.S.C. § 6123(c) permits the payment of night differential for hours not actually worked. The Union argues that the payment of night differential in the situation encompassed by the grievance is not prohibited by applicable regulations. The Union claims, in particular, that the award is not inconsistent with 5 C.F.R. §§ 550.121,(7) 550.122,(8) or 610.401, et seq.(9) Opposition at 3.
Further, the Union argues that the Arbitrator properly determined that the parties' agreement did not restrict the payment of the night differential when employees use flexitime to begin work early. Accordingly, the Union maintains that the award does not fail to draw its essence from the parties' bargaining agreement.
IV. Analysis and Conclusions
For the following reasons, we conclude that the award is deficient because it is contrary to 5 U.S.C. § 5545.
The Agency's exceptions challenge the award's consistency with law and regulation. Accordingly, we review the question of law raised by the award and the parties' positions de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995), citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994).
The parties do not dispute that the statutory authorization for the payment of night differential is 5 U.S.C. § 5545. As relevant here, that provision authorizes night differential for "regularly scheduled work" between the hours of 6 p.m. and 6 a.m. See note 3, supra. The parties also do not dispute that the employees to whom the award in this case applies are scheduled to work various hours between 6 p.m. and 6 a.m. However, the dispute in this case arose because affected employees are authorized to vary their starting and quitting time pursuant to a flexible work schedule. As such, as asserted by the Agency and not disputed by the Union, 5 C.F.R. § 610.111(d) applies. That regulation provides that, for employees on a flexible schedule, "all work performed . . . is considered regularly scheduled work for premium pay and hours of duty purposes." See note 5, supra. When the statute and the regulation are read together, it is clear that night differential is authorized only for work performed between 6 p.m. and 6 a.m. As the award provides employees night differential for hours when there is no statutory authorization for payment of such differential, it is inconsistent with 5 U.S.C. § 5545. Cf. U.S. Department of Transportation, Federal Aviation Administration, Washington, D.C. and National Air Traffic Controllers Association, 51 FLRA 1385, 1389 (1996) (FAA) (award requiring payment of Sunday premium pay in circumstances where such pay was not authorized by Statute held deficient as contrary to law).
In this regard, the Union's reliance on 5 U.S.C. § 6123(c)(1) is misplaced. That provision, by its terms, applies only to: (1) night differential that otherwise is authorized by 5 U.S.C. § 5545(a), and (2) situations where an employee elects to work "at a time of day for which [night differential] is otherwise authorized[.]" See note 4, supra. With respect to the first matter, we have concluded that the night differential ordered by the Arbitrator is not authorized by section 5545(a). With respect to the second, by using flexitime to begin work earlier than scheduled, the affected employees in this case are electing to work at a time of day when night differential is not authorized and, as a result, are working fewer hours during the time when it is authorized. In these circumstances, 5 U.S.C. § 6123(c)(1) does not provide a basis for the award.
The Union's reliance on the fact that various OPM regulations do not prohibit the payment of night differential in this case also is misplaced. Consistent with FAA, the award of night differential is deficient unless such payment is authorized by Statute. In this case, we conclude that the payment is not authorized. Accordingly, that the payment is not specifically prohibited is not dispositive.
Finally, the Arbitrator appears to have based his award, at least in part, on the 1984 OPM letter. That letter contains no discussion of the statutory and/or regulatory provisions at issue in this case. Moreover, the letter is based on acts that are distinguishable from those in this case. Specifically, in the situation described in the 1984 letter, management approved the swapping of shifts. In this case, no management approval was required for the employees to utilize their flexitime. The letter, therefore, does not provide a basis for awarding night differential.
Based on the foregoing, we conclude that the award is contrary to 5 U.S.C. § 5545. Accordingly, we set aside the award.(10)
The Arbitrator's award is set aside.
(If blank, the decision does not have footnotes.)
1. Article 37, section 4 provides:
Night differential, at the allowable rate, will be paid for work performed between the hours of 6 p.m. and 6 a.m. Payment of night differential continues for regularly scheduled night hours when an employee is absent due to a holiday or other non-work day and when travel is performed during the night hours of his/her regularly scheduled tour of duty. Night differential continues during short periods of paid leave but only if the total amount of leave (including both night and day hours) taken during the pay period is less than eight (8) hours.
Award at 2.
2. OPM did not explain in the letter the significance of whether the change was controlled or directed by management. OPM stated only that, "[b]y requiring that employees request shift changes before the beginning of the workweek, [the Agency] can schedule the employees who will actually perform night work and pay night pay only to these employees." Award at 10 (quoting OPM letter).
3. 5 U.S.C. § 5545 provides, in pertinent part:
(a). . . nightwork is regularly scheduled work between the hours of 6:00 p.m. and 6:00 a.m., and includes--
(1) periods of absence with pay during these hours due to holidays; and
(2) periods of leave with pay during these hours if the periods of leave with pay during a pay period total less than 8 hours.
Except as otherwise provided by subsection (c) of this section, an employee is entitled to pay for nightwork at his rate of basic pay plus . . . 10 percent of that basic rate. . . .
. . . .
(c) The head of an agency, with the approval of the Office of Personnel Management may provide that--
(1) an employee in a position requiring him regularly to remain . . . in a standby status rather than performing work, shall receive premium pay for this duty on an annual basis . . . .
(2) an employee in a position in which the hours of duty cannot be controlled administratively, . . . shall receive premium pay for this duty on an annual basis . . . .
4. 5 U.S.C. § 6123(c)(1) provides:
Notwithstanding section 5545(a) of this title, premium pay for nightwork will not be paid to an employee otherwise subject to such section solely because the employee elects to work credit hours, or elects a time of arrival or departure, at a time of day for which such premium pay is otherwise authorized, except that--
(A) if an employee is on a flexible schedule under which--
(i) the number of hours during which such employee must be present for work, plus,
(ii) the number of hours during which such employee may elect to work credit hours or elect the time of arrival at and departure from work,which occur outside of the nightwork hours designated in or under such section 5545(a) total less than 8 hours, such premium pay shall be paid for those hours which, when combined with such total, do not exceed 8 hours, and
(B) if an employee is on a flexible schedule under which the hours that such employee must be present for work include any hours designated in or under such section 5545(a), such premium pay shall be paid for such hours so designated.
5. 5 C.F.R. § 610.111(d) provides, in pertinent part:
When the head of an agency establishes a flexible or compressed work schedule . . . he or she shall establish a basic work requirement for each employee . . . . A flexible or compressed work schedule is a scheduled tour of duty and all work performed by an employee within the basic work requirement is considered regularly scheduled work for premium pay and hours of duty purposes.
6. 5 C.F.R. § 550.805 provides, in pertinent part:
(a) . . .
(2) The agency shall compute for the period covered by the corrective action the pay, allowances, and differentials the employee would have received . . . .
(b) No employee shall be granted more pay, allowances, and differentials under section 5596 of title 5 . . . than he or she would have been entitled to receive if the unjustified or unwarranted personnel action had not occurred.
7. 5 C.F.R. § 550.121(a) provides, in pertinent part:
(a) Except as provided by paragraph (b) of this section, nightwork is regularly scheduled work performed by an employee between the hours of 6 p.m. and 6 a.m. Subject to § 550.122, and except as otherwise provided in this subpart, an employee who performs nightwork is entitled to . . . a night pay differential amounting to 10 percent of his or her rate of basic pay. . . .
8. 5 C.F.R. § 550.122 provides, in pertinent part:
(a) Absence on holidays or in travel status. An employee is entitled to a night pay differential for a period when he is excused from nightwork on a holiday or other nonworkday and for night hours of his tour of duty while he is in an official travel status, whether performing actual duty or not.
(b) Absence on leave. An employee is entitled to a night pay differential for a period of paid leave only when the total amount of that leave in a pay period, including both night and day hours, is less than 8 hours.
(c) Relation to overtime, Sunday, and holiday pay. Night pay differential is in addition to overtime, Sunday, or holiday pay payable under this subpart
. . . .
(d) Temporary assignment to a different daily tour of duty. An employee is entitled to a night pay differential when he or she is temporarily assigned during the administrative workweek to a daily tour of duty that includes nightwork. . . .
9. The regulations at 5 C.F.R. § 610.401, et seq. concern flexible and compressed work schedules, and include such topics as holiday pay for employees on compressed work schedules, premium pay for holiday work for employees on compressed work schedules, and use of credit hours by senior executive service employees under alternative work schedules. The Union does not cite any specific section in this subpart.
10. In view of our decision that the award is deficient as contrary to 5 U.S.C. § 5545, we need not address the Agency's exception that the award also is deficient as contrary to the Back Pay Act and as failing to draw its essence from the parties' agreement.