31:1184(102)AR - Marine Corps Logistics Base, Barstow, CA and AFGE Local 1482 -- 1988 FLRAdec AR

 31 FLRA NO. 102

MARINE CORPS LOGISTICS BASE
BARSTOW, CALIFORNIA

                     Activity

         and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1482

                    Union

                                            Case No. 0-AR-1452

                        DECISION

     I. Statement of the Case

     This matter is before the Authority on an exception to the
award of Arbitrator William S. Rule filed by the Department of
the Navy (the Agency) on behalf of the Activity 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.  */   The Agency excepts
to that part of the Arbitrator's award which states that the
grievant was entitled to overtime for work performed between
March 12, 1986 and October 30, 1986. For the reasons discussed
below, we conclude that the Agency has failed to establish that
this part of the award is contrary to law. Accordingly, we deny
the exception.

     II. Background and Arbitrator's Award

     The grievant worked as a sports specialist for the Activity
and was responsible for the sports programs. Occasionally, he
served as an official at athletic events held at the base. This
additional activity was not a part of his official duties as a
sports specialist. When engaged in this activity, he began
officiating at 5:00 p.m., 1/2 hour after the end of his workday
as a sports specialist. After being disciplined for matters
unrelated to the exception before us, he filed grievances which
alleged, among other things, that he was entitled to overtime for
22.5 hours worked between 4:30 and 5:00 p.m. for the period March
12, 1986 through October 30, 1986.

     The Arbitrator determined that the record was insufficient
to make an exact determination as to the specific overtime due
the grievant. He further found, based on the record, that: (1)
the grievant was entitled to overtime for work performed between
4:30 and 5:00 p.m. on September 19, 1986; and (2)  the grievant's
supervisor was fully aware that the grievant was working from
4:30 to 5:00 p.m. on those days he was to officiate a game at
5:00 p.m. The Arbitrator concluded that the grievant was entitled
to overtime for hours not exceeding the 22.5 hours claimed,
subject to the right of the Activity to show that the grievant
was not at work or did not officiate on any of the dates claimed
and to deduct those hours accordingly. The Arbitrator further
retained jurisdiction of this particular issue for 60 days to
resolve any dispute as to this aspect of the award.

     III. Positions of the Parties

     The Agency excepts to the award's grant of overtime pay to
the grievant for work performed between 4:30 and 5:00 p.m. during
the period of March 12 through October 30, 1986. The Agency does
not except to the award of overtime for September 19. The Agency
claims that from March through October 1986, the grievant's
position was exempt from the Fair Labor Standards Act (FLSA), 29
U.S.C. 201 et seq., and, therefore, his entitlement to overtime
pay was governed by 5 U.S.C. 5542(a), which allows pay only for
work "officially ordered or approved." The Agency asserts that
the Arbitrator's finding that the grievant's supervisor was
&fully aware of his after-hours activity, is not sufficient under
5 U.S.C. 5542 to demonstrate that the work was officially ordered
or approved, and the award of overtime is, therefore, contrary to
law.

     The Union contends that the Arbitrator correctly found that
the grievant was entitled to overtime.

     IV. Discussion

     We reject the Agency's contention that the award of overtime
compensation is contrary to law. 

     The Agency claims that during the period in question, that
is, between March 12 through October 30, 1986, the grievant's
position was exempt from the FLSA and, therefore, his entitlement
to overtime pay was governed by 5 U.S.C. 5542(a). However, the
Agency also states, and the record indicates, that the grievant
was not determined to be exempt from coverage of the FLSA until
November 1986. Agency Exception at 1; Attachment 3 to Agency
Exception. Specifically, the Agency states that "(i)n November
1986 the Grievant . . . was determined to be exempt from coverage
of the Fair Labor Standards Act by the Base Position
Classification Program Manager"; and that "(p)rior to that, while
classified as an FLSA non-exempt employee, he had received a 10
per cent premium in lieu of hourly overtime for a period of time
and, after that was discontinued, overtime pay on an hourly
basis." Agency Exception at 1.

     According to the Agency's statement and the record before
us, the grievant's position was exempted from the FLSA in
November 1986. The grievant's position was not exempt from the
FLSA during the period March to October 1986. Therefore, the
grievant was eligible for overtime for that period under the
FLSA. The Agency does not claim, and we find no  basis on which
to conclude, that the Arbitrator's award is contrary to the FLSA.
We find, therefore, that the Arbitrator's award is not contrary
to law and we deny the exception.

     V. Decision

     The Agency's exception is denied.

Issued, Washington, D.C., April 22, 1988.

                              Jerry L. Calhoun, Chairman

                              Jean McKee, Member

                              FEDERAL LABOR RELATIONS AUTHORITY


FOOTNOTES

     Footnote */ The Union contends that the Agency's exception
was untimely filed and therefore may not be considered by the
Authority. However, based on the record, we find that the
Agency's exception was timely filed.

CITATORS:



  29 USC 201
  5 USC 5542(A)
  5 USC 7122(A)