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47 FLRA No. 94

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF AGRICULTURE

AGRICULTURAL RESEARCH SERVICE

PLUM ISLAND ANIMAL DISEASE CENTER

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1940

(Union)

0-AR-2403

_____

DECISION

June 29, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to a supplemental award of Arbitrator Daniel F. Brent 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 exceptions.

In his supplemental award, the Arbitrator clarified that his original award of overtime pay was intended to apply to all work which employees performed on any sixth consecutive workday. The Arbitrator also clarified the entitlement period for such overtime pay.

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

II. Background and Supplemental Award

The grievance arose when the Agency scheduled a tour of duty that required employees to work 10 consecutive days followed by 4 consecutive days off. The schedule called for alternating 2 days off and 5 days of work during one administrative workweek, and 5 days of work and 2 days off during the next administrative workweek. In his original award, the Arbitrator determined that the tour of duty violated Article VIII, Section 2 of the parties' collective bargaining agreement.⁽¹⁾ In particular, the Arbitrator concluded that employees who "worked in excess of five consecutive days during a seven consecutive day administrative work week" were entitled to overtime pay and ordered the Agency to make such payments under the Back Pay Act. Original Award at 14.

Responding to a request for clarification by both parties about the circumstances under which employees were entitled to overtime pay, the Arbitrator, in his supplemental award, stated:

[T]he true damage to an employee who was required to work five days in one administrative work week which were directly contiguous to five days in the next administrative work week is that an employee is required to work on his day off, which should have followed the fifth consecutive work day. This lost day off must be construed as an overtime assignment and is compensable at time-and-a-half.

Supplemental Award at 2. The Arbitrator also stated that the entitlement period for overtime pay would continue until such time as "the [scheduling] practice is stopped or until the parties bargain an alternative solution." Id. at 3.

III. Positions of the Parties

The Agency excepts to the supplemental award insofar as it directs the Agency to pay overtime to employees for work performed on any sixth consecutive workday. The Agency claims that such overtime payments are contrary to 5 U.S.C. § 5542 because they encompass pay when an employee has worked fewer than 40 hours in an administrative workweek or 8 hours in a day.⁽²⁾ The Agency also argues that the Arbitrator exceeded his authority "by extending the period of the award to dates well beyond that on which the grievance was filed." Exceptions at 1.

The Union maintains that the supplemental award does not conflict with 5 U.S.C. § 5542 and that the Agency's practice of scheduling employees to work more than 5 consecutive days violates the parties' agreement.

IV. Analysis and Conclusions

An arbitration award is deficient under section 7122(a) of the Statute if, among other things, the award is contrary to law or Government-wide regulation. See American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 45 FLRA 106 (1992)(SSA). For the following reasons, we find that the supplemental award is inconsistent with 5 U.S.C. § 5542 and 5 C.F.R. § 550.111(a).

In the supplemental award, the Arbitrator awarded overtime pay to all employees who worked more than 5 consecutive workdays during a tour of duty that spanned two administrative workweeks.⁽³⁾ However, under 5 U.S.C. § 5542 and its implementing regulation, 5 C.F.R. § 550.111(a), overtime may not be paid unless an employee works more than 40 hours in a 7-day administrative workweek or more than 8 hours in a day. That an employee is required to work more than 5 consecutive days does not, in and of itself, entitle an employee to overtime pay under applicable law. For example, Sanford v. Weinberger, 752 F.2d 636 (Fed. Cir. 1985) addressed whether employees were entitled to overtime under 5 U.S.C. § 5542 for working 7 consecutive days. In finding that the employees were not entitled to 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.

In this case, the parties do not dispute that the affected employees' administrative workweek properly was designated in advance by the Agency "'as beginning on Sunday at 12:01 a.m. and ending the following Saturday at midnight.'" Award at 6 (quoting Agency Directive 402.1). Moreover, the Union does not dispute that affected employees' sixth consecutive workday was the first day of a new administrative workweek. As there is no indication in the record that employees worked more than 40 hours during any one administrative workweek or more than 8 hours in any one day, overtime may not be paid under applicable law. Accordingly, the supplemental award, requiring such pay, is deficient as contrary to 5 U.S.C. § 5542 and its implementing regulations and will be set aside. See SSA, 45 FLRA at 111. Because we find the supplemental award of overtime deficient, we also find deficient, for the same reasons, that portion of the award extending the time period for such entitlement to such overtime. Consequently, we will set aside that portion of the award.

V. Decision

The Arbitrator's supplemental award is set aside.

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

1. Article VIII of the parties' agreement provides, in pertinent part:

Section 2. Nonstandard tours of duty for fulltime shiftworkers shall:

A. Have not more than five (5) nor less than four (4) consecutive workdays[,] with a day or days off in between[,] of eight (8) hours each with the same clock hours (excluding scheduled or unscheduled overtime).

Award at 5.

2. 5 U.S.C. § 5542 states in relevant part:

(a) For full-time, part-time and intermittent tours of duty, hours of work officially ordered or approved in excess of 40 hours in an administrative workweek, or . . . in excess of 8 hours in a day, performed by an employee are overtime work and shall be paid for, except as otherwise provided by this subchapter, at the following rates:

(1) For an employee whose basic pay is at a rate which does not exceed the minimum rate of basic pay for GS-10, the overtime hourly rate of pay is an amount equal to one and one-half times the hourly rate of basic pay of the employee . . . .

3. According to the Arbitrator, the schedule was arranged so that employees were "required to work five days in one administrative work week which were directly contiguous to five days in the next administrative work week[.]" Supplemental Award at 2.

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