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48 FLRA No. 63

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

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NATIONAL ASSOCIATION OF AGRICULTURE EMPLOYEES

(Union)

and

U.S. DEPARTMENT OF AGRICULTURE

ANIMAL AND PLANT HEALTH INSPECTION SERVICE

PLANT PROTECTION AND QUARANTINE

(Agency)

0-NG-2134

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DECISION AND ORDER ON A NEGOTIABILITY ISSUE

October 7, 1993

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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) and concerns the negotiability of one proposal relating to overtime entitlement. For the following reasons, we find that the proposal is nonnegotiable.

II. Background and Proposal

The Agency issued a proposed Overtime Interpretation Manual to provide guidance in determining the overtime pay entitlement for Plant Protection and Quarantine (PPQ) officers, who perform inspection activities at international ports of entry. Included in the Manual is an example involving an 8-hour overtime assignment of PPQ officers to cover Sunday flight inspections. The Manual provides that, when such scheduled overtime shift is terminated before the end of the eighth hour, the affected employee will be paid only for the hours actually worked as follows:

Officer is scheduled to work Sunday overtime shift from 0800-1630. Since [n]o additional planes are due until after 1630, officer is sent home at 1430. The officer takes a 30 minute unpaid lunch break.

In computing the pay entitlement under these conditions, the Agency contends [that] the officer is entitled to 'Full CTT' and '6 Sunday OT Hrs'.⁽¹⁾

Petition for Review at 1. In response, the Union submitted the following proposal:

The actual end of the tour is actually 1630; Sunday OT hours are eight (8).

Rationale: Sunday Tour - Robertson/Finamore, 07/06/87. A scheduled shift has a defined beginning and end time.⁽²⁾

Id.

III. Positions of the Parties

A. Agency

The Agency contends that the proposal directly interferes with its right to assign work under section 7106(a)(2)(B) of the Statute because it precludes management from "assigning less than 8 hours of overtime work . . . on Sundays." Statement of Position at 4. According to the Agency, "[a] proposal that precludes management from determining the duration of work assignments directly interferes with management's right to assign work under the Statute." Id. (citations omitted).

The Agency also asserts that, because the proposal requires the Agency to compensate employees for 8 hours of overtime even if no work is available, the proposal is inconsistent with 5 U.S.C. § 5542, 5 C.F.R. § 550.111 and various decisions of the Comptroller General. In this connection, the Agency claims that the Authority has held that proposals requiring an agency to pay employees a minimum number of hours of overtime are inconsistent with 5 U.S.C. § 5542.⁽³⁾ Further, the Agency claims that 5 C.F.R. § 550.111 authorizes overtime compensation only if the overtime is actually worked.⁽⁴⁾ Finally, the Agency argues that Comptroller General decisions establish that, even if overtime is scheduled, there is no entitlement to overtime compensation unless the overtime is actually worked. In support, the Agency cites, among other Comptroller General decisions, Bonucchi, Ronald O. et al., Army COE, Comp. Gen. B-224854 (May 16, 1991)(unpublished) (Bonucchi).

B. Union

The Union contends that this case concerns whether the Agency may "terminate a scheduled Sunday overtime shift in the middle of that shift without any advance notice and without paying the PPQ officers for all hours encompassed within that shift as scheduled." Response at 2 (emphasis omitted). According to the Union, the proposal does not preclude management from assigning "Sunday overtime work as a scheduled shift[,]" or determining the "duration of that scheduled shift in advance." Id. Further, the Union states that it "does not contest" the Agency's right "to change a scheduled Sunday overtime shift, even after it has been scheduled, in order to accommodate changes in the scheduling of flight arrivals." Id. at 4. The Union claims, however, that "Sunday overtime schedule changes must be accomplished in conformity with established rules and regulations[,]" Id.

According to the Union, the Agency is required by 5 C.F.R. § 610.111(a)(2) to establish a regularly scheduled administrative workweek that consists of a 40-hour basic workweek and regularly scheduled overtime.⁽⁵⁾ The Union also asserts that, under 5 C.F.R. §610.121(a)(1), "[o]nce the administrative workweek has begun, it may not be changed or rescheduled, unless the Agency 'would be seriously handicapped in carrying out its functions or costs would be substantially increased'." Id. at 5 (citation omitted).⁽⁶⁾ The Union argues that, unless one of the exceptions listed in 5 C.F.R. 610.121(a) has been met, regularly scheduled overtime may not be "rescheduled . . . without paying the employees for the remaining hours of that schedule." Id. at 6.

The Union also disputes the Agency's claim that a change in flight arrival schedules results in employees having no work to perform. According to the Union, the Agency "has consistently found work for employees to do, whether of an administrative or operational nature, whenever changes in anticipated flight arrivals, occurring during the non-overtime portions of their regularly scheduled workweeks, leave employees without flights to process or clear." Id. at 9. The Union claims, in this regard, that "management could continue to assign employees to perform those same kind of duties when a flight has been delayed in arriving during a scheduled Sunday overtime shift." Id.

Further, the Union contends that the Agency's reliance on 5 U.S.C. § 5542 and 5 C.F.R. § 550.111 is misplaced because "overtime pay for PPQ [o]fficers is governed by 7 U.S.C. § 2260, 7 C.F.R. § 354 and the implementing Agency directive . . . ." Id. at 8. In addition, the Union disputes the applicability of Controller General decisions. According to the Union, Federal employee claims which are subject to negotiated grievance procedures are not settled or resolved by the Comptroller General.⁽⁷⁾ Moreover, the Union contends that none of the cases cited by the Agency "deal[] with the compensation applicable when [m]anagement improperly and unlawfully terminates scheduled overtime, denying employees their right and ability to work their entire scheduled overtime shifts." Id. at 10 (emphasis omitted).

Finally, the Union claims that the proposal is intended as an appropriate arrangement, within the meaning of section 7106(b)(3) of the Statute. In this connection, the Union argues that, when an employee is assigned to scheduled overtime, the employee must make necessary arrangements for the scheduled time, such as "canceling planned Sunday events, including church, family outings, personal travel, [and] . . . arranging and paying for child care." Id. at 13. According to the Union, "[p]remature cancellation of the overtime assignment still leaves the employee with a canceled event and a full day-care commitment, but now without the compensation necessary to pay for that commitment." Id.

IV. Analysis and Conclusions

We conclude that requiring the Agency to pay employees overtime compensation for 8 hours of Sunday overtime in circumstances where they do not actually perform 8 hours' work is inconsistent with 7 U.S.C. § 2260.⁽⁸⁾ In the absence of statutory authority, it appears clear that the scheduling of overtime does not entitle an employee to overtime compensation unless the hours were actually worked. See Bonucchi.⁽⁹⁾ In this connection, nothing in the wording of 7 U.S.C. § 2260, or its legislative history, indicates that Congress authorized the payment of overtime compensation for periods of time when employees do not actually perform inspection and quarantine services. By contrast, Congress expressly has authorized overtime compensation under other statutes in circumstances where employees do not perform specified inspections. For example, 19 U.S.C. § 267 (authorizing overtime compensation for certain Customs Service employees in circumstances where the employees have been ordered to duty to perform particular inspections but do not actually perform the designated inspections); 8 U.S.C. § 1353b (authorizing overtime compensation for certain Immigration Service employees in circumstances similar to those applicable to Customs employees).

As Congressional authorization is required for the payment of overtime compensation in the circumstances covered by the disputed proposal, and as such authorization has not been provided, we conclude that the requirement that the Agency pay affected employees overtime compensation for 8 hours of Sunday overtime in circumstances where they do not actually perform 8 hours' work is inconsistent with 7 U.S.C. § 2260 and nonnegotiable under section 7117(a)(1) of the Statute. In view of this conclusion, it is unnecessary for us to address the Agency's additional contentions concerning the negotiability of the proposal. In addition, we do not determine whether the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. The Authority will not consider whether a proposal constitutes an appropriate arrangement when, as in this case, the proposal is nonnegotiable under section 7117(a)(1). See, for example, International Federation of Professional and Technical Engineers and U.S. Department of the Navy, Marine Corps Security Force Battalion, 47 FLRA 1086, 1090 (1993).

V. Order

The Union's petition for review is dismissed.

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

1. The term "CTT" is a reference to commuted travel time, a pay entitlement for travel time to and from the worksite when on overtime. See 7 C.F.R. § 354.1(a)(2). The term "OT" is a reference to overtime. All references to time are expressed in military format. Petition for Review at 1.

2. The term "Robertson/Finamore" is a reference to a letter from one Agency official to another explaining that the Agency will consider a Sunday tour of duty as a scheduled tour of duty when an employee is assigned to work specific hours on that Sunday. Attachment to Petition for Review.

3. 5 U.S.C. § 5542 provides, in pertinent 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 . . . .

4. 5 C.F.R. § 550.111 provides, in pertinent part:

(a) Except as provided by paragraph (d) of this section, overtime work means work in excess of 8 hours in a day or in excess of 40 hours in an administrative workweek that is:

(1) Officially ordered or approved:

and

(2) Performed by an employee. . . .

(emphasis in original)

5. 5 C.F.R. 610.111(a)(2) provides, in pertinent part:

(a) The head of each agency, with respect to each full-time employee to whom this subpart applies, shall establish by regulation:

. . . .

(2) A regularly scheduled administrative workweek that consists of the 40-hour basic workweek . . . plus the period of regular overtime work, if any, required of each employee.

6. 5 C.F.R. 610.121(a)(1) provides, in pertinent part.

(a) Except when the head of an agency determines that the agency would be seriously handicapped in carrying out its functions or that costs would be substantially increased, he or she shall provide that --

(1) Assignments to tours of duty are scheduled in advance of the administrative workweek over periods of not less than 1 week[.]

7. The Union relies on 57 Fed. Reg. 31272 (July 14, 1992) which provides, in pertinent part:

Due to recent judicial decisions interpreting the Civil Service Reform Act, the General Accounting Office (GAO) is changing and redesignating its regulations to provide that it will no longer issue decisions or settle Federal employee's claims concerning matters which are subject to negotiated grievance procedures under collective bargaining agreements.

8. 7 U.S.C. § 2260 provides as follows:

The Secretary of Agriculture is authorized to pay employees of the United States Department of Agriculture performing inspection or quarantine services relating to imports into and exports from the United States, for all overtime, night or holiday work performed by them at any place where such inspection and quarantine services are performed, at such rates as he may determine, and to accept from persons for whom such work is performed reimbursement for any sums paid out by him for such work.

9. We reject the Union's contention that we may not cite or rely on Comptroller General decisions because Federal employee claims which are subject to negotiated grievance procedures are not resolved by the Comptroller General. The issue in this case is whether the disputed proposal is consistent with Federal law and does not concern the resolution of an employee claim through a negotiated grievance procedure. The Comptroller General decision cited here involves the interpretation of Federal law and the Union cites no authority, and none is apparent to us, which precludes the Comptroller General from interpreting such law.

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