---

48 FLRA No. 80

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF COMMERCE

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION

NATIONAL WEATHER SERVICE

BROWNSVILLE, TEXAS

(Activity)

and

NATIONAL WEATHER SERVICE EMPLOYEES ORGANIZATION

BRANCH 2-03

(Union)

0-AR-2443

_____

DECISION

October 27, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator James P. O'Grady 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 exceptions.

In the disputed portion of his award, the Arbitrator denied the grievance of an employee who sought 5 hours of overtime pay because his shift assignment allegedly was changed in violation of the parties' collective bargaining agreement and applicable law. For the following reasons, we are unable to determine whether the award is deficient. Accordingly, we will remand the award to the parties for resubmission to the Arbitrator.

II. Background and Arbitrator's Award

The Activity, a component of the National Weather Service (the Agency), operates around the clock. To meet mission requirements, the Activity's employees work rotating shifts, which are posted 1 week before the start of each administrative workweek.

On May 5, 1992, the grievant was scheduled to work from 5 a.m. to 1 p.m. However, the grievant's supervisor reassigned him to work from midnight to 8 a.m. to substitute for another employee who was unavailable for duty. The grievant filed a grievance contending that the change in his schedule on May 5 violated 5 U.S.C. § 6101(a)(3)⁽¹⁾ and Article 3 of the parties' agreement.⁽²⁾ As a remedy, the grievant sought 5 hours' overtime pay. When the grievance was not resolved, it was submitted to arbitration. It is unclear from the record whether the parties stipulated the issue. However, the Arbitrator stated the issue to be resolved as follows:

Did Management breach Title 5 U.S.C., [section] 6101 and the Agreement by changing the Grievant's fixed schedule for May 5, 1992? If so, what shall the remedy be?

Award at 2.

As relevant here, the Arbitrator determined that the grievant's supervisor had authority under 5 U.S.C. § 6101 to change the grievant's shift for May 5. He found that, under 5 C.F.R. § 610.110(e)⁽³⁾, agency heads may delegate authority to change shift assignments and that, based on the record in this case, "the authority to schedule has been delegated to supervisors[.]" Id. at 9. Therefore, the Arbitrator concluded that the grievant's supervisor did not violate 5 U.S.C. § 6101 "when he changed the [g]rievant's schedule without obtaining approval from a higher [Agency] authority." Id. at 18. The Arbitrator also concluded that the supervisor did not violate law or the parties' agreement by changing the grievant's shift because, in the Arbitrator's view, the supervisor "was faced with the necessity to cover a shift because of the unexpected absence of [another employee]." Id. at 17.

The Arbitrator noted that Article 20, Section 7, of the parties' agreement "only permits the payment of overtime compensation when the payment is in accordance with the applicable regulations." Id. at 10.⁽⁴⁾ Concluding that the grievant was neither authorized to work nor worked overtime on the day in question, the Arbitrator determined that the Activity "does not have the authority to pay overtime."⁽⁵⁾ Id. at 11. Accordingly, the Arbitrator denied the grievant's request for 5 hours' overtime pay and the Union's request for attorney fees.

III. Positions of the Parties

A. Union

The Union asserts that the grievant's schedule for May 5 could not be changed unless the Agency head determined that such change was necessary to avoid a serious handicap to the execution of Agency functions or a substantial cost increase. The Union contends that a "supervisor's ad hoc decision to change an employee's fixed work schedule . . . does not constitute an 'agency head' determination made pursuant to 5 U.S.C. § 6101(a)(3) . . . ." Exceptions at 14. Moreover, according to the Union, determinations under that provision "cannot be made by a local supervisor because the effect of the schedule change must be measured against the impact it would have on the whole [A]gency, not the local office." Id. at 16. The Union maintains that the grievant's supervisor never claimed to have considered the statutory requirements.

The Union also contends that the Arbitrator should have awarded the grievant overtime pay. The Union argues that, under Authority and judicial precedent, employees who are deprived of overtime assignments because of improper management actions may receive payment for the lost overtime.

B. Activity

The Activity maintains that the Union has failed to establish that the award is contrary to any law, rule, or regulation. The Activity asserts that the grievant's supervisor "made the appropriate determination that, absent the change to the schedule on May 5, 1992, the operations of the [Activity] would have been handicapped." Opposition at 10-11. The Activity notes that 5 C.F.R. § 610.110(e) permits delegation of an agency head's authority to change shifts on short notice.

The Activity also contends that an award of overtime pay would be contrary to the Back Pay Act. The Activity points out that during the relevant administrative workweek, the grievant did not work more than 40 hours or more than 8 hours on any one day. Furthermore, according to the Activity, "the change to the [g]rievant's schedule did not deprive him of an overtime assignment that he would have received but for the conduct of the [Activity]." Id. at 17-18. The Activity argues, in this connection that "for backpay to be awarded under the Back Pay Act, 5 U.S.C. § 5596(b), an arbitrator must determine that the aggrieved employee was affected by an unjustified or unwarranted personnel action; . . . and that, but for such action, the grievant would not have suffered the loss." Id. at 20 (citation omitted).

IV. Analysis and Conclusions

5 U.S.C. § 6101(a)(3)(A) requires agencies to give employees 7 days' advance notice of work schedules except when the agency head determines that scheduling on shorter notice is necessary to avoid seriously handicapping the agency's ability to carry out its functions or to prevent a substantial cost increase. The Union argues that the award is inconsistent with section 6101(a)(3)(A) on two grounds. First, the Union asserts that the Agency head has sole authority to change a shift assignment with less than 7 days' advance notice. Second, the Union contends that there is no evidence that the supervisor changed the grievant's shift to avoid seriously handicapping the performance of Agency functions or to prevent a substantial cost increase.

With regard to the first ground, the Arbitrator relied on 5 C.F.R. § 610.110(e) to find that the grievant's supervisor had been delegated authority to reschedule the grievant's shift. In arguing that the Agency head has sole authority to do so, the Union does not assert that 5 C.F.R. § 610.110(e) is inapplicable or that the Arbitrator misinterpreted the regulation. In our view, the Union is merely disagreeing with the Arbitrator's reliance on the regulation and with his conclusion that the grievant's supervisor had the delegated authority to change the grievant's shift. Such disagreement does not establish that the award is deficient. See, for example, U.S. Department of Health and Human Services, Social Security Administration, Area II, New York Region and American Federation of Government Employees, 48 FLRA 370, 374 (1993).

With regard to the second argument, we have held that, under 5 U.S.C. § 6101(a)(3)(A), "an agency may change employees' work schedules without providing employees with a 7-day advance notice 'only' when it is necessary to prevent the agency from being handicapped in the execution of its functions or to forestall a substantial increase in operational costs." National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 38 FLRA 369, 378 (1990)(quoting National Association of Government Employees, Local R7-23 and Department of the Air Force, Scott Air Force Base, Illinois, 23 FLRA 753, 755 (1986)).

It is unclear from the award whether the statutory requirements for changing the grievant's shift were satisfied in this case. In this regard, the Arbitrator stated that he:

[did] not concur that [m]anagement breached Title 5 U.S.C. [§] 6101(a) . . . when it changed the [g]rievant's fixed schedule without making an [A]gency head determination that the [A]gency's mission would be seriously handicapped or its costs substantially increased absent the change.

Award at 17-18. This sentence can reasonably be read in two ways. The sentence can be read as the Arbitrator's conclusion that the grievant's supervisor had delegated authority to determine, and did determine, that the change to the grievant's schedule met one of the statutory exceptions to the 7-day notice requirement. On the other hand, the sentence also can be read as an arbitral finding that the supervisor changed the grievant's shift without determining whether either of the two exceptions applied.

If the Arbitrator found that the supervisor rescheduled the grievant based on either of the two exceptions in 5 U.S.C. § 6101(a)(3)(A), then the award would not conflict with applicable law. On the other hand, if the Arbitrator decided that the grievant's supervisor changed the grievant's schedule without regard to either of the exceptions, then the award would be deficient. As we cannot determine whether the award is deficient, we will remand the award to the parties, who should, absent a settlement, request the Arbitrator to clarify the award consistent with our decision.⁽⁶⁾

V. Decision

The award is remanded to the parties for resubmission to the Arbitrator in accordance with our decision.

---

---

---

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

1. 5 U.S.C § 6101(a)(3) provides, in pertinent part:

(3) Except when the head of an Executive agency, . . . determines that his organization would be seriously handicapped in carrying out its functions or that costs would be substantially increased, he shall provide, with respect to each employee in his organization, that--

    (A) assignments to tours of duty are scheduled in advance over periods of not less than 1 week . . . .

2. Article 3 of the parties' agreement, as pertinent, provides:

SECTION A. In the administration of all matters covered by this Agreement, the Parties and employees are governed by the following:

    (1) Existing and future laws and Government[-]wide regulations issued by appropriate authorities outside the Department of Commerce.

Award at 6.

3. 5 C.F.R. § 610.110(e), concerning weekly and daily scheduling of work, provides, as pertinent:

(e) "Head of agency" means the head of an agency or an official who has been delegated the authority to act for the head of the agency in the matter concerned.

4. Article 20 of the parties' agreement provides, as pertinent:

SECTION 7. ENTITLEMENT TO OVERTIME COMPENSATION FOR CHANGES/ADDITIONS TO A FIXED SCHEDULE

    Except as provided in Section 8 of this Article, once a rotating shift worker's schedule is fixed, he/she is entitled to overtime compensation which is otherwise in accordance with applicable law and regulation when:

. . . .

B. the rotating shift worker is directed by an authorized official to work on days and/or hours that are different from those indicated on that employee's . . . fixed schedule.

Award at 6-7.

5. In reaching this conclusion, the Arbitrator cited 5 C.F.R. § 550.111, which provides in pertinent part:

        (a) . . . 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.

Opposition at 16. The Arbitrator also cited an Agency regulation, Departmental Administrative Order 202-554, "Premium Pay," which provides, as relevant here:

Overtime work means each hour of work that is officially ordered or approved, is performed by the employee, and is in excess of 40 hours in any administrative workweek, or in excess of 8 hours in a day.

Id.

6. We note that, in cases where personnel actions are found unjustified or unwarranted, "the fact that employees did not actually work overtime [does] not render a remedy of overtime compensation unlawful." International Association of Machinists and Aerospace Workers, Lodge 2261 and American Federation of Government Employees, Local 2185 and U.S. Department of the Army, Tooele Army Depot, Tooele, Utah, 47 FLRA 427, 436 (1993). Such remedy is appropriate provided "the employees would have worked the overtime had the agency not engaged in improper conduct . . . ." Id.

---