[ v19 p632 ]
19:0632(80)NG
The decision of the Authority follows:
19 FLRA No. 80
RADIO OFFICERS UNION
Union
and
NATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION
Agency
Case No. O-NG-823
DECISION AND ORDER ON NEGOTIABILITY ISSUES
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and presents issues as
to the negotiability of the following two Union proposals. /1/ Upon
careful consideration of the entire record, including the parties'
contentions, the Authority makes the following determinations.
Union Proposal 1
HOURS OF WORK
Article I, Section 15A
Basic Work Schedule.
The basic workweek shall conform to 5 U.S.C. 6101.
1. The basic workweek shall be scheduled in 8 hour segments,
40 hours per week, Monday through Friday when possible.
2. The working hours for all bargaining unit employees, except
where mission operations require alterations in scheduling, shall
be the same on each day and breaks of more than 1 hour in the
basic workday shall not be allowed.
3. Employees assigned to a particular tour of duty, except in
emergencies, must be notified at least five working days in
advance.
4. The head of the agency setting the hours to constitute an
official workweek shall notify the Union ten days in advance of
any authorization for any unit to alter the basic work schedule of
bargaining unit employees.
Article III, Section 5B.
The standard working day for electronic technicians shall be 8
hours per day at sea and in port. A day shall be reckoned from
midnight to midnight. Normal hours of work shall be between 0800
and 1700. All work performed in excess of the regularly scheduled
8-hour workday and on Saturdays, Sundays, and holidays shall be
paid for at the overtime rate.
When mission requirements dictate, the hours of duty for
nonwatch-standing unit employees assigned to sea duty shall be 8
hours in a 12-hour period (0700-1900). Nonwatch-standing work
before 0700 and after 1900 will constitute overtime. When these
employees are required to work between the hours of midnight and
0700, they shall be paid overtime for such hours but shall be
required to turn to at 0700 for their regular day's work without
additional overtime. In port, or on the day of arrival or
departure, when a day working wage marine unit employee is
required to work between 1900 and 0700, overtime shall be paid for
such hours and this time shall also count as part of his or her
8-hour day. If the employees then works after 0700 and that time
is in excess of 8 hours, overtime shall be paid for such excess.
Overtime pay for general schedule employees is governed by FLSA
and/or Title V. (Only the underscored portions are in dispute.)
Union Proposal 1 would require the Agency to pay overtime to its
General Schedule employees /2/ for all work performed on Saturdays,
Sundays and holidays. It also would establish that nonwatch-standing
work between the hours of 1900 and 0700 would constitute overtime work.
General Schedule employees may be entitled to overtime compensation
under either 5 U.S.C. 5542, as amended, or the Fair Labor Standards Act
(FLSA), 29 U.S.C. 201 et seq., as amended. If an employee is entitled
to overtime compensation under both laws, he is entitled to receive
compensation under whichever law provides him with the greater benefit.
54 Comp.Gen. 371 (1974). Part 551 of 5 CFR governs pay administration,
including overtime entitlement, under the Fair Labor Standards Act
(FLSA). Part 550, Subpart A, governs, among other things, overtime pay
for employees covered under title 5 overtime pay provisions, i.e., 5
U.S.C. 5542.
The Authority finds, in agreement with the Agency, that Union
Proposal 1 is outside the duty to bargain. Under the proposal, those
employees who work on Saturdays, Sundays and holidays and between the
hours of 1900 and 0700 would receive overtime compensation regardless of
whether they had worked in excess of 8 hours a day or forty hours a
week. However, under Statute and implementing regulation, overtime is
authorized to be paid to employees who work in excess of 8 hours a day
(5 U.S.C. 5542) /3/ or forty hours a week (5 U.S.C. 5542 and 29 U.S.C.
207(a)(1) /4/ as implemented by 5 CFR 551.501). /5/ For employees who
work on Sundays, holidays and at night but not more than 8 hours a day
or forty hours a week, other statutory provisions specifically provide
for varying amounts of premium pay. For example, 5 U.S.C. 5546 provides
employees who work Sundays or holidays varying amounts of premium pay.
/6/ Similarly, 5 U.S.C. 5545 provides employees who perform regularly
scheduled night work a specific amount of premium pay. /7/ Thus, the
proposal would provide for overtime compensation in circumstances where
employees have not met the legal requirements authorizing such payment
and, in fact, where in some circumstances the statutory provisions
referenced above authorize specific varying amounts of premium pay as
opposed to overtime. Thus, the proposal here relates to matters which
are specifically provided for by Federal statute, i.e., 5 U.S.C. 5545
and 5546, and therefore are expressly excluded from the definition of
conditions of employment under section 7103(a)(14)(C) of the Statute.
Further, the proposal is inconsistent with 5 U.S.C. 5542 and 29 U.S.C.
207 and implementing regulation and thus is outside the duty to bargain
under section 7117(a)(1) of the Statute as well. Hence, in both
respects, Union Proposal 1 is not within the duty to bargain.
Union Proposal 2
COMPENSATORY TIME
Article I, Section 15D
If it shall be necessary for an employee to work more than the
regular working hours, compensatory time off or cash payment shall
be allowed. Employees shall choose compensatory time or cash
payment in writing to the department head.
All compensatory time accumulated but not used in a calendar
year will be paid in cash in the last pay period of the year.
(Only the underlined portion of the proposal is in dispute.)
By its express language, Union Proposal 2 would allow any bargaining
unit employee working overtime the option of electing between
compensatory time or cash payment. The Agency contends that the
proposal is inconsistent with regulations promulgated by the Office of
Personnel Management (OPM) at 5 CFR 551.531(b), /8/ which the Agency
asserts are Government-wide in effect.
The regulation cited by the Agency has been promulgated by OPM and
applies generally to civilian employees of the Federal Government. /9/
It is thus a Government-wide rule or regulation within the meaning of
section 7117(a)(1) of the Statute. National Treasury Employees Union,
Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA
748, 754 (1980). This regulation requires that an employee's overtime
entitlement under 5 CFR 550.113 /10/ (which implements title 5 overtime
entitlements) must be equal to or greater than the employee's overtime
entitlement under 5 CFR 551.501 /11/ (which implements FLSA overtime
entitlements) in order for an agency to be able to grant compensatory
time off to that employee in a subsequent workweek. Thus, pursuant to
this regulation, nonexempt employees /12/ whose entitlement to overtime
pay under the FLSA is greater than their overtime pay entitlement under
title 5 do not have the option of requesting compensatory time in a
subsequent workweek in lieu of overtime pay. In agreement with the
Agency, the Authority concludes that the proposal, which by its plain
terms would give employees the option of taking compensatory time in a
subsequent workweek in lieu of overtime pay without regard to whether
such employees are precluded from receiving compensatory time under the
regulation, is inconsistent therewith and, hence, outside the duty to
bargain pursuant to 7117(a)(1) of the Statute. See FPM Letter 551-6
(June 12, 1975).
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the petition for review be, and it
hereby is, dismissed. Issued, Washington, D.C., August 12, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Pursuant to the Union's withdrawal of Union Proposal 3, the
Authority has decided to forego the discussion of the arguments
submitted concerning that proposal.
/2/ It appears from the record that the unit involved herein contains
both General Schedule and Wage Marine employees, and that the proposals
are in dispute insofar as they apply to the General Schedule employees.
Agency Statement of Position at 6, n. 4.
/3/ 5 U.S.C. 5542 provides, in relevant part, as follows:
Sec. 5542. Overtime rates; computation
(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, and all that amount
is premium pay.
(2) For an employee whose basic pay is at a rate which exceeds
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 the minimum rate of basic pay for GS-10, and all that
amount is premium pay.
/4/ 29 U.S.C. 207(a)(1) provides:
Sec. 207. Maximum hours
(a) Employees engaged in interstate commerce; additional
applicability to employees pursuant to subsequent amendatory
provisions
(1) Except as otherwise provided in this section, no employer
shall employ any of his employees who in any workweek is engaged
in commerce or in the production of goods for commerce, or is
employed in an enterprise engaged in commerce or in the production
of goods for commerce, for a workweek longer than forty hours
unless such employee receives compensation for his employment in
excess of the hours above specified at a rate not less than and
one-half times the regular rate at which he is employed.
/5/ 5 CFR 551.501(a) provides in relevant part:
Sec. 551.501 Overtime pay.
(a) Except as otherwise provided in this subpart, an agency
shall compensate an employee who is not exempt under subpart B of
this part for all hours of work in excess of 40 in a workweek at a
rate equal to one and one-half times the employee's hourly regular
rate of pay.
/6/ 5 U.S.C. 5546 provides as follows:
Sec. 5546. Pay for Sunday and holiday work
(a) An employee who performs work during a regularly scheduled
8-hour period of service which is not overtime work as defined by
section 5542(a) of this title a part of which is performed on
Sunday is entitled to pay for the entire period of service at the
rate of his basic pay, plus premium pay at a rate equal to 25
percent of his rate of basic pay.
(b) An employee who performs work on a holiday designated by
Federal Statute, Executive order, or with respect to an employee
of the government of the District of Columbia, by order of the
District of Columbia Council, is entitled to pay at the rate of
his basic pay, plus premium pay at a rate equal to the rate of his
basic pay, for that holiday work which is not--
(1) in excess of 8 hours; or
(2) overtime work as defined by section 5542(a) of this title.
(c) An employee who is required to perform any work on a
designated holiday is entitled to pay for at least 2 hours of
holiday work.
(d) An employee who performs overtime work as defined by
section 5542(a) of this title on a Sunday or a designated holiday
is entitled to pay for that overtime work in accordance with
section 5542(a) of this title.
(e) Premium pay under this section is in addition to premium
pay which may be due for the same work under section 5545(a) and
(b) of this title, providing premium pay for nightwork.
/7/ 5 U.S.C. 5545 relevantly provides:
Sec. 5545. Night, standby, irregular, and hazardous duty
differential.
(a) Except as provided by subsection (b) of this section,
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 premium pay amounting to 10 percent of that basic rate.
This subsection and subsection (b) of this section do not modify
section 5141 of title 31, or other statute authorizing additional
pay for nightwork.
(b) The head of an agency may designate a time after 6:00 p.m.
and a time before 6:00 a.m. as the beginning and end,
respectively, of nightwork for the purpose of subsection (a) of
this section, at a post outside the United States where the
customary hours of business extend into the hours of nightwork
provided by subsection (a) of this section.
/8/ 5 CFR 551.531(b) provides as follows:
551.531 Compensatory time off.
. . . .
(b) An employee who earns an overtime pay entitlement under
this subpart may be granted compensatory time off in a subsequent
workweek provided:
(1) The employee earns overtime entitlement under Sec. 550.113
of this chapter that is equal to or greater than the employee's
overtime entitlement under this subpart; and
(2) The employee makes a written request to substitute
compensatory time off for overtime payment.
/9/ See 5 CFR 551.102(d).
/10/ 5 CFR 550.113 provides, in relevant part:
550.113 Computation of overtime pay.
(a) For each employee whose rate of basic pay does not exceed
the minimum rate for GS-10 the overtime hourly rate is 1 1/2 times
his hourly rate of basic pay.
(b) For each employee whose rate of basic pay exceeds the
minimum rate for GS-10 the overtime hourly rate is 1 1/2 times the
hourly rate of basic pay at the minimum rate for GS-10.
/11/ See note 5, supra.
/12/ A "nonexempt employee" is an employee who is covered under the
provisions of the FLSA. See 5 CFR 551, Subpart B.