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48 FLRA No. 106

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE ARMY

CORPUS CHRISTI ARMY DEPOT

CORPUS CHRISTI, TEXAS

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2142

(Union)

0-AR-2484

_____

DECISION

November 29, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Raymond L. Britton 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 Agency's exception.

The grievant filed a grievance seeking night differential pay. The Arbitrator sustained the grievance. For the following reasons, we conclude that the Arbitrator's award is deficient under section 7122(a) of the Statute. Accordingly, we will set aside the award.

II. Background and Arbitrator's Award

The grievant, a prevailing rate electronics mechanic, was assigned to the night shift and was paid night differential in addition to his scheduled rate of pay in accordance with 5 U.S.C. § 5343(f)(1).⁽¹⁾ In September 1991, the grievant was reassigned from the night shift to the day shift and his night differential was terminated.

The grievant filed a grievance alleging that the Agency violated law, Government-wide regulation, and the parties' collective bargaining agreement by involuntarily reassigning him from the night shift to the day shift without written notification of the change. As a remedy, the grievant requested backpay and restoration of night differential. When the grievance was not resolved, it was submitted to arbitration. The Arbitrator stated the issue as "whether the [g]rievant is entitled to retain his night shift or second shift rate of pay when he was transferred from the night shift to the day shift." Award at 6.

According to the Arbitrator, the grievant was reassigned from the night shift to the day shift when the Agency eliminated the night shift. The Arbitrator stated that, under 5 U.S.C. § 5343(f) night differential is part of basic pay. The Arbitrator concluded that "[a]s a result of having been involuntarily reassigned from night shift employment to day shift employment, the [g]rievant lost part of his regular wages, i.e., night differential[.]" Id. at 8. The Arbitrator sustained the grievance and directed the Agency to award the grievant "back pay from the time that he was moved" and "pay retention determined by what his second shift rate of pay should be at the time of proper transfer . . . ." Id. at 9.

III. Positions of the Parties

The Agency asserts that the award is deficient as contrary to, among other things, 5 C.F.R. §§ 536.102 and 104.⁽²⁾ The Agency contends that the grievant is not entitled to retain night differential pay because: (1) night differential is not a part of an employee's rate of basic pay; and (2) the grievant's rate of basic pay was not reduced when he was transferred from the night shift to the day shift.

The Union argues that the Agency's exceptions constitute an attempt to "retry the case with essentially the same evidence presented at Arbitration[.]" Opposition at 1.

IV. Analysis and Conclusions

An arbitration award is deficient under section 7122(a) of the Statute if the award is contrary to any law, rule, or regulation. U.S. Department of Justice, Immigration and Naturalization Service, Washington, D.C. and American Federation of Government Employees, National Immigration and Naturalization Council, 44 FLRA 343 (1992). For the following reasons, we find that the award is inconsistent with law and Government-wide regulation.

Prevailing rate employees, such as the grievant, are covered by the grade and pay retention provisions of 5 U.S.C. §§ 5361-5366. See 5 U.S.C. § 5361(1). As relevant here, a prevailing rate employee is entitled to pay retention under 5 U.S.C. § 5363 in circumstances where the employee's rate of basic pay is reduced as a result of the agency actions specified in 5 U.S.C. § 5361(a) and 5 C.F.R. § 536.104.⁽³⁾ Such employee's rate of basic pay for purposes of pay retention under 5 U.S.C. § 5363, is defined as the "scheduled rate of pay determined under [5 U.S.C. §] 5343 . . . ." 5 U.S.C. § 5361(4)(emphasis added). In this regard, 5 U.S.C. § 5343(f) provides that night differentials are not a part of a prevailing rate employee's scheduled rate but, rather, are added to the employee's scheduled rate. See note 1. As such, and as expressly provided in 5 C.F.R. § 536.102, see note 2, night differentials are not subject to pay retention under 5 U.S.C. § 5363.

As night differential is not subject to pay retention under applicable law and regulation, the Arbitrator's award of backpay based on such pay retention is deficient. As the Arbitrator's award is deficient, it must be set aside.

V. Decision

The award is set aside.

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

1. A prevailing rate employee's scheduled rate of pay is determined in accordance with the procedures set out in 5 U.S.C. § 5343. In addition, prevailing rate employees who perform regularly scheduled night work are entitled to a night differential under 5 U.S.C. § 5343(f)(1) as follows:

        (f) A prevailing rate employee is entitled to pay at his scheduled rate plus a night differential --

            (1) amounting to 7 1/2 percent of that scheduled rate for regularly scheduled nonovertime work a majority of the hours of which occur between 3 p.m. and midnight; and

            (2) amounting to 10 percent of that scheduled rate for regularly scheduled nonovertime work a majority of the hours of which occur between 11 p.m. and 8 a.m.

A night differential under this subsection is a part of basic pay.

2. 5 C.F.R. § 536.102(2) provides, in pertinent part:

Rate of basic pay means, for any pay system, the rate of pay fixed by law or administrative action for the position held by an employee before any deductions and exclusive of additional pay or any kind such as night or environmental differentials in the case of a prevailing rate employee.

5 C.F.R. § 536.104 provides, in pertinent part:

(a) Pay retention shall apply to any employee whose rate of basic pay would otherwise be reduced[.]

3. The Office of Personnel Management (OPM) is authorized to prescribe regulations governing the administration of grade and pay retention. Those regulations are set out at 5 C.F.R. §§ 536.101-536.307. See 5 U.S.C. § 5365

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