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51 FLRA No. 86

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

FEDERAL AVIATION ADMINISTRATION

LITTLE ROCK AIR TRAFFIC CONTROL TOWER

LITTLE ROCK, ARKANSAS

(Agency)

and

NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION

MEBA/AFL-CIO

(Union)

0-AR-2696

_____

DECISION

March 29, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Charles N. Carnes 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 Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator sustained a grievance challenging the Agency's denial of overtime pay to Air Traffic Control Specialists who participate in a compressed work schedules program. The Agency contends that the award is deficient under section 7122(a) of the Statute because it is contrary to the Federal Employees Flexible and Compressed Work Schedules Act of 1982 (Work Schedules Act), 5 U.S.C. §§ 6120 et seq.⁽¹⁾

For the following reasons, we conclude that the award is deficient because it is contrary to the Work Schedules Act and we set aside the award.

II. Background and Arbitrator's Award

The grievants are employed by the Agency's air traffic control facility in Little Rock, Arkansas, and participate in a compressed work schedules program, consisting of a "5-4/9" plan.⁽²⁾ Under that plan, employees work 8 days for 9 hours per day and 1 day for 8 hours per day to complete 80 hours in a biweekly pay period. In November 1992, the parties agreed to, and implemented, the alternative work schedules program at the facility under the authority of a memorandum of understanding (MOU) entered into between the Agency and the Union at the national level. That national MOU provided, as pertinent here, that alternative work schedules at the Agency's facilities "may not include a workday of more than 9 hours." Award at 4.

The Agency requires all Air Traffic Control Specialists, including the grievants, to rotate regularly through work shifts that begin at various times during the day, including a "midnight shift," which begins at 11 p.m. and ends at 7:00 a.m. This Agency work requirement predates the implementation of the compressed work schedules program at the facility. When required to work the midnight shift, the grievants work both a regular 9-hour shift and an additional hour on that same calendar day. However, the hour between 11 p.m. and midnight on the later shift is also the first hour of a regularly scheduled 8-hour shift that is part of the employees' biweekly compressed work schedule. Since they have participated in the alternative work schedules program, the grievants have received straight-time pay, rather than overtime pay, for the first hour worked on the midnight shift in such circumstances.

The grievance alleged that the grievants were improperly denied overtime pay for hours worked in excess of their 9-hour daily work schedule. When the grievance was not resolved it was submitted to arbitration where the Arbitrator framed the issues as follows:

1. Under the circumstances of this case is the hour between 2300 and 2400 of the Little Rock compressed alternate work schedule in excess of the specified hours of that schedule?

2. Did the Agency violate Article 37, Sections 1 and 2 of the Collective Bargaining Agreement by not paying overtime for the 2300-2400 hour? If so, what is the proper remedy?

Id. at 5.⁽³⁾

The Arbitrator concluded that the Agency violated Article 37, Sections 1 and 2 of the agreement because the Agency's denial of overtime pay to the grievants for the disputed hour worked was inconsistent with the Work Schedules Act. In reaching this conclusion, he rejected the Agency's argument that the Work Schedules Act prohibited overtime compensation because the disputed hour was part of, and not in excess of, the 80-hour biweekly basic work requirement of the compressed work schedule. He relied on Federal Personnel Manual (FPM) Letter 551-24, Attachment 1, Paragraph 2, which states, in part, that nonexempt Federal employees under the FLSA are entitled to overtime pay for hours of work in excess of 8 hours in a day regardless of the total number of hours of work in the workweek.⁽⁴⁾

The Arbitrator determined that the Work Schedules Act, specifically 5 U.S.C. § 6121(7), which sets forth the definition of "overtime hours" with respect to compressed schedules, did not eliminate daily overtime premium pay for employees on a compressed work schedule. Therefore, he concluded that the Work Schedules Act provides for overtime pay for hours worked in excess of the daily hours of the compressed work schedule, even when the total number of hours worked do not exceed the 80-hour biweekly basic requirement. He also found that the parties' collective bargaining agreement did not preclude such pay. He further determined that the national MOU and the 5-4/9 compressed work schedules plan adopted at the facility limited the daily hours of the compressed work schedule to a 9-hour day and that the disputed hour worked was in excess of that daily work schedule. Based on these findings, he sustained the grievance and awarded the grievants backpay. He also directed the Agency to pay Air Traffic Control Specialists who participate in the 5-4/9 plan overtime in the future for the first hour worked on the midnight shift when they have completed working a 9-hour shift on that calendar day.

III. Exceptions

A. Agency's Contentions

The Agency contends that the award is inconsistent with the Work Schedules Act, specifically 5 U.S.C. §§ 6121(7) and 6128(b), because it directs the payment of overtime for an hour of work that was not in excess of the 80-hour biweekly basic work requirement of the compressed work schedule. The Agency asserts that there is no daily overtime standard under a compressed work schedule because 5 U.S.C. § 6128(a) eliminates overtime pay for hours that are part of a compressed work schedule.

B. Union's Opposition

The Union supports the Arbitrator's findings and conclusions. The Union asserts that the Work Schedules Act provides for overtime pay under a compressed work schedule for hours worked in excess of the daily work requirement of that schedule. The Union relies on FPM Supplement 990-2, Book 620, Appendix B, Models of Alternative Work Schedules, which was published September 30, 1980, and contains a model of a 5-4/9 compressed work schedule plan. That FPM provision states that, under a 5-4/9 plan, "overtime pay" is "[w]ork performed outside an employee's compressed work schedule and in excess of 9 hours in a day or 80 hours in a biweekly pay period."⁽⁵⁾ The Union further asserts that it is the Agency's policy requiring the grievants to rotate through shifts, and not the compressed work schedule plan, that caused them to work in excess of their 9-hour daily work schedule.

IV. Analysis and Conclusions

Because the Agency challenges the award's consistency with law, we review the question of whether the award is inconsistent with the Work Schedules Act de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995), citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994). Under the Work Schedules Act, an agency is prohibited from making overtime payments for "hours which constitute a compressed schedule." 5 U.S.C. § 6128(a). A compressed schedule is defined as "an 80-hour biweekly basic work requirement which is scheduled for less than 10 workdays." 5 U.S.C. § 6121(5). This definition supports the Agency's position that overtime payments may not be made for hours of work that do not exceed the 80-hour biweekly basic work requirement. However, the Work Schedules Act also defines "overtime hours" as "hours in excess of those specified hours which constitute the compressed schedule." 5 U.S.C. § 6121(7). This definition lends support to a view that the Agency is required to make overtime payments for hours worked in excess of negotiated daily schedules.

We conclude that the award is deficient as contrary to the Work Schedules Act under either construction of that statute because the facts, as found by the Arbitrator, do not establish that the grievants were required to work any hours in excess of their compressed schedules.⁽⁶⁾ According to the record, the parties agreed that employees on compressed work schedules would have one 8-hour shift every 2 weeks. Moreover, the parties knew when they negotiated the 5-4/9 plan that on occasion that shift would straddle two calendar days. Thus, it is clear that the disputed hour is the first hour of a regularly scheduled 8-hour shift that is part of the grievants' compressed work schedule and that occurs due to their regular rotation through shifts. Thus, the hour worked between 11 p.m. and midnight is part of, and not in excess of, the specified hours that constitute the employees' compressed schedule.⁽⁷⁾ In addition, the Arbitrator found, and the parties agree, that the grievants did not work any hours in excess of the 80-hour biweekly work schedule. Consequently, we find, contrary to the Arbitrator's award, that the Agency is prohibited, under 5 U.S.C. § 6128(a), from making overtime payments for the disputed hours, which were part of regularly assigned shifts that comprised the grievants' compressed schedules.

V. Decision

The Arbitrator's award is set aside.

APPENDIX

FEDERAL EMPLOYEES FLEXIBLE & COMPRESSED WORK SCHEDULES

ACT OF 1982

5 U.S.C. § 6121. Definitions, provides, in relevant part:

. . . .

(3) 'basic work requirement' means the number of hours, excluding overtime hours, which an employee is required to work or is required to account for by leave or otherwise;

. . . .

(5) 'compressed schedule' means--

(A) in the case of a full-time employee, an 80-hour biweekly basic work requirement which is scheduled for less than 10 workdays . . . 

. . . .

(7) 'overtime hours', when used with respect to compressed schedule programs under sections 6127 and 6128 of this title, means any hours in excess of those specified hours which constitute the compressed schedule . . .

Section 6127. Compressed schedules; agencies authorized to use

(a) Notwithstanding section 6101 of this title, each agency may establish programs which use a 4-day workweek or other compressed schedule.

. . . .

Section 6128. Compressed schedules; computation of premium pay

(a) The provisions of sections 5542(a), 5544(a), and 5550(2) of this title, section 4107(e)(5) of title 38, section 7 of the Fair Labor Standards Act (29 U.S.C. 207), or any other law, which relate to premium pay for overtime work, shall not apply to the hours which constitute a compressed schedule.

(b) In the case of any full-time employee, hours worked in excess of the compressed schedule shall be overtime hours and shall be paid for as provided by the applicable provisions referred to in subsection (a) of this section. . . .

. . . .

Section 6130. Application of programs in the case of collective bargaining agreements

(a)(1) In the case of employees in a unit represented by an exclusive representative, any flexible or compressed work schedule, and the establishment and termination of any such schedule, shall be subject to the provisions of this subchapter and the terms of a collective bargaining agreement between the agency and the exclusive representative.

(b) An agency may not participate in flexible or compressed schedule program under a collective bargaining agreement which contains premium pay provisions which are inconsistent with the provisions of section 6123 or 6128 of this title, as applicable.

. . . .

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

1. The relevant portions of the Work Schedules Act are set forth in the Appendix to this decision.

2. In its exceptions, the Agency refers to one grievant; however, the record establishes that the Union filed the grievance on behalf of several grievants.

3. Article 37 of the parties' agreement provides, in relevant part:

Section 1. Employees will be paid in accordance with applicable law, so as to receive the maximum compensation allowable by law.

Section 2. The provisions of Section 1 apply to, but are not limited to, the following: basic rate of pay, overtime pay, night differential, Sunday premium pay, holiday pay, operational differential pay and COLA's.

Award at 4-5.

4. When the FPM was abolished in December 31, 1993, the Letter, along with certain other parts of the FPM, was provisionally retained through December 31, 1994. Office of Personnel Management (OPM), FPM Sunset Document at 73.

5. It appears that the provision of the FPM containing this model was superseded by FPM Chapter 610, Appendix C, Models of Compressed Work Schedules, which was published on December 16, 1991; and, thus, the FPM Supplement relied on by the Union was not in effect at the time the dispute arose. The more recent model states, as regards the 5-4/9 plan, that "[o]vertime work is work ordered in advance by management and is in excess of the basic work requirement." The FPM provision containing this model was abolished on December 31, 1993. OPM, FPM Sunset Document at 77.

6. Consequently, it is unnecessary to decide in this case which construction of the Work Schedules Act is correct.

7. Accordingly, for purposes of overtime payments under the Work Schedules Act, it is irrelevant that the Agency credits the disputed hour to the actual calendar day on which it occurs. Award at 1.

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