Marine Corps Logistics Base, Barstow, California and American Federation of Government Employees, Local 1482 (Authority decision, April 22, 1988)

Final FLRA decision, later vacated in part. The Authority vacated the overtime portion of this ruling on July 13, 1988 and remanded for clarification of the employee’s FLSA exemption date. The full text records the original ruling.

Plain-English summary

A sports specialist at a Marine Corps logistics base claimed overtime for work performed before officiating athletic events after his normal shift. An arbitrator found that his supervisor knew about the work and awarded overtime for qualifying periods. The Navy argued that the award lacked the official approval required for overtime under 5 U.S.C. § 5542. The Authority found that the employee's position was still covered by the Fair Labor Standards Act during the period in dispute and that the Navy had not shown a conflict with that law. It denied the exception. On reconsideration, the Authority partly vacated its overtime ruling and sent the exemption date and resulting entitlement back for clarification.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a); Fair Labor Standards Act.
• Outcome: Navy’s overtime exception denied here; the Authority later partly vacated this ruling and remanded for clarification.
• Key point: The later exemption of the employee's position from the Fair Labor Standards Act did not govern the earlier overtime period.

Full text (FLRA public release)

[ v31 p1184 ]
31:1184(102)AR

The decision of the Authority follows:

31 FLRA NO. 102

MARINE CORPS LOGISTICS BASE
BARSTOW, CALIFORNIA

Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1482

Union

Case No. 0-AR-1452

DECISION

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator William S. Rule filed by the Department of the Navy (the Agency) on behalf of the Activity 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. */ The Agency excepts to that part of the Arbitrator's award which states that the grievant was entitled to overtime for work performed between March 12, 1986 and October 30, 1986. For the reasons discussed below, we conclude that the Agency has failed to establish that this part of the award is contrary to law. Accordingly, we deny the exception.

II. Background and Arbitrator's Award

The grievant worked as a sports specialist for the Activity and was responsible for the sports programs. Occasionally, he served as an official at athletic events held at the base. This additional activity was not a part of his official duties as a sports specialist. When engaged in this activity, he began officiating at 5:00 p.m., 1/2 hour after the end of his workday as a sports specialist. After being disciplined for matters unrelated to the exception before us, he filed grievances which alleged, among other things, that he was entitled to overtime for 22.5 hours worked between 4:30 and 5:00 p.m. for the period March 12, 1986 through October 30, 1986.

The Arbitrator determined that the record was insufficient to make an exact determination as to the specific overtime due the grievant. He further found, based on the record, that: (1) the grievant was entitled to overtime for work performed between 4:30 and 5:00 p.m. on September 19, 1986; and (2) the grievant's supervisor was fully aware that the grievant was working from 4:30 to 5:00 p.m. on those days he was to officiate a game at 5:00 p.m. The Arbitrator concluded that the grievant was entitled to overtime for hours not exceeding the 22.5 hours claimed, subject to the right of the Activity to show that the grievant was not at work or did not officiate on any of the dates claimed and to deduct those hours accordingly. The Arbitrator further retained jurisdiction of this particular issue for 60 days to resolve any dispute as to this aspect of the award.

III. Positions of the Parties

The Agency excepts to the award's grant of overtime pay to the grievant for work performed between 4:30 and 5:00 p.m. during the period of March 12 through October 30, 1986. The Agency does not except to the award of overtime for September 19. The Agency claims that from March through October 1986, the grievant's position was exempt from the Fair Labor Standards Act (FLSA), 29 U.S.C. 201 et seq., and, therefore, his entitlement to overtime pay was governed by 5 U.S.C. 5542(a), which allows pay only for work "officially ordered or approved." The Agency asserts that the Arbitrator's finding that the grievant's supervisor was
&fully aware of his after-hours activity, is not sufficient under 5 U.S.C. 5542 to demonstrate that the work was officially ordered or approved, and the award of overtime is, therefore, contrary to law.

The Union contends that the Arbitrator correctly found that the grievant was entitled to overtime.

IV. Discussion

We reject the Agency's contention that the award of overtime compensation is contrary to law.

The Agency claims that during the period in question, that is, between March 12 through October 30, 1986, the grievant's position was exempt from the FLSA and, therefore, his entitlement to overtime pay was governed by 5 U.S.C. 5542(a). However, the Agency also states, and the record indicates, that the grievant was not determined to be exempt from coverage of the FLSA until November 1986. Agency Exception at 1; Attachment 3 to Agency Exception. Specifically, the Agency states that "(i)n November 1986 the Grievant . . . was determined to be exempt from coverage of the Fair Labor Standards Act by the Base Position Classification Program Manager"; and that "(p)rior to that, while classified as an FLSA non-exempt employee, he had received a 10 per cent premium in lieu of hourly overtime for a period of time and, after that was discontinued, overtime pay on an hourly basis." Agency Exception at 1.

According to the Agency's statement and the record before us, the grievant's position was exempted from the FLSA in November 1986. The grievant's position was not exempt from the FLSA during the period March to October 1986. Therefore, the grievant was eligible for overtime for that period under the FLSA. The Agency does not claim, and we find no basis on which to conclude, that the Arbitrator's award is contrary to the FLSA. We find, therefore, that the Arbitrator's award is not contrary to law and we deny the exception.

V. Decision

The Agency's exception is denied.

Issued, Washington, D.C., April 22, 1988.

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

FOOTNOTES

Footnote */ The Union contends that the Agency's exception was untimely filed and therefore may not be considered by the Authority. However, based on the record, we find that the Agency's exception was timely filed.

CITATORS:

29 USC 201
5 USC 5542(A)
5 USC 7122(A)