Federal Aviation Administration (Activity) and Federal Aviation Science and Technological Association (Union) (Authority decision, February 21, 1980)

Final FLRA decision on arbitration review. The Authority set aside the portion of the arbitrator's award granting overtime for an eight hour standby period; the award's other part was not on appeal. This transitional case was decided under Executive Order 11491. Under 5 U.S.C. § 7123(a), orders involving arbitration awards under section 7122 generally are excluded from judicial review unless they involve an unfair labor practice under section 7118.

Plain-English summary

A snowstorm kept the next crew from reaching an FAA radar site, so two technicians worked extra duty that included eight hours of standby without performing work. An arbitrator ordered overtime pay for that standby period. The FAA appealed, and the Authority obtained an interpretation of the pay rules from the Office of Personnel Management. Applying the two thirds rule to the extended duty periods, it concluded that the technicians had already received the overtime pay due for compensable hours and that the idle standby period was not separately payable under section 5542. It set aside the overtime award for those eight hours; a separate part of the arbitrator's award was not before it.

Decision snapshot

• Authority: 5 U.S.C. § 7135(b); 5 U.S.C. § 5542.
• Outcome: Part 1 of the arbitration award, granting eight hours of standby overtime, set aside.
• Key point: The two thirds rule excluded idle standby time from the additional overtime calculation in these duty periods.

Full text (FLRA public release)

[ v02 p690 ]

02:0690(87)AR

The decision of the Authority follows:

2 FLRA No. 87

FEDERAL AVIATION ADMINISTRATION
Activity

and

FEDERAL AVIATION SCIENCE AND
TECHNOLOGICAL ASSOCIATION
Union

FLRC No. 78A-147

DECISION ON APPEAL FROM ARBITRATION AWARD

BACKGROUND OF CASE

ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER CONCERNED A
CLAIM FOR OVERTIME PAY BY TWO GS-12 EMPLOYEES (THE GRIEVANTS) WORKING AT
THE AGENCY'S FACILITY NEAR ASHTON, IDAHO. THE DISPUTE AROSE WHEN A
SNOWSTORM MADE IT IMPOSSIBLE FOR THE NEXT SCHEDULED CREW TO RELIEVE THE
GRIEVANTS. CONSEQUENTLY, THE GRIEVANTS WERE DIRECTED TO WORK AN
ADDITIONAL TOUR OF DUTY WHICH ENCOMPASSED AN 8 HOUR PERIOD OF STANDBY
TIME. DURING THE STANDBY PERIOD, THE GRIEVANTS DID NOT PERFORM ANY
WORK. FOLLOWING THE STANDBY PERIOD, THE GRIEVANTS RETURNED TO WORK.
THEREAFTER, THEY CLAIMED AN ENTITLEMENT TO OVERTIME PAY FOR THE TIME
SPENT ON STANDBY. THE AGENCY, HOWEVER, REJECTED THE CLAIM FOR
COMPENSATION RELYING ON THE COMPTROLLER GENERAL'S TWO-THIRDS RULE WHICH
PERMITS AN AGENCY TO TREAT 8 HOURS OF STANDBY TIME OUT OF A 24 HOUR
PERIOD OF WORK AS EATING AND SLEEPING TIME AND THUS NOT COMPENSABLE
TIME. THE MATTER ULTIMATELY WENT TO ARBITRATION.

ARBITRATOR'S AWARD

THE ARBITRATOR ISSUED A 2-PART AWARD. PART 2 OF HIS AWARD, DENYING A
THIRD GRIEVANT'S CLAIM FOR OVERTIME PAY, IS NOT AT ISSUE IN THIS CASE.
IN PART 1 OF THE AWARD, THE ARBITRATOR DETERMINED THAT THE AGENCY
VIOLATED THE PARTIES' NEGOTIATED AGREEMENT /1/ IN APPLYING THE
COMPTROLLER GENERAL'S TWO-THIRDS RULE.

IN ORDER TO REMEDY THE VIOLATION, THE ARBITRATOR DIRECTED THE AGENCY
TO PAY THE GRIEVANTS OVERTIME FOR THE 8 HOURS OF STANDBY TIME IN
DISPUTE. THE ARBITRATOR REASONED THAT THE STANDBY TIME IN DISPUTE WAS
"UNSCHEDULED STANDBY TIME" AS OPPOSED TO "SCHEDULED STANDBY TIME," BUT
THAT THERE WAS "NO REASON TO DISTINGUISH" ONE FROM THE OTHER. THUS, HE
FOUND THAT "(S)INCE THE GRIEVANTS DO NOT RECEIVE PREMIUM PAY (UNDER 5
U.S.C. 5545(C)(1)) IN LIEU OF OVERTIME FOR UNSCHEDULED STANDBY TIME,
THEY ARE ENTITLED TO RECEIVE ACTUAL OVERTIME PAYMENT (UNDER 5 U.S.C.
5542) FOR THE STANDBY TIME SPENT ON THE NIGHT OF JANUARY 5-6, 1978."

AGENCY'S APPEAL

THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD WITH
THE FEDERAL LABOR RELATIONS COUNCIL. THIS CASE WAS PENDING BEFORE THE
COUNCIL ON DECEMBER 31, 1978. IN ACCORDANCE WITH SECTION 2400.5 OF THE
TRANSITION RULES OF THE FEDERAL LABOR RELATIONS AUTHORITY (44 FED.REG.
44741) AND SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (92 STAT. 1215), THE RULES OF PROCEDURE OF THE FEDERAL
LABOR RELATIONS COUNCIL, 5 C.F.R.PART 2411(1978), REMAIN OPERATIVE WITH
RESPECT TO THE PRESENT CASE EXCEPT THAT THE WORD "AUTHORITY" IS
SUBSTITUTED, AS APPROPRIATE, WHEREVER THE WORD "COUNCIL" APPEARS IN SUCH
RULES. UNDER SECTION 2411.32 OF THE RULES AS SO AMENDED, THE AUTHORITY
ACCEPTED THE AGENCY'S PETITION FOR REVIEW WHICH EXCEPTED TO THE AWARD ON
THE GROUND THAT THE AWARD VIOLATES APPLICABLE LAW. /2/ THE UNION FILED
A BRIEF.

OPINION

SECTION 2411.37(A) OF THE AMENDED RULES OF PROCEDURE PROVIDES:

(A) AN AWARD OF AN ARBITRATOR SHALL BE MODIFIED, SET ASIDE IN WHOLE
OR IN PART, OR REMANDED

ONLY ON GROUNDS THAT THE AWARD VIOLATES APPLICABLE LAW, APPROPRIATE
REGULATION, OR THE ORDER,

OR OTHER GROUNDS SIMILAR TO THOSE APPLIED BY THE COURTS IN PRIVATE
SECTOR LABOR-MANAGEMENT

RELATIONS.

AS PREVIOUSLY STATED, THE AUTHORITY ACCEPTED THE AGENCY'S PETITION
FOR REVIEW WHICH EXCEPTED TO THE AWARD ON THE GROUND THAT THE AWARD
VIOLATES APPLICABLE LAW. SINCE THE CIVIL SERVICE COMMISSION WAS
RESPONSIBLE FOR PRESCRIBING REGULATIONS CONCERNING THE MATTERS INVOLVED
IN THIS CASE, AND SINCE UNDER SECTION 902(B) OF THE CIVIL SERVICE REFORM
ACT OF 1978 /3/ THIS APPEAL MUST BE RESOLVED AS IF THE CIVIL SERVICE
REFORM ACT HAD NOT BEEN ENACTED, THE AUTHORITY REQUESTED FROM THE OFFICE
OF PERSONNEL MANAGEMENT (THE SUCCESSOR AGENCY TO THE CIVIL SERVICE
COMMISSION WITH RESPECT TO THE MATTERS INVOLVED HEREIN) AN
INTERPRETATION OF CIVIL SERVICE COMMISSION REGULATIONS AS THEY PERTAIN
TO PART 1 OF THE ARBITRATOR'S AWARD. THE OFFICE OF PERSONNEL MANAGEMENT
REPLIED IN RELEVANT PART AS FOLLOWS:

THE GRIEVANTS IN THIS CASE, JOHN STEVENS AND RUSSELL HUNTER, ARE
ELECTRONIC TECHNICIANS

ASSIGNED TO AN FAA LONG RANGE RADAR SITE IN IDAHO. THEIR REGULARLY
SCHEDULED WEEKLY TOUR OF

DUTY IS PERFORMED IN TWO INTERVALS OF 28 HOURS, EACH CONSISTING OF A
10-HOUR PERIOD OF ACTUAL

WORK, FOLLOWED BY AN 8-HOUR PERIOD OF STANDBY DUTY (SLEEP PERIOD) AND
ANOTHER 10-HOUR PERIOD

OF ACTUAL WORK. FOR THIS REGULARLY SCHEDULED TOUR OF DUTY THE
GRIEVANTS RECEIVE THEIR BASIC

RATE OF PAY (GS-12) PLUS ANNUAL PREMIUM PAY AT A RATE OF 25 PERCENT
IN ACCORDANCE WITH 5

U.S.C. 5545(C)(1) AND 5 C.F.R. 550.141-144. THIS ANNUAL PREMIUM PAY
IS IN LIEU OF ALL OTHER

PAY UNDER SUBCHAPTER V OF CHAPTER 55 OF TITLE 5, UNITED STATES CODE,
EXCEPT FOR "IRREGULAR,

UNSCHEDULED OVERTIME DUTY IN EXCESS OF (THEIR) REGULARLY SCHEDULED
WEEKLY TOUR OF DUTY." IN

THIS CASE, THE ANNUAL PREMIUM PAY UNDER 5 U.S.C. 5545(C)(1) IS IN
LIEU OF ALL OTHER PREMIUM

PAY FOR THE TWO HOURS OF REGULARLY SCHEDULED OVERTIME WORK PERFORMED
DURING EACH OF THE FOUR

10-HOUR PERIODS OF ACTUAL WORK; FOR SUNDAY, HOLIDAY, AND NIGHT WORK;
AND FOR REMAINING AT

THEIR DUTY STATION FOR LONGER THAN ORDINARY PERIODS OF DUTY INVOLVING
STANDBY DUTY.

ON JANUARY 5, 1978, THE GRIEVANTS WERE NEARING THE END OF A REGULARLY
SCHEDULED 28-HOUR

TOUR OF DUTY WHEN, DUE TO A SEVERE STORM WHICH IMPEDED ACCESS BY A
RELIEF CREW, THE GRIEVANTS

WERE REQUESTED BY THEIR SUPERVISOR TO PERFORM AN ADDITIONAL PERIOD OF
"IRREGULAR, UNSCHEDULED

OVERTIME DUTY" WHICH INVOLVED BOTH ACTUAL WORK AND STANDBY DUTY. MR.
STEVENS' ADDITIONAL TOUR

OF DUTY OF 20 HOURS CONSISTED OF 6 HOURS OF ACTUAL WORK, 8 HOURS OF
STANDBY DUTY, AND 6 HOURS

OF ACTUAL WORK. HE THEN RESUMED HIS NEXT REGULARLY SCHEDULED 28-HOUR
TOUR OF

DUTY. MR. HUNTER'S ADDITIONAL TOUR OF DUTY OF 24 1/2 HOURS CONSISTED
OF 6 HOURS OF ACTUAL

WORK, 8 HOURS OF STANDBY DUTY AND 10 1/2 HOURS OF ACTUAL WORK. IT IS
UNDISPUTED THAT THE

GRIEVANTS PERFORMED NO ACTUAL WORK DURING THE STANDBY PERIOD OF THEIR
ADDITIONAL TOUR OF DUTY.

THE AGENCY PAID THE GRIEVANTS OVERTIME PAY FOR THE ADDITIONAL PERIOD
OF "IRREGULAR,

UNSCHEDULED OVERTIME DUTY" AS PROVIDED IN 5 U.S.C. 5542. IN
COMPUTING THE "HOURS OF WORK" FOR

PURPOSES OF THIS SECTION, THE AGENCY APPLIED THE TWO-THIRDS RULE IN
ACCORDANCE WITH PARAGRAPH

S1-3D OF BOOK 610 OF FPM SUPPLEMENT 990-2. THUS, MR. STEVENS WAS
PAID OVERTIME UNDER 5

U.S.C. 5542 FOR 12 HOURS OF HIS 20-HOUR TOUR OF DUTY AND MR. HUNTER
WAS PAID FOR 16 1/2 HOURS

OF HIS 24 1/2-HOUR TOUR OF DUTY.

THE GRIEVANTS ALLEGED THAT THEY WERE ENTITLED TO OVERTIME PAY FOR THE
8 HOURS OF

UNSCHEDULED STANDBY DUTY IN ADDITION TO THE OVERTIME PAY THEY
RECEIVED FOR THE REMAINING HOURS

OF THE ADDITIONAL TOUR OF DUTY WHICH THEY PERFORMED ON JANUARY 5-6,
1978. THE ARBITRATOR

FOUND NO REASON TO DISTINGUISH UNSCHEDULED STANDBY TIME FROM
SCHEDULED STANDBY TIME IN THE

CIRCUMSTANCES OF THIS CASE. ACCORDINGLY, THE ARBITRATOR AWARDED THE
GRIEVANTS ACTUAL OVERTIME

PAYMENT UNDER 5 U.S.C. 5542 FOR THE 8 HOURS OF STANDBY TIME THEY
SPENT ON THE NIGHT OF JANUARY

5-6, 1978.

IT IS A WELL ESTABLISHED PRINCIPLE THAT FEDERAL EMPLOYEES WHO PERFORM
LONGER THAN ORDINARY

TOURS OF DUTY INVOLVING STANDBY STATUS ARE ENTITLED TO COMPENSATION
FOR SUCH TIME UNDER THE

PROVISIONS OF EITHER 5 U.S.C. 5545 OR 5 U.S.C. 5542. SECTION
5545(C)(1) PROVIDES THAT AN

EMPLOYEE WHO SPENDS TIME IN A "STANDBY STATUS RATHER THAN PERFORMING
WORK" MAY BE COMPENSATED

ON AN ANNUAL BASIS INSTEAD OF RECEIVING PREMIUM PAY PROVIDED BY OTHER
PROVISIONS OF THIS

SUBCHAPTER. THOSE "OTHER PROVISIONS" OF THE SUBCHAPTER HAVE BEEN
INTERPRETED TO MEAN THE

REGULAR OVERTIME PROVISION CONTAINED IN 5 U.S.C. 5542. SEE COMP.
GEN. UNPUB. DEC. B-170264,

DECEMBER 21, 1973. SEE ALSO FARLEY V. U.S., 131 CT.CL. 776(1955).

FURTHERMORE, THE COURTS HAVE RULED THAT AN EMPLOYEE WHO IS REQUIRED
TO REMAIN FOR A 24-HOUR

PERIOD AT HIS DUTY STATION IN A STANDBY STATUS IS ENTITLED ON THE
BASIS OF THE TWO-THIRDS RULE

TO COMPENSATION FOR 16 OF THOSE HOURS. ENGLAND ET. AL. V. U.S., 133
CT.CL. 768(1956) AND

DETLING V. U.S., 193 CT.CL. 125(1970). UNDER THE TWO-THIRDS RULE,
TIME SPENT SLEEPING OR

EATING, DURING WHICH NO SUBSTANTIAL LABOR IS PERFORMED, IS NOT
COMPENSABLE. GAEKE V. U.S.,

136 CT.CL. 756(1956). ARMSTRONG V. U.S., 144 CT.CL. 659(1959); AND
COLLINS V. U.S., 141

CT.CL. 573 (1958). IN COLLINS, THE PLAINTIFFS WERE PAID UNDER THE
PROVISIONS OF THE

TWO-THIRDS RULE WHICH HAS BEEN ADOPTED BY THE CIVIL SERVICE
COMMISSION (NOW THE OFFICE OF

PERSONNEL MANAGEMENT) AS "A CONVENIENT METHOD OF DETERMINING THE
COMPENSATION OF MEN ENGAGED

IN DUTIES REQUIRING ROUND-THE-CLOCK PRESENCE." SUPRA, AT 575.

IN THE INSTANT CASE, THE GRIEVANTS ARE IN RECEIPT OF ANNUAL PREMIUM
PAY FOR THEIR REGULARLY

SCHEDULED TOUR OF DUTY UNDER 5 U.S.C. 5545(C)(1). THE ADDITIONAL
PERIOD OF "IRREGULAR,

UNSCHEDULED OVERTIME DUTY" MEETS THE EXCEPTION TO SECTION 5545 AND
THEREFORE MUST BE PAID

PURSUANT TO 5 U.S.C. 5542. IN SECTION 5542, "HOURS OF WORK" IN
EXCESS OF 40 HOURS IN AN

ADMINISTRATIVE WORKWEEK, OR IN EXCESS OF 8 HOURS IN A DAY ARE
OVERTIME WORK. FOR DETERMINING

THE "HOURS OF WORK" FOR OVERTIME PAY UNDER THAT SECTION, THE AGENCY
MAY PROPERLY APPLY THE

TWO-THIRDS RULE TO A TOUR OF DUTY OF 24 HOURS (OR MULTIPLES THEREOF).
THE INSTRUCTIONS FOR

USE OF THE TWO-THIRDS RULE ARE CONTAINED IN PARAGRAPH S1-3D BOOK 610
OF FPM SUPPLEMENT 990-2.

THE ARBITRATOR FOUND THAT THE COMPTROLLER GENERAL DECISIONS THAT
ESTABLISH THE PRINCIPLE OF

THE TWO-THIRDS RULE, AND PARAGRAPH S1-3D OF BOOK 610 OF FPM
SUPPLEMENT 990-2 ADDRESS ONLY

REGULARLY SCHEDULED STANDBY DUTY, AND THEREFORE ARE NOT DIRECTLY
APPLICABLE TO PERIODS OF

UNSCHEDULED STANDBY DUTY. WE DO NOT AGREE. AS PREVIOUSLY ARGUED,
EMPLOYEES WHO PERFORM

STANDBY DUTY ARE ENTITLED TO OVERTIME PAY UNDER EITHER 5 U.S.C. 5542
OR 5545(C)(1), AND A

PERIOD OF "IRREGULAR, UNSCHEDULED OVERTIME DUTY" WHICH MEETS THE
EXCEPTION TO SECTION 5545

MUST BE PAID UNDER SECTION 5542. MOREOVER, THE TWO-THIRDS RULE IS
PROPER FOR DETERMINING THE

"HOURS OF WORK" FOR REGULARLY SCHEDULED TOURS OF DUTY OF 24 HOURS
(ROUND-THE-CLOCK PRESENCE)

COMPENSABLE UNDER SECTION 5542. IT THEREFORE FOLLOWS THAT THE
TWO-THIRDS RULE WOULD BE PROPER

FOR DETERMINING "HOURS OF WORK" FOR AN ADDITIONAL PERIOD OF
"IRREGULAR, UNSCHEDULED OVERTIME

DUTY" UNDER SECTION 5542 AS WELL. THIS PRINCIPLE HAS BEEN EXPRESSED
IN OPM INSTRUCTIONS FOR

COMPARING THE OVERTIME PAY ENTITLEMENTS UNDER TITLE 5 AND THE FAIR
LABOR STANDARDS ACT (FLSA)

FOR EMPLOYEES ENGAGED IN FIRE PROTECTION ACTIVITIES OR LAW
ENFORCEMENT ACTIVITIES IN FPM

LETTER 551-5, DATED JANUARY 15, 1975 (SEE SECTION B OF ATTACHMENT 3,
AND EXAMPLE 1, SITUATIONS

B AND D, AND EXAMPLE 2, SITUATIONS B AND D, IN ATTACHMENT 4 OF FPM
LETTER 551-5).

IN HIS AWARD, THE ARBITRATOR FOCUSED ON THE NARROW ISSUE OF THE
PERIOD OF UNSCHEDULED

STANDBY DUTY, RATHER THAN ON THE ENTIRE ADDITIONAL TOUR OF DUTY
PERFORMED BY THE GRIEVANTS IN

THIS CASE. IT IS CLEAR FROM THE FACTS OUTLINED ABOVE THAT THE
GRIEVANTS PERFORMED ACTUAL WORK

AND STANDBY DUTY DURING THIS ADDITIONAL PERIOD OF "IRREGULAR,
UNSCHEDULED OVERTIME DUTY", AND

THAT THEY PERFORMED NO SUBSTANTIAL LABOR DURING THE PERIOD OF
UNSCHEDULED STANDBY DUTY. THE

FACT THAT THE GRIEVANTS RECEIVED ANNUAL PREMIUM PAY UNDER 5 U.S.C.
5545(C)(1) FOR THEIR

REGULARLY SCHEDULED TOUR OF DUTY DOES NOT CREATE, BY ANALOGY OR
OTHERWISE, AN OBLIGATION FOR

THE AGENCY TO PAY OVERTIME UNDER 5 U.S.C. 5542 FOR THE PERIOD OF
UNSCHEDULED STANDBY DUTY WHEN

NO WORK IS PERFORMED. THE ANNUAL PREMIUM PAY WHICH THE GRIEVANTS
RECEIVE FOR REGULARLY

SCHEDULED TOURS OF DUTY, INCLUDING REGULARLY SCHEDULED STANDBY
PERIODS, IS NOT OVERTIME

PAYMENT FOR THE HOURS SPENT IN STANDBY DUTY PER SE. RATHER, THIS
ANNUAL PREMIUM PAY UNDER 5

U.S.C. 5545 IS PAYMENT IN LIEU OF ALL OTHER PREMIUM PAY THAT THEY
WOULD OTHERWISE RECEIVE

DURING THEIR REGULARLY SCHEDULED TOURS OF DUTY, INCLUDING STANDBY
DUTY.

THUS, THE AGENCY PROPERLY DEDUCTED 8 HOURS FROM THE ADDITIONAL
UNSCHEDULED TOUR OF DUTY FOR

WHICH THE GRIEVANTS RECEIVED OVERTIME PAY UNDER 5 U.S.C. 5542. MR.
HUNTER PERFORMED

ADDITIONAL DUTY OF 24 1/2 HOURS, AND THE APPLICATION OF THE
TWO-THIRDS RULE IN HIS CASE

ENTITLED HIM TO 16 1/2 HOURS OF OVERTIME PAY. WHILE THE ADDITIONAL
TOUR OF DUTY OF

MR. STEVENS WAS ONLY 20 HOURS, HE IMMEDIATELY COMMENCED ANOTHER
REGULARLY SCHEDULED 28-HOUR

TOUR OF DUTY AT "STRAIGHT TIME PAY" (BASIC RATE OF PAY). THUS, THE
20 HOURS OF "IRREGULAR,

UNSCHEDULED OVERTIME DUTY," WHEN COMBINED WITH THE FIRST 4 HOURS OF
REGULAR DUTY WHICH IS

COMPENSABLE AT THE EMPLOYEE'S BASIC RATE OF PAY, RESULTS IN A
CONTINUOUS PERIOD OF DUTY OF 24

HOURS WHICH IS NOT COMPENSABLE UNDER 5 U.S.C. 5545(C)(1). THEREFORE,
THE APPLICATION OF THE

TWO-THIRDS RULE ENTITLED HIM TO 12 HOURS OVERTIME PAY PURSUANT TO 5
U.S.C. 5542 IN ADDITION TO

HIS BASIC RATE OF PAY FOR 4 HOURS OF REGULARLY SCHEDULED WORK DURING
THIS 24-HOUR PERIOD.

FOR THE REASONS STATED ABOVE, THE ARBITRATOR'S AWARD OF "ACTUAL
OVERTIME" PURSUANT TO 5

U.S.C. 5542 FOR THE 8 HOURS DURING WHICH THE GRIEVANTS PERFORMED NO
LABOR VIOLATES 5

U.S.C. 5542, AS INTERPRETED IN COURT DECISIONS AND DECISIONS OF THE
COMPTROLLER GENERAL, AS

WELL AS IN SUPPLEMENTAL GUIDANCE ISSUED BY THE COMMISSION (OPM).

BASED ON THE FOREGOING INTERPRETATION OF THE OFFICE OF PERSONNEL
MANAGEMENT, WE CONCLUDE THAT PART 1 OF THE ARBITRATOR'S AWARD VIOLATES
APPLICABLE LAW AND, THEREFORE, MUST BE SET ASIDE.

CONCLUSION

FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2411.37(B) OF THE
AMENDED RULES OF PROCEDURE, WE HEREBY SET ASIDE PART 1 OF THE
ARBITRATOR'S AWARD. /4/

ISSUED, WASHINGTON, D.C., FEBRUARY 21, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

/1/ THE PROVISION OF THE PARTIES' AGREEMENT FOUND TO HAVE BEEN
VIOLATED WAS ARTICLE 33, SECTIONS 1 AND 9. SECTION 1 PROVIDES:

EMPLOYEES SHALL BE COMPENSATED FOR OVERTIME WORK PERFORMED IN
ACCORDANCE WITH APPLICABLE

LAW AND REGULATIONS, AND IN ACCORDANCE WITH THE APPLICABLE LAW AND
REGULATIONS WHICH PRODUCE

THE MAXIMUM COMPENSATION.

SECTION 9 PROVIDES:

WHENEVER AN EMPLOYEE IS HELD ON DUTY BEYOND HIS/HER REGULAR SHIFT,
THE EMPLOYEE WILL BE

COMPENSATED FOR THIS WORK IN SIX (6) MINUTE INCREMENTS. ANY
IRREGULAR OVERTIME OF LESS THAN

THE SIX (6) MINUTE INCREMENT SHALL BE DROPPED ON A WEEKLY BASIS.

/2/ THE AGENCY REQUESTED AND THE AUTHORITY GRANTED, PURSUANT TO
SECTION 2411.47(F) OF THE AMENDED RULES OF PROCEDURE, A STAY OF THE
AWARD PENDING DETERMINATION OF THE APPEAL.

/3/ THE CIVIL SERVICE REFORM ACT OF 1978, PUB. L. NO. 95-454, SEC.
902(B), 92 STAT. 1224, PROVIDES:

(B) NO PROVISION OF THIS ACT SHALL AFFECT ANY ADMINISTRATIVE
PROCEEDINGS PENDING AT THE

TIME SUCH PROVISION TAKES EFFECT. ORDERS SHALL BE ISSUED IN SUCH
PROCEEDINGS AND APPEALS

SHALL BE TAKEN THEREFROM AS IF THIS ACT HAD NOT BEEN ENACTED.

/4/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
APPLICATION OF RELATED PROVISIONS OF THE NEW STATUTE OR THE RESULT WHICH
WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
STATUTE RATHER THAN THE ORDER.