B-207997.2, AUG 23, 1983

B-207997.2: Aug 23, 1983

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DIGEST: FEDERAL AVIATION ADMINISTRATION (FAA) QUESTIONS OVERTIME ENTITLEMENT OF CERTAIN AIR TRAFFIC CONTROLLERS WHO WERE FIRED BUT LATER RESTORED RETROACTIVELY. ALTHOUGH FAA CONTENDS THERE WAS NO NONDISCRETIONARY POLICY GOVERNING THE ASSIGNMENT OF OVERTIME. THE OVERTIME THE CONTROLLER NORMALLY WOULD HAVE WORKED DURING THE PERIOD OF SEPARATION SHOULD BE DETERMINED BY THE FAA BASED UPON PRIOR OVERTIME PAYMENTS OR UPON OVERTIME PAID TO SIMILAR EMPLOYEES WHO WERE NOT REMOVED. ET AL. - RESTORED AIR TRAFFIC CONTROLLERS - OVERTIME ENTITLEMENT IN BACKPAY AWARD: ISSUE THE ISSUE PRESENTED IS WHETHER CERTAIN AIR TRAFFIC CONTROLLERS WHO WERE FIRED BUT LATER RESTORED TO THEIR POSITIONS RETROACTIVELY ARE ENTITLED TO OVERTIME PAY AS PART OF THEIR BACKPAY AWARDS.

B-207997.2, AUG 23, 1983

DIGEST: FEDERAL AVIATION ADMINISTRATION (FAA) QUESTIONS OVERTIME ENTITLEMENT OF CERTAIN AIR TRAFFIC CONTROLLERS WHO WERE FIRED BUT LATER RESTORED RETROACTIVELY. ALTHOUGH FAA CONTENDS THERE WAS NO NONDISCRETIONARY POLICY GOVERNING THE ASSIGNMENT OF OVERTIME, OUR DECISIONS CONCERNING OVERTIME PAY IN BACKPAY AWARDS DO NOT REQUIRE SUCH A POLICY. THE OVERTIME THE CONTROLLER NORMALLY WOULD HAVE WORKED DURING THE PERIOD OF SEPARATION SHOULD BE DETERMINED BY THE FAA BASED UPON PRIOR OVERTIME PAYMENTS OR UPON OVERTIME PAID TO SIMILAR EMPLOYEES WHO WERE NOT REMOVED, AND MUST BE INCLUDED IN THE BACKPAY AWARD.

RONALD J. RANIERI, ET AL. - RESTORED AIR TRAFFIC CONTROLLERS - OVERTIME ENTITLEMENT IN BACKPAY AWARD:

ISSUE

THE ISSUE PRESENTED IS WHETHER CERTAIN AIR TRAFFIC CONTROLLERS WHO WERE FIRED BUT LATER RESTORED TO THEIR POSITIONS RETROACTIVELY ARE ENTITLED TO OVERTIME PAY AS PART OF THEIR BACKPAY AWARDS. WE HOLD THAT, EVEN IN THE ABSENCE OF A NONDISCRETIONARY POLICY GOVERNING THE ASSIGNMENT OF OVERTIME, THESE CONTROLLERS MAY BE ENTITLED TO OVERTIME PAY AS PART OF THEIR BACKPAY AWARDS BASED UPON THEIR PRIOR OVERTIME EXPERIENCE OR BASED UPON THE AMOUNT OF OVERTIME PERFORMED BY SIMILAR EMPLOYEES WHO WERE NOT REMOVED FROM THEIR POSITIONS.

BACKGROUND

THIS DECISION IS IN RESPONSE TO A REQUEST FROM THE HONORABLE J. LYNN HELMS, ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION (FAA), CONCERNING THE BACKPAY ENTITLEMENTS OF CERTAIN AIR TRAFFIC CONTROLLERS. WE HAVE RECEIVED COMMENTS ON THIS MATTER FROM MR. PHILLIP S. WOOD, AN ATTORNEY WHO REPRESENTS THREE RESTORED AIR TRAFFIC CONTROLLERS, INCLUDING RONALD J. RANIERI.

THE REQUEST FROM THE FAA STATES THAT FOLLOWING AN ILLEGAL STRIKE, ON AUGUST 3, 1981, OVER 11,000 AIR TRAFFIC CONTROLLERS WERE FIRED FOR PARTICIPATION IN THE STRIKE. SUBSEQUENTLY, ABOUT 350 OF THESE CONTROLLERS HAVE HAD THEIR REMOVAL DECISIONS REVERSED ON APPEAL TO THE MERIT SYSTEMS PROTECTION BOARD (MSPB). IN DETERMINING THE ENTITLEMENTS OF THESE RESTORED CONTROLLERS UNDER THE BACK PAY ACT, 5 U.S.C. SEC. 5596 (1982), THE FAA HAS QUESTIONED THE PAYMENT OF OVERTIME IN THE ABSENCE OF AN AGENCY REGULATION OR NONDISCRETIONARY PROVISION IN A COLLECTIVE BARGAINING AGREEMENT GOVERNING THE ASSIGNMENT OF OVERTIME.

THE FAA ARGUES THAT AFTER THE ILLEGAL STRIKE BEGAN ON AUGUST 3, 1981, SUBSTANTIAL AMOUNTS OF OVERTIME WERE PERFORMED BY THE REMAINING CONTROLLERS, BUT THAT THE ASSIGNMENT OF SUCH OVERTIME WAS SOLELY WITHIN THE DISCRETION OF THE FACILITY MANAGER. IN ADDITION, THE FAA ARGUES THAT THE OVERTIME ASSIGNMENT PROVISIONS IN THE COLLECTIVE BARGAINING AGREEMENT WITH THE PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION (PATCO) SHOULD NOT BE GIVEN LEGAL EFFECT SINCE PATCO WAS SUBSEQUENTLY DECERTIFIED BY THE FEDERAL LABOR RELATIONS AUTHORITY FOR PARTICIPATION IN THE ILLEGAL STRIKE AND THE DECERTIFICATION RENDERED THE AGREEMENT NULL AND VOID. THE FAA ALSO CITES THE AUTHORITY IN 5 U.S.C. SEC. 7106(A)(2)(D) PROVIDING THE AGENCY WITH AUTHORITY TO TAKE NECESSARY ACTIONS TO CARRY OUT THE AGENCY MISSION DURING EMERGENCIES AS FURTHER SUPPORT FOR NOT FOLLOWING THE PATCO AGREEMENT FOLLOWING THE STRIKE.

IN THE ABSENCE OF ANY NONDISCRETIONARY AGENCY REGULATION OR COLLECTIVE BARGAINING AGREEMENT, THE FAA CONCLUDES THAT NO LAW, REGULATION, OR DECISION OF OUR OFFICE REQUIRES, OR EVEN PERMITS, THE PAYMENT OF OVERTIME PAY FOR OVERTIME NOT ACTUALLY WORKED IN ANY BACKPAY AWARDS TO THESE RESTORED CONTROLLERS.

MR. WOOD ARGUES ON BEHALF OF HIS CLIENTS THAT THE BACK PAY ACT REQUIRES THE PAYMENT OF OVERTIME AS PART OF THE "PAY" THE CONTROLLERS WOULD HAVE EARNED DURING THE PERIOD OF REMOVAL. MR. WOOD DISAGREES WITH THE FAA'S CONTENTION THAT OVERTIME ASSIGNMENTS AFTER THE STRIKE WERE DISCRETIONARY SINCE VIRTUALLY ALL QUALIFIED CONTROLLERS WERE ASSIGNED OVERTIME AFTER THE STRIKE. FINALLY, MR. WOOD ARGUES THAT DESPITE THE STRIKE AND THE DECERTIFICATION OF PATCO, THE RIGHTS OF THE UNION MEMBERS TO OVERTIME ASSIGNMENTS SURVIVED, AND HE POINTS OUT THAT THE FAA CONTINUED THE PRIOR PRACTICES OF ASSIGNING OVERTIME EVEN AFTER THE STRIKE.

OPINION

UNDER THE PROVISIONS OF THE BACK PAY ACT, 5 U.S.C. SEC. 5596 (1982), AN EMPLOYEE WHO HAS BEEN AFFECTED BY AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION RESULTING IN A LOSS OF PAY, ALLOWANCES, OR DIFFERENTIALS, IS ENTITLED UPON CORRECTION OF THE PERSONNEL ACTION TO RECEIVE FOR THE PERIOD OF THE ACTION:

"(1)(A)(I) AN AMOUNT EQUAL TO ALL OR ANY PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS, AS APPLICABLE WHICH THE EMPLOYEE NORMALLY WOULD HAVE EARNED OR RECEIVED DURING THE PERIOD IF THE PERSONNEL ACTION HAD NOT OCCURRED, ***."

OUR DECISIONS INTERPRETING THIS PROVISION HAVE HELD THAT THE TERM "PAY" INCLUDES OVERTIME PAY AND THAT THE EMPLOYEE IS ENTITLED TO OVERTIME PAY EVEN THOUGH HE DID NOT ACTUALLY PERFORM OVERTIME WORK DURING THE PERIOD. WILLIAM R. SIMONEAU, B-198485, AUGUST 27, 1980; AND WARREN H. KUMMER, B-194777, OCTOBER 30, 1979. WE HAVE ALSO HELD THAT THE TERM "NORMALLY" SUGGESTS AN ADMINISTRATIVE FINDING IN EACH CASE AS TO HOW MUCH OVERTIME THE EMPLOYEE WOULD HAVE PERFORMED DURING THE PERIOD IN QUESTION. KENNETH L. CLARK, B-209767, MAY 17, 1983, 62 COMP.GEN. , AND CASES CITED THEREIN.

ALTHOUGH THE FAA CONTENDS THERE WAS NO NONDISCRETIONARY POLICY GOVERNING THE ASSIGNMENT OF OVERTIME, OUR DECISIONS INVOLVING EMPLOYEES WHO WERE REMOVED FROM THEIR POSITIONS HAVE NOT RELIED UPON THE EXISTENCE OF A NONDISCRETIONARY POLICY. OVERTIME PAY IS TO BE INCLUDED IN A BACKPAY AWARD NOT BECAUSE A NONDISCRETIONARY POLICY EXISTS, BUT BECAUSE THE SEPARATED EMPLOYEE PERFORMED OVERTIME WORK PRIOR TO HIS TERMINATION OR SUCH WORK WAS PERFORMED BY COMPARABLE EMPLOYEES DURING THE PERIOD OF THE EMPLOYEE'S SEPARATION. HOWEVER, WE HAVE STATED THAT THERE IS NO SPECIFIC FORMULA FOR COMPUTING OVERTIME IN EACH CASE, AND WE HAVE APPROVED PAYMENTS BASED UPON THE EMPLOYEE'S OVERTIME PERFORMANCE DURING THE PRIOR YEAR. CLARK, CITED ABOVE. IN ALTERNATIVE, WE HAVE AGREED TO AGENCY DETERMINATIONS TO BASE THE OVERTIME ON OVERTIME WORKED BY SIMILARLY SITUATED EMPLOYEES. SEE 41 COMP.GEN. 273 (1961); B-178712, JULY 16, 1973; B-177315, DECEMBER 12, 1972; AND B-163142, FEBRUARY 28, 1968.

THE FAA MAY NOT DENY OVERTIME PAYMENTS IN THE BACKPAY AWARDS OF THE RESTORED CONTROLLERS ON THE BASIS OF THE ABSENCE OF A NONDISCRETIONARY POLICY CONCERNING THE ASSIGNMENT OF OVERTIME. OUR DECISIONS WHICH REQUIRE THE EXISTENCE OF SUCH A POLICY HAVE INVOLVED SITUATIONS WHERE AN EMPLOYEE CLAIMS HE WAS WRONGFULLY DENIED THE ASSIGNMENT OF OVERTIME. IN THOSE SITUATIONS, WE HAVE FOUND THAT THE VIOLATION OF A NONDISCRETIONARY POLICY GOVERNING THE ASSIGNMENT OF OVERTIME CONSTITUTED THE UNWARRANTED OR UNJUSTIFIED PERSONNEL ACTION UNDER THE BACK PAY ACT, AND "BUT FOR" THE WRONGFUL DENIAL OF THE OVERTIME ASSIGNMENT, THE EMPLOYEE WOULD HAVE BEEN ASSIGNED OVERTIME WORK. 55 COMP.GEN.405 (1975); 55 COMP.GEN. 171 (1975); AND 54 COMP.GEN. 1071 (1975).

IN THE PRESENT CASE, THE UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTIONS WERE THE REMOVALS OF THESE CONTROLLERS FROM THEIR POSITIONS. THEREFORE, WE CONCLUDE THAT THE MAKE-WHOLE REMEDY PROVIDED BY THE BACK PAY ACT REQUIRES A DETERMINATION IN EACH CASE OF HOW MUCH OVERTIME THE RESTORED CONTROLLER WOULD HAVE WORKED, BASED ON THAT CONTROLLER'S PRIOR OVERTIME ASSIGNMENTS OR UPON THE EXPERIENCE OF SIMILAR CONTROLLERS WHO WERE NOT REMOVED, AND PAY FOR THAT OVERTIME MUST BE INCLUDED IN THE BACKPAY AWARD.