B-192727, DECEMBER 19, 1978

B-192727, DECEMBER 19, 1978

DIGEST: FEDERAL LABOR RELATIONS COUNCIL REQUESTS OPINION ON VALIDITY OF ARBITRATION AWARD OF REGULAR OVERTIME PAY TO CUSTOMS PATROL OFFICERS ALREADY RECEIVING ADMINISTRATIVELY UNCONTROLLABLE OVERTIME PAY. ARBITRATOR FOUND THAT CUSTOMS SERVICE SCHEDULED ASSIGNMENTS IN ADVANCE FOR DUTY ON COAST GUARD CUTTERS KNOWING THAT SUBSTANTIAL OVERTIME WAS REQUIRED. HE CONCLUDED THAT SCHEDULING 8-HOUR SHIFTS WITH SUCH KNOWLEDGE VIOLATED NEGOTIATED AGREEMENT AND AWARDED OFFICERS 4 HOURS PER DAY REGULAR OVERTIME PAY. AWARD MAY BE IMPLEMENTED SINCE FACTS FOUND BY ARBITRATOR SHOW OVERTIME WAS "REGULARLY SCHEDULED" WITHIN MEANING OF 5 U.S.C. 5545(C)(2).

CUSTOMS PATROL OFFICERS - ARBITRATOR'S AWARD OF REGULAR OVERTIME PAY:

THIS IS IN RESPONSE TO A REQUEST FROM THE FEDERAL LABOR RELATIONS COUNCIL (FLRC) FOR OUR OPINION CONCERNING AN ARBITRATROR'S AWARD OF OVERTIME PAY RENDERED IN A GRIEVANCE-ARBITRATION HEARING BETWEEN THE U.S. CUSTOMS SERVICE, REGION VII, AND THE NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 123 (GENTILE, ARBITRATOR), FLRC NO. 78A-30.

THE DISPUTE WHICH WAS THE SUBJECT OF THAT ARBITRATION CONCERNED THE PROPER RATE OF OVERTIME PAY FOR CUSTOMS PATROL OFFICERS (CPOS) IN SAN DIEGO, CALIFORNIA, WHO, DURING MAY AND JUNE 1976, WERE ASSIGNED TO ACCOMPANY THE CREWS OF U.S. COAST GUARD CUTTERS ON BOARD AND SEARCH MISSIONS. THE OFFICERS' SUPERVISOR ASSIGNED THEM TO 8-HOUR SHIFTS PER DAY, BUT THE UNREBUTTED TESTIMONY WAS THAT THE OFFICERS ACTUALLY WORKED 18 -20 HOURS PER DAY WHILE ON BOARD. THE ASSIGNED DUTIES OF THE CPOS WERE TO ASSIST IN ALL BOARDINGS, AND THEY WERE ALSO DIRECTED BY THE COMMANDER OF THE CUTTER TO ACT AS OBSERVERS AND AS HELMSMEN. THE CPOS RECEIVED ADMINISTRATIVELY UNCONTROLLABLE OVERTIME PAY (AUO) ON AN ANNUAL BASIS AS PROVIDED FOR BY 5 U.S.C. 5545(C)(2)(1976). THE CPOS ALLEGED THAT FOR THE DUTY ON BOARD THE CUTTERS THEY WERE ENTITLED TO REGULAR OVERTIME PAY (TIME -AND-ONE-HALF) PURSUANT TO THE FEDERAL EMPLOYEES PAY ACT, 5 U.S.C. 5542(1976). A GRIEVANCE WAS FILED, IN WHICH UNION REPRESENTATIVES CLAIMED THAT BY DENYING CPOS TIME-AND-ONE HALF, MANAGEMENT VIOLATED ARTICLE 23, SECTION 1 OF THE NEGOTIATED AGREEMENT WHICH PROVIDES IN FULL THAT "(EMPLOYEES WHEN ASSIGNED OVERTIME WILL BE COMPENSATED IN ACCORDANCE WITH APPLICABLE LAWS AND REGULATIONS."

SECTION 5542 OF TITLE 5, U.S.C. (1976), REQUIRES THAT A GENERAL SCHEDULE EMPLOYEE'S HOURS OF WORK IN EXCESS OF THE STANDARD 8-HOUR DAY OR 40-HOUR WORKWEEK, WHICH HAVE BEEN OFFICIALLY ORDERED OR APPROVED, MUST BE COMPENSATED AT AN HOURLY RATE EQUAL TO ONE AND ONE-HALF TIMES THE EMPLOYEE'S BASIC HOURLY COMPENSATION, OR OF THE MINIMUM RATE OF GS 10 IF HIS BASIC RATE EXCEEDS THAT RATE. HOWEVER, ACCORDING TO 5 U.S.C. 5545(C)(2), WHEN A GENERAL SCHEDULE EMPLOYEE'S HOURS OF DUTY EXCEED THE BASIC WORKWEEK AND CANNOT BE CONTROLLED ADMINISTRATIVELY, AN AGENCY MAY PROVIDE FOR THE PAYMENT OF PREMIUM PAY NOT TO EXCEED 25 PERCENT OF HIS BASIC ANNUAL RATE OF COMPENSATION. WHERE, AS IN THIS CASE, SUCH A DETERMINATION IS MADE, THE PREMIUM PAY FOR SUCH ADMINISTRATIVELY UNCONTROLLABLE OVERTIME IS IN LIEU OF ALL OTHER PREMIUM COMPENSATION EXCEPT THAT PAYABLE FOR REGULARLY SCHEDULED OVERTIME, NIGHT, AND SUNDAY DUTY, AND FOR HOLIDAY DUTY.

THE ARBITRATOR FOUND: (1) THAT THE AGENCY WAS NOTIFIED AHEAD OF TIME TO SCHEDULE THIS TYPE OF DUTY ASSIGNMENT; (2) THAT THESE ASSIGNMENTS TO CUTTERS WERE REGULARLY SCHEDULED IN ADVANCE FOR DUTY LASTING 2 TO 3 DAYS; (3) THAT THE AGENCY KNEW THE NATURE OF THE DUTIES AND TASKS TO BE PERFORMED, THAT MANY OF THESE ACTIVITIES WOULD INVOLVE A SUBSTANTIAL AMOUNT OF OVERTIME, AND THAT THIS OVERTIME WOULD RECUR ON SUBSEQUENT DAYS; AND (4) THAT THE AGENCY KNEW OR SHOULD HAVE KNOWN THAT THE BOARDING ACTIVITIES WOULD TAKE PLACE OUTSIDE THE ASSIGNED 8-HOUR SHIFT AND THAT THE CPOS WOULD BE REQUIRED TO TAKE PART IN THESE BOARDINGS.

AS TO WHETHER THE QUESTIONED OVERTIME WAS AUTHORIZED, THE ARBITRATOR, RELYING ON THE RATIONALE OF FOX V. UNITED STATES, 416F. SUPP. 593 (E.D. VA. 1976), STATED THAT OVERTIME PERFORMED WITH THE KNOWLEDGE AND INDUCEMENT OF SUPERVISORS IS DEEMED TO BE OFFICIALLY ORDERED OR APPROVED, AND HE CONCLUDED THAT THE SUPERVISORS HERE "HAD FULL KNOWLEDGE AT THE TIME OF THE ADVANCE ASSIGNMENT THAT AN 8-HOUR SHIFT WOULD NOT COVER THE INTENDED ACTIVITIES."

THE ARBITRATOR FOUND THAT THE CPOS WERE ENTITLED TO BE PAID TIME AND A HALF FOR 4 HOURS STATING:

"THE SCHEDULING OF PERSONNEL MUST BE ACCOMPLISHED TO MAXIMIZE EFFICIENCY AND MEET THE KNOWN NEEDS OF THE PARTICULAR OPERATION. TO KNOWINGLY SCHEDULE A SHIFT ASSIGNMENT, WHICH IS THE EXCLUSIVE RESPONSIBILITY OF THE AGENCY'S SUPERVISION, THAT CLEARLY WILL NOT APPROACH THE MEETING OF THE TIME DEMANDS OF THE ASSIGNMENT AND THEN TO CLAIM ALL TIME OUTSIDE THIS ESTABLISHED SCHEDULE AS AUO TIME IS MOST INAPPROPRIATE AND NOT IN KEEPING WITH THE APPLICABLE LAWS AND REGULATIONS. THE APPLICATION OF LAWS AND REGULATIONS PRESUMES THE USE OF SCHEDULING IN KEEPING WITH THE KNOWN NEEDS OF AN ACTIVITY AND NOT BE (SIC) UTILIZED TO CIRCUMVENT OTHER PAY REQUIREMENTS AND THE PROPER COMPENSATION OF EMPLOYEES. THE ASSIGNMENT IN QUESTION WAS REASONABLY SUBJECT TO ADVANCE SCHEDULING, AT LEAST IN PART, BECAUSE IT WAS KNOWN THAT IT WOULD RECUR ON SUCCESSIVE DAYS. BASED ON THE ABOVE, IT APPEARED THAT IN THIS RATHER PARTICULAR SITUATION AN ADDITIONAL FOUR HOURS PER DAY WOULD MEET THE COMPTROLLER GENERAL'S DEFINITION OF REGULARLY SCHEDULED OVERTIME; THUS, A VIOLATION OF ARTICLE 23, SECTION 1, MUST BE FOUND."

ACCORDINGLY, THE ARBITRATOR AWARDED THE CPOS REGULAR OVERTIME PAY FOR 4 HOURS EACH DAY OF THEIR ASSIGNMENTS TO THE COAST GUARD CUTTERS.

THE CUSTOMS SERVICE CONTENDS THAT THE ARBITRATOR'S AWARD VIOLATES 5 U.S.C. 5545(C)(2) AND THE IMPLEMENTING CIVIL SERVICE COMMISSION REGULATIONS BECAUSE THE 4 HOURS DOES NOT FALL WITHIN THE COMPTROLLER GENERAL'S DEFINITION OF REGULARLY SCHEDULED OVERTIME, AS OVERTIME DULY AUTHORIZED IN ADVANCE AND SCHEDULED TO RECUR ON SUCCESSIVE DAYS OR AFTER SPECIFIED INTERVALS. SEE 48 COMP.GEN 334.

IN DECIDING CASES ARISING UNDER THE FEDERAL LABOR RELATIONS PROGRAM WE HAVE STATED, ON SEVERAL OCCASIONS THAT WE WILL OVERTURN AN ARBITRATOR'S AWARD ONLY IF THE AGENCY HEAD'S OWN DECISION TO TAKE THE SAME ACTION WOULD BE DISALLOWED BY THIS OFFICE, PROVIDED THAT THE AWARD IS NOT CONTRARY TO APPLICABLE LAWS AND REGULATIONS. SEE NATIONAL LABOR RELATIONS BOARD, 54 COMP.GEN.312, 316(1974). IN ROSS AND SQUIRE, B-191266, JUNE 12, 1978, (57 COMP.GEN. 536, 541), WE SAID THAT, IN RULING ON ARBITRATION AWARDS, "WE GENERALLY WILL NOT RULE UPON ANY EXCEPTIONS TO THE ARBITRATOR'S AWARD RELATING TO THE FACTS, AND THUS * * * WE SHALL LIMIT OUR CONSIDERATION TO THE LEGALITY OF IMPLEMENTING THE AWARD BASED ON THE FACTS AS FOUND BY THE ARBITRATOR * * * ."

IN THE PRESENT CASE THE ARBITRATOR SPECIFICALLY FOUND, BASED ON THE TESTIMONY BEFORE HIM, THAT THE CUSTOMS SERVICE HAD SCHEDULED THE VESSEL ASSIGNMENTS IN ADVANCE WITH KNOWLEDGE THAT THE REQUIRED DUTIES ON BOARD WOULD INVOLVE A SUBSTANTIAL AMOUNT OF OVERTIME AND THAT THE SUPERVISORS MAKING THE SCHEDULES "HAD FULL KNOWLEDGE AT THE TIME OF ADVANCE ASSIGNMENT THAT AND EIGHT HOUR SHIFT WOULD NOT COVER THE INTENDED ACTIVITIES." THEN CONCLUDED, THAT TO KNOWINGLY SCHEDULE A SHIFT THAT CLEARLY WILL NOT MEET THE TIME DEMANDS OF THE ASSIGNMENT WAS NOT IN KEEPING WITH APPLICABLE LAWS AND REGULATIONS. TO REMEDY THIS VIOLATION HE ORDERED THAT THE GRIEVANTS BE COMPENSATED FOR AN EXTRA 4 HOURS PER DAY OF REGULARLY SCHEDULED OVERTIME.

APPLYING THE STANDARDS STATED ABOVE FOR JUDGING ARBITRATOR'S AWARDS, WE MUST UPHOLD THE LEGALITY OF THE AWARD BASED ON THE FACTS AS FOUND BY THE ARBITRATOR, PROVIDED THAT IT IS NOT CONTRARY TO APPLICABLE LAWS OR REGULATIONS. UNDER THE GOVERNING STATUTE, 5 U.S.C. 5545(C)(2), THE GRIEVANTS MAY BE PAID FOR THE 4 HOURS OF REGULAR OVERTIME IN ADDITION TO THEIR AUO PREMIUM PAY ONLY IF THE 4 HOURS CONSTITUTES "REGULARLY SCHEDULED OVERTIME" DUTY.

WE CONCLUDE THAT THE OVERTIME IN QUESTION DOES MEET THE TEST OF "REGULARLY SCHEDULED. OUR DECISION ESTABLISH THAT A 12-HOUR SHIFT AUTHORIZED IN ADVANCE AND SCHEDULED TO RECUR ON SUCCESSIVE DAYS OR AFTER SPECIFIED INTERVALS IS REGULARLY SCHEDULED OVERTIME. 48 COMP.GEN. 334(1968). HERE IT WAS KNOWN THAT THE ADDITIONAL TIME WOULD BE REQUIRED DURING EACH DAY OF VESSEL DUTY AND THE AGENCY COULD HAVE SCHEDULED IT IN ADVANCE. THESE FACTS PLACE THE PRESENT CASE IN LINE WITH AVILES V. UNITED STATES, 151 CT.CL. 1, 8 (1960). THERE THE COURT OF CLAIMS ADDRESSED A SIMILAR SITUATION WHERE THE EMPLOYEES HAD NO CHOICE BUT TO WORK OVERTIME ON A REGULAR BASIS. THE COURT FOUND THAT THE AGENCY COULD HAVE FORMALLY SCHEDULED TOURS OF DUTY WHICH INCLUDED THE OVERTIME WHICH IT KNEW WOULD BE REQUIRED AND THAT THE MERE FACT OF OMITTING OVERTIME FROM THE SCHEDULED TOURS OF DUTY DID NOT MAKE IT OCCASIONAL OR IRREGULAR. ALTHOUGH AVILES INVOLVED NIGHT DIFFERENTIAL PAYMENTS RATHER THAN OVERTIME PAY, WE THINK THE PRINCIPLE STATED THEREIN APPLIES EQUALLY TO THE CASE AT BAR.

WE ALSO FIND SUPPORT FOR THE ARBITRATOR'S AWARD IN OUR "SKY MARSHAL" CASES. IN B-151168, MAY 25, 1976, SECRET SERVICE AGENTS WERE TEMPORARILY ASSIGNED TO SECURITY DUTY ABOARD COMMERCIAL AIRPLANES TO DETER AIRLINE HIJACKINGS. WHILE THE TREASURY DEPARTMENT DID NOT PREPARE DEFINITE SCHEDULES FOR OVERTIME, THAT FACT WAS FOUND NOT TO BE CONCLUSIVE SINCE THE AGENTS RECEIVED ADVANCE SCHEDULES OF FLIGHTS WHICH FREQUENTLY REQUIRED OVERTIME DUTY. ACCORDINGLY, BASED ON THE FACTS OF THAT CASE WE FOLLOWED THE DECISION OF THE U.S. DISTRICT COURT (SOUTHERN DISTRICT OF OHIO, CIVIL NO. 4082, FEBRUARY 23, 1973), IN ROTHGEB V. STAATS, AND HELD THAT THE "IN FLIGHT" OVERTIME CLAIMED BY THE AGENTS WAS REGULARLY SCHEDULED AND COMPENSABLE AT TIME AND ONE-HALF RATES UNDER 5 U.S.C. 5542. SEE ALSO, B-178261, JULY 7, 1977.

AS SHOWN BY THE FOREGOING CASES, THE MATTER OF "UNCONTROLLABLE" VERSUS "REGULARLY SCHEDULED" OVERTIME IS ALWAYS A DIFFICULT DETERMINATION. SEVERAL OTHER COURT CASES THE RESULT HAS DEPENDED ON THE PARTICULAR FACTS BEFORE THE COURT. SEE ANDERSON V. UNITED STATES, 201 CT.CL. 660 (1973) AND FOX V. UNITED STATES, 416 F.SUPP. 593 (E.D. VA. 1976). COMPARE BURICH V. UNITED STATES, 366 F.2D 984 (CT.CL. 1966).

IN THE INSTANT CASE, THE ARBITRATOR WAS CAREFUL TO LIMIT THE HOLDING TO THE PARTICULAR FACTS BEFORE HIM AND TO TAILOR HIS AWARD TO THOSE FACTS. WHILE WE RECOGNIZE THAT THERE IS A BASIS FOR THE VIEW THAT THE EXTRA WORK PERFORMED BY THE CUSTOMS PATROL OFFICERS WAS UNCONTROLLABLE AND NOT REGULARLY SCHEDULED, WE BELIEVE THAT THE ARBITRATOR'S CONCLUSION TO THE CONTRARY IS SUPPORTED BY THE CASES CITED ABOVE.

WE, THEREFORE, CONCLUDE THAT THE ARBITRATOR'S AWARD OF 4 HOURS PER DAY REGULAR OVERTIME PAY TO THE CUSTOMS PATROL OFFICERS IN THIS CASE IS NOT CONTRARY TO THE APPLICABLE LAWS AND REGULATIONS AND MAY BE IMPLEMENTED.