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51 FLRA No. 89

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF JUSTICE

IMMIGRATION AND NATURALIZATION SERVICE

SAN DIEGO, CALIFORNIA

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL IMMIGRATION AND NATURALIZATION SERVICE COUNCIL

(Union)

0-AR-2683

_____

DECISION

April 3, 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 Paul W. Rothschild 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.⁽¹⁾

The Arbitrator sustained a grievance challenging the Agency's failure to compensate Senior Immigration Inspectors (SRIs) with Sunday overtime under 8 U.S.C. § 1353a ("§ 1353a overtime")⁽²⁾ for inspection work performed on Sunday, January 17, 1993. He ordered the Agency to make whole any SRI who had not been paid the Sunday overtime. For the following reasons, we conclude that none of the nine exceptions asserted by the Agency establish that the Arbitrator's award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II. Arbitrator's Award

On Sunday, January 17, 1993, SRIs in the San Diego District were ordered to complete certain inspections. Because the SRIs' work schedules had been changed to include Sundays within their basic 40-hour workweek, the Sunday inspection duties were not performed on an overtime basis. Thus, the SRIs did not receive overtime compensation under 8 U.S.C. § 1353a for those duties. The SRIs filed a grievance demanding to be paid overtime under 8 U.S.C. § 1353a for the inspection duties.⁽³⁾ The grievance was denied and was processed to arbitration.

The parties did not stipulate the issue before the Arbitrator and the Arbitrator did not set forth his own statement of the issue. The Arbitrator first quoted the Union's version of the issue as:

Did the Agency violate the negotiated agreement when it refused to pay [SRIs] overtime in accordance with [8 U.S.C. § 1353a]. If so, what is the remedy?

Award at 2.

The Arbitrator then quoted the Agency's version of the issue as:

Was the duty assigned a violation of [8 U.S.C. § 1353a] or was it a legitimate and proper assignment? If not, what is the remedy?

Id.

The Arbitrator found, contrary to the Agency's position, that the grievance was timely.⁽⁴⁾ Further, based on the Union's response to the Agency's claim that the grievance was not arbitrable because it was covered by the settlement of another grievance, the Arbitrator found that the grievance before him was arbitrable. Next, after quoting two Agency memoranda concerning overtime entitlement for SRIs, and Article 29 A(2) of the parties' agreement,⁽⁵⁾ the Arbitrator concluded that the Agency violated the parties' agreement when it refused to pay SRIs overtime in accordance with 8 U.S.C. § 1353a. As his award, the Arbitrator sustained the grievance and ordered the Agency "to make whole any [SRIs] who have not been paid [§ 1353a] overtime due to the conflict with the San Diego set of rules." Id. at 9.

III. Agency's Exception That the Award Is Inconsistent With the Back Pay Act ⁽⁶⁾

A. Agency's Contentions

The Agency asserts that the award is inconsistent with 5 U.S.C. § 5596 (the Back Pay Act) for two reasons. First, the Agency contends that the award does not satisfy the requirements of the Back Pay Act. According to the Agency, the Arbitrator did not find either (1) that the Agency's violation of Article 29 A(2) of the parties' agreement directly resulted in a withdrawal or reduction of the SRIs' pay or (2) that but for such action the SRIs would not have suffered the withdrawal or reduction of pay. Second, the Agency claims that, as a result of a settlement of a prior grievance concerning the change in SRIs' work schedules to include Sunday as a part of the basic 40-hour workweek, it agreed to pay SRIs 10 percent of their base pay in addition to their base pay for Sundays they worked during 1993. The Agency argues that the Back Pay Act precludes employees from being paid twice for the same wrongful personnel action.

B. Union's Opposition

Except for its assertion that no SRI has ever received any money as a result of the settlement of the other grievance, the Union provided no specific argument concerning 5 U.S.C. § 5596.

C. Analysis and Conclusion

The Authority has long held that under the Back Pay Act, an award of backpay is authorized only when an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; (2) the personnel action directly resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials; and (3) but for such action, the grievant otherwise would not have suffered the withdrawal or reduction. E.g. American Federation of Government Employees, Local 31 and U.S. Department of Veterans Affairs, Medical Center, Cleveland, Ohio, 41 FLRA 514, 517 (1991) (VA Cleveland).

Unless an arbitrator finds that an aggrieved employee was affected by an unjustified or unwarranted personnel action, any award of backpay is deficient. U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region West, Stockton, California and American Federation of Government Employees, Local 1857, 48 FLRA 221 (1993). In this regard, the Authority has long held that a violation of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action. E.g. International Association of Machinists and Aerospace Workers, Lodge 2261 and American Federation of Government Employees, Local 2185 and U.S. Department of the Army, Tooele Army Depot, Tooele, Utah, 47 FLRA 427, 434 (1993) (Tooele Army Depot).

In this case, the Arbitrator stated that the Agency violated the parties' agreement when it refused to pay SRIs § 1353a overtime. The Arbitrator did not specify the particular provision of the parties' agreement which was violated or the manner in which it was violated. However, the Arbitrator quoted Article 29 A(2), which established the basic workweek as occurring on 5 days between Monday through Saturday, in the paragraph immediately preceding his conclusion. Moreover, both parties interpret the award as holding that the Agency violated Article 29 A(2). Consequently, there is an undisputed basis for concluding that the award satisfies the first requirement for an award of backpay.

As to the second and third Back Pay Act requirements, the Authority has stated that the "but for" test does not require a "specific recitation of certain words and phrases," such as but for; rather it requires that a direct connection be found between an unwarranted or unjustified personnel action and an employee's loss of pay or differentials. VA Cleveland, 41 FLRA at 518. A finding of a direct causal connection may be "implicit from the record and the award." Id. at 519. In this respect, Article 29 A(2) of the parties' agreement does not include Sunday in the basic 40-hour workweek. As such, under Article 29 A(2), work performed on a Sunday is overtime work. However, it is undisputed that the SRIs did not receive overtime compensation under 8 U.S.C. § 1353a for the performance of the Sunday duties in this case because the Agency had changed their work schedules to include Sundays within their basic 40-hour workweek. As indicated above, the Arbitrator found that the Agency violated Article 29 A(2) and, as a remedy, ordered that the Agency make whole any SRI who had not been paid overtime under § 1353a. In these circumstances, it is clear from the record in this case that "but for" the Agency's change in SRI work schedules to include Sunday within the basic 40-hour workweek, SRIs would have been paid § 1353a overtime for the inspection duties they performed on Sunday, January 17, 1993. Consequently, the award satisfies the second and third test for an award of backpay.

Finally, there is nothing in the award, or the record in this case, that supports the Agency's claim that the award obligates it to pay SRIs § 1353a overtime in addition to the 10 percent of their base pay the Agency agreed to pay for Sundays worked in 1993 as the settlement of another grievance over the change in SRI work schedules. The award in this case merely obligates the Agency to make whole any SRI who was not paid § 1353a overtime. The actual amount of backpay any SRI would receive would be computed in complying with the award. Consequently, we deny this exception.

IV. Agency's Exception That the Award Is Inconsistent With 8 U.S.C. § 1353a

A. Agency's Contentions

The Agency contends that the award is inconsistent with 8 U.S.C. § 1353(a) for two reasons. First, the Agency claims that because the Sunday inspection duties were performed on a day within the SRIs' 40-hour basic workweek and not on overtime, the Arbitrator may not order overtime for that work under 8 U.S.C. § 1353(a). Second, the Agency claims that, based on testimony of a Union witness at the hearing, the award could be construed as requiring § 1353(a) overtime pay both for noninspection duties that are not covered by 8 U.S.C. § 1353(a) and for work performed on Sundays other than the one in question.

B. Union's Opposition

According to the Union, the dispute submitted to the Arbitrator concerned whether the Agency violated Article 29 of the parties' agreement. The Union claims that, but for the Agency's violation of Article 29, SRIs would have been paid for any work on Sundays in accordance with 8 U.S.C. § 1353a.

C. Analysis and Conclusion

It is clear that an award of overtime pay to an employee is appropriate to remedy a violation of a collective bargaining agreement that resulted in the employee's loss of overtime pay even when the employee did not actually perform overtime work. E.g. Tooele Army Depot, 47 FLRA at 436. In this case, the Agency concedes that on the Sunday in question, SRIs performed the type of inspection duties that, if performed on overtime on a Sunday, would have entitled SRIs to § 1353a overtime. Exceptions at 8. Further, as previously indicated, the Arbitrator ordered the payment of § 1353a overtime to remedy the violation of the parties' agreement, but for which violation, the SRIs would have performed their work on Sunday on an overtime basis. As such, the Arbitrator's award is not inconsistent with 8 U.S.C. § 1353a.

There is also no merit to the Agency's additional claims. The record in this case is clear that the Union's grievance involved a claim for § 1353a overtime based on the performance of inspection duties by SRIs only on one Sunday. See Exceptions, Exhibit D at 2. Accordingly, there is no reason to construe the Arbitrator's award as applying to other duties, or to any Sunday other than the Sunday that was the subject of the Union's grievance. Consequently, we deny this exception.

V. Agency's Exception That the Award Is Inconsistent With 5 C.F.R. § 610.121

A. Agency's Contentions

The Agency argues that Article 29A(2) of the parties' agreement cannot be given effect in a manner that penalizes the Agency for scheduling SRIs' basic workweek to include Sundays without violating 5 C.F.R. § 610.121(a)(2) and (b)(1) and (2). According to the Agency, as it has established a work schedule for SRIs that corresponds to the employees' actual work requirements, within the meaning of 5 C.F.R. § 610.121(b)(1), the award cannot legally enforce Article 29A(2) to preclude the Agency from changing the SRIs' basic workweek to include Sundays.

B. Union's Opposition

The Union asserts that, to the extent that the Agency is claiming that Article 29A (2) is contrary to a Government-wide regulation, the Agency should have raised that contention when it engaged in Agency head review of the parties' agreement and, thus, must be precluded from raising that contention in this case.⁽⁷⁾

C. Analysis and Conclusion

The Agency asserts, and the Union does not dispute, that there is "a need for SRIs to perform their [assigned duties] . . . every day." Exceptions at 13. Thus, according to the Agency, "SRIs . . . have been regularly scheduled to work . . . basic workweeks which include Sundays because this is the work schedule that 'corresponds with the employee's actual work requirements' within the meaning of" 5 C.F.R. § 610.121(b)(1). Id. (emphasis deleted). Consequently, the designation of which days in a week are included in the basic workweek will determine only whether work performed on any particular day in a week will be compensated as overtime. Here, the only effect of the Arbitrator's award is that inspection work performed on January 17, 1993, will be compensated as overtime in accordance with 8 U.S.C. § 1353a. Nothing in the Arbitrator's award precludes the Agency from scheduling SRIs to meet the Agency's actual work requirements within the meaning of 5 C.F.R. § 610.121(b)(1). See National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut, 43 FLRA 1140, 1147-48 (1992). Consequently, we deny this exception.

VI. Agency's Exception That the Award Is Inconsistent With Section 7106(a)(2)(B) of the Statute

A. Agency's Contentions

Relying on American Federation of Government Employees, Local 85 and Veterans Administration Medical Center, Leavenworth, Kansas, 32 FLRA 210, 216 (1988) (Proposal 6) (VA Leavenworth), the Agency asserts that its right to assign work under section 7106(a)(2)(B) of the Statute includes the right to schedule basic workweeks. According to the Agency, by requiring it to change SRI work schedules so that Sundays fall outside the regular 40-hour workweek, management would be obligated to schedule SRIs to perform their work on Sundays on an overtime basis, thereby preventing management from determining that the SRI work will be performed on Sundays as a part of their 40-hour basic workweek. The Agency contends that, although nothing in the award indicates that the Arbitrator was enforcing an arrangement, the award completely abrogates its right to assign work.

B. Union's Opposition

The Union argues that the "[A]rbitrator's award does indicate that [the Arbitrator] was enforcing an arrangement contained in the parties' agreement." Opposition at 3.

C. Analysis and Conclusion

The Authority has long held that attempts to preclude the assignment of work on particular days of the week are inconsistent with the right to assign work under section 7106(a)(2)(B) of the Statute. E.g. International Association of Fire Fighters, Local F-61 and Philadelphia Naval Shipyard, 3 FLRA 438, 438-41 (1980). In contrast to this case, where nothing in the award precludes the assignment of work to SRIs on any particular day of the week, Proposal 6 in VA Leavenworth precluded the assignment of work on weekends and, consequently, was found to violate management's right to assign work. Thus, as the holding in VA Leavenworth clearly is distinguishable from the circumstances in this case, the Agency's reliance on VA Leavenworth is misplaced. As no other basis is argued or is apparent, the Agency has not established that the award is inconsistent with its right to assign work under section 7106(a)(2)(B) of the Statute. Consequently, we deny this exception.

VII. Agency's Exception That the Award Is Inconsistent With 5 U.S.C. § 5549

A. Agency's Contentions

The Agency argues that SRIs receive overtime compensation under 5 U.S.C. § 5545(c)(2) for services performed on Sundays. The Agency contends that, by ordering overtime pay under 8 U.S.C. § 1353a, the award is inconsistent with 5 U.S.C. § 5549 which precludes an employee from receiving overtime compensation under both 8 U.S.C. § 1353a and 5 U.S.C. § 5545 for the same services.

B. Union's Opposition

According to the Union, the Agency's exception is without merit because nothing precludes SRIs from receiving overtime under 5 U.S.C. § 5545(c)(2) for hours in excess of 40 during the Monday through Saturday workweek and overtime under 8 U.S.C. § 1353a for overtime work performed on Sundays.

C. Analysis and Conclusion

Under 5 U.S.C. § 5545(c)(2), employees may receive, in addition to their base pay, between 10 and 25 percent of their base pay on an annual basis as compensation for administratively uncontrollable overtime (AUO). The actual percentage an employee may receive depends on the average number of irregular or occasional overtime hours in a week. 5 C.F.R. § 550.154. However, 5 U.S.C. § 5549 precludes an employee from receiving AUO and § 1353a overtime for the same hours. Consistent with this provision, and because the performance of even 1 hour of inspection work on a Sunday on overtime would entitle an SRI to § 1353a overtime pay, an SRI could not have any hours of noninspection work performed on the same Sunday on overtime counted toward his or her AUO calculation. See Acuna v. U.S., 479 F.2d 1356 (Ct. Cl. 1973) cert. denied, 416 U.S. 905 (1974).

There is nothing in the record of this case to support the Agency's contention that the grievant sought, and the Arbitrator ordered, the Agency to pay SRIs both AUO compensation and § 1353a overtime for the inspection duties performed on Sunday, January 17, 1993. The award obligates the Agency to make whole any SRI who was not paid § 1353a overtime. Under 5 U.S.C. § 5549, none of the § 1353a overtime hours on that Sunday could be used in calculating the amount of AUO those SRIs would receive under 5 U.S.C. § 5545(c). Consequently, the Agency has not supported its contention that the award violates 5 U.S.C. § 5549. We note, however, that the award does not preclude the Agency from recomputing SRIs' AUO as a result of complying with the award. Accordingly, we deny this exception.

VIII. Agency's Exception That the Award Is Inconsistent With Agency Regulations

A. Agency's Contentions

The Agency asserts that, because the Arbitrator neither adopted a party's statement of the issue nor defined the issue himself, the Authority should view the award as addressing, at least implicitly, the issues as presented by the parties. In this connection, the Agency notes that a Union witness alleged that SRIs, like Immigration Inspectors, are entitled to overtime under 8 U.S.C. § 1353a whenever they are scheduled to work on a Sunday on overtime. The Agency argues that, to the extent that the Arbitrator based his award on this testimony, the award is inconsistent with SRI and Immigration Inspector position descriptions.

B. Union's Opposition

The Union notes that, contrary to the Agency's position, SRIs performed the type of inspections on the Sunday in question that entitles them to overtime under 8 U.S.C. § 1353a.

C. Analysis and Conclusion

An arbitration award that conflicts with a governing agency regulation will be found deficient under section 7122(a)(1) of the Statute. U.S. Department of the Treasury, Internal Revenue Service, Odgen Service Center, Ogden, Utah and National Treasury Employees Union, Chapter 67, 42 FLRA 1034, 1056 (1991). In this case, however, the Agency cites no regulation with which the award allegedly is inconsistent. Rather, the Agency relies solely on position descriptions of SRIs and Immigration Inspectors. Further, there is nothing in the Arbitrator's award which supports the Agency's claim that the Arbitrator adopted the Union's position at the hearing. Finally, there is no Authority precedent for the proposition that an employee's position description constitutes an agency regulation within the meaning of section 7122(a)(1) of the Statute. Consequently, we deny this exception.

IX. Agency's Exception That the Grievance Was Barred by a Prior Settlement Agreement and Does Not Draw Its Essence From the Settlement Agreement

A. Agency's Contentions

Relying on Frank Elkouri and Edna Elkouri, How Arbitration Works 422 n.35 (4th ed. 1985) (Elkouri and Elkouri), the Agency argues that the "issuance of an arbitration award generally bars any subsequent court or arbitration action on the merits of the same event." Exceptions at 15. In this regard, the Agency claims that it presented documentary evidence to the Arbitrator to support its argument that a settlement agreement rendered the grievance in the instant case nonarbitrable. The Agency argues that the settlement agreement was negotiated by the same parties in this case, and that it resolved an earlier grievance challenging management's decision to change SRIs' workweeks to include Sundays within the basic 40-hour workweek. The Agency asserts that the Arbitrator relied solely on the testimony of one Union witness to reject the Agency's argument and that the testimony was inconsistent with documentary evidence submitted by the Agency concerning the earlier grievance. According to the Agency, the "interpretation and application of Article 29.A(2) regarding the scope of management's contractual commitment to schedule workweeks so as to exclude Sundays was as pertinent regarding the resolution of the [earlier] grievance as it was . . . to the resolution of the grievance leading to the instant award." Exceptions at 17. The Agency contends that, as the award is based on a violation of Article 29A (2), it is deficient because: (1) the Arbitrator has revisited and reopened an issue that had been raised and settled by the parties in the prior grievance; and (2) the award does not draw its essence from the settlement agreement.

B. Union's Opposition

The Union asserts that, contrary to the Agency's claim, and consistent with the testimony of its witness at the hearing, there is no evidence to establish that the prior grievance concerned the same issue as the one in this case.

C. Analysis and Conclusion

The Agency's reliance on Elkouri and Elkouri is misplaced. Although it is stated therein that arbitrators may refuse to permit relitigation of the merits of the same incident which was the subject of a prior award, nothing in the cited section of Elkouri and Elkouri stands for the proposition that arbitrators are bound to follow prior awards. See American Federation of Government Employees, Local 1273 and U.S. Department of Veterans Affairs, Medical Center, Boise, Idaho, 44 FLRA 707, 712-13 (1992). Moreover, in this case there is no prior award, just a settlement agreement. In addition, the Arbitrator's determination that the grievance was not barred by the previous settlement agreement immediately followed his quotation of the Union's assertion that the settlement agreement concerned a different issue.

Contrary to the Agency's contention, the documents it submitted in support of its exception do not establish that the settlement agreement resolving the prior grievance over the change in SRI workweeks renders the grievance in this case nonarbitrable. Specifically, the documents submitted establish that the prior grievance concerned, among other things, the Agency's noncompliance with a different article of the parties' agreement than the one involved in this case when the Agency failed to notify the Union of the Agency's decision to change work schedules to include Sundays within the 40-hour basic workweek. The settlement provided, among other things, that the Agency would compensate SRIs an additional 10 percent of regular pay for Sundays they worked in 1993. The additional 10 percent of pay was intended as a full settlement of any premium pay SRIs otherwise would have earned for performing noninspection work on Sundays had the Agency not changed work schedules to include Sunday within the 40-hour basic workweek. In contrast, the grievance in this case concerns the payment of 8 U.S.C. § 1353a overtime for the performance of inspection work on the Sunday in question.

Finally, although it is well established that an award that fails to draw its essence from an agreement will be found to be deficient, such test is not applicable in this case. That is, there is no indication that the issue before the Arbitrator involved an interpretation of the disputed settlement agreement. Rather, the issue before the Arbitrator involved an alleged violation of Article 29 A(2) of the parties' agreement. As such, the Agency has not established that the award fails to draw its essence from the parties' agreement. Consequently, we deny this exception.

X. Agency's Exception That the Arbitrator Exceeded His Authority by Making a Classification Determination in Violation of Section 7121(c) of the Statute

A. Agency's Contentions

The Agency argues that, by substituting his views for those of the Agency as to the nature of the duties performed by SRIs, the Arbitrator made a classification decision and, thereby, exceeded his authority. According to the Agency, unless a classification action results in the reduction of the grade or pay of an employee, matters related to the classification of a position are excluded by section 7121(c)(5) of the Statute from the scope of negotiated grievance procedures. In this connection, the Agency states, as it did elsewhere in its exceptions, that a Union witness testified at the hearing that there is no difference between SRI and Immigration Inspector duties for purposes of entitlement to overtime under 8 U.S.C. § 1353a. The Agency asserts that, if the Arbitrator accepted this testimony, the award must be set aside because the Arbitrator lacked jurisdiction to address this classification issue. In support, the Agency relies on U.S. Department of the Air Force, Air Education and Training Command, Randolph Air Force Base, San Antonio, Texas and American Federation of Government Employees, Local 1840, 49 FLRA 1387 (1994), where the Authority set aside an arbitrator's award because it pertained to the classification of a position, a matter which is excluded from the scope of negotiated grievance procedures by the Statute.

B. Union's Opposition

The Union disputes the Agency's claim that the award concerns a classification issue.

C. Analysis and Conclusion

An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed by the grievance. E.g. U.S. Department of the Navy, Naval Base, Norfolk, Virginia, and American Federation of Government Employees, Local 22, 51 FLRA 305, 307-08 (1995). In this case, the Agency's claim is based on its view that the Arbitrator disregarded the limitation on his authority set forth in section 7121(c)(5) of the Statute. However, there is nothing in the award, or in the record, that supports the Agency's claim that the Arbitrator based his award on the testimony of the Union witness that there is no difference between SRI and Immigration Inspector duties for the purpose of entitlement to overtime under 8 U.S.C. § 1353a. Moreover, the Agency concedes that SRIs performed the type of inspection duties on the Sunday in question that if performed on overtime would entitle SRIs to overtime under 8 U.S.C. § 1353a. As such, the Agency has not established that the Arbitrator disregarded specific statutory limitations on his authority by issuing an award concerning the classification of a position within the meaning of section 7121(c)(5) of the Statute. Consequently, we deny this exception.

XI. Agency's Exception That the Award Is Too Ambiguous to Enforce

A. Agency's Contentions

The Agency asserts that the award is ambiguous because the Agency is unable to determine what the Arbitrator has awarded. The Agency claims that, especially where large sums of money potentially are involved, an award must leave no doubt what the nature of an agency's alleged error was so that proper backpay can be determined. According to the Agency, because it is unclear what the Arbitrator has awarded, the Authority should remand the award to the parties.

B. Union's Opposition

The Union merely states that it would not object to a remand if the Authority deems it necessary.

C. Analysis and Conclusion

The Authority will remand an award to the parties for the purpose of obtaining a clarification from the arbitrator in circumstances where an ambiguity in the award, as to which employees or what period of time a make-whole remedy is to apply, prevents the Authority from determining whether the award is deficient. U.S. Department of Commerce, Patent and Trademark Office and Patent Office Professional Association, 34 FLRA 992 (1990). Here, the grievance involved a claim for § 1353a overtime based on the performance of inspection duties by SRIs on Sunday, January 17, 1993, and the Agency concedes that on that Sunday SRIs performed the type of inspection duties which, if performed on a Sunday on overtime, would entitle SRIs to such overtime compensation. Accordingly, although the Arbitrator merely sustained the grievance and ordered a make whole remedy, there is nothing in the record to support the Agency's claim that the Arbitrator's award could be construed as requiring the Agency to pay SRIs § 1353a overtime on the basis of the SRIs' performance of noninspection duties. Similarly, there is nothing in the record in this case to support the Agency's claim that the Arbitrator's award in any way applies to any Sunday in 1993 other than the Sunday which was the subject of the Union's grievance. Consequently, we deny this exception.

XII. Decision

The Agency's exceptions are denied.⁽⁸⁾

APPENDIX

8 U.S.C. § 1353a provides, in pertinent part:

The Attorney General shall fix a reasonable rate of extra compensation for overtime services of immigration officers and employees of the Immigration and Naturalization Service who may be required to remain on duty . . . on Sundays or holidays, to perform duties in connection with the examination and landing of passengers and crews of steamships, trains, airplanes, or other vehicles, arriving in the United States from a foreign port by water, land, or air, such rates to be fixed on a basis of . . . two additional days' pay for Sunday and holiday duty . . . .

5 C.F.R. § 610.121 provides:

(a) Except when the head of an agency determines that the agency would be seriously handicapped in carrying out its functions or that costs would be substantially increased, he or she shall provide that--

(1) Assignments to tours of duty are scheduled in advance of the administrative workweek over periods of not less than 1 week;

(2) The basic 40-hour workweek is scheduled on 5 days, Monday through Friday when possible, and the 2 days outside the basic workweek are consecutive;

(3) The working hours in each day in the basic workweek are the same;

(4) The basic nonovertime workday may not exceed 8 hours;

(5) The occurrence of holidays may not affect the designation of the basic workweek; and

(6) Breaks in working hours of more than 1 hour may not be scheduled in a basic workday.

(b)(1) The head of an agency shall schedule the work of his or her employees to accomplish the mission of the agency. The head of an agency shall schedule an employee's regularly scheduled administrative workweek so that it corresponds with the employee's actual work requirements.

(2) When the head of an agency knows in advance of an administrative workweek that the specific days and/or hours of a day actually required of an employee in that administrative workweek will differ from those required in the current administrative workweek, he or she shall reschedule the employee's regularly scheduled administrative workweek to correspond with those specific days and hours. The head of the agency shall inform the employee of the change, and he or she shall record the change on the employee's time card or other agency document for recording work.

(3) If it is determined that the head of an agency should have scheduled a period of work as part of the employee's regularly scheduled administrative workweek and failed to do so in accordance with paragraphs (b)(1) and (2) of this section, the employee shall be entitled to the payment of premium pay for that period of work as regularly scheduled work under subpart A of Part 550 of this chapter. In this regard, it must be determined that the head of the agency: (i) Had knowledge of the specific days and hours of the work requirement in advance of the administrative workweek, and (ii) had the opportunity to determine which employee had to be scheduled, or rescheduled, to meet the specific days and hours of that work requirement.

5 U.S.C. § 5545(c) provides, in pertinent part:

(c) The head of an agency, with the approval of the Office of Personnel Management may provide that--

. . . .

(2) an employee in a position in which the hours of duty cannot be controlled administratively, and which requires substantial amounts of irregular, unscheduled, overtime duty with the employee generally being responsible for recognizing, without supervision, circumstances which require him to remain on duty, shall receive premium pay for this duty on an annual basis instead of premium pay provided by other provisions of this subchapter, except for regularly scheduled overtime, night, and Sunday duty, and for holiday duty. Premium pay under this paragraph is determined as an appropriate percentage, not less than 10 percent nor more than 25 percent, of such part of the rate of basic pay for the position as does not exceed the minimum rate of basic pay for GS-10, by taking into consideration the frequency and duration of irregular unscheduled overtime duty required in the position.

5 U.S.C. § 5549 provides, in pertinent part:

This subchapter does not prevent payment for overtime services or for Sunday or holiday work under any of the following statutes--

. . . .

(2) sections 1353a and 1353b of title 8;

. . . .

However, an employee may not receive premium pay under this subchapter for the same services for which he is paid under one of these statutes.

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

1. We reject the Union's contention that the Agency's exceptions are untimely and should be dismissed. The time limit for filing exceptions to an arbitrator's award is 30 days beginning on the date the award is served on the filing party. 5 C.F.R. § 2425.1(b). Because the award was served on the parties by mail on October 19, 1994, 5 days are added to the period for filing exceptions to the award. 5 C.F.R. § 2429.22. In this case, the Agency filed its exceptions on November 21, 1994, 1 day before the time period for filing exceptions expired.

2. The pertinent portions of 8 U.S.C. § 1353a, and other relevant statutory and regulatory provisions, are set forth in the Appendix to this decision.

3. The Union also sought overtime compensation under 8 U.S.C. § 1353a for inspection duties performed by SRIs on Monday January 18, 1993, which was a paid holiday. However, this aspect of the Union's grievance is not addressed by the Arbitrator or the parties before us. Accordingly, it is unnecessary to address this issue further in this decision.

4. As the Agency does not except to this finding by the Arbitrator, this portion of the Arbitrator's decision is not in dispute in this case. Accordingly, it is unnecessary to address this issue further in this decision.

5. Article 29 A(2) provides as follows:

ARTICLE 29- Hours of Work

A(2) The basic workweek for Inspectors shall be scheduled on five days, Monday through Saturday, including holidays, in accordance with AM 2978.

Award at 3.

6. Each of the Agency's nine exceptions is presented and analyzed separately in Sections III - XI of this decision.

7. Contrary to the Union's claim, the fact that the Agency did not disapprove the provision does not preclude the Agency from challenging the enforceability of the provision in arbitration proceedings. E.g., American Federation of Government Employees, Local 2776 and U.S. Department of Defense, Armed Forces Radio and Television Service, Broadcast Center, Sun Valley, California, 43 FLRA 184, 189 n.* (1991).

8. We note the considerable public resources expended in the litigation of these numerous exceptions. Although we have concluded that none of the exceptions provides a basis on which to find the Arbitrator's award deficient, some are so lacking in merit that we feel compelled to question whether the Agency gave due consideration to the public interest in pursuing the entire laundry list of exceptions it asserted.

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