[ v56 p304 ]
56 FLRA No. 42
NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 143
(Union)
and
U.S. DEPARTMENT OF THE TREASURY
U.S. CUSTOMS SERVICE, EL PASO,
TEXAS
(Agency)
0-AR-3134
_____
DECISION
May 5, 2000
_____
Before the Authority: Donald S. Wasserman, Chairman; Phyllis N. Segal and Dale Cabaniss, Members.
Decision by Member Cabaniss for the Authority
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Don B. Hays filed under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator denied a grievance alleging that the Agency violated federal pay regulation and the parties' National Agreement by failing to pay unit employees employed as customs inspectors, assigned to a facility located within the port of El Paso, Texas, the appropriate overtime for work performed from 6:00-9:00 a.m.,daily, from November 30, 1992 through December 31, 1993.
For the following reasons, we conclude that the Union has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Union's exceptions.
II. Background and Arbitrator's Award
During the relevant time, the affected customs inspectors were paid overtime pursuant to the Act of February 13, 1911, 19 U.S.C. § 267 (1988) ("1911 overtime") and were covered under the parties' National Agreement. [n1] The United States Customs Service operates the Bridge of the Americas (BOTA) cargo facility located within the Port of El Paso, Texas. The "general class of customs business" involved at BOTA "necessarily includes the receipt, inspection, collection of duties and release of all types of goods being imported into the United States." Award at 2.
Before November 30, 1992, the regular hours for the transaction of the general class of cargo business at BOTA were 8 a.m. to 4 p.m and the overall hours of operation were 6 a.m. to 10 p.m. Subsequently, local Agency representatives and the Union agreed to new tours of duty for customs inspectors assigned to, as relevant here, the BOTA facility. The agreement, effective on November 29, 1992, provided that the BOTA facility would be manned from 6 a.m. to 6 p.m. by two eight hour shifts. The first--from 6 a.m. to 2 p.m.--was to be staffed with custom inspectors from another facility, and the second-- from 9 a.m. to 6 p.m.--was to be staffed by BOTA customs inspectors. This change was "never formally approved by the Commissioner of Customs [under 19 C.F.R. § 101.6(b)], or posted publicly." [n2] Award at 7.
Temporary shortages required the Agency to call BOTA customs inspectors in early to cover a portion of the first shift (6:00 a.m. to 9:00 a.m.) on overtime. For such work, the employees were compensated with three dots or periods of 1911 overtime, plus one hour of Federal Employee Pay Administration Act (FEPA) overtime. [n3] In March 1993, an Agency official discovered that the manner in which the employees recorded the overtime caused an error that resulted in the overpayment of 19ll overtime. The Agency adjusted the overtime compensation to only one dot of 1911 overtime, plus one hour of FEPA overtime. The adjusted payments continued through the end of calendar year 1993. [n4] [ v56 p305 ]
On May 5, 1993, the Union filed a grievance alleging that the Agency violated Federal pay regulations and the parties' National Agreement by failing to pay grievants who worked from 6-9 a.m. at BOTA, the appropriate amount and type of overtime. Relying on 19 C.F.R. § 24.16(b), the Agency denied the grievance. [n5] See Opposition, Attachment B at 1. The matter was submitted to arbitration where the Arbitrator framed the issue as follows:
Whether the Agency violated Article 21, § 8 of the National Agreement by failing to compensate employees with 4 periods of overtime, for their hours of extra work on the 6:00 AM to 9:00 AM BOTA Cargo Station Overtime Jobs, during the period from November 29, 1992, through December 31, 1993?
If the answer . . . is YES, what is the appropriate remedy?
Award at 1.
By statute (19 U.S.C. § 267), 5:00 p.m. to the following 8:00 a.m. constitute the "hours of the night" during which an employee can be paid 1911 overtime. However, 19 C.F.R. § 24.16(b) notes that the definition of "night" can be changed for a port or station where the regular business hours have been set at something other than 8:00 a.m. to 5:00 p.m. in order to agree with the local prevailing working conditions. 19 C.F.R. § 101.6(b) also notes that changes to the regular business hours of a customs office must be approved by the Commissioner of Customs. At issue is how the change in work hours of employees at the BOTA work location comports with these requirements in terms of computing 1911 overtime.
The Union argued that the change in the "operational hours of the [BOTA] station, and the corresponding . . . change in the tour of duty hours of every BOTA [customs] inspector . . . confirm[ed] each [grievant's] contractual right to have his 'hours of the night' correspondingly redefined for 1911 overtime pay purposes." Award at 13. The Agency argued that because the official business hours of the port were never proven to have been officially changed or approved by the Commissioner during 1993, then the hours of the night for 1911 overtime purposes must remain as defined by the statute and implementing regulations--between 5 p.m. of any weekday and 8 a.m. of the following weekday.
The Arbitrator found that the record was void of any evidence that showed that the change in hours at the BOTA location was formally preauthorized or subsequently approved, by the Commissioner of Customs, or displayed as required by 19 C.F.R. § 101.6. The Arbitrator further determined that there was a distinction between the night hours of service of an individual inspector, and the official hours of operation of a port or station, and that the official hours of business at a port may only be "'fixed' (established) or 'changed' as . . . prescribed" in 19 C.F.R. § 101.6. Award at 15. The Arbitrator found that a "port may apparently have multiple starting (stopping) times for various included operations, without affecting 1911 overtime per se." Id. at 15-16. He found that during the time in dispute, the official hours for the operation at the Port of El Paso was "credibly" represented by the Agency to have been as prescribed in 19 C.F.R. § 24.16(b), i.e., 8 a.m. to 5 p.m. Id. at 16. However, he also found that in "practical effect the regular starting time for the transaction of general cargo business at BOTA, which represents only one of the locations included within the El Paso Port, [was] changed from [8 a.m. to 9 a.m]." Id.
Notwithstanding his finding that there was no evidence to show that the BOTA facility hours were changed consistent with the requirements of 19 C.F.R. § 101.6(f), the Arbitrator "presume[d] that the [C]ommissioner's approval of local changes in the local employee[s'] hours of service (tour of duty) and the local operational business hours [were] perfunctory, or the authority for making such approval is, and was, routinely delegated[,]" consistent with 19 C.F.R. § 101.2 Id. at 18. [n6] The Arbitrator then considered United States v. Myers, 320 U.S. 561 (1944) (Myers) and O'Rourke v. United States, 109 Ct. Cl. 33 (1947) (O'Rourke).
According to the Arbitrator, the only "threshold entitlement criteria imposed by [Myers] [concerning 19 U.S.C. § 267] was that the employee (claimant) must continuously work more than his eight hour work shift to qualify for the prescribed statutory overtime rate." Id. at 20 (emphasis in original omitted). However, the Arbitrator noted that in Meyers the Court recognized that 19 U.S.C. § 267 "does authorize adjustment in hours, but specifically forbids the alteration of the statutory overtime pay." Id. at 19. Noting this language, the [ v56 p306 ] Arbitrator stated that the opinion was not clear as to whether the Court intended "to equate the hours from 8:00 [AM] to 5:00 [PM] to the normal . . . (8 hour) period of a work shift?" Id. at 20. The Arbitrator stated that if the Court intended such, an employee's hours of service, when changed to reflect the needs of the service, would also have the effect of changing the affected employee's 'hours of the night' for '1911' overtime purposes. The Arbitrator stated that this is "precisely the interpretation sought by the [Union]." Id. However, he found that Myers did not clearly address this issue--the issue before him.
The Arbitrator next examined Comptroller General (CG) decisions. The Arbitrator cited 24 Comp. Gen. 140 (1944), and noted that the CG stated that "the statute authorizes payment of overtime compensation for overtime work only between the hours of 5 p.m. and 8 a.m., and on Sundays and holidays, and does not authorize payment . . . for any service performed between the hours of 8 a.m. and 5 p.m. on week days, whether such service is performed during a regular tour of duty or is overtime service in addition to regular tour of duty between those hours." Id. at 20-21 (citing 24 Comp. Gen 140).
The Arbitrator next considered O'Rourke. The Arbitrator observed that the O'Rourke court concluded that "whenever the plaintiff worked more than an eight-hour tour of duty in any one day, he is entitled to compensation for his overtime on the statutory basis." Award at 23. The Arbitrator also considered CG responses to questions raised by the Secretary of the Treasury concerning O'Rourke. The Arbitrator noted that the CG declined to follow O'Rourke and held that overtime compensation under the 1911 Act is limited to services performed between 5:00 p.m. and 8:00 a.m. standard time, in accordance with 27 Comp. Gen. 655 (1948).
The Arbitrator "recognize[d] both the antiquity and non-precedential effect of . . . [the CG] opinions . . . ," however, according to the Arbitrator, he could not "summarily ignore the . . . opinion of [the] departmental expert when [he] was being asked to interpret the statutes . . . and case law, with essentially no judicial guidelines for a period in excess of fifty years." Award at 24, 25 (emphasis in original).
The Arbitrator found that neither Myers nor O'Rourke "spoke directly to the principal issue raised in this dispute, and, . . . in the fifty years since O'Rourke, there has not been one judicial board or arbitration decision, cited or discovered, which provides the illumination and amplification that the [Union] avows is clear and unmistakable." Id. at 25. (emphasis in Award). The Arbitrator acknowledged that the Union's interpretation concerning "hours of the night" under the regulation seemed "logic[al] and reasonable[]," however, the Arbitrator determined that he could not "ignore the specific statutory limitation (i.e., 5:00PM to 8:00AM) and the long, and . . . consistent history in the Agency's interpretation and application" of 1911 overtime. Id. The Arbitrator also determined that the grievants were not uncompensated for the one hour of overtime performed between 8 and 9 a.m., but were only denied the additional pay guarantee (2 dots) pursuant to 19 U.S.C. § 297 and 19 C.F.R. § 24.16.
The Arbitrator found that the Union did not establish that the applicable statute and regulations entitled grievants to the overtime claimed. Accordingly, he concluded that the Agency did not violate the National Agreement and denied the grievance.
III. Positions of the Parties
A. Union's Exceptions
The Union contends that the award is deficient because it is contrary to law and regulation based on two grounds.
First, the Union contends that the award is contrary to 19 C.F.R. § 24.16(b) (1992-93). The Union asserts that the award is contrary to this section because the Arbitrator defined "night" for overtime purposes as only those hours between 5 p.m. and 8 a.m. despite "express language" to the contrary in the regulation, and because the award denies customs inspectors who worked the disputed hours with 4 periods of overtime mandated by section 24.16(g). Exceptions at 9.
The Union states that the Secretary of the Treasury expressly defined "night" for purposes of section 24.16 and customs inspector overtime compensation to mean "the time between 5 p.m. of any day and 8 a.m. of the following day, or between the corresponding hours at ports or stations where regular hours for the transaction of the general class of customs business involved other than those from 8 a.m. to 5 p.m. have been established to agree with local prevailing working hours, . . . ." Id. at 10 (quoting 19 C.F.R. § 24.16(b), emphasis added in exception). According to the Union, the Arbitrator specifically found that beginning on November 30, 1992, the Agency had in fact established 9 a.m. to 6 p.m. as the regular hours for transaction of the general class of business at the BOTA facility.
The Union asserts that the Arbitrator then found that "'in practical effect the regular starting time' for [ v56 p307 ] transacting the general class of cargo business at BOTA had been changed from 8:00 to 9:00 AM." Id. at 12 (quoting Award at 16). The Union states that the Arbitrator noted that "such changes in "'local operational business hours are perfunctory, or that the authority for making such approval is, and was, routinely delegated[.]'" Id. at 12. The Union asserts that the Arbitrator failed to apply this finding to the application of 19 C.F.R. § 24.16(g) The Union argues that once the Arbitrator found that the regular hours of operation were established as 9 a.m. to 6 p.m., the "night hours" at the BOTA facility were correspondingly 6 p.m. to 9 a.m. under the express terms of 19 C.F.R. § 24.16(b).
Consequently, the Union argues, under 19 C.F.R. § 24.16(g), for each 6 a.m. to 9 a.m. weekday overtime assignment, the employee is entitled to four periods of overtime, two periods for the three hour duration of the assignment (one period for the two hours worked between 6 a.m. and 8 a.m., plus another period for the hour worked between 8 a.m. and 9 a.m.). [n7] The Union also asserts that the grievants are owed an additional two periods (4 hours) because the assignment began after the expiration of the first four hours of the night and before the beginning of the last two hours of the night. In support, the Union refers to an opinion of the Chief Counsel of the Agency, wherein the Chief Counsel analyzed the application of 19 C.F.R. § 24.16(b) and (g). The Union asserts that because the award fails to provide the aggrieved employees with four periods of overtime, it is contrary to 19 C.F.R. § 24.16.
Second, the Union argues that the award is "contrary" to O'Rourke. Id. at 16. While the Union acknowledges that O'Rourke is not entirely on point, the Union asserts that the decision is relevant to the issue of whether 1911 overtime is applicable during hours other than 5 p.m. to 8 a.m. The Union states that in O'Rourke, the court held that "'whenever the plaintiff worked more than an eight-hour tour of duty in any one day, he is entitled to compensation for his overtime on the statutory basis.'" Id. at 17 (quoting O'Rourke at 46-47). The Union contends, therefore, that while O'Rourke "is not determinative in the instant matter," it supports the position that the grievants are entitled to overtime for work in excess of their 8-hour regular tour. Id. at 19.
Lastly, the Union contends that the Arbitrator's reliance on 24 Comp. Gen 140, 24 Comp. Gen. 483, and 27 Comp. Gen. 655 is misplaced. The Union asserts that these cases are distinguishable and non-controlling. The Union also contends that the CG decisions are not binding on arbitrators or the Authority.
B. Agency's Opposition
The Agency asserts that the award is not contrary to 19 U.S.C. § 267 or 19 C.F.R. § 24.16.
Referring to 19 C.F.R. § 24.16(b) (1992-93), the Agency asserts that the regulation defines "night" to mean "the time between 5 p.m. of any day and 8 a.m. of the following day, or between the corresponding hours at ports or stations where the regular hours for the transaction of the general class of Customs business involved other than those from 8 a.m. to 5 p.m. have been established to agree with local prevailing working hours . . . ." Id. at 8 (emphasis in Opposition, quoting 19 C.F.R. § 24.16(b)). According to the Agency, section 24.16(b) incorporates Congress' intent that night be defined consistently with the statutorily defined period for overtime compensation as between 5 p.m. and 8 a.m. However, the Agency asserts that this regulation also provides for the "redefinition" of night hours for overtime services at a "port or station" where the general class of business involved has to agree with the local prevailing work hours. Id. at 9 (emphasis in Opposition).
The Agency disagrees with the Union's claim that the creation of the 9 a.m. to 6 p.m. shift at BOTA redefined the night hours for 1911 overtime and asserts that the establishment of a particular shift does not redefine the statutory period of night hours for the purpose of 1911 overtime. Rather, referring to the language in 19 C.F.R. § 24.16(g), the Agency asserts that the controlling factor for determining 1911 overtime is the night hours of the port or station. The Agency references certain sections in 19 C.F.R. Part 101 (1992), which defines and lists customs ports and stations.
The Agency contends that while the Arbitrator determined that the starting time for the transaction of general cargo business at BOTA, which it claims is not a station under 19 C.F.R. Part 101, was effectively changed to 9 a.m., this finding does not constitute a finding that the Port of El Paso official hours were other than 8 a.m. to 5 p.m. as prescribed in the regulation and as found by the Arbitrator. Consequently, the Agency contends that unless the regular hours of the port or station have been changed to accommodate the local prevailing work hours--which in this case the Port of El Paso was not--then the hours of the night, for 1911 overtime, remain for the grievants as mandated in the Statute--between 5 p.m. and 8 a.m. Accordingly, the Agency asserts that the grievants rate of compensation [ v56 p308 ] for overtime provided between 6 a.m. to 9 a.m. was determined consistent with 19 C.F.R. § 24.16(g).
The Agency also contends that the Union mistakenly relies on the Agency Chief Counsel's opinion. The Agency asserts that the case described in the opinion is distinguishable from this case because the general class of customs business involved in that case was assumed to have been established for the port as other than 8 a.m. to 5 p.m. The Agency states that the legal opinion further pointed out that the determinative factor in arriving at 1911 overtime is the "hours of the port, not the hours of the employee's regular tour of duty." Id. at 15.
The Agency next argues that the award is not contrary to O'Rourke, noting that even the Union admitted that the case was not entirely on point. Lastly, the Agency contends that the Union has not demonstrated that the Arbitrator's consideration of CG decisions is contrary to law. The Agency states that the Authority has recognized that CG decisions may be accorded precedential value.
IV. Analysis and Conclusions
The Award Is Not Contrary to Law and Regulation
A. Standard of Review
The Union's exceptions involve an allegation that the award is inconsistent with law and regulation. Accordingly, the Authority applies a de novo standard of review. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994). In applying a standard of de novo review, we assess whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998) NFFE, Local 1437). In making that assessment, we defer to the arbitrator's underlying factual findings. See id.
B. 19 C.F.R. § 24.16(b) and (g) (1992-93)
Whether the award is inconsistent with 19 C.F.R. § 24.16(b) and (g) turns on the application of the definition of "night" under 19 C.F.R. § 24.16(b) and (g). The Union argues that once the Arbitrator found that the regular hours of the BOTA facility were established as 9 a.m. to 6 p.m., the night hours for overtime purposes at BOTA were correspondingly 6 p.m. to 9 a.m. under the terms of 19 C.F.R. § 24.16(b). The Agency disagrees and argues that the official hours of the port in which the BOTA facility is located were 8 a.m. to 5 p.m. as prescribed in the regulation and found by the Arbitrator.
Section 24.16(b) provides, as pertinent, that "[f]or the purposes of this section the word 'night' shall mean the time between 5 p.m. of any day and 8 a.m. of the following day, or between the corresponding hours at ports or stations where regular hours for the transaction of the general class of Customs business involved other than those from 8 a.m. to 5 p.m. have been established to agree with local prevailing working hours[.]" (emphasis added). Section 24.16(g) provides that "extra compensation is not payable in accordance with this section for overtime services performed by any Customs employee on a regular workday during other than the night hours of the port or station."
In this case, the Arbitrator interpreted 19 U.S.C. § 267 and 19 C.F.R. § 24.16(b) and (g) and found that "a material and substantive distinction [existed] between the (night) hours of service of an individual inspector, and the official hours of operation of a given port or station[,]" and that a port may have "multiple starting (stopping) times for various included operations, without affecting `1911' overtime per se . . . ." Award at 15 and 16. Applying his interpretation of the regulation, the Arbitrator found that even though in "practic[e]" the regular starting time for the BOTA facility was modified, the "official hours" of operation of the port in which BOTA was included, were not changed but remained as prescribed in 19 C.F.R. § 24.16(b), i.e., 8 a.m. to 5 p.m. Id. at 16.
Therefore, as found by the Arbitrator, the "official" hours of BOTA remained 8 a.m. to 5 p.m., even though the "practical" regular starting time for the transaction of general cargo business at this facility had been modified. In effect, the Arbitrator found there was no change in the "official" hours under which BOTA operated. Although the Union argues that the Arbitrator found that the regular hours of the BOTA facility were established as 9 a.m. to 6 p.m., the Union has not demonstrated that the Arbitrator's interpretation of the regulations as requiring a formal change in the "official" hours of operation for "1911" overtime is inconsistent with the regulation. Rather, the Union's assertion ignores the Arbitrator's distinction between the "official" and "practical" hours of operation. In that regard, while the Arbitrator assumed that approval of local changes in employee tours of duty and operational hours was "perfunctory," the fact remains that approval by the Commissioner of Customs was required, and there was no such approval in this case. Award at 18. [ v56 p309 ]
Also, the Agency's opinion referenced by the Union does not provide any basis for finding the award deficient because the opinion assumes that hours of the night for 1911 overtime under 19 C.F.R. § 24.16(b) are based on the official hours of business, as found here, rather than on an employee's regular hours. See Opposition, Attachment B at 2. Accordingly, we find that the award is not contrary to 19 C.F.R. §§ 24.16(b) and (g). Therefore, this exception provides no basis for finding the award deficient.
C. The Court's Decision In O'Rourke
The award is not contrary to O'Rourke. In O'Rourke, the court addressed, among other things, an employee's claim that he was entitled to extra compensation for work in excess of eight hours in one day. The court found that whenever the employee worked more than an eight-hour tour of duty he was entitled to compensation for overtime on the statutory basis. In deciding the issues presented in that case, the court did not address the issue presented here--whether changes in an employee's tour of duty equate to a change in the official hours of a port or station to which an employee is assigned, thereby affecting the employee's entitlement to 1911 overtime under 19 C.F.R. § 24.16 (1992-93) in effect at the time of this dispute. Since the court did not address the issue presented in this case, O'Rourke is not controlling. Indeed, although the Union argues that O'Rourke supports its position, the Union also acknowledges that O'Rourke is not controlling. Exceptions at 16. The award, therefore, is not contrary to O'Rourke.
D. The Comptroller General Decisions
The Union's contention that the Arbitrator's reliance on specified Comptroller General decisions is misplaced because those decisions are distinguishable and non-controlling provides no basis for finding the award deficient. Contrary to the Union's contention, the Arbitrator did not rely solely on Comptroller General decisions. Rather, the Arbitrator evaluated the issue in dispute based on consideration of the applicable regulations and law as well as interpretative decisions of the Comptroller General.
For example, as it concerns the CG decisions, the Arbitrator recognized "both the antiquity and non-precedential effect" of the decisions, but noted that he could not "summarily ignore the . . . opinion of th[e] departmental expert when [he was] being asked to interpret the statutes (regulations) and case law, with essentially no judicial guidelines for a period in excess of fifty years." Award at 24 and 25. As it concerns applicable case law, the Arbitrator considered the Supreme Court and the Court of Claims decisions and found that "neither . . . spoke directly to the principal issue raised in th[e] dispute[.]" Id. at 25. Concerning the applicable regulations, the Arbitrator stated he could not "ignore the specific statutory limitation . . . and the long, and apparently consistent history in the Agency's interpretation and application" of the regulations. Id. These examples demonstrate that the Arbitrator did not base his determination solely on the CG decisions but evaluated the issue in dispute against applicable law and regulation as well as the CG decisions. Consequently, the Union's exception provides no basis for finding the award deficient. See, e.g., National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, Washington, D.C., 49 FLRA 973, 981 (1994).
V. Decision
The Union's exceptions are denied. [ v56 p310 ]
APPENDIX
19 U.S.C. § 267 (1992-93) provides, in part, as follows:
§ 267. Compensation for overtime services; fixing working hours
The Secretary of the Treasury shall fix a reasonable rate of extra compensation for overtime services of customs officers and employees who may be required to remain on duty between the hours of five o'clock postmeridian and eight o'clock antemeridian, or on Sundays or holidays, to perform services in connection with the lading or unlading of cargo, or the lading of cargo or merchandise for transportation in bond or for exportation in bond or for exportation with benefit of drawback, or in connection with the receiving or delivery of cargo on or from the wharf, or in connection with the unlading, receiving, or examination of passengers' baggage, such rates to be fixed on the basis of one-half day's additional pay for each two hours or fraction thereof of at least one hour that the overtime extends beyond five o'clock postmeridian (but not to exceed two and one-half days' pay for the full period from five o'clock postmeridian to eight o'clock antemeridian), and two additional days' pay for Sunday or holiday duty. . . . .
Relevant provisions of the agreement provide as follows:
Article 22
OVERTIME
PART I - GENERAL
Section 1.A. The parties recognize that the rates of employee compensation are established by law, and cannot be negotiated under the Civil Service Reform Act (CSRA). When assigned overtime, employees working such overtime will be compensated in accordance with applicable laws and regulations.
. . . .
Award at 3.
19 C.F.R. § 101.6 provides, in pertinent part, as follows:
§ 101.6 Hours of business.
Except as specified in paragraphs (a) through (g) of this section, each Customs office shall be opened for the transactions of general Customs business between the hours of 8:30 a.m. and 5 p.m. on all days of the year:
. . . .
(b) Local conditions requiring different hours. If, because of local conditions, different but equivalent hours are required to maintain adequate service, such hours shall be observed provided the Commissioner of Customs approves them and provided further that a notice of business hours is prominently displayed at the principal entrance and in each public room of the Customs office.
. . . .
Award at 6
19 C.F.R. § 24.16 (1993 Edition) provides, in pertinent part, as follows:
§ 24.16 Overtime services; overtime compensation; rate of compensation.
. . . .
(b) Night, Sunday, and Holiday defined. For the purposes of this section the word "night" shall mean the time between 5 p.m. of any day and 8 a.m. of the following day, or between the corresponding hours at ports or stations where regular hours for the transaction of the general class of Customs business involved other than those from 8 a.m. to 5 p.m. have been established to agree with local prevailing working hours, but shall not include any such time within the 24 hours of a Sunday or holiday. . . . The time accounted for as overtime shall be computed on, the basis of the regular hours for the performance of the particular work of the assignment, even though such hours differ from the regular working hours of the employee assigned, but no extra compensation shall be paid pursuant to this section for any services performed by an employee at his regular post or elsewhere during a regular tour of duty of such employee. For example: At a port where the regular hours of business have been fixed at 8 a.m. to 5 p.m. for the inside force and 7 a.m. to 4 p.m. for the outside force, a clerk whose regular working hours are 8 a.m. to 5 p.m. is not entitled to reimbursable [ v56 p311 ] extra compensation if assigned to inspectional work from 7 a.m. to 8 a.m. on a week day, since he works within the regular hours for the service to which he is assigned.
. . . .
(g) Rates for night service. The reasonable rate of extra compensation for authorized overtime services performed by Customs employees at night on any weekday is hereby fixed at one-half of the gross daily rate of the regular pay of the employee who performs the service for each 2 hours of compensable time, any fraction of 2 hours amounting to at least 1 hour to be counted as 2 hours. The compensable time shall be the period between the beginning of the night and the conclusion of the services if the employee is assigned and reports for duty before the expiration of the first 4 hours of the night; the period between the time the employee is assigned and reports for duty and the conclusion of the services, plus 4 hours, if the time of assignment is after the expiration of the first 4 and before the beginning of the last 2 hours of the night; or 2 hours if the employee is assigned and reports for duty 2 hours or less before the end of the night. . . . The compensable time for overtime service performed by a customs employee assigned to a regular tour of duty covering any part of a night shall be computed in accordance with this night rate as though the beginning of the regular tour of duty of such employee marked the end of a night period and the close of such tour marked the beginning of another night period, but extra compensation is not payable in accordance with this section for overtime services performed by any Customs employee on a regular workday during other than the night hours of the port or station. The total extra compensation paid pursuant to this section to a Customs employee for overtime services performed during one night shall not exceed 2½ times the gross daily rate of his regular pay.
Footnote # 1 for 56 FLRA No. 42
The pertinent text of 19 U.S.C. § 267 and the National Agreement is set forth in the Appendix to this decision. Also, in 1993, Congress enacted the Customs Officer Pay Reform Act (COPRA) that amended 19 U.S.C. § 267 and became effective on January 1, 1994. See Pub. L. 103-66, Section 13811(a), 1993 U.S. Code Cong. and Adm. News, 107 Stat. 668. Thereafter, the Secretary of Treasury promulgated new implementing regulations, effective January 1, 1994, which amended the overtime regulations involved in this dispute. See 58 Fed. Reg. 68,520, 19 C.F.R. § 24.16 (1994). The amended law and new regulations are not applicable to the overtime issue presented in this case.
Footnote # 2 for 56 FLRA No. 42
The relevant text of 19 C.F.R. § 101.6 is set forth in the Appendix to this decision.
Footnote # 3 for 56 FLRA No. 42
A dot or period consists of a two hour period of overtime work, or any fraction thereof of at least one hour. Under the applicable regulation, for each dot worked, the employee must be compensated at a rate equal to one-half of the employee's gross daily rate of pay. See 19 C.F.R. § 24.16(g) set forth in the Appendix to this memorandum. Under FEPA, overtime is compensated at 1 and ½ times the employee's regular hourly rate of pay, up to a maximum of the GS-10 step 1 rate of pay.
Footnote # 4 for 56 FLRA No. 42
The instant dispute was "prospectively mooted" on January 1, 1994, when COPRA became effective. Award at 9.
Footnote # 5 for 56 FLRA No. 42
The pertinent part of 19 C.F.R. § 24.16 (1993 Edition) is set forth in the Appendix to this decision.
Footnote # 6 for 56 FLRA No. 42
19 C.F.R. § 101.2 provides, in relevant part, that "[a]ction taken by any person pursuant to authority delegated to him by the Secretary of the Treasury . . . shall be valid despite the existence of any statute or regulation[.]"
Footnote # 7 for 56 FLRA No. 42
Under 19 C.F.R. § 24.16(g), any fraction of a two hour period of work amounting to at least one hour must be counted as two hours, or a separate period.