In this fictional scenario the employees regularly work from 8 a.m. to 4:30 p.m. processing on-line applications for federal benefits. Each night the headquarters computer center downloads an inventory of cases to each employee’s on-line inventory, employees work those cases the next day, and return for reassignment any unworked cases. At times, the employees are authorized overtime to catch up with the inventory. This particular week, however, something happened at the computer center that prevented it from downloading the day’s work until 10 a.m. each day. As soon as that was discovered on Monday, the supervisor changed employees’ shifts from the normal one to 10 a.m. to 6:30 p.m. By Thursday night the computer center emergency was over, everything was back to normal, and the shift for Friday was 8 a.m. to 4:30 p.m. Can the employees ask for overtime pay? If so, for what hours? And what about those employees who had to take leave because they could not stay past 4:30 p.m.? (For this problem, assume that there is nothing in the collective bargaining agreement entitling employees to overtime in this situation?)

Union reps make a mistake if they only enforce what is in their labor agreement. There are tens of thousands of words in federal regulations and laws that they can grieve to enforce so long as the negotiated grievance procedure does not exclude the statutory right to grieve to arbitration violations of laws and regulations.

For those readers who think that the facts above amount to a ULP because the agency unilaterally changed working conditions without bargaining, don’t bet on that. As presented, this is a one-time change, not a change in policy or practice. FLRA normally avoids getting involved in one-time deviations from practice or policy.

The meatier protections in this situation are in law and government-wide regulation. Title 5 of the Code of Federal regulations states

610.121 Establishment of work schedules.

(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;

(5 USC 6101 has virtually identical language.)

Arbitrators, FLRA and the courts have held that agency heads need to provide a detailed, reasoned analysis of how changing start-times for days in the same administrative work week would seriously handicap an agency.  Spur-of-the-moment, “just-do-it” justifications are not enough. Nor are simple math analyses that show it would be cheaper to change the start times so that the agency does not have to pay overtime. Expense does not prove the agency would be seriously handicapped.  There is a bundle of case law on this starting with VA, Palo Alto, CA and AFGE, 36 FLRA 98 (1990) and NWSEO and NOAA, 38 FLRA 369 (1990) and Dept. of Navy, Metal Trades Council, 39 FLRA 590 (1991).  They almost guarantee that under the facts we outlined above the arbitrator would sustain the grievance.

So, in this case the union should be able to able to file a grievance on behalf of all impacted employees asking that they be given two hours of overtime pay for the three days they worked until 6:30 p.m. Unions need to be careful how they word the back pay demand because case law has not made it clear yet how the employee is entitled to two hours of overtime pay.  For example, is she getting straight-time pay for the hours between 8:30 and 10: 30 a.m. that she was not allowed to work and then an additional half time payment for the two hours after 4:30 p.m. that otherwise would have been OT hours? Or is she getting two hours at an overtime pay rate for the hours between 8:30 and 10:30 a.m. and nothing extra for the time after 4:30 p.m.? (And, of course, unions should not forget to ask for interest and attorney fees.)

As for those who took leave, because they could not stay after 4:30, at a minimum they should have their leave restored, but it is doubtful that they are entitled to overtime.  After all, they took leave because they were unavailable to work past 4:30 p.m., which we assume would be the case whether it was an offer of voluntary overtime or an order.

Of course, unions should not be surprised if agencies start arguing that the employees are only entitled to straight-time for the two extra hours. They did not perform any work beyond the eight hours for which they were already compensated. (The FLSA is the mother of all time-and-one-half overtime entitlements and the typical FLSA case concerns work the employee did beyond his/her eight hours for which they were not paid or properly paid. FLSA says nothing about a right to overtime pay for hours of work the employee never did, even if by error.)

A good argument could be made comparing compensation for 5 CFR 610 time not performing agency work to situations where union officials are improperly denied official time during the duty day and perform the union work off-the-clock. The union reps only get straight-time pay for the hours beyond eight in a day based on the following FLRA logic:

The basis for overtime pay is 5 U.S.C. 5542(a) which provides that all hours of work officially ordered or approved in excess of 8 hours in a day or 40 hours in an administrative workweek are overtime work entitling the employee to overtime compensation or where appropriate under 5 U.S.C. 5543 to compensatory time off….The Authority has specifically held that a union official’s performance of representational activities on nonduty time, outside regular work hours, was not the performance of hours of work officially ordered or approved that constituted overtime work for which overtime pay or compensatory time off could be granted. Id.

In this case, the Arbitrator found… that under the parties’ agreement the six employees denied official time should have been granted official time for the usual number of hours of their shift. Consequently, the award should have granted those six employees compensation for the usual number of hours of their shift at the appropriate straight-time rates. Therefore, the award will be modified accordingly. Compensation at straight-time rates is appropriate because the performance of those activities even on official time does not constitute overtime work. Wright-Patterson AFB and AFGE, Local 1138, 23 FLRA 390 (1986)

The two extra hours for which the employees are entitled to compensation were (a) not “ordered or approved,” (b) constituted even less work than union representational activity, and (c) the employees did nothing for more than 8 hours on each of those three days.

Moreover, it is a leap to conclude that just because this agency made this error that it would have worked the employees ten hours on those three days to get the work done. Perhaps they did not have the money in that budget to pay any more overtime that year or officials at higher agency levels required advance approval of any overtime.

Title 5 USC 6101 and 5 CFR 610.121 have generated a lot of litigation over the years, proving how important it is that union reps and LR specialists know the basics of those provisions. The looming uncertainty as to whether the harmed employees are entitled to overtime pay or straight-time means that those who litigate the tough questions for both parties need to appreciate the historical underpinnings of these provisions.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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