Click here to view the decision.
56 FLRA No. 132
U.S. Department of the Army, 10th Mountain Division (Light Infantry) and Fort Drum Fort Drum, New York and National Association of Government Employees, Local R2-61 (Newman, Arbitrator), 0-AR-3194 (Decided September 28, 2000)
The Arbitrator determined that the Agency owed the grievant additional compensation because the Agency failed to include danger pay as part of the employee's basic pay for the purpose of computing overtime/premium pay. The Arbitrator ordered the Agency to pay the grievant all additional overtime and premium pay owed for work performed while on temporary duty in Bosnia.
The question presented in this matter was whether danger pay was included in basic pay used to compute overtime. The grievant, a Federal wage system employee, was working in a foreign country, Bosnia, for the entire time frame encompassed by this grievance.
The Authority first concluded that under 5 C.F.R. § 551.209 (b)(2), the grievant was exempt from the Fair Standards Labor Act because he had performed an entire work week in a foreign country. The Authority further found that instead, for the purpose of computing the grievant's overtime entitlement, the grievant was subject to OPM's overtime regulations. Under those regulations, an employee's overtime pay is computed based upon the employee's basic pay. Basic pay includes such additional compensation as night time and environmental differentials.
The Authority explained that the Danger Pay Act states that danger pay may not exceed 25 percent of an employees "basic pay." Because the Danger Pay Act does not define "basic pay, " the Arbitrator referred to 5 C.F.R. § 532.401 for a definition of "rate of basic pay." The Arbitrator held that danger pay is a type of environmental differential that can be considered a part of basic pay. The Authority found, however, that the Arbitrator's conclusion was not supported by the relevant regulations, and concluded that the Arbitrator misapplied 5 U.S.C. § 5928 in terms of defining "basic pay" under OPM regulation. The Authority found, instead, that "basic pay" as that term is applied to the computation of overtime under OPM's regulations does not include danger pay. The Arbitrator's award of a danger pay allowance to the grievant for the period that he was receiving overtime/premium pay was set aside.