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December 20, 1989

JOHN W. BROOKS, et al., Plaintiffs
CASPAR W. WEINBERGER, et al., Defendants

Thomas A. Flannery, United States District Judge.

The opinion of the court was delivered by: FLANNERY



 The court must decide the correct way to figure overtime pay for certain security guards who work for the federal government's General Services Administration (GSA). The issue arises on cross motions for summary judgment on stipulated facts. For the reasons stated below, the court grants defendants' motion.


 These cross motions for summary judgment are really a sideshow to an action to collect overtime pay under the Fair Labor Standards Act (FLSA) and Title 5 of the U.S.Code. *fn1" In the main ring, the parties are contesting whether defendant GSA owes plaintiff security guards overtime pay for hours when the guards were scheduled to work overtime but instead served on a jury, performed military service, took sick time, or used annual leave. *fn2"

 As part of settlement talks, GSA reviewed past overtime payments to plaintiffs. By March 1989, GSA "discovered" it had been paying plaintiffs based upon a formula to figure overtime that differs from the one set out in 5 C.F.R. § 551.512. *fn3" The "old" formula resulted in more money being paid for overtime than would be due under the § 551.512 method of figuring overtime pay. Arguing that § 551.512 states the law for figuring plaintiffs' overtime pay entitlement, defendants counterclaimed for the difference between the overtime paid under the "old" formula and an amount that would have been paid under § 551.512. Plaintiffs contend that they are entitled to overtime payments in the amount based on the "old" formula, because that "old" formula is mandated by FLSA. To the extent that § 551.512 would yield less overtime pay than the "old" FLSA formula, plaintiffs argue that FLSA takes precedence over Title 5 regulations.

 The court must rule on this subsidiary issue to get the parties back in the center ring.


 On July 6, 1989, the parties filed a stipulation stating how GSA has calculated plaintiffs' overtime in the past under the "old" formula. The parties also stipulated to the mechanics of the method spelled out in 5 C.F.R § 551.512. The stipulation is based upon the pay for Federal Protective Officer (FPO) Vernal Gabriel for the two-week pay period ending March 29, 1989. The relevant part of the stipulation is set out in the margin. *fn4"

  The parties stipulated as follows: Gabriel's base pay for the two-week period was $ 720 for 80 hours of work. His hourly rate of basic pay was $ 9.00. For each hour Gabriel worked on a Sunday, he earned an add-on of 25% of his hourly rate of basic pay. That works out to a $ 2.25 per hour differential or premium for Sunday work. Similarly, he also got a 10% add-on for each hour worked at night, or an additional $ 0.90 per hour as night differential. Stip. at 3-4. During the two-week period stipulated to, Gabriel worked a total of 160 hours. Of these, 32 hours were on Sundays, and 109 hours were at night. As a result, Gabriel earned a total of $ 170.10 in differential or premium pay. Thus, Gabriel earned the following nonovertime pay in the stipulated period: 1. 160 total hours @ base wage of $ 9.00 per hour = $ 1,440.00 2. 32 Sunday hours @ an additional $ 2.25 per hour = $ 72.00 3. 109 night hours @ an additional $ 0.90 per hour = $ 98.10 TOTAL NONOVERTIME PAY (Total remuneration): $ 1,610.10


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