19:0043(4)AR - SSA and AFGE Local 1164 -- 1985 FLRAdec AR
[ v19 p43 ]
The decision of the Authority follows:
19 FLRA No. 4 SOCIAL SECURITY ADMINISTRATION Agency and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1164, AFL-CIO Union Case No. O-AR-433 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Marcia L. Greenbaum filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. The parties submitted to arbitration the issue of whether the Agency violated the collective bargaining agreement when it only partially granted a union official's request for 187 3/4 hours of official time to prepare two briefs in an arbitration case in which the grievance had been filed on behalf of a probationary employee challenging his separation for unsatisfactory performance. The Arbitrator determined that the Agency had violated the agreement and as a remedy ordered in part that the Agency provide compensatory time off for the 115 3/4 hours the union official spent outside his normal workday preparing the briefs. In its exceptions the Agency contends that the Arbitrator's award of 115 3/4 hours of compensatory time off is contrary to law and therefore exceeded her authority. The Authority agrees. As the Authority has repeatedly indicated, the legal basis for granting compensatory time off arises under the provisions of 5 U.S.C. 5543 as a result of overtime work performed by an employee. E.g., Social Security Administration, Denver, Colorado and American Federation of Government Employees, Local 1802, AFL-CIO, 8 FLRA 89 (1982). However, the union official's performance outside his workday of representational functions attendant to a grievance arbitration matter was not the performance of "hours of work officially ordered or approved" that constituted overtime work under the governing provisions of 5 U.S.C. 5542(a) /1/ for which overtime pay or compensatory time off could be granted. Cf. NTEU v. Gregg, No. 83-546, slip. op. at 4-5 (D.D.C. Sept. 28, 1983) (rejecting the claim of plaintiff federal employees asserting that they were entitled to overtime compensation for "hours of work officially ordered or approved" under 5 U.S.C. 5542(a) while engaged in weekend labor negotiations). Therefore, the Arbitrator's award of 115 3/4 hours of compensatory time off is deficient as contrary to law and in excess of her authority. See Air Force Logistics Command, Wright-Patterson Air Force Base and American Federation of Government Employees, Local 1138, 15 FLRA No. 95 (1984). Moreover, no basis is presented in the circumstances of this case for a remedy under the official time provisions of section 7131(d) of the Statute. /2/ In this regard, the Authority has held that coverage by a negotiated grievance procedure of a grievance concerning the separation of a probationary employee is precluded by governing law and regulation and that therefore the denial of official time to the probationary employee's union representative for a grievance challenging the employee's separation cannot be contrary to the Statute. Thus, in these circumstances there is no entitlement to official time. See Director of Administration, Headquarters, U.S. Air Force, 17 FLRA No. 58 (1985), slip op. at 4-5. For these reasons, the Agency has established that the award of compensatory time off is deficient, and accordingly the award is modified by striking the provision of 115 3/4 hours of compensatory time off. Issued, Washington, D.C., July 11, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Section 5542(a) governs this case because it is not contested that the union official is an employee exempt from coverage under the Fair Labor Standards Act.