21:0069(14)AR - AFGE and SSA -- 1986 FLRAdec AR
[ v21 p69 ]
The decision of the Authority follows:
21 FLRA No. 14 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES Union and SOCIAL SECURITY ADMINISTRATION Agency Case No. 0-AR-983 DECISION I. STATEMENT OF THE CASE This matter is before the Authority on exceptions to the awards of Arbitrator Justin C. Smith 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 Union filed an opposition. /1/ II. BACKGROUND AND ARBITRATOR'S AWARD. According to the record before the Authority, this case involves the dispute submitted by the parties to the Arbitrator concerning official time for representational activities in the Agency's field offices. By agreement of the parties, a bifurcated arbitration process was set up to resolve this dispute that had resulted in numerous grievances. The first phase of this process involved the interpretation of the official time provisions of the Statute and the parties' collective bargaining agreement and resulted in an interim award, later made final by the Arbitrator, resolving the proper interpretation and application of the Statute and the agreement to various disputed situations over which grievances were pending. /2/ The second phase of the process involves hearings by the Arbitrator to resolve, by bench decisions when practicable, specific grievances pending in various regions of the Agency. The exceptions in this case have been filed to all the bench decisions of the Arbitrator rendered on April 29, 1985, that sustained grievances and awarded as a remedy compensatory time off or overtime compensation. In terms of these decisions, the Arbitrator had generally ruled with respect to the situations of the specific grievances sustained by his bench decisions that in such circumstances, the denial of official time for purposes of representational activities to union officials was in violation of the parties' agreement which had been negotiated consistent with the Statute. With respect to each bench decision as to which exceptions have been filed, the Arbitrator specifically sustained in accordance with his prior awards the individual grievance claiming a wrongful denial of official time and awarded compensatory time off or overtime compensation to correspond with the amount of time spent by the union official to perform the representational activities. III. FIRST EXCEPTION A. Contention In its first exception, the Agency contends that the bench awards are arbitrary and capricious because they directly conflict with the prior interim and final award of the Arbitrator. B. Analysis and Conclusion. The Authority finds that the portion of the prior awards cited by the Agency relates to travel and per diem and not to the wrongful denial of official time for purposes of representational activities. Accordingly, this exception provides no basis for finding the award deficient and must be denied. IV. SECOND EXCEPTION A. Contention In its second exception the Agency contends that the bench awards fail to draw their essence from the collective bargaining agreement. Specifically, the Agency argues that because the grievances pertain to nonduty time of the union official grievants, they are not within the definition of grievance under the agreement limiting grievances to matters relating to employment. B. Analysis and Conclusion The Authority finds that the exception fails to establish that the matter of the wrongful denial of official time does not relate to employment. Accordingly, this exception must be denied. V. THIRD EXCEPTION A. Contention In its third exception, the Agency contends that the award of either compensatory time off or overtime compensation is contrary to the provisions of 5 U.S.C. 5542(a) pertaining to overtime work. B. Analysis and Conclusion As the Authority has previously indicated, the legal basis for ovetime pay is the performance by an employee of overtime work which means "hours of work officially ordered or approved" in excess of eight hours in a day or in excess of 40 hours in an administrative workweek. 5 U.S.C. 5542(a). Similarly, the legal basis for granting compensatory time off arises under 5 U.S.C. 5543 as a result of overtime work performed by an employee. In this regard, the Authority has specifically held that a union official's performance of representational activities on nonduty time (i.e., outside regular work hours) was not the performance of "hours of work officially ordered or approved" that constituted overtime work under the governing provisions of section 5542(a) for which overtime pay or compensatory time off could be granted. Social Security Administration and American Federation of Government Employees, AFL-CIO, 19 FLRA No. 104 (1985); Social Security Administration and American Federation of Government Employees, Local 1164, AFL-CIO, 19 FLRA No. 4 (1985). In both of these cases, the overtime work provisions of section 5542(a) were determined to govern and provisions relating to hours of work under the Fair Labor Standards Act of 1935, as amended, 29 U.S.C. 201 et seq., were not considered because it was not contested that the union officials were employees exempt from coverage under FLSA. See generally 5 CFR Part 551 (Pay Administration Under the Fair Labor Standards Act). In terms of this case, it is apparent that the bench awards involved employees who also are exempt from FLSA. /3/ Accordingly, the Authority similarly finds that the bench awards in this case are deficient to the extent they have awarded compensatory time off or overtime compensation and that therefore they must be modified to substitute the entitlements provided by the Statute. The Authority has previously indicated that section 7131(d) of the Statute /4/ expressly authorizes the parties to negotiate for the granting of official time for the performance of the specified representational activities and that the Statute effectively provides a remedy when official time under section 7131(d) is wrongfully denied. Specifically, the Authority determined that where official time, authorized by the official time provisions of a collective bargaining agreement consistent with section 7131(d) of the Statute, is wrongfully denied and representational functions are thereafter performed on nonduty time, section 7131 (d) entitles the aggrieved employee to be paid for the amount of time that should have been official time. SSA, 19 FLRA No. 104; U.S. Department of the Air Force, Headquarters Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 19 FLRA No. 105 (1985); Social Security Administration and American Federation of Government Employees, AFL-CIO, Local 3231, 19 FLRA No. 109 (1985); Local 1164, American Federation of Government Employees, AFL-CIO and Social Security Administration, Boston Region, 19 FLRA No. 10 (1985). In terms of this case, as has been noted, the Arbitrator with respect to each bench decision essentially found that the denial of official time was in violation of the parties' collective bargaining agreement which had been negotiated consistent with the Statute. Thus, the Arbitrator effectively found that all the conditions of section 7131(d) had been met. Consequently, under the decisions of the Authority, the bench awards should have granted the grievants compensation for the amount of time spent performing union representational activities on nonduty time which the Arbitrator ruled should have been performed on official time. VI. DECISION Accordingly, for the above reasons, the bench awards are modified by substituting for the respective number of hours of overtime compensation or compensatory time off an equal number of hours of compensation at the appropriate straight-time rate. deficient. Issued, Washington, D.C., March 14, 1986 --------------- FOOTNOTES$ --------------- /1/ In its opposition the Union contends that the exceptions should be dismissed as untimely. However, contrary to the Union's contention, the Authority has determined that the exceptions were timely filed under the statute and the Authority's Rules and Regulations. /2/ Exceptions filed by the Agency to this interim award and the related final award previously have been denied by the Authority. Case No. D-AR-738 (Oct. 31, 1984); Case No. 0-AR-969 (Sept. 16, 1985). /3/ In this regard the Agency's exception implicitly presumes that the union officials involved in the bench decisions of April 29, 1985, are exempt from coverage under FLSA, and the Union in its opposition indicates that the union officials involved are exempt employees. Union Opposition at 10. /4/ Section 7131(d) provides: (d) Except as provided in the preceding subsections of this section-- (1) any employee representing an exclusive representative, or (2) in connection with any other matter covered by this chapter, any employee in an appropriate unit represented by an exclusive representative, shall be granted official time in any amount the agency and the exclusive representative involved agree to be reasonable, necessary, and in the public interest of the Statute.