21:0635(80)NG - AFGE, National EPA Council and EPA -- 1986 FLRAdec NG



[ v21 p635 ]
21:0635(80)NG
The decision of the Authority follows:


 21 FLRA No. 80
 
    Case No. 0-NG-678
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, NATIONAL EPA COUNCIL
 Union
 
 and
 
 ENVIRONMENTAL PROTECTION AGENCY
 Agency
 
                                            Case No. 0-NG-678
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         I.  Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute).  It concerns the
 negotiability of the following two Union proposals which relate to
 official time, overtime compensation, and travel and per diem for
 employees representing the Union in negotiations.
 
                             Union Proposal 1
 
          The employer agrees to provide official time, including travel
       and per diem costs, for three union representatives to prepare
       union counter proposals and other negotiations related duties for
       the union during actual negotiations.  These representatives will
       not be negotiators for the union.
 
                             Union Proposal 2
 
          EPA employees who are union negotiators will receive the same
       type of compensation, compensatory time or overtime, as does
       management where negotiations extend beyond normal duty hours.
 
                       II.  Positions of the Parties
 
    According to the Union, Union Proposal 1 is in response to the
 Agency's history of consistently limiting its negotiating team to one
 person.  Consequently, under section 7131(a) of the Statute, the Union's
 entitlements as to official time have been limited to one negotiation
 team member.  Union Proposal 1 is intended to allow official time,
 travel and per diem for an additional three representatives who will be
 available to provide support (e.g., preparation of counter proposals,
 research and clerical functions) to the Union team during negotiations.
 
    The Agency argues that employees representing unions in negotiations
 may receive only the amount of official time to which they are entitled
 under section 7131(a) of the Statute.  Because Union Proposal 1 would
 exceed that amount, the Agency argues that it is outside the duty to
 bargain.  As to the question of travel and per diem, the Agency argues
 that the Supreme Court's decision in Bureau of Alcohol, Tobacco and
 Firearms v. FLRA, 464 U.S. 89 (1983) (BATF) requires a conclusion that
 the subject is not within the duty to bargain.  Regarding Union Proposal
 2, the Agency contends that neither the Statute nor the laws governing
 payment for overtime permit overtime compensation for employees
 representing a union in negotiations.
 
    The Union disputes the Agency's contentions.  It asserts that the
 official time aspect of Union Proposal 1 is negotiable under section
 7131(d) of the Statute.  It contends that the travel and per diem aspect
 concerns a negotiable condition of employment and is not inconsistent
 with statute.  Concerning Union Proposal 2, the Union argues that
 employees on official time are eligible for overtime compensation under
 the laws which govern overtime in the Federal sector.  Therefore, even
 if they are not actually entitled to overtime compensation, the subject
 is within the Agency's obligation to bargain.
 
                      III.  Analysis and Conclusions
 
                A.  Negotiation of Additional Official Time
 
    The Authority has found that official time, beyond that authorized
 under section 7131(a), for employees who are participating in
 negotiations on behalf of the union in a support capacity is negotiable
 under section 7131(d).  National EPA Council, American Federation of
 Government Employees, AFL-CIO and Environmental Protection Agency, 16
 FLRA 625 (1984).  Based on the reasons set forth in that case, the
 Authority finds that aspect of Union Proposal 1 which concerns official
 time within the duty to bargain.
 
                  B.  Negotiation of Travel and Per Diem
 
    In National Treasury Employees Union and Department of the Treasury,
 U.S. Customs Service, 21 FLRA No. 2 (1986) the Authority took the BATF
 decision into consideration in deciding the question of the
 negotiability of travel and per diem.  Contrary to the Agency's
 arguments, BATF does not compel a conclusion that the issue of payment
 by an agency of otherwise appropriate and proper travel expenses for
 employees on official time pursuant to section 7131 is outside the duty
 to bargain.  The Authority notes particularly that there is nothing in
 the proposal or the submissions of the parties which indicates that the
 travel and per diem provisions of Union Proposal 1 are to be applied in
 any manner which is inconsistent with governing legal and regulatory
 provisions.  Therefore, the Authority concludes, based on its reasoning
 set forth in the Customs Service case, that the travel and per diem
 provisions in Union Proposal 1 are within the duty to bargain.
 
                C.  Negotiability of Overtime Compensation
 
    The Statute and its legislative history are silent on the subject of
 overtime compensation for employees who are on official time pursuant to
 section 7131.  Consequently, the various statutory provisions which
 relate to overtime compensation of Federal employees control the issue
 raised by Union Proposal 2.  Those relevant provisions are:
 
          (1) 5 U.S.C. 5542, 5543 - overtime compensation for General
       Schedule employees;
 
          (2) 5 U.S.C. 5544 - overtime compensation for prevailing rate
       employees;  and
 
          (3) Fair Labor Standards Act, as amended, 29 U.S.C. 201 et seq.
       - overtime compensation for certain Federal employees.
 
    These provisions basically authorize overtime compensation for "work"
 in excess of 8 hours per day and/or 40 hours per week.  The question
 then is whether representational activities performed on behalf of a
 union are "work." In addressing this question, the Authority held in
 Patent Office Professional Association and Patent and Trademark Office,
 Department of Commerce, 21 FLRA No. 74 (1986), that representational
 activities performed by employees outside the normal workday do not
 constitute the performance of hours of work within the meaning of 5
 U.S.C. Section 5542.  In that case the Authority relied on NTEU v.
 Gregg, No. 83-546, slip op. at 4-5 (D.D.C. Sept. 28, 1983), in which the
 district court held that, in order for activities to be considered
 "work" under 5 U.S.C. Section 5542 and the Fair Labor Standards Act,
 they must be primarily for the benefit of the agency.  The same standard
 has been applied to determining what constitutes "work" under 5 U.S.C.
 Section 5544.  60 Comp. Gen. 431, 433 (1981).  In NTEU v. Gregg the
 court specifically ruled that representational activities performed on
 behalf of a union did not meet the required standard and, therefore, did
 not make a General Schedule employee eligible for overtime compensation.
  Because the standards are the same, the same conclusion must be reached
 with respect to the prevailing rate overtime provisions.  The Authority
 therefore concludes that payment for overtime for union representational
 activity is not consistent with law.
 
    Additionally, the Authority concludes that representational activity
 does not make an employee eligible for compensatory time off.  In order
 to be eligible for compensatory time off, a General Schedule employee
 must be eligible for overtime pay.  In Social Security Administration
 and American Federation of Government Employees, Local 1164, AFL-CIO, 19
 FLRA No. 4 (1985), the Authority rejected a portion of an arbitrator's
 award which ordered that compensatory time off be given for time spent
 outside a normal work day in representational activity because it was
 inconsistent with the General Schedule overtime provisions contained in
 5 U.S.C. 5542, 5543.  See also Patent and Trademark Office, supra.
 Similarly, under the Fair Labor Standards Act, compensatory time off may
 in some circumstances be granted in lieu of overtime pay.  5