22:0154(16)AR - HHS, SSA and AFGE -- 1986 FLRAdec AR
[ v22 p154 ]
The decision of the Authority follows:
22 FLRA No. 16 U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION Agency and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Union Case No. 0-AR-1077 DECISION I. STATEMENT OF THE CASE This matter is before the Authority on exceptions to the award 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 rRegulations. The Union filed an opposition. /1/ II. BACKGROUND AND ARBITRATOR'S AWARD According to the record before the Authority, this case involves a 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 two-phase arbitration process was established to resolve the basic dispute and the resulting numerous individual grievances. The first phase of the process involved the interpretation of the official time provisions of the Statute and the parties' collective bargaining agreement. In the second phase, the Arbitrator held hearings to resolve, by bench decisions when practicable, specific grievances pending in the various regions of the Agency. The exceptions in this case have been filed to bench decisions of the Arbitrator rendered on December 2, 1985. In those decisions, the Arbitrator generally ruled that by denying official time and related travel and per diem expenses for union officials for the representational purposes involved, the Agency violated the parties' agreement, which had been negotiated consistent with the Statute. Specifically, the Arbitrator sustained the individual grievances and awarded reimbursement for wrongfully denied official time at appropriate straight-time rates for the time spent by the grievants in performing the representational activities. He also awarded travel and per diem expenses. III. FIRST EXCEPTION A. Contentions The Agency excepts to the Arbitrator's award of travel and per diem expenses to Union representative Reiter for preparation prior to the future arbitration hearings to be held in the Agency's various regions. They Agency argues that the Arbitrator exceeded his authority by accepting and ruling on a prospective claim, that the bench award is a capricious departure from an earlier award rendered by the Arbitrator, and that the Arbitrator's authority to resolve issues of travel and per diem expenses was terminated by the parties' execution of a memorandum of understanding which in effect provided official time would be allowed consistent with past practice. B. Analysis and Conclusions The Authority has previously held that an agency may exercise, through negotiations, its discretion to determine whether travel attendant to labor-management relations activities is sufficiently within the interest of the United States so as to constitute official business for the purposes of reimbursement of related travel expenses. National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 21 FLRA No. 2, slip op. at 6 (1986), petition for review filed sub nom. Department of the Treasury, U.S. Customs Service v. FLRA, No. 86-1198 (D.C. Cir. Mar. 27, 1986). In this case, the Arbitrator effectively determined that the Agency agreed to pay the travel and per diem expenses related to the labor-management relations activities covered by the official time provision of the parties' agreement. Thus, the Agency's arguments constitute nothing more than disagreement with the Arbitrator's interpretation of the parties' agreement and do not provide a basis for finding the award deficient. The Philadelphia Regional Office, District Office Operations, Social Security Administration and American Federation of Government Employees, AFL-CIO, Local 3186, 15 FLRA 211 (1984). However, any payment of travel and per diem expenses must be consistent with the provisions of the Federal Travel Regulations (FTRs). /2/ In this case, the Arbitrator in directing the payment of travel and per diem expenses in connection with the covered activities did not provide for the Agency to determine the propriety of particular travel and per diem expenses under the FTRs. Consequently, the Authority must modify the award to assure that it is consistent with the requirements of the FTRs. See National Treasury Employees Union and NTEU Chapter 224 and Office of Hearings and Appeals, Social Security Administration, 21 FLRA No. 49 (1986). IV. Second Exception A. Contentions The Agency contends that the Arbitrator's awards of official time are contrary to law on three grounds. 1. The Agency argues that the Arbitrator's awards ordering compensation at the appropriate straight-time rates for time spent performing representationals functions outside duty hours are contrary to law because a prerequisite to an award of compensation for a denial of official time is that there be a request for official time. Since there were no requests for official time, the Agency could not have made wrongful denials and the remedy ordered by the Arbitrator is not authorized in the circumstances of this case. The Agency further argues that certain of the grievants to whom the Arbitrator awarded compensation had 100 percent of their duty time approved for union representational activities and were thus ineligible for compensation. Lastly, the Agency contends that 5 U.S.C. sections 5542 and 5543 precluded the remedy ordered by the Arbitrator. 2. The Agency argues that the portion of the Arbitrator's award in which he ordered that Union representative DeJulius would not be required to travel during nonduty hours is contrary to law in that it seeks to establish a contractual right for all future travel to be scheduled during normal working hours. 3. The Agency argues that the Arbitrator's award of official time to grievants Larmer and Rupp are contrary to law because neither are union representatives. B. Analysis and Conclusions With respect to the three grounds asserted by the Agency in this exception for finding the award contrary to law, the Authority finds as follows: 1. The Authority has previously indicated that section 7131(d) of the Statute /3/ 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. Social Security Administration and American Federation of Government Employees, AFL-CIO, 19 FLRA No. 104 (1985); 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. 110 (1985). In 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, the Agency has failed to establish that the bench awards granting 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 are contrary to law. Accordingly, this exception must be denied. 2. The Authority finds that the Agency has failed to establish that the Arbitrator's award is contrary to law. In this regard, 5 U.S.C. section 6101(b)t ) requires agencies to schedule employee travel during hours of duty "to the maximum extent practicable." Thus, in his award the Arbitrator was merely requiring the Agency "to the maximum extent practicable" to schedule Union representative DeJulius' future travel during normal working hours consistent with section 6101(b)(2). Accordingly, this exception must be denied. 3. The Authority finds that the Agency has failed to establish that the Arbitrator's award is deficient as alleged. In a recent decision, American Federation of Government Employees and Social Security Administration, 21 FLRA No. 14 (1986), the Authority reiterated its previous indications that section 7131(d) of the Statute expressly authorizes parties to negotiate for the granting of official time for the performance of specified activities and that the Statute effectively provides a remedy when official time under section 7131(d) is wrongfully denied. Thus, where official time, authorized by provisions of a collective bargaining agreement consistent with section 7131(d) of the Statute, is wrongfully denied and the covered activities 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. In this case, while the grievants were not engaged in union representational activities, section 7131(d)(2) of the Statute expressly provides for official time for bargaining unit employees "in connection with any other matter covered by this chapter." The Arbitrator by his award effectively found the dispute was a "grievance" covered by the Statute and that under the parties' agreement grievant Larmer was entitled to official time and grievant Rupp was entitled to restoration of annual leave and that therefore the conditions of section 7131(d) had been met. Accordingly, this exception must be denied. V. 0THER EXCEPTIONS A. Contentions In numerous other exceptions, the Agency essentially contends that: (1) the bench awards are a capricious departure from the earlier final award of the Arbitrator; (2) the Arbitrator exceeded his authority by ruling on claims that were not part of the grievance before him; (3) the Arbitrator extended his remedy to nongrievants; and (4) the Arbitrator conducted himself and the hearing in an arbitrary and capricious manner. B. Analysis and Conclusions The Authority finds that the Agency has failed to establish that the Arbitrator's award is in any way deficient. It is clear that the Agency is attempting to relitigate the merits of the case before the Authority and that the thrust of the Agency's assertions essentially constitutes nothing more than disagreement with the Arbitrator's findings of fact and his specific reasoning and conclusions based on the evidence and testimony before him, and generally with his interpretation and application of the parties' agreement. Consequently, the exceptions do not provide any basis for finding the award deficient. See Federal Correctional Institution, Petersburg, Virginia and American Federation of Government Employees, Local 2052, Petersburg, Virginia, 13 FLRA 108 (1983). VI. DECISION Accordingly, pursuant to section 2425.4 of the Authority's Rules and Regulations and for the reasons stated above, the Agency's exceptions are denied but the award directing payment of travel and per diem expenses to Union representative Reiter is modified to provide that Ms. Reiter is entitled to payment of travel and per diem expenses for preparation prior to future arbitration hearings insofar as consistent with applicable requirements of the Federal Travel Regulations. Issued, Washington, D.C., June 13, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) In its opposition the Union contends that several of the exceptions should be dismissed as untimely. However, except for the Agency's exception to the award of travel and per diem expenses to Union representative Teefy, the Authority has determined that the exceptions were timely filed under the Statute and the Authority's Rules and Regulations. The Authority has determined that on September 18, 1985, the Arbitrator issued a bench award on the issue of Mr. Teefy's travel and per diem expenses. Therefore, under section 7122(b) of the Statute and section 2425.1 of the Authority's Rules and Regulations, any exceptions to the bench award had to be filed no later than the close of business on October 17, 1985. However, the exceptions were not filed with the Authority until December 31, 1985. Accordingly, as the Agency's exception in this respect was untimely filed, it is dismissed. (2) The FTRs, 41 CFR part 101-7, have been held to be Government-wide rules or regulations within the meaning of the Statute. National Federation of Federal Employees, Local 29 and U.S. Army Engineer District, Kansas City, Missouri, 13 FLRA 23, 24 (1983). (3) 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.