22:0154(16)AR - HHS, SSA and AFGE -- 1986 FLRAdec AR



[ v22 p154 ]
22:0154(16)AR
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