23:0270(35)AR - Warner Robins Air Logistics Center, Warner Robins, GA and AFGE Local 987 -- 1986 FLRAdec AR



[ v23 p270 ]
23:0270(35)AR
The decision of the Authority follows:


 23 FLRA No. 35
 
 WARNER ROBINS AIR LOGISTICS CENTER
 WARNER ROBINS, GEORGIA
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 987
 Union
 
                                            Case No. 0-AR-1068
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on an exception to the award of
 Arbitrator Cary J. Williams filed by the Union under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    The grievance in this case concerns the scheduling of a grievance
 procedure meeting involving a separate dispute.  The meeting under step
 2 of the negotiated grievance procedure for that dispute was scheduled
 in advance for a specific day to commence at the beginning of the
 aggrieved employee's work shift.  The union representative assigned to
 represent the employee was scheduled for the earlier shift on the day of
 the meeting.  Consequently, he requested that the time of the meeting
 and the aggrieved employee's work shift be changed to coincide with his
 work shift or that he be paid overtime compensation for the time spent
 attending the meeting.  The Activity refused and the meeting was held
 with the union representative attending after his workday had ended.
 The union representative filed the grievance in this case that was
 submitted to arbitration on the issue of whether the refusal to
 reschedule the meeting violated the collective bargaining agreement and,
 if not, whether the union representative should have been paid overtime
 compensation for the time attending the meeting.  The Arbitrator
 determined that it was not unreasonable for the Activity to maintain the
 meeting schedule to accommodate the assigned work shift of the aggrieved
 employee.  He also noted that the meeting was scheduled after the
 regular workday of management representatives as well as the union
 representative.  He determined that the representative was not entitled
 to overtime compensation for the time attending the meeting and,
 accordingly, denied the grievance.
 
                              III.  EXCEPTION
 
    The Union contends that the award is contrary to the provisions of
 the Fair Labor Standards Act (FLSA), as amended, 29 U.S.C. Section 201
 et seq. and 5 CFR part 551, subpart D.  The Union argues that the time
 spent by the union representative at the meeting constituted "hours of
 work" for purposes of entitlement to overtime compensation because the
 meeting was primarily for the benefit of the Activity and was directed
 and controlled by the Activity.
 
                       IV.  ANALYSIS AND CONCLUSIONS
 
    We conclude that the Union fails to establish that the award denying
 entitlement to overtime compensation is contrary to FLSA and
 implementing regulations.  In NTEU v. Gregg, No. 83-546 (D.D.C. Sept.
 28, 1983), the court addressed the issue of whether Federal employees
 engaged in collective bargaining were entitled to overtime compensation
 for weekend negotiations when they were not otherwise in a duty status.
 The employees asserted that the failure to pay them overtime
 compensation for the weekend negotiations violated FLSA.  Specifically,
 they argued that they were entitled to overtime compensation for having
 worked longer than 40 hours during a single workweek.  29 U.S.C. Section
 207(a).  The court noted that for purposes of FLSA, "hours of work" is
 defined as "all time spent by an employee performing an activity for the
 benefit of an agency and under the control or direction of the agency."
 5 CFR Section 551.401(a).  The court further noted that "official time"
 granted an employee by an agency to perform representational functions
 during the hours when the employee is otherwise in a duty status shall
 be considered hours of work.  5 CFR Section 551.424(b).  The court
 explained that the key to whether time spent performing representational
 functions outside regular working hours is overtime work is that the
 employee representative must already have been in an overtime duty
 status at the direction of the agency at the time an event arises which
 calls for the performance of representational functions.  Gregg, slip
 op. at 7, 11.  Under these provisions the court concluded that the
 employees were not entitled to overtime compensation under FLSA.  The
 court ruled that the activities in which the employees were engaged on
 the weekend "cannot be considered primarily for the benefit of the
 agency." To the court, their responsibilities during these negotiations
 were to represent on behalf of the union the employees in the bargaining
 unit in collective bargaining negotiations with the employing agency;
 they were in no way charged with any other responsibilities.  Slip op.
 at 5.  The court also ruled that because the employees were not already
 in an overtime duty status on the weekend in question, there was no
 entitlement to overtime compensation under 5 CFR Section 551.424(b).  As
 stated by the court, the employees' participation in the negotiations
 was not required by the agency, but was required because of their role
 as officers and negotiators for the union.  Slip op. at 7.
 
    Applying NTEU v. Gregg to th