23:0325(41)AR - SSA, Albuquerque Data Operations Center and AFGE Local 3512 -- 1986 FLRAdec AR



[ v23 p325 ]
23:0325(41)AR
The decision of the Authority follows:


 23 FLRA No. 41
 
 SOCIAL SECURITY ADMINISTRATION
 ALBUQUERQUE DATA OPERATIONS CENTER
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 3512
 Union
 
                                            Case No. 0-AR-1103
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Don Hamilton 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
 
    A grievance was filed and submitted to arbitration claiming that the
 grievant, an employee covered by the Fair Labor Standards Act (FLSA),
 had improperly been denied compensation for 15 minutes of overtime.
 According to the Arbitrator, the grievant alleged that her supervisor
 approached and asked her to complete some work that needed to be
 performed before the night shift came on duty and that completion of the
 work extended her worktime by 15 minutes for which she is entitled to
 overtime compensation under FLSA.  The Arbitrator noted that the
 grievant acknowledged that her supervisor did not request that she work
 overtime and that the grievant did not seek permission of her supervisor
 to work overtime.  The Arbitrator also noted that the supervisor
 testified that she was unaware that the grievant had extended her
 worktime by 15 minutes.  In resolving the grievance the Arbitrator
 indicated that under FLSA compensable worktime includes time during
 which an employee is suffered or permitted to work.  In particular, he
 cited 5 CFR Section 551.102(e) which defines work that is suffered or
 permitted as follows:
 
          (A)ny work performed by an employee for the benefit of an
       agency, whether requested or not, provided the employee's
       supervisor knows or has reason to believe that the work is being
       performed and has an opportunity to prevent the work from being
       performed.
 
    Applying that definition to the case presented to him, he denied the
 grievance, finding in effect that the 15 minutes in dispute was not time
 during which the grievant was suffered or permitted to work.
 
                             III.  EXCEPTIONS
 
    In its exceptions the Union essentially contends that the award is
 deficient because, contrary to the determination of the Arbitrator, the
 disputed 15 minutes was time during which the grievant was suffered or
 permitted to work within the meaning of FLSA and implementing
 regulations.  Specifically, the Union asserts that therefore the denial
 of the grievance is contrary to FLSA and implementing regulations, is
 arbitrary and capricious, is in excess of the Arbitrator's authority,
 and fails to draw its essence from the parties' collective bargaining
 agreement.  The union also asserts that the Arbitrator based his award
 on the fact that the grievant directly filed a grievance rather than
 requesting overtime compensation and that this constitutes a restraint
 on the use of the negotiated grievance procedure contrary to the Statute
 and the agreement.
 
                       IV.  ANALYSIS AND CONCLUSIONS
 
    We conclude that the Union fails to establish that the award is
 deficient.  As noted, the Arbitrator denied the grievance finding in
 effect that the disputed 15 minutes was not time during whith the
 grievant was suffered or permitted to work.  In its exceptions the Union
 fails to establish otherwise.  The Union fails to substantiate in
 accordance with 5 CFR Section 551.102(e) both that the grievant's
 supervisor knew or had reason to believe that work was being performed
 and that she had an opportunity to prevent the work from being
 performed.  Instead, in disputing the determination of the Arbitrator,
 the Union is attempting to relitigate the merits of this case before the
 Authority by disagreeing with the Arbitrator's findings of fact and
 reasoning and conclusions in resolving