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The decision of the Authority follows:

28 FLRA NO. 137






Case No. 0-AR-1360


I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator Charles A. Askin filed by the Union under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Department of the Navy (Agency) filed an opposition.

II. Background and Arbitrator's Award

The Union filed a grievance concerning the interpretation of Article 28.1(C) of the parties' collective bargaining agreement. This Article provides that firefighters will be permitted to trade duty time with each other up to the maximum allowed by law. Trading of duty time is a practice among employees in fire protection that allows them to substitute for one another on regular tours of duty in order to attend to personal matters. The grievance was submitted to arbitration. The issue before the Arbitrator was whether, under law, the parties' agreement allowed firefighters to trade time for periods up to 1 calendar year.

In the arbitration proceeding, the Union argued that the 1974 amendments to the Fair Labor Standards Act (FLSA), 29 U.S.C. 20.1 were intended to permit the trading of time by firefighters of public agencies, including Federal fire-fighters. It also argued that under 29 C.F.R. SS 553.18, "employees of public agencies" engaged in fire protection are, permitted to trade time for periods up to 1 calendar year. The Activity argued that the practice of trading time is not  addressed by the FLSA. It also argued that under the FLSA, 29 U.S.C. 204(f), the Civil Service Commission or its successor, the Office of Personnel Management (OPM)--and not the Department of Labor--is authorized to administer the FLSA for Federal employees. In particular, the Activity contended that OPM has determined that Federal firefighters are not entitled to trade time beyond a pay period.

The Arbitrator noted that although the submitted issue involved a question of statutory construction, the Union alleged a contract violation and had the burden of proving the violation. The Arbitrator analyzed the FLSA and 29 C.F.R. SS 553.18 and determined that the Union failed to prove that the parties' agreement allowed for the trading of time by Federal firefighters for periods up to 1 calendar year. In particular, the Arbitrator found that the FLSA did not address the trading of time by Federal firefighters. He also found that the relevant provisions of title 29 of the Code of Federal Regulations pertained only to state and local government employees and concluded, therefore, that 29 C.F.R. SS 553.18 did not apply to Federal firefighters. Finally, he found that the Civil Service Commission, pursuant to its authority to administer the FLSA for Federal employees, had determined in a letter issued in 1977 that Federal firefighters were allowed to trade time only for 1 pay period. For these reasons, the Arbitrator denied the Union's grievance.

III. Positions of the Parties

A. Union's Exception

The Union contends in its exception that the Arbitrator's award is contrary to law and regulation, specifically 29 C.F.R. SS 553.18. The Union argues that the Civil Service Commission's 1977 letter is inconsistent with 29 C.F.R. SS 553.18 and that the Arbitrator erred in relying on the letter as a basis for denying the grievance.

B. Agency's Opposition

The Agency contends in its opposition that the Arbitrator was correct in finding that 29 C.F.R. 553.18 does not apply to Federal firefighters. Further, the Agency contends, consistent with more recent advice by OPM, that the Arbitrator's reliance on the Civil Service Commission letter for guidance in reaching his con