41:0062(7)AR - - Army, HQ, XVIII Airborne Corps and Fort Bragg, Fort Bragg, NC and AFGE Local 1770 - - 1991 FLRAdec AR - - v41 p62
[ v41 p62 ]
The decision of the Authority follows:
41 FLRA No. 7
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Millard Cass 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 Agency filed an opposition to the Union's exceptions.
The Arbitrator determined that the grievant was not entitled to overtime pay for attending a grievance meeting on his day off and denied the grievance. For the following reasons, we conclude that the case must be remanded to the parties for resubmission to the Arbitrator.
II. Background and Arbitrator's Award
The grievant, a GS-6 Emergency Medical Technician, was notified by the Agency, pursuant to a notice posted on a bulletin board, that a step 2 meeting in an unrelated grievance in which he was the grievant had been scheduled on a day on which he was not on duty. The grievant attended the grievance meeting and subsequently sought 2 hours of overtime pay pursuant to Article XII, Section 7 of the parties' agreement.(1)
When the Agency denied the grievant's request for overtime pay, the grievant filed another grievance. The Agency denied the second grievance on the basis that the grievant was "not entitled to overtime since he was not 'otherwise in a duty status' as set forth in Section 9, Article XXVIII" of the parties' agreement.(2) The second grievance was not resolved and was submitted to arbitration on the following issue:
Whether the grievant . . . should have been paid overtime pay for his attendance at [a] Step 2 grievance meeting . . . which was scheduled on his day off?
Award at 2.
The Arbitrator noted that Article XXVIII, Section 9 "required the employee to be 'in a duty status' to prepare his grievance on 'official duty time,' but did not repeat that requirement for obtaining 'the official time required to attend grievance presentation meetings . . . .'" Id. at 23. The Arbitrator stated that the Agency's argument that a grievant also was required to be in a duty status to present a grievance on official time was "not convincing." Id. The Arbitrator concluded that different contractual standards applied to official time for grievance preparation and grievance presentation.
Consistent with his interpretation of Article XXVIII, Section 9, the Arbitrator concluded also that 5 U.S.C. § 7131(d) and 5 C.F.R. § 551.424 "require that employees be given 'official time' for the presentation of grievances." Id. at 24. The Arbitrator rejected, in this regard, the Agency's assertion that the grievant was not required to attend the step 2 grievance meeting. The Arbitrator stated that, in view of the purpose of grievance meetings, the Agency's argument was "clearly untenable." Id. at 23.
The Arbitrator also rejected, however, the Union's argument that "'any time the [A]gency arranged a grievance presentation meeting on the grievant's day or time off, then the [A]gency had approved overtime consistent with Article XII, Section 7 . . . .'" Id. at 24. The Arbitrator stated:
I do not believe . . . that the Federal law and regulations contemplate or permit blanket advance authorization of overtime without the exercise of discretion by an official of the Agency having such authority. Thus, 5 U.S.C. § 7131(d) provides that a grievant "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." That clearly contemplates review of the circumstances in each instance. In addition, the Code of Federal Regulations provides in 5 C.F.R. § 551.402(a) that "An agency is responsible for exercising appropriate controls to assure that only that work for which it intends to make payment is performed."
Based on the foregoing analysis, the Arbitrator held as follows:
[The grievant] had a right to be at the Step 2 meeting considering his grievance. It could have been scheduled at a time when he was "in a duty status" and could "be granted the official time required to attend;" or he could have requested, and been granted, authorization to attend on "official time" on an overtime basis; or the meeting could have been rescheduled. Although the failure to do any of these things was the fault of others as well as of [the grievant], under Federal law and regulations he could not receive overtime pay for attending unless it was authorized by a responsible official of the Agency. The scheduling of the meeting itself did not constitute prior approval of "official time" and overtime for [the grievant] to attend. Nor could such approval be automatic. Specific affirmative action was necessary to authorize the overtime for [the grievant].
Id. at 25. Accordingly, the Arbitrator denied the grievance.
III. The Union's Exceptions
The Union asserts that the Arbitrator's conclusion that Article XXVIII, Section 9 of the parties' agreement could not constitute an authorization for overtime pay "is misplaced under law or reason[.]" Exceptions at 2. The Union also argues that the award fails to draw its essence from the parties' collective bargaining agreement. Id. The Union contends that, despite finding that the parties' agreement "provide[s] pay to employees to present their grievances (whether on or off duty), [the] Arbitrator altered and/or modified the agreement" when he failed to award overtime pay to the grievant. Id.
IV. The Agency's Opposition
The Agency argues that the Arbitrator's determination that governing law and regulations require that the Agency preapprove overtime pay requests, in cases like the one before us, is correct. The Agency contends that it never made a decision, as required by law and regulation, to authorize official time or overtime for the grievant. Finally, the Agency asserts that the award draws its essence from the parties' agreement. According to the Agency, the Arbitrator "merely pointed out to the parties the consequences under the law of the language they chose . . . . " Opposition at 2.
V. Analysis and Conclusions
We note, at the outset, that the Agency does not dispute that it could have authorized overtime pay to the grievant in the circumstances now before us. The Arbitrator clearly concluded as such and there is no basis in applicable law and regulation on which to find that conclusion incorrect.
The Arbitrator also concluded, however, that consistent with section 7131(d) of the Statute and 5 C.F.R. § 551.402, the Agency could not agree in advance, pursuant to a provision in a collective bargaining agreement, to authorize overtime pay. For the following reasons, we disagree with this conclusion.
Section 7131(d) of the Statute provides, as relevant here, that employees and employee Union representatives 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." Nothing in the wording or legislative history of section 7131(d) supports a conclusion that the Agency could not agree to a blanket authorization for overtime pay to employees granted official time to attend, and make presentations at, grievance meetings such as the one in dispute here. Moreover, we are aware of no Authority case law interpreting and applying section 7131(d), and none is cited to us, which supports such a conclusion. Accordingly, we reject the Arbitrator's finding that section 7131(d) "clearly contemplates review of the circumstances in each instance." Award at 24.
Similarly, we find nothing in other applicable law and regulation which requires case-by-case determinations to pay overtime. We note, in this regard, that General Schedule employees are entitled to overtime compensation, in various circumstances, under 5 U.S.C. §§ 5542. General Schedule employees covered by the Fair Labor Standards Act (FLSA) also are entitled to overtime compensation under the FLSA if that entitlement would be greater than under 5 U.S.C. § 5542. See 5 C.F.R. § 551.513. Nothing in 5 U.S.C. § 5542 or the FLSA addresses, or could otherwise reasonably be read as requiring, case-by-case determinations to pay overtime.
The Office of Personnel Management (OPM) is authorized to promulgate regulations implementing the overtime provisions of 5 U.S.C. § 5542 and the FLSA. See 5 U.S.C. § 5548; 29 U.S.C. § 204(f), respectively. The regulations implementing 5 U.S.C. § 5542, which are set out in 5 C.F.R. Part 550, do not address pay for time spent by an employee adjusting grievances. The regulations implementing the FLSA provide as follows:
Time spent by an employee adjusting his or her grievance (or any appealable action) with an agency during the time the employee is required to be on the agency's premises shall be considered hours of work.
5 C.F.R. § 551.424. We note, in this connection, that the Arbitrator rejected, as "clearly untenable[,]" the Agency's assertion that the grievant was not required to be present at the grievance meeting. Award at 23. See also American Federation of Government Employees, Local 2022 and U.S. Department of the Army, Headquarters, 101st Airborne Division, Fort Campbell, Kentucky, 40 FLRA No. 38 (1991) (Member Armendariz concurring as to other matters), slip op. at 6 (under 5 C.F.R. § 551.424(a), "when an agency schedules a meeting to adjust an employee's grievance, the time the grievant is in the grievance meeting is hours of work for computing overtime.").
Consistent with the controlling statutory provisions, nothing in OPM regulations requires case-by-case determinations regarding the payment of overtime. Stated otherwise, nothing in these regulations prohibits an agency from agreeing in advance, in a collective bargaining agreement, to pay overtime in circumstances where such payment is not otherwise prohibited by law and/or regulation. Instead, as payment of the overtime to the grievant in the circumstances now before us is, as conceded by the Agency, not inconsistent with law or regulation and is otherwise within the Agency's discretion, we find that the Agency's discretion could be exercised pursuant to collective bargaining and a resultant contract provision would be fully enforceable. See, for example, U.S. Department of Defense, Office of Dependents Schools and Overseas Education Association, 40 FLRA No. 41 (1991), slip op. at 17 ("matters concerning conditions of employment that are within the discretion of an agency and are not otherwise inconsistent with law or applicable rule or regulation are negotiable."); National Federation of Federal Employees, Forest Service Council and U.S. Department of Agriculture, Forest Service, Washington, D.C., 40 FLRA No. 18 (1991), slip op. at 9-12 (proposal requiring agency to exercise its discretion under Government-wide regulations through bargaining held to be negotiable).
We conclude, therefore, that the Arbitrator incorrectly determined that, consistent with law and regulation, "[s]pecific affirmative action was necessary to authorize the overtime for [the grievant]." Award at 25.
Although the Arbitrator incorrectly found that applicable law and regulation require case-by-case determinations regarding the payment of overtime, it is not clear whether, or to what extent, the Arbitrator's award is based on that incorrect finding. The Arbitrator stated, in this regard, that consistent with Article XXVIII, Section 9 of the parties' agreement, employees "will . . . be granted the official time required to attend grievance presentation meetings . . . ." Id. at 23 (emphasis in original). The Arbitrator rejected the Union's contention, however, that Article XXVIII, Section 9 constituted a blanket authorization for the payment of overtime. The Arbitrator held, instead, that the grievant was required separately to request overtime.
It is not clear, in this regard, whether the Arbitrator interpreted the parties' agreement as requiring a grievant separately to request overtime or whether the Arbitrator interpreted the agreement as constituting a blanket authorization for overtime but refused to enforce the agreement as a result of his view of law and regulation. We have no basis on which to conclude that the parties could not agree that separate requests for overtime authorization were required under Article XXVIII. Accordingly, an award enforcing such an agreement would not be deficient. On the other hand, a refusal to enforce a lawful agreement based on an erroneous interpretation of applicable law and regulation would be deficient. See, for example, U.S. Department of Defense, Defense Mapping Agency Aerospace Center, St. Louis, Missouri and National Federation of Federal Employees, Local 1827, 39 FLRA 286, 289-90 (1991) (award finding contractual provision unenforceable based on erroneous interpretation of section 7106 of the Statute vacated and case remanded to the parties); U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut and National Association of Government Employees, Local R1-109, 37 FLRA 111, 117-18 (1990) (portion of award finding grievance nonarbitrable based on erroneous interpretation of applicable law set aside and award remanded to parties for resubmission to the arbitrator to determine whether grievance was arbitrable under the parties' agreement).
Accordingly, we conclude that this case should be remanded to the parties for resubmission to the Arbitrator to determine whether the Agency violated the parties' agreement