52:0376(35)AR - - HHS, SSA, New York Region and AFGE, Council 220 - - 1996 FLRAdec AR - - v52 p376



[ v52 p376 ]
52:0376(35)AR
The decision of the Authority follows:


52 FLRA No. 35

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

NEW YORK REGION(1)

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL 220

(Union)

0-AR-2735

_____

DECISION

September 30, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Herbert L. Haber filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator awarded straight-time compensation to specified Union officials for official time activities performed outside their regular duty hours.

We conclude that the award of compensation is contrary to the Statute, and we strike that award.

II. Background and Arbitrator's Award

The parties consolidated seven grievances claiming compensation for Union officials on 100 percent official time who performed official time activities outside their regularly scheduled duty time. The grievances were submitted to arbitration on the issue of whether the Agency was justified under Article 30, Section 6B of the parties' collective bargaining agreement in denying them compensation.(2) The Union argued that, under Authority case law, union officials are entitled to straight-time compensation for all official time activities performed outside their regular duty time. The Agency maintained that payment of straight time under Section 6B is limited to situations where management wrongfully denies official time for performing activities during regular duty hours and those activities are performed on nonduty time.

The Arbitrator ruled that if official time activities are properly performed on nonduty time, a union official is entitled to straight-time compensation. He rejected the Agency's claim that Authority case law limits the remedy to wrongful denials of official time to perform activities during regular duty time, relying on Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL-CIO, 26 FLRA 12, reconsideration denied, 26 FLRA 781 (1987) (SSA). However, he restricted this remedy to situations where official time activities were reasonably required to be performed on nonduty time.

Four of the grievances involved travel time incidental to the performance of official time activities that occurred outside regularly scheduled duty time. The Arbitrator found that the travel time was necessary and not within the control of the traveler and sustained these grievances. The Arbitrator also granted another Union official straight-time compensation for time spent at a hearing that extended beyond his regular duty time and for his travel time back to his duty station. The Arbitrator denied all other claims.

III. Exceptions

A. Agency's Contentions

The Agency contends that an award of compensation for official time activities performed on nonduty time is justified only if both of the following findings are made: (1) management wrongfully denied a request for official time for activities to be performed during duty time; and (2) the activities were performed on nonduty time. The Agency asserts that there is no provision of law or regulation that permits compensating union officials for performing official time activities beyond the official's regular 8 hours of compensation. The Agency maintains that because these findings were not made, and could not be made, the award is deficient as: (1) contrary to law and regulation; (2) based on a nonfact; and (3) failing to draw its essence from the agreement.

B. Union's Opposition

The Union contends that the award is not deficient because Authority case law supports an award of straight-time compensation for the performance of official time activities on nonduty time. The Union maintains that the Arbitrator found that the Agency wrongfully denied official time when it did not grant additional official tim