52:0986(101)AR - - HHS, SSA, New York Region and AFGE Council 220 - - 1997 FLRAdec AR - - v52 p986



[ v52 p986 ]
52:0986(101)AR
The decision of the Authority follows:


52 FLRA No. 101

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES(*)

SOCIAL SECURITY ADMINISTRATION

NEW YORK REGION

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL 220

(Union)

0-AR-2735

(52 FLRA 376 (1996))

_____

ORDER DENYING REQUEST FOR RECONSIDERATION

February 24, 1997

_____

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 the Union's request for reconsideration of the Authority's decision in 52 FLRA 376 (1996). The Agency did not file an opposition to the request.

Section 2429.17 of the Authority's Regulations permits reconsideration of an Authority decision when a party establishes extraordinary circumstances. We conclude that the Union has not established extraordinary circumstances warranting reconsideration of 52 FLRA 376. Accordingly, we deny the Union's request.

II. Decision in 52 FLRA 376

In 52 FLRA 376, the Authority concluded that the Arbitrator's award of straight-time compensation to specified Union officials for official time activities performed outside their regular duty hours was deficient. Our decision was based on U.S. Department of Health and Human Services, Social Security Administration, New York Region and American Federation of Government Employees, Local 3369, 52 FLRA 328 (1996) (New York Region), in which we applied longstanding Authority precedent that wrongful denials of official time justify compensation only when official time activities would have been performed on duty time, but for management's denial of the official time request. In New York Region, we held that the award was contrary to the Federal Service Labor-Management Relations Statute (the Statute) because the arbitrator found no such denial, and, as each grievant was on 100 percent official time, there could not have been such a denial. We also held that to the extent that 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), found a wrongful denial of official time where the official time activities would not otherwise have been performed during duty time, that decision was inconsistent with otherwise uniform Authority precedent on this issue and would no longer be followed. In addition, we rejected the union's reliance on previous Authority statements that section 7131(d) does not require an employee to be in a duty status to be entitled to official time. We noted that in the cases in which those statements were made, the grievants performed official time activities on nonduty time only because their requests to perform the activities on duty time had been denied.

In 52 FLRA 376, the Arbitrator found no denial by management of any request to perform official time activities during the scheduled duty hours of any of the grievants, and, as each grievant was on 100 percent official time, there could not have been such a denial. Accordingly, based on New York Region, we concluded that the award was contrary to the Statute.

III. Union's Contentions

The Union contends that the Authority should reconsider the decision in 52 FLRA 376 because it is contrary to the Statute and overrides the parties' collective bargaining agreement. The Union argues that there is nothing in section 7131(d) or the rest of the Statute that precluded the Arbitrator's award of compensation and that the Authority never found that external law prohibited the payment. The Union maintains that Authority case law is clear that section 7131(d) does not require an employee to be in a duty status to be entitled to official time. The Union also argues that the decision in 52 FLRA 376 abrogates the parties' ability to determine their own official time arrangements. The Union asserts that nothing in the Statute precluded the negotiation of Article 30, Section 6(B) of the parties' agreement, in which the parties chose to allow a remedy of straight-time compensation in accordance with Authority case law. The Union maintains that the parties agreed to abide by the Arbitrator's reading of that case law and t