52:0989(102)AR - - HHS, SSA, New York Region and AFGE Local 3369 - - 1997 FLRAdec AR - - v52 p989
[ v52 p989 ]
The decision of the Authority follows:
52 FLRA No. 102
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES(*)
SOCIAL SECURITY ADMINISTRATION
NEW YORK REGION
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
(52 FLRA 328 (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 328 (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 328. Accordingly, we deny the Union's request.
II. Decision in 52 FLRA 328
In 52 FLRA 328, the Authority concluded that the Arbitrator's award of straight-time compensation to Union officials for official time activities performed outside their regular duty hours was deficient. 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 this case, the Arbitrator found no such denial by management, and there could have been no such denial because each grievant was on 100 percent official time. Accordingly, we held that the award was contrary to the Federal Service Labor-Management Relations Statute (the Statute). 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), on which both the Arbitrator and the Union relied, 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 the otherwise uniform 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 had performed official time activities on nonduty time only because their requests to perform the activities on duty time had been denied.
III. Union's Contentions
The Union contends that the Authority should reconsider the decision in 52 FLRA 328 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 328 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 that the Arbitrator reasonably relied on SSA.
IV. Analysis and Conclusions
Under section 2429.17 of the Authority's Regulations, a party seeking reconsideration of an Authority decision bears the heavy burden of establishing that extraordinary circumstanc