Federal Deposit Insurance Corporation, Atlanta, Georgia (Agency) and National Treasury, Employees Union (Union)

[ v58 p623 ]

58 FLRA No. 158

FEDERAL DEPOSIT
INSURANCE CORPORATION
ATLANTA, GEORGIA
(Agency)

and

NATIONAL TREASURY
EMPLOYEES UNION
Union)

0-AR-3633

_____

DECISION

July 10, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

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

      The grievance alleged that the Agency improperly failed to compensate the grievant for time spent outside of her normal duty hours attending an Equal Employment Opportunity Commission (EEOC) mediation session in a representative capacity. The Arbitrator found that the grievant was entitled to overtime compensation for that time.

      For the reasons that follow, we remand the case to the parties for re-submission to the Arbitrator, absent settlement, to determine whether the Agency induced the grievant to work overtime.

II.     Background and Arbitrator's Award

      The Agency employs the grievant as a GS-14 Bank Examiner. She is exempt from the coverage of the Fair Labor Standards Act (FLSA). In the course of her representation of a fellow employee (the complainant) in an EEO complaint, the grievant attended a mediation session beginning at 1:00 p.m. and ending at 7:45 p.m., three hours after the end of her normal working hours. Subsequently, the grievant filed a grievance requesting overtime compensation for the time spent attending the mediation session outside of her normal working hours. [n1]  After the parties could not resolve the matter, they submitted the following issue to arbitration:

Whether the [g]rievant, an FLSA exempt employee, is entitled to be compensated for time spent outside her normal duty hours for attending an EEOC (Equal Employment Opportunity Commission) mediation hearing as a representative of a co-worker claimant?

Award at 1.

      Before the Arbitrator, the Union argued that the grievant was induced by the Agency's Deputy Regional Director to attend the mediation session and was therefore entitled to overtime compensation under Baylor v. United States, 198 Ct. Cl. 331 (1972) (Baylor). The grievant testified that the mediator told her that the mediation needed to be completed that day as the Agency's Deputy Regional Director, who was participating in the mediation, was leaving the area the following day. The grievant further testified that the Deputy Regional Director confirmed that information during the mediation. In his testimony, the Deputy Regional Director denied discussing his schedule with the mediator or the grievant or having any control over the scheduling of the meeting.

      Because the mediator was not an Agency official, the Arbitrator found that the mediator's statement to the grievant regarding the Deputy Regional Director's schedule could not provide the necessary inducement absent evidence that it was based upon statements by the Deputy Regional Director. The Arbitrator expressly declined to resolve the dispute between the testimony of the grievant and the Deputy Regional Director concerning whether the length of the mediation session was prompted by communications made by the Deputy Regional Director regarding his travel schedule, indicating that doing so was unnecessary given his resolution of the case on an alternative theory. Nonetheless, later in his award, the Arbitrator went on to indicate that the grievant had not met her burden on the inducement by the Deputy Regional Director, without explaining how he reached that conclusion absent resolving the credibility dispute integral to the issue.

      The Arbitrator then found that Baylor permits an FLSA exempt employee to receive overtime compensation [ v58 p624 ] if the overtime is incurred as a result of a regulation. In this regard, he determined that, under 29 C.F.R. § 1614.605(b), a representative of an EEO complainant is entitled to official time when present at an informal adjustment of the complaint even if the representative is not on duty, provided that he or she is in a pay status. [n2]  According to the Arbitrator, the EEOC, in Humphreys v. Frank, EEOC No. 01900220, 1990 WL 1111120 (Feb. 7, 1990), found that the term "pay status" in this connection means that the employee in question is on the active payroll of the agency. Because the grievant is on the active payroll of the Agency, he ruled that she was entitled to overtime for the time spent at the mediation as her overtime was incurred as a result of 29 C.F.R. § 1614.605(b).

III.      Positions of the Parties

A.     Agency's Exceptions

      The Agency claims that the award is contrary to 5 U.S.C. § 5542. [n3]  The Agency argues that the Arbitrator failed to require or find that the hours worked were ordered, approved, or otherwise induced prior to awarding overtime compensation to the grievant. In the absence of any requirement or finding that the overtime was ordered, approved or induced, the Agency asserts that the grievant was not entitled to overtime compensation.

      The Agency next contends that 29 C.F.R. § 1614.605(b) cannot constitute an inducement to work overtime because the regulation does not address or govern overtime compensation. In the Agency's view, the EEOC cannot determine eligibility for overtime compensation. The Agency argues that § 1614.605(b) does not obviate the requirement that an employee's activities constitute "hours of work" prior to the awarding of overtime compensation for such activities. The Agency maintains that only the Office of Personnel Management (OPM) can issue regulations concerning the payment of overtime.

      The Agency next seeks to distinguish Baylor. The Agency asserts that, under Baylor, an employee may receive overtime only if it is incurred as a result of a regulation which explicitly requires an employee to work outside of his or her tour of duty. Because the pertinent regulation did not require the grievant to attend the mediation, the Agency argues that the grievant's overtime was not authorized by 29 C.F.R. § 1614.605(b).

      The Agency maintains that the mere existence of an EEOC regulation cannot provide for the payment of overtime, without a finding of inducement. In the Agency's view, awarding overtime compensation solely on the basis of the existence of a regulation relating to an activity would permit employees to self-direct their overtime in the absence of an affirmative order to work overtime.

B.     Union's Opposition

      The Union claims that the Arbitrator properly interpreted Baylor as recognizing that regulations requiring an employee's presence can constitute time ordered or approved for purposes of 5 U.S.C. § 5542. The Union argues that the Agency's argument in this regard is flawed because it fails to acknowledge that the regulation at issue required affirmative action on the Agency's part.

      The Union further claims that the EEOC was well within its powers in issuing 29 C.F.R. § 1614.605 as the EEOC possesses the authority to regulate how agencies conduct EEO investigation and complaint processes. The Union asserts that § 1614.605 applies, by its terms, regardless of an employee's tour of duty. Thus, the Union maintains that the regulation requires the Agency to place employee representatives on official time and grant them overtime compensation when agencies conduct EEO meetings after the end of an employee's normal working hours.

      Finally, the Union disputes the Agency's claim that the Arbitrator's interpretation of Baylor would permit employees to self-direct their overtime. In the Union's view, it is the Agency's decision to hold an EEO meeting at a particular time that results in the obligation to grant overtime compensation.

IV.      Analysis and Conclusions

      The Authority reviews the question of law raised by the exception and the Arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a de novo standard of review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, [ v58 p625 ] the Authority defers to the arbitrator's underlying factual findings. See id.

      5 U.S.C. § 5542(a) permits overtime only for "hours of work officially ordered or approved." If reduced to writing, a directive or order to perform work beyond the standard forty hour workweek is officially ordered or approved. Crowley v. United States, 53 Fed. Cl. 737, 789 (2002). However, even when there is no explicit directive or order requiring work outside the forty hour workweek, overtime work may be considered officially ordered or approved if the employee was induced to perform overtime. Id.

      The Arbitrator found that the grievant, under Baylor, was entitled to overtime if her "overtime is incurred as a result of a regulation." Award at 9. The Arbitrator, however, misstated the standard for overtime entitlement articulated in that case. In Baylor, the court stated, "if there is a regulation specifically requiring overtime promulgated by a responsible official, then this constitutes `officially ordered or approved' . . . ." 198 Ct. Cl. at 344. Thus, in that case, the court required the agency to compensate a group of employees for time spent performing certain pre- and post-shift tasks mandated by agency regulation.

      In contrast, 29 C.F.R. § 1614.605(b) does not require employees serving as representatives in an EEO matter to perform any tasks outside of their regular working hours. Instead, it merely establishes official time for employees who assume such representational responsibilities and contains no order or directive to any employee that requires that he or she perform work outside of his or her normal working hours. Accordingly, 29 C.F.R. § 1614.605(b) alone does not provide the basis for the awarding of overtime and the Arbitrator's ruling that it provided the necessary inducement is contrary to law. See Puissegur v. Runyon, 1995 WL 242687 (1995) (29 C.F.R. § 1614.605(b) does not require agency to pay EEO representative overtime).

      Thus, there is no "officially ordered or approved" overtime in this case. However, the award is not contrary to 5 U.S.C. § 5542(a) if the grievant was induced by the Agency to attend the mediation session. In that regard, the Arbitrator's award is too ambiguous to resolve the inducement question. While the Arbitrator stated that he would not make a decision as to whether the Agency induced the grievant to attend the mediation session because his award based upon regulatory grounds mooted the need to resolve the credibility issue, Award at 7, he also stated that the grievant failed to meet her burden of proof on the issue of inducement, Award at 8. However, the latter conclusion cannot be reached absent a credibility determination concerning whether or not the Deputy Regional Director requested that the mediation session be continued beyond normal working hours in order to accommodate his travel plans on the following day. As the existence of that fact is central and integral to resolving the inducement issue, the Arbitrator's failure to reach that issue results in an ambiguous record that precludes our ability to determine if the award is contrary to law.

      For this reason, we remand the case to the parties for re-submission to the Arbitrator, absent settlement, for a determination as to whether the Agency induced the grievant to attend the mediation session.

V.      Decision

      We remand the matter to the parties for re-submission to the Arbitrator, absent settlement, for a determination as to whether the Agency induced the grievant to attend the mediation session.


APPENDIX

29 C.F.R. § 1614.605(b) provides:

If the complainant is an employee of the agency, he or she shall have a reasonable amount of official time, if otherwise on duty, to prepare the complaint and to respond to agency and EEOC requests for information. If the complainant is an employee of the agency and he designates another employee of the agency as his or her representative, the representative shall have a reasonable amount of official time, if otherwise on duty, to prepare the complaint and respond to agency and EEOC requests for information. The agency is not obligated to change work schedules, incur overtime wages, or pay travel expenses to facilitate the choice of a specific represen