United States, Department of Transportation, Federal Aviation Administration (Agency) and National Air Traffic Controllers Association (Union)

[ v60 p20 ]

60 FLRA No. 7

UNITED STATES
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION
(Agency)

and

NATIONAL AIR TRAFFIC CONTROLLERS
ASSOCIATION
(Union)

0-AR-3734

_____

DECISION

June 17, 2004

_____

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 Jerome H. Ross filed by the Agency under § 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 determined that the Agency violates the parties' collective bargaining agreement when it denies official time because the requested day is a Sunday or holiday. He directed the Agency to pay premium pay for the performance of representational activities on Sundays and holidays.

      For the reasons that follow, we conclude that the Arbitrator's award is contrary to law and set it aside.

II.     Background and Arbitrator's Award

      The grievant, an air traffic controller, is also a Union representative. On Monday, October 9, 2000, the Columbus Day holiday, the grievant performed representational activities at home for the bargaining unit. He believed that he was doing so on official time with the prior approval of the Agency.

      The grievant received 8 hours of pay at straight-time rates for Columbus Day. However, the grievant expected to receive holiday premium pay for the time he spent performing representational activities, which would have meant that he would have received an [ v60 p21 ] additional 8 hours of pay. In response to an inquiry by the grievant, the Agency explained that there was no authority to use official time on a holiday.

      The Union filed a grievance protesting what it viewed to be a retroactive denial of official time for the Columbus Day holiday. As a remedy, the Union sought holiday premium pay for the grievant.

      The Union also filed a national grievance alleging that the Agency violates the collective bargaining agreement whenever it denies use of official time for union representational activities because the requested day is a Sunday or a holiday. [n1]  As a remedy, the Union requested that the Arbitrator declare that the Agency's denial of official time on Sundays and holidays violates the parties' collective bargaining agreement.

      The grievances were not resolved and were submitted to arbitration. As framed by the Arbitrator with the agreement of the parties, the issues were, as follows:

Whether the Agency violated Article 2.17 and applicable federal law by retroactively denying the grievant . . . official time for his union representational duties performed on October 9, 2000 (Columbus Day), and if so, what is the appropriate remedy?
Does the Agency violate Article 2.17 whenever it denies use of official time for union representational duties because the day in question falls on a Sunday or a holiday?

Id. at 4. [n2] 

      The Union contended that the Agency's denial of official time for union representational activities when the requested day is a Sunday or holiday is contrary to Article 2, Section 17 of the parties' agreement. The Union maintained that operational requirements are the only basis for the denial of official time.

      The Arbitrator sustained the grievances. He ruled that "the Agency violates Article 2.17 whenever it denies use of official time for union representational duties because the day in question falls on a Sunday or a holiday." Award at 9. In sustaining the grievances, he rejected the Agency's reliance on another arbitrator's decision because that decision addressed the bargaining history of a prior agreement. He concluded that the bargaining history of the current agreement established that advanced scheduling of official time was allowed and encouraged. He found that "a binding past practice was established . . . in connection with the payment of appropriate premium pay for performance of representational duties on Sunday[s] and holidays." Id. at 8.

      By sustaining both grievances, the Arbitrator effectively directed the Agency to pay the grievant premium pay for the performance of representational duties on Columbus Day holiday in 2000 and to pay Union representatives premium pay for the performance of representational duties on Sundays and holidays.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency contends that the award is contrary to law and precluded by the collective bargaining agreement.

      Specifically, the Agency argues that the award of premium pay for Sundays and holidays is contrary to 5 U.S.C. §§ 5546, 6302(a) and the collective bargaining agreement and that the award of premium pay for Sundays is also contrary to the Agency's appropriations acts for fiscal years 1995 to 2003. The Agency asserts that under § 5546(b), premium pay is authorized "only where an employee performs work on a holiday." Exceptions at 8. The Agency asserts that under § 6302(a), "employees are not considered to be in a paid leave status on holidays and leave is not charged when an employee is excused [from] working on a holiday." Id. The Agency asserts that under Article 28, Section 2 of the agreement, employees are entitled to holiday pay only when they perform operational duties on the holiday. [ v60 p22 ] Accordingly, the Agency claims that the grievant's performance of representational activities on the holiday was not the performance of actual work and that the portion of the award granting the grievant premium pay for a holiday is deficient. As to the award of premium pay for Sundays, the Agency asserts that in its appropriations acts for the Agency since 1995, Congress has "specifically provide[d] that at least for Agency employees, that Sunday premium pay . . . could not be paid unless the employee actually worked on a Sunday." Id. at 9.

      In conclusion, the Agency also maintains that the Arbitrator exceeded his authority by finding that "the Agency denied advance scheduling of official time[.]" Id. at 10. The Agency asserts that this matter was not at issue.

B.     Union's Opposition

      The Union contends that the award is consistent with the Agency's appropriations acts. The Union maintains that the appropriations acts address proper compensation for employees who are on "leave with pay" status on a Sunday or holiday. The Union asserts that the Arbitrator correctly found that the Agency did not establish that "official time or union representational duties is an equivalent [status] to the types of leave (such as annual and sick leave) that preclude employees from receiving [premium] pay on Sunday and holidays." Opposition at 15.

      In addition, the Union contends that the Agency's argument that the award is precluded by the collective bargaining agreement is not properly before the Authority under § 2429.5 of the Authority's Regulations. See id. at 16 n.8. The Union argues that, although that contractual provision was "referred to in the Agency's post-hearing brief, it was not raised as an argument to the Arbitrator." Id.

      The Union also disputes the Agency's contention that the Arbitrator's finding that "the parties intended that advance scheduling of official time was appropriate" under Article 2 exceeds the bounds of his authority by answering a matter not in issue. Opposition at 5 n.3. The Union argues that that issue was raised by the Agency. In addition, the Union asserts that this contention is not the "subject of an Agency [e]xception" and, therefore, it is not properly before the Authority. See id.

IV.     Analysis and Conclusions

      The Agency contends that the award is contrary to § 5546(b) and its appropriations acts. Because the Agency claims that the award is contrary to law, the Authority reviews the Agency's exception and the award de novo. See NTEU Chapter 24, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE Local 1437, 53 FLRA 1703, 1710 (1998).

A.     The grievant is not entitled to premium pay for the performance of representational duties on the Columbus Day holiday in 2000

      The award requires the Agency to pay premium pay to the grievant for the representational activity that he performed on the Columbus Day holiday in 2000. With respect to holiday premium pay, 5 U.S.C. § 5546(b) provides, in pertinent part, as follows:

[a]n employee who performs work on a holiday . . . is entitled to pay at the rate of his basic pay, plus premium pay . . . .

      The question presented by the Agency's exception is whether the grievant's performance of union representational activities on the Columbus Day holiday is compensable for purposes of premium pay. The answer to this question is determined by examining whether, when the grievant performs union representational activities, the grievant "performs work" within the meaning of § 5546(b), for which the grievant is entitled to be compensated with premium pay. For the following reasons, we conclude that the grievant did not "perform work on a holiday" for which he must be compensated at the holiday rate.

      Section 5546(b) does not address whether the performance of representational activities constitutes the performance of work within the meaning of that provision. However, the Authority has specifically addressed in two different contexts the relationship between the work of an agency and an employee's performance of representational activities under § 7131(d) of the Statute. In both contexts, the Authority determined that the performance of representational activities does not constitute the "work" of the agency within the meaning of § 7106 of the Statute.

      In considering the meaning of the technology of performing work under § 7106(b)(1), the Authority has held that the performance of representational activities under § 7131(d) does not involve the performance of the work of an agency. See AFGE Council 214, AFL-CIO, 31 FLRA 1259 (1988). The Authority has similarly held that the performance of representational activities does not involve "work" within the meaning of § 7106(a)(2)(B). See, e.g., United States Dep't of Def., Army and Air Force Exchange Serv., Dallas, Tex., [ v60 p23 ] 53 FLRA 20 (1997). We find no reason to construe the term "performs work on a holiday" under § 5546(b) any differently. Accordingly, we find that just as the performance of representational activities does not constitute the "work" of an agency within the meaning of § 7106 of the Statute, the performance of representational activities does not constitute the performance of "work on a holiday" under § 5546(b).

      Moreover, Union representational activities are not considered "work" in other contexts. See NTEU v. Gregg, No. 83-546 (D.D.C. Sept. 28, 1983) (negotiations on behalf of a federal union do not constitute work that can be compensated because it cannot be considered primarily for the benefit of the agency); 60 Fed. Reg. 43,935, 43,937 (1995) (in revising part 430 (Performance Management) of title 5 of the Code of Federal Regulations, OPM rejected a suggestion that union officials be granted presumptive ratings of fully successful; OPM concluded that it would be inappropriate to include the performance of representational activities in an appraisal of employee job performance because the appraisal of an employee must be based solely on the performance of work, duties, and responsibilities that accomplish the agency mission and for which the employee is accountable to the employing agency).

      Consequently, the grievant's performance of representational activities on the Columbus Day holiday cannot be considered "perform[ing] work on a holiday" and cannot be considered compensable for purposes of premium pay. Accordingly, the remedy of compensation of premium pay is deficient as contrary to 5 U.S.C. § 5546(b). Exceptions at 3.

B.     The performance of representational activities on Sundays and holidays is not compensable for purposes of premium pay

      As noted above, the national grievance alleged that the Agency violates the collective bargaining agreement whenever it denies use of official time for union representational activities because the requested day is a Sunday or a holiday. As a remedy, the Union requested that the Arbitrator declare that the Agency's denial of official time on Sundays and holidays violates the parties' collective bargaining agreement. The Arbitrator sustained the grievance.

      Although the national grievance did not seek a particular monetary remedy and the award does not expressly order one, it is clear from both parties' submissions that the parties construe the award as mandating the payment of premium pay for employees who perform only representational duties on Sundays and holidays. In this respect, the Arbitrator's statement that "a binding past practice was established . . . in connection with the payment of the appropriate premium pay for performance of representational duties on Sunday[s] and holidays[]" is consistent with a conclusion that his award directed a remedy of premium pay for performance of representational duties on Sundays and holidays. Award at 8. We agree that the award effectively requires the payment of premium pay for employees who perform only representational duties on Sundays and holidays, and that the exceptions challenge this award. As so construed, we find that the award is deficient.

      For the reasons stated above, the performance of representational activities on a holiday cannot be considered "perform[ing] work on a holiday" and cannot be considered compensable for purposes of premium pay under 5 U.S.C. § 5546(b). Thus, with respect to the national grievance, the award of premium pay for the performance of representational activities on a holiday is similarly deficient.

      The same analysis and conclusion apply with respect to the performance of representational activities on Sundays. Under 5 U.S.C. § 5546(a), an employee who "performs work" on a Sunday during a regularly scheduled 8-hour period of service which is not overtime work as defined by 5 U.S.C. § 5542(a) is entitled to premium pay. However, the performance of representational activities on a Sunday cannot be considered the performance of "work" and cannot be considered compensable for purposes of premium pay under 5 U.S.C. § 5546(a).

      Moreover, this conclusion is further supported by the Agency's appropriations acts. As asserted by the Agency and not disputed by the Union, the Agency's appropriations acts since 1995 have included the following provision:

Provided further, that none of the funds in this Act shall be available for paying premium pay under 5 U.S.C. [§] 5546(a) to any [Agency] employee unless such employee actually performed work during the time corresponding to such premium pay[.]

See United States Dep't of Transportation, Federal Aviation Administration, Washington, D.C., 54 FLRA 584, 585 (1998) (emphasis added). This wording "provides that no funds be used to pay Sunday premium pay to an employee unless the employee actually performs work on Sunday" and "does not by its terms allow any exception to its coverage." Id. at 589. [ v60 p24 ]

      Accordingly, the performance of representational activities on Sundays is not compensable for purposes of premium pay under 5 U.S.C. § 5546(a). As such, the award of premium pay for the performance of representational activities on a Sunday is deficient.

      As noted above, the Arbitrator found a binding past practice in connection with the payment of premium pay for the performance of representational activities on Sundays and holidays. However, the Authority has consistently held that there can be no binding practice that requires the performance of an unlawful or illegal act. See, e.g., United States Dep't of the Treasury, Customs Serv., New Orleans, La., 38 FLRA 163, 174 (1990). Because the payment of premium pay for the performance of representational activities on Sundays and holidays is contrary to law, the Arbitrator's reliance on a past practice cannot support a conclusion requiring the payment of premium pay in these circumstances.

V.     Decision

      The Arbitrator's award is set aside. [n3] 



Footnote # 1 for 60 FLRA No. 7 - Authority's Decision

   5 U.S.C. § 5546, "Pay for Sunday and holiday work," states in relevant part:

(a) An employee who performs work during a regularly scheduled 8-hour period of service which is not overtime work as defined by section 5542(a) of this title a part of which is performed on Sunday is entitled to pay for the entire period of service at the rate of his basic pay, plus premium pay at a rate equal to 25 percent of his rate of basic pay. . . .
(b) An employee who performs work on a holiday . . . is entitled to pay at the rate of his basic pay, plus premium pay at a rate equal to the rate of his basic pay, for that holiday work which is not--
(1) in excess of 8 hours; or
(2) overtime work as defined by section 5542(a) of this title.

Footnote # 2 for 60 FLRA No. 7 - Authority's Decision

   Article 2, Union Recognition and Representation, provides, in pertinent part, as follows:

Section 17. Unless prohibited by operational requirements, each principal Facility Representative shall, on request, be granted the following amounts of official time, per pay period, to prepare for meetings with Management and perform other representational duties.

Footnote # 3 for 60 FLRA No. 7 - Authority's Decision

   In view of this decision, we do not address the Agency's other arguments and the Union's contention that § 2429.5 of the Authority's Regulations bar