19:0043(4)AR - SSA and AFGE Local 1164 -- 1985 FLRAdec AR

[ v19 p43 ]
The decision of the Authority follows:

 19 FLRA No. 4
                                            Case No. O-AR-433
    This matter is before the Authority on exceptions to the award of
 Arbitrator Marcia L. Greenbaum filed by the Agency under section 7122(a)
 of the Federal Service Labor-Management Relations Statute and part 2425
 of the Authority's Rules and Regulations.
    The parties submitted to arbitration the issue of whether the Agency
 violated the collective bargaining agreement when it only partially
 granted a union official's request for 187 3/4 hours of official time to
 prepare two briefs in an arbitration case in which the grievance had
 been filed on behalf of a probationary employee challenging his
 separation for unsatisfactory performance.  The Arbitrator determined
 that the Agency had violated the agreement and as a remedy ordered in
 part that the Agency provide compensatory time off for the 115 3/4 hours
 the union official spent outside his normal workday preparing the
    In its exceptions the Agency contends that the Arbitrator's award of
 115 3/4 hours of compensatory time off is contrary to law and therefore
 exceeded her authority.  The Authority agrees.
    As the Authority has repeatedly indicated, the legal basis for
 granting compensatory time off arises under the provisions of 5 U.S.C.
 5543 as a result of overtime work performed by an employee.  E.g.,
 Social Security Administration, Denver, Colorado and American Federation
 of Government Employees, Local 1802, AFL-CIO, 8 FLRA 89 (1982).
 However, the union official's performance outside his workday of
 representational functions attendant to a grievance arbitration matter
 was not the performance of "hours of work officially ordered or
 approved" that constituted overtime work under the governing provisions
 of 5 U.S.C. 5542(a) /1/ for which overtime pay or compensatory time off
 could be granted.  Cf. NTEU v. Gregg, No. 83-546, slip. op. at 4-5
 (D.D.C. Sept. 28, 1983) (rejecting the claim of plaintiff federal
 employees asserting that they were entitled to overtime compensation for
 "hours of work officially ordered or approved" under 5 U.S.C. 5542(a)
 while engaged in weekend labor negotiations).  Therefore, the
 Arbitrator's award of 115 3/4 hours of compensatory time off is
 deficient as contrary to law and in excess of her authority.  See Air
 Force Logistics Command, Wright-Patterson Air Force Base and American
 Federation of Government Employees, Local 1138, 15 FLRA No. 95 (1984).
    Moreover, no basis is presented in the circumstances of this case for
 a remedy under the official time provisions of section 7131(d) of the
 Statute.  /2/ In this regard, the Authority has held that coverage by a
 negotiated grievance procedure of a grievance concerning the separation
 of a probationary employee is precluded by governing law and regulation
 and that therefore the denial of official time to the probationary
 employee's union representative for a grievance challenging the
 employee's separation cannot be contrary to the Statute.  Thus, in these
 circumstances there is no entitlement to official time.  See Director of
 Administration, Headquarters, U.S. Air Force, 17 FLRA No. 58 (1985),
 slip op. at 4-5.
    For these reasons, the Agency has established that the award of
 compensatory time off is deficient, and accordingly the award is
 modified by striking the provision of 115 3/4 hours of compensatory time
 off.  Issued, Washington, D.C., July 11, 1985
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ Section 5542(a) governs this case because it is not contested
 that the union official is an employee exempt from coverage under the
 Fair Labor Standards Act.
    /2/ Section 7131(d) provides:
          (d) Except as provided in the preceding subsections of this
          (1) any employee representing an exclusive representative, or
          (2) in connection with any other matter covered by this
       chapter, any employee in an appropriate unit represented by an
       exclusive representative,
          shall be granted official time in any amount the agency and the
       exclusive representative involved agree to be reasonable,
       necessary, and in the public interest.