[ v21 p69 ]
21:0069(14)AR
The decision of the Authority follows:
21 FLRA No. 14
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
Union
and
SOCIAL SECURITY ADMINISTRATION
Agency
Case No. 0-AR-983
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on exceptions to the awards of
Arbitrator Justin C. Smith 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 Union filed an opposition.
/1/
II. BACKGROUND AND ARBITRATOR'S AWARD.
According to the record before the Authority, this case involves the
dispute submitted by the parties to the Arbitrator concerning official
time for representational activities in the Agency's field offices. By
agreement of the parties, a bifurcated arbitration process was set up to
resolve this dispute that had resulted in numerous grievances. The
first phase of this process involved the interpretation of the official
time provisions of the Statute and the parties' collective bargaining
agreement and resulted in an interim award, later made final by the
Arbitrator, resolving the proper interpretation and application of the
Statute and the agreement to various disputed situations over which
grievances were pending. /2/ The second phase of the process involves
hearings by the Arbitrator to resolve, by bench decisions when
practicable, specific grievances pending in various regions of the
Agency. The exceptions in this case have been filed to all the bench
decisions of the Arbitrator rendered on April 29, 1985, that sustained
grievances and awarded as a remedy compensatory time off or overtime
compensation. In terms of these decisions, the Arbitrator had generally
ruled with respect to the situations of the specific grievances
sustained by his bench decisions that in such circumstances, the denial
of official time for purposes of representational activities to union
officials was in violation of the parties' agreement which had been
negotiated consistent with the Statute. With respect to each bench
decision as to which exceptions have been filed, the Arbitrator
specifically sustained in accordance with his prior awards the
individual grievance claiming a wrongful denial of official time and
awarded compensatory time off or overtime compensation to correspond
with the amount of time spent by the union official to perform the
representational activities.
III. FIRST EXCEPTION
A. Contention
In its first exception, the Agency contends that the bench awards are
arbitrary and capricious because they directly conflict with the prior
interim and final award of the Arbitrator.
B. Analysis and Conclusion.
The Authority finds that the portion of the prior awards cited by the
Agency relates to travel and per diem and not to the wrongful denial of
official time for purposes of representational activities. Accordingly,
this exception provides no basis for finding the award deficient and
must be denied.
IV. SECOND EXCEPTION
A. Contention
In its second exception the Agency contends that the bench awards
fail to draw their essence from the collective bargaining agreement.
Specifically, the Agency argues that because the grievances pertain to
nonduty time of the union official grievants, they are not within the
definition of grievance under the agreement limiting grievances to
matters relating to employment.
B. Analysis and Conclusion
The Authority finds that the exception fails to establish that the
matter of the wrongful denial of official time does not relate to
employment. Accordingly, this exception must be denied.
V. THIRD EXCEPTION
A. Contention
In its third exception, the Agency contends that the award of either
compensatory time off or overtime compensation is contrary to the
provisions of 5 U.S.C. 5542(a) pertaining to overtime work.
B. Analysis and Conclusion
As the Authority has previously indicated, the legal basis for
ovetime pay is the performance by an employee of overtime work which
means "hours of work officially ordered or approved" in excess of eight
hours in a day or in excess of 40 hours in an administrative workweek. 5
U.S.C. 5542(a). Similarly, the legal basis for granting compensatory
time off arises under 5 U.S.C. 5543 as a result of overtime work
performed by an employee. In this regard, the Authority has
specifically held that a union official's performance of
representational activities on nonduty time (i.e., outside regular work
hours) was not the performance of "hours of work officially ordered or
approved" that constituted overtime work under the governing provisions
of section 5542(a) for which overtime pay or compensatory time off could
be granted. Social Security Administration and American Federation of
Government Employees, AFL-CIO, 19 FLRA No. 104 (1985); Social Security
Administration and American Federation of Government Employees, Local
1164, AFL-CIO, 19 FLRA No. 4 (1985). In both of these cases, the
overtime work provisions of section 5542(a) were determined to govern
and provisions relating to hours of work under the Fair Labor Standards
Act of 1935, as amended, 29 U.S.C. 201 et seq., were not considered
because it was not contested that the union officials were employees
exempt from coverage under FLSA. See generally 5 CFR Part 551 (Pay
Administration Under the Fair Labor Standards Act). In terms of this
case, it is apparent that the bench awards involved employees who also
are exempt from FLSA. /3/ Accordingly, the Authority similarly finds
that the bench awards in this case are deficient to the extent they have
awarded compensatory time off or overtime compensation and that
therefore they must be modified to substitute the entitlements provided
by the Statute.
The Authority has previously indicated that section 7131(d) of the
Statute /4/ expressly authorizes the parties to negotiate for the
granting of official time for the performance of the specified
representational activities and that the Statute effectively provides a
remedy when official time under section 7131(d) is wrongfully denied.
Specifically, the Authority determined that where official time,
authorized by the official time provisions of a collective bargaining
agreement consistent with section 7131(d) of the Statute, is wrongfully
denied and representational functions are thereafter performed on
nonduty time, section 7131 (d) entitles the aggrieved employee to be
paid for the amount of time that should have been official time. SSA,
19 FLRA No. 104; U.S. Department of the Air Force, Headquarters
Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and
American Federation of Government Employees, Local 916, 19 FLRA No. 105
(1985); Social Security Administration and American Federation of
Government Employees, AFL-CIO, Local 3231, 19 FLRA No. 109 (1985);
Local 1164, American Federation of Government Employees, AFL-CIO and
Social Security Administration, Boston Region, 19 FLRA No. 10 (1985).
In terms of this case, as has been noted, the Arbitrator with respect to
each bench decision essentially found that the denial of official time
was in violation of the parties' collective bargaining agreement which
had been negotiated consistent with the Statute. Thus, the Arbitrator
effectively found that all the conditions of section 7131(d) had been
met. Consequently, under the decisions of the Authority, the bench
awards should have granted the grievants compensation for the amount of
time spent performing union representational activities on nonduty time
which the Arbitrator ruled should have been performed on official time.
VI. DECISION
Accordingly, for the above reasons, the bench awards are modified by
substituting for the respective number of hours of overtime compensation
or compensatory time off an equal number of hours of compensation at the
appropriate straight-time rate. deficient.
Issued, Washington, D.C., March 14, 1986
--------------- FOOTNOTES$ ---------------
/1/ In its opposition the Union contends that the exceptions should
be dismissed as untimely. However, contrary to the Union's contention,
the Authority has determined that the exceptions were timely filed under
the statute and the Authority's Rules and Regulations.
/2/ Exceptions filed by the Agency to this interim award and the
related final award previously have been denied by the Authority. Case
No. D-AR-738 (Oct. 31, 1984); Case No. 0-AR-969 (Sept. 16, 1985).
/3/ In this regard the Agency's exception implicitly presumes that
the union officials involved in the bench decisions of April 29, 1985,
are exempt from coverage under FLSA, and the Union in its opposition
indicates that the union officials involved are exempt employees. Union
Opposition at 10.
/4/ Section 7131(d) provides:
(d) Except as provided in the preceding subsections of this
section--
(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 of the Statute.