21:0069(14)AR - AFGE and SSA -- 1986 FLRAdec AR

 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.