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The decision of the Authority follows:
21 FLRA No. 80 Case No. 0-NG-678 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, NATIONAL EPA COUNCIL Union and ENVIRONMENTAL PROTECTION AGENCY Agency Case No. 0-NG-678 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of the following two Union proposals which relate to official time, overtime compensation, and travel and per diem for employees representing the Union in negotiations. Union Proposal 1 The employer agrees to provide official time, including travel and per diem costs, for three union representatives to prepare union counter proposals and other negotiations related duties for the union during actual negotiations. These representatives will not be negotiators for the union. Union Proposal 2 EPA employees who are union negotiators will receive the same type of compensation, compensatory time or overtime, as does management where negotiations extend beyond normal duty hours. II. Positions of the Parties According to the Union, Union Proposal 1 is in response to the Agency's history of consistently limiting its negotiating team to one person. Consequently, under section 7131(a) of the Statute, the Union's entitlements as to official time have been limited to one negotiation team member. Union Proposal 1 is intended to allow official time, travel and per diem for an additional three representatives who will be available to provide support (e.g., preparation of counter proposals, research and clerical functions) to the Union team during negotiations. The Agency argues that employees representing unions in negotiations may receive only the amount of official time to which they are entitled under section 7131(a) of the Statute. Because Union Proposal 1 would exceed that amount, the Agency argues that it is outside the duty to bargain. As to the question of travel and per diem, the Agency argues that the Supreme Court's decision in Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89 (1983) (BATF) requires a conclusion that the subject is not within the duty to bargain. Regarding Union Proposal 2, the Agency contends that neither the Statute nor the laws governing payment for overtime permit overtime compensation for employees representing a union in negotiations. The Union disputes the Agency's contentions. It asserts that the official time aspect of Union Proposal 1 is negotiable under section 7131(d) of the Statute. It contends that the travel and per diem aspect concerns a negotiable condition of employment and is not inconsistent with statute. Concerning Union Proposal 2, the Union argues that employees on official time are eligible for overtime compensation under the laws which govern overtime in the Federal sector. Therefore, even if they are not actually entitled to overtime compensation, the subject is within the Agency's obligation to bargain. III. Analysis and Conclusions A. Negotiation of Additional Official Time The Authority has found that official time, beyond that authorized under section 7131(a), for employees who are participating in negotiations on behalf of the union in a support capacity is negotiable under section 7131(d). National EPA Council, American Federation of Government Employees, AFL-CIO and Environmental Protection Agency, 16 FLRA 625 (1984). Based on the reasons set forth in that case, the Authority finds that aspect of Union Proposal 1 which concerns official time within the duty to bargain. B. Negotiation of Travel and Per Diem In National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 21 FLRA No. 2 (1986) the Authority took the BATF decision into consideration in deciding the question of the negotiability of travel and per diem. Contrary to the Agency's arguments, BATF does not compel a conclusion that the issue of payment by an agency of otherwise appropriate and proper travel expenses for employees on official time pursuant to section 7131 is outside the duty to bargain. The Authority notes particularly that there is nothing in the proposal or the submissions of the parties which indicates that the travel and per diem provisions of Union Proposal 1 are to be applied in any manner which is inconsistent with governing legal and regulatory provisions. Therefore, the Authority concludes, based on its reasoning set forth in the Customs Service case, that the travel and per diem provisions in Union Proposal 1 are within the duty to bargain. C. Negotiability of Overtime Compensation The Statute and its legislative history are silent on the subject of overtime compensation for employees who are on official time pursuant to section 7131. Consequently, the various statutory provisions which relate to overtime compensation of Federal employees control the issue raised by Union Proposal 2. Those relevant provisions are: (1) 5 U.S.C. 5542, 5543 - overtime compensation for General Schedule employees; (2) 5 U.S.C. 5544 - overtime compensation for prevailing rate employees; and (3) Fair Labor Standards Act, as amended, 29 U.S.C. 201 et seq. - overtime compensation for certain Federal employees. These provisions basically authorize overtime compensation for "work" in excess of 8 hours per day and/or 40 hours per week. The question then is whether representational activities performed on behalf of a union are "work." In addressing this question, the Authority held in Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 21 FLRA No. 74 (1986), that representational activities performed by employees outside the normal workday do not constitute the performance of hours of work within the meaning of 5 U.S.C. Section 5542. In that case the Authority relied on NTEU v. Gregg, No. 83-546, slip op. at 4-5 (D.D.C. Sept. 28, 1983), in which the district court held that, in order for activities to be considered "work" under 5 U.S.C. Section 5542 and the Fair Labor Standards Act, they must be primarily for the benefit of the agency. The same standard has been applied to determining what constitutes "work" under 5 U.S.C. Section 5544. 60 Comp. Gen. 431, 433 (1981). In NTEU v. Gregg the court specifically ruled that representational activities performed on behalf of a union did not meet the required standard and, therefore, did not make a General Schedule employee eligible for overtime compensation. Because the standards are the same, the same conclusion must be reached with respect to the prevailing rate overtime provisions. The Authority therefore concludes that payment for overtime for union representational activity is not consistent with law. Additionally, the Authority concludes that representational activity does not make an employee eligible for compensatory time off. In order to be eligible for compensatory time off, a General Schedule employee must be eligible for overtime pay. In Social Security Administration and American Federation of Government Employees, Local 1164, AFL-CIO, 19 FLRA No. 4 (1985), the Authority rejected a portion of an arbitrator's award which ordered that compensatory time off be given for time spent outside a normal work day in representational activity because it was inconsistent with the General Schedule overtime provisions contained in 5 U.S.C. 5542, 5543. See also Patent and Trademark Office, supra. Similarly, under the Fair Labor Standards Act, compensatory time off may in some circumstances be granted in lieu of overtime pay. 5 CFR Section 551.531. Prevailing rate employees have no eligibility for compensatory time off whatsoever, but must be paid for overtime work. Federal Personnel Manual, FPM Supplement 532-1, Subchapter 8, S8-4(b)(10). Thus, there is no legal authorization to pay overtime or allow compensatory time off to employees engaged in representational activities on behalf of a union. Therefore, Union Proposal 2 conflicts with Federal statute and is not within the duty to bargain. IV. Order Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning Union Proposal 1. /*/ IT IS FURTHER ORDERED that the Union's petition for review insofar as it relates to Union Proposal 2 be, and it hereby is, dismissed. Issued, Washington, D.C., May 8, 1986 /s/ JERRY L. CALHOUN Jerry L. Calhoun, Chairman /s/ HENRY B. FRAZIER III Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (*) In finding this proposal within the duty to bargain the Authority makes no judgment as to its merits.