[ v22 p154 ]
22:0154(16)AR
The decision of the Authority follows:
22 FLRA No. 16
U.S. DEPARTMENT OF HEALTH AND HUMAN
SERVICES, SOCIAL SECURITY ADMINISTRATION
Agency
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Union
Case No. 0-AR-1077
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on exceptions to the award 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 rRegulations. The Union filed an opposition.
/1/
II. BACKGROUND AND ARBITRATOR'S AWARD
According to the record before the Authority, this case involves a
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 two-phase arbitration process was
established to resolve the basic dispute and the resulting numerous
individual grievances. The first phase of the process involved the
interpretation of the official time provisions of the Statute and the
parties' collective bargaining agreement. In the second phase, the
Arbitrator held hearings to resolve, by bench decisions when
practicable, specific grievances pending in the various regions of the
Agency. The exceptions in this case have been filed to bench decisions
of the Arbitrator rendered on December 2, 1985. In those decisions, the
Arbitrator generally ruled that by denying official time and related
travel and per diem expenses for union officials for the
representational purposes involved, the Agency violated the parties'
agreement, which had been negotiated consistent with the Statute.
Specifically, the Arbitrator sustained the individual grievances and
awarded reimbursement for wrongfully denied official time at appropriate
straight-time rates for the time spent by the grievants in performing
the representational activities. He also awarded travel and per diem
expenses.
III. FIRST EXCEPTION
A. Contentions The Agency excepts to the Arbitrator's award of
travel and per diem expenses to Union representative Reiter for
preparation prior to the future arbitration hearings to be held in the
Agency's various regions. They Agency argues that the Arbitrator
exceeded his authority by accepting and ruling on a prospective claim,
that the bench award is a capricious departure from an earlier award
rendered by the Arbitrator, and that the Arbitrator's authority to
resolve issues of travel and per diem expenses was terminated by the
parties' execution of a memorandum of understanding which in effect
provided official time would be allowed consistent with past practice.
B. Analysis and Conclusions
The Authority has previously held that an agency may exercise,
through negotiations, its discretion to determine whether travel
attendant to labor-management relations activities is sufficiently
within the interest of the United States so as to constitute official
business for the purposes of reimbursement of related travel expenses.
National Treasury Employees Union and Department of the Treasury, U.S.
Customs Service, 21 FLRA No. 2, slip op. at 6 (1986), petition for
review filed sub nom. Department of the Treasury, U.S. Customs Service
v. FLRA, No. 86-1198 (D.C. Cir. Mar. 27, 1986). In this case, the
Arbitrator effectively determined that the Agency agreed to pay the
travel and per diem expenses related to the labor-management relations
activities covered by the official time provision of the parties'
agreement. Thus, the Agency's arguments constitute nothing more than
disagreement with the Arbitrator's interpretation of the parties'
agreement and do not provide a basis for finding the award deficient.
The Philadelphia Regional Office, District Office Operations, Social
Security Administration and American Federation of Government Employees,
AFL-CIO, Local 3186, 15 FLRA 211 (1984). However, any payment of travel
and per diem expenses must be consistent with the provisions of the
Federal Travel Regulations (FTRs). /2/ In this case, the Arbitrator in
directing the payment of travel and per diem expenses in connection with
the covered activities did not provide for the Agency to determine the
propriety of particular travel and per diem expenses under the FTRs.
Consequently, the Authority must modify the award to assure that it is
consistent with the requirements of the FTRs. See National Treasury
Employees Union and NTEU Chapter 224 and Office of Hearings and Appeals,
Social Security Administration, 21 FLRA No. 49 (1986).
IV. Second Exception
A. Contentions
The Agency contends that the Arbitrator's awards of official time are
contrary to law on three grounds.
1. The Agency argues that the Arbitrator's awards ordering
compensation at the appropriate straight-time rates for time spent
performing representationals functions outside duty hours are contrary
to law because a prerequisite to an award of compensation for a denial
of official time is that there be a request for official time. Since
there were no requests for official time, the Agency could not have made
wrongful denials and the remedy ordered by the Arbitrator is not
authorized in the circumstances of this case. The Agency further argues
that certain of the grievants to whom the Arbitrator awarded
compensation had 100 percent of their duty time approved for union
representational activities and were thus ineligible for compensation.
Lastly, the Agency contends that 5 U.S.C. sections 5542 and 5543
precluded the remedy ordered by the Arbitrator.
2. The Agency argues that the portion of the Arbitrator's award in
which he ordered that Union representative DeJulius would not be
required to travel during nonduty hours is contrary to law in that it
seeks to establish a contractual right for all future travel to be
scheduled during normal working hours.
3. The Agency argues that the Arbitrator's award of official time to
grievants Larmer and Rupp are contrary to law because neither are union
representatives.
B. Analysis and Conclusions
With respect to the three grounds asserted by the Agency in this
exception for finding the award contrary to law, the Authority finds as
follows:
1. The Authority has previously indicated that section 7131(d) of
the Statute /3/ 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. Social
Security Administration and American Federation of Government Employees,
AFL-CIO, 19 FLRA No. 104 (1985); 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.
110 (1985). In 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, the Agency has failed to establish
that the bench awards granting 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 are contrary to law. Accordingly, this exception must be denied.
2. The Authority finds that the Agency has failed to establish that
the Arbitrator's award is contrary to law. In this regard, 5 U.S.C.
section 6101(b)t ) requires agencies to schedule employee travel during
hours of duty "to the maximum extent practicable." Thus, in his award
the Arbitrator was merely requiring the Agency "to the maximum extent
practicable" to schedule Union representative DeJulius' future travel
during normal working hours consistent with section 6101(b)(2).
Accordingly, this exception must be denied.
3. The Authority finds that the Agency has failed to establish that
the Arbitrator's award is deficient as alleged. In a recent decision,
American Federation of Government Employees and Social Security
Administration, 21 FLRA No. 14 (1986), the Authority reiterated its
previous indications that section 7131(d) of the Statute expressly
authorizes parties to negotiate for the granting of official time for
the performance of specified activities and that the Statute effectively
provides a remedy when official time under section 7131(d) is wrongfully
denied. Thus, where official time, authorized by provisions of a
collective bargaining agreement consistent with section 7131(d) of the
Statute, is wrongfully denied and the covered activities 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. In this case, while the grievants were not engaged in
union representational activities, section 7131(d)(2) of the Statute
expressly provides for official time for bargaining unit employees "in
connection with any other matter covered by this chapter." The
Arbitrator by his award effectively found the dispute was a "grievance"
covered by the Statute and that under the parties' agreement grievant
Larmer was entitled to official time and grievant Rupp was entitled to
restoration of annual leave and that therefore the conditions of section
7131(d) had been met. Accordingly, this exception must be denied.
V. 0THER EXCEPTIONS
A. Contentions
In numerous other exceptions, the Agency essentially contends that:
(1) the bench awards are a capricious departure from the earlier final
award of the Arbitrator; (2) the Arbitrator exceeded his authority by
ruling on claims that were not part of the grievance before him; (3)
the Arbitrator extended his remedy to nongrievants; and (4) the
Arbitrator conducted himself and the hearing in an arbitrary and
capricious manner.
B. Analysis and Conclusions
The Authority finds that the Agency has failed to establish that the
Arbitrator's award is in any way deficient. It is clear that the Agency
is attempting to relitigate the merits of the case before the Authority
and that the thrust of the Agency's assertions essentially constitutes
nothing more than disagreement with the Arbitrator's findings of fact
and his specific reasoning and conclusions based on the evidence and
testimony before him, and generally with his interpretation and
application of the parties' agreement. Consequently, the exceptions do
not provide any basis for finding the award deficient. See Federal
Correctional Institution, Petersburg, Virginia and American Federation
of Government Employees, Local 2052, Petersburg, Virginia, 13 FLRA 108
(1983).
VI. DECISION
Accordingly, pursuant to section 2425.4 of the Authority's Rules and
Regulations and for the reasons stated above, the Agency's exceptions
are denied but the award directing payment of travel and per diem
expenses to Union representative Reiter is modified to provide that Ms.
Reiter is entitled to payment of travel and per diem expenses for
preparation prior to future arbitration hearings insofar as consistent
with applicable requirements of the Federal Travel Regulations.
Issued, Washington, D.C., June 13, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) In its opposition the Union contends that several of the
exceptions should be dismissed as untimely. However, except for the
Agency's exception to the award of travel and per diem expenses to Union
representative Teefy, the Authority has determined that the exceptions
were timely filed under the Statute and the Authority's Rules and
Regulations. The Authority has determined that on September 18, 1985,
the Arbitrator issued a bench award on the issue of Mr. Teefy's travel
and per diem expenses. Therefore, under section 7122(b) of the Statute
and section 2425.1 of the Authority's Rules and Regulations, any
exceptions to the bench award had to be filed no later than the close of
business on October 17, 1985. However, the exceptions were not filed
with the Authority until December 31, 1985. Accordingly, as the
Agency's exception in this respect was untimely filed, it is dismissed.
(2) The FTRs, 41 CFR part 101-7, have been held to be Government-wide
rules or regulations within the meaning of the Statute. National
Federation of Federal Employees, Local 29 and U.S. Army Engineer
District, Kansas City, Missouri, 13 FLRA 23, 24 (1983).
(3) 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.