23:0390(55)AR - Wright-Patterson AFB, OH, 2750th Air Base Wing and AFGE Local No. 1138 -- 1986 FLRAdec AR

 23 FLRA No. 55
 
 WRIGHT-PATTERSON AIR FORCE BASE 
 OHIO, 2750TH AIR BASE WING
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL NO. 1138
 Union
 
                                            Case No. 0-AR-1104
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Marian Kincaid Warns filed by the Department of the Air Force
 (the Agency) under section 7122(a) of the Federal Service Labor
 Management Relations Statute and part 2425 of the Authority's Rules and
 Regulations.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    This case involves grievances filed and submitted to arbitration on
 behalf of eight employees covered by the Fair Labor Standards Act
 (FLSA).  The grievants sought overtime compensation for time spent as
 witnesses for the Union attending an arbitration hearing on another
 grievance.  Apparently, two of the eight employees, including the
 grievant in the initial grievance, attended the hearing on official time
 for the period of the hearing when they otherwise would have been in a
 duty status.  However, they remained at the hearing when the hearing
 extended beyond the end of their regularly scheduled duty hours.  These
 two employees claimed overtime compensation for the time spent attending
 the hearing while they were not on official time.  The regularly
 scheduled duty hours of the other six employees were not rescheduled by
 the Activity to coincide with the hearing.  Consequently, these six
 employees attended the hearing during time they were not scheduled to be
 in a duty status and they claimed overtime compensation for the entire
 time spent attending the hearing.
 
    The Arbitrator determined that the Activity had violated the intent
 of the parties' collective bargaining agreement and past practice by not
 rescheduling the worktime of the employees to fully coincide with the
 time of the hearing.  She found that the intent of the parties'
 agreement is that employees appearing as witnesses will not suffer any
 loss of pay, including overtime pay.  Accordingly, the Arbitrator
 sustained the grievances and ordered that the employees be compensated
 at overtime rates or granted compensatory time off for the time spent
 attending the arbitration hearing for which they were not otherwise
 compensated.  Specifically, she ordered that the two employees who had
 attended the hearing on official time be compensated for the time spent
 beyond their regularly scheduled duty hours.  She ordered that the other
 six employees be compensated at overtime rates for the usual number of
 hours of their workday and for any additional time spend attending the
 hearing.
 
                              III.  EXCEPTION
 
    The Agency contends that the award of overtime compensation or
 compensatory time off is contrary to governing law and regulation.
 Specifically, the Agency argues that time spent attending an arbitration
 hearing as a union witness is not hours of work officially ordered or
 approved that constitutes overtime work under the provisions of 5 U.S.C.
 Section 5542(a) for which overtime pay or compensatory time off is
 authorized.  The Agency also argues that such time likewise is not hours
 of work under FLSA, 29 U.S.C. Section 201 et seq., and implementing
 regulations, 5 CFR part 551, subpart D, for which overtime pay or
 compensatory time off is authorized for nonexempt employees.  The Agency
 further maintains as to one of the employees who was also the grievant
 in the initial grievance that 5 CFR Section 551.424(a), providing that
 time spent adjusting grievances shall be considered hours of work, does
 not apply to time spent as a union witness attending an arbitration
 hearing to which the grievant was not a party.  Accordingly, the Agency
 asserts that the award is deficient and should be set aside.  In the
 alternative, the Agency asserts that if the Authority views this matter
 as involving a wrongful denial of official time, the award should be
 modified to provide appropriate compensation at straight-time rates.
 
                       IV.  ANALYSIS AND CONCLUSIONS
 
    We agree with the Agency that the award of overtime compensation is
 contrary to governing law and regulation.  The basis for overtime pay is
 5 U.S.C. Section 5542(a) which provides that all hours of work
 officially ordered or approved in excess of 8 hours in a day or 40 hours
 in an administrative workweek are overtime work entitling the employee
 to overtime compensation or where appropriate under 5 U.S.C. Section
 5543 to compensatory time off.  See, for example, American Federation of
 Government Employees and Social Security Administration, 21 FLRA No. 14
 (1986).  The Authority has specifically held that a union official's
 performance of representational activities on nonduty time, outside
 regular work hours, was not the performance of hours of work officially
 ordered or approved that constituted overtime work for which overtime
 pay or compensatory time off could be granted.  Id.; 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).  On the basis of these decisions, we similarly find in this case
 that time spent attending an arbitration hearing as union witnesses was
 not the performance of hours of work officially ordered or approved that
 constitutes overtime work under section 5542(a) so as to entitle the
 employees to overtime pay or compensatory time off.
 
    Employees, as in this case, who are covered by FLSA are also entitled
 to overtime pay or compensatory time off in accordance with FLSA and
 provisions of 5 CFR part 551 implementing the Act for nonexempt Federal
 employees.  Under these provisions covered employees are entitled to
 overtime compensation or where appropriate compensatory time off for all
 hours of work in excess of 40 in a workweek.  5 CFR Section 551.501(a).
 Under 5 CFR Section 551.401(a), all time spent by an employee performing
 an activity for the benefit of an agency and under the control or
 direction of the agency is "hours of work." In Warner Robins Air
 Logistics Center, Warner Robins, Georgia and American Federation of
 Government Employees, Local 987, 23 FLRA No. 35 (1986), we specificially
 held that time spent by a union representative on nonduty time, outside
 regular work hours, representing an aggrieved employee at a meeting to
 resolve the grievance was not hours of work under 5 CFR Section
 551.401(a).  On the basis of Warner Robins ALC and for the reasons set
 forth in that decision, we similarly find in this case that time spent
 attending the arbitration hearing as union witnesses is not hours of
 work under subsection 401(a) which would entitle the employees to
 overtime pay or compensatory time off under FLSA.
 
    We also agree with the Agency that the one employee who was the
 grievant in the initial grievance was not entitled to overtime pay or
 compensatory time off under 5 CFR Section 551.424(a).  This provision
 provides:
 
          Time spent by an employee adjusting his or her grievance (or
       any appealable action) with an agency during the time the employee
       is required to be on the agency's premises shall be considered
       hours of work.
 
    We find that this provision does not apply to the grievant's
 attendance as a union witness at the arbitration hearing to which he was
 not a party and at which his attendance was not otherwise required.
 This was not time spent by the employee "adjusting his . . . grievance .
 . . during the time the employee is required to be on the agency's
 premises" within the meaning of subsection 424(a).  Consequently, the
 Arbitrator's award of overtime compensation or compensatory time off is
 deficient as to all eight employees as contrary to governing law and
 regulation.
 
    As recognized by the Agency, the Authority has determined that the
 Statute effectively provides a remedy when official time under section
 7131(d) of the Statute is wrongfully denied.  For example, American
 Federation of Government Employees and Social Security Administration,
 21 FLRA No. 14 (1986) (and cases cited in the decision).  Specifically,
 where official time properly authorized by provisions of a collective
 bargaining agreement 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, although the employees were not
 engaged in union representational activities, section 7131(d)(2)
 expressly provides for official time for bargaining-unit employees "in
 connection with any other matter covered by (the Statute)" which clearly
 encompasses testifying as a union witness at an arbitration hearing.
 See U.S. Department of Health and Human Services, Social Security
 Administration and American Federation of Government Employees, AFL-CIO,
 22 FLRA No. 16 (1986);  U.S. Department of Justice, Bureau of Prisons,
 Federal Correctional Institution, Seagoville, Texas and American
 Federation of Government Employees, Council of Prison Locals, Local No.
 1637, 22 FLRA No. 5 (1986).
 
    In this case, the Arbitrator found that it was the intent of the
 collective bargaining agreement and the practice of the Activity to
 reschedule the workday of employees scheduled to be union witnesses at
 an arbitration hearing to coincide with the hearing to enable them to be
 on official time to the extent of their workday.  Thus, the Arbitrator
 found that under the parties' agreement the six employees denied
 official time should have been granted official time for the usual
 number of hours of their shift.  Consequently, the award should have
 granted those six employees compensation for the usual number of hours
 of their shift at the appropriate straight-time rates.  Therefore, the
 award will be modified accordingly.  Compensation at straight-time rates
 is appropriate because the performance of those activities even on
 official time does not constitute overtime work.  As indicated in Warner
 Robins ALC, 23 FLRA No. 35, the key under 5 CFR Section 551.424(b) to
 whether time spent outside regular working hours performing
 representational activities on official time is overtime work is that
 the union official must already have been in an overtime duty status at
 the direction of the agency at the time an event arises which calls for
 the performance of representational functions.  Slip op. at 2 (citing
 NTEU v. Gregg, No. 83-546 (D.D.C. Sept. 28, 1983)).  Apart from the
 consideration of whether 5 CFR Section 551.424(b) applies to official
 time under section 7131(d)(2) rather than (d)(1) alone, the six
 employees concerned were not already in an overtime duty status at the
 direction of the Activity at the time of the arbitration hearing, and,
 therefore, compensation at straight-time rates only is warranted.
 
                               V.  DECISION
 
    For these reasons the award is modified to strike the award to all
 eight employees of overtime compensation or compensatory time off and to
 substitute for the last sentence of paragraph 2 of the award the
 following remedy for the wrongful denial of official time to the six
 employees whose workdays were not rescheduled by the Activity:
 
          Each of the six employees who attended the arbitration hearing
       as union witnesses entirely outside regularly scheduled duty hours
       shall be compensated for the usual number of hours of their shift
       at appropriate straight-time rates.
 
    Issued, Washington, D.C., September 23, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY