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52:0376(35)AR - - HHS, SSA, New York Region and AFGE, Council 220 - - 1996 FLRAdec AR - - v52 p376

[ v52 p376 ]
The decision of the Authority follows:

52 FLRA No. 35















September 30, 1996


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Herbert L. Haber filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator awarded straight-time compensation to specified Union officials for official time activities performed outside their regular duty hours.

We conclude that the award of compensation is contrary to the Statute, and we strike that award.

II. Background and Arbitrator's Award

The parties consolidated seven grievances claiming compensation for Union officials on 100 percent official time who performed official time activities outside their regularly scheduled duty time. The grievances were submitted to arbitration on the issue of whether the Agency was justified under Article 30, Section 6B of the parties' collective bargaining agreement in denying them compensation.(2) The Union argued that, under Authority case law, union officials are entitled to straight-time compensation for all official time activities performed outside their regular duty time. The Agency maintained that payment of straight time under Section 6B is limited to situations where management wrongfully denies official time for performing activities during regular duty hours and those activities are performed on nonduty time.

The Arbitrator ruled that if official time activities are properly performed on nonduty time, a union official is entitled to straight-time compensation. He rejected the Agency's claim that Authority case law limits the remedy to wrongful denials of official time to perform activities during regular duty time, relying on Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL-CIO, 26 FLRA 12, reconsideration denied, 26 FLRA 781 (1987) (SSA). However, he restricted this remedy to situations where official time activities were reasonably required to be performed on nonduty time.

Four of the grievances involved travel time incidental to the performance of official time activities that occurred outside regularly scheduled duty time. The Arbitrator found that the travel time was necessary and not within the control of the traveler and sustained these grievances. The Arbitrator also granted another Union official straight-time compensation for time spent at a hearing that extended beyond his regular duty time and for his travel time back to his duty station. The Arbitrator denied all other claims.

III. Exceptions

A. Agency's Contentions

The Agency contends that an award of compensation for official time activities performed on nonduty time is justified only if both of the following findings are made: (1) management wrongfully denied a request for official time for activities to be performed during duty time; and (2) the activities were performed on nonduty time. The Agency asserts that there is no provision of law or regulation that permits compensating union officials for performing official time activities beyond the official's regular 8 hours of compensation. The Agency maintains that because these findings were not made, and could not be made, the award is deficient as: (1) contrary to law and regulation; (2) based on a nonfact; and (3) failing to draw its essence from the agreement.

B. Union's Opposition

The Union contends that the award is not deficient because Authority case law supports an award of straight-time compensation for the performance of official time activities on nonduty time. The Union maintains that the Arbitrator found that the Agency wrongfully denied official time when it did not grant additional official time to cover the performance of official time activities outside regular duty time. As did the Arbitrator, the Union relies on the Authority's decision in SSA.

IV. Analysis and Conclusions

In U.S. Department of Health and Human Services, Social Security Administration, New York Region and American Federation of Government Employees, Local 3369, 52 FLRA No. 30 (1996) (New York Region), we applied longstanding Authority precedent that wrongful denials of official time justify compensation only where official time activities would have been performed on nonduty time, but for management's denial of the official time request. Slip op. at 3-4. We held that to the extent that SSA found a wrongful denial of official time where the official time activities would not otherwise have been performed during duty time, the decision is inconsistent with otherwise uniform Authority precedent on this issue and would no longer be followed. Id. at 4 n.4. In addition, we found that the union's reliance on previous Authority statements that section 7131(d) does not require an employee to be in a duty status to be entitled to official time was misplaced. In the cases in which those statements were made, the grievants performed official time activities on nonduty time because their requests to perform the activities on duty time had been denied. Id. In New York Region, there was no such denial, and, as each grievant was on 100 percent official time, there could have been no such denial. Id. Accordingly, we concluded that the arbitrator's award of straight-time compensation was contrary to the Statute.

In this case, the Arbitrator found no denial by management of any request to perform official time activities during the scheduled duty hours of any of the grievants. Moreover, as each grievant was on 100 percent official time, there could be no such denial. See id. Accordingly, we conclude that the Arbitrator's award of straight-time compensation is contrary to the Statute, and we strike that remedy from the award.(3)

V. Decision

The remedy of straight-time compensation is struck from the award.

(If blank, the decision does not have footnotes.)

1. During the pendency of this case, the Social Security Administration, previously an agency within the U.S. Department of Health and Human Services, was established as an independent agency.

2. Article 30, Section 6B provides:

The parties agree that official time is not appropriate for use by a Union representative for work performed at home or outside the time the Union representative would otherwise be in a duty status. This section is not intended to preclude a remedy of straight time in accordance with case law.

Award at 3.

3. In view of this decision, we do not need to address the Agency's other exceptions to the award.