Warner Robins Air Logistics Center and AFGE Local 987 (Authority decision, August 19, 1986)

Final FLRA decision. The Authority denies the union's exception to the arbitration award. The order concerns an arbitration award. Under 5 U.S.C. § 7123(a)(1), ordinary judicial review of an Authority arbitration order is generally unavailable unless it involves an unfair labor practice under § 7116.

Plain-English summary

A union representative attended a grievance meeting after his scheduled shift ended and sought overtime pay. The arbitrator found that the activity did not have to reschedule the meeting and denied the overtime claim. The Authority upheld the award. It found that the representative attended to help the employee who filed the grievance, rather than primarily for the agency's benefit, and was not already in an overtime duty status at management's direction. His after-hours attendance therefore did not qualify for overtime under the cited Fair Labor Standards Act rules.

Decision snapshot

• Authority: Overtime work under 5 C.F.R. §§ 551.401(a) and 551.424(b).
• Outcome: Union's exception denied; no overtime pay awarded.
• Key point: After-hours union representation did not become agency-directed overtime work solely because management kept the meeting time.

Full text (FLRA public release)

[ v23 p270 ]

23:0270(35)AR

The decision of the Authority follows:

23 FLRA No. 35

WARNER ROBINS AIR LOGISTICS CENTER
WARNER ROBINS, GEORGIA
Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 987
Union

Case No. 0-AR-1068

DECISION

I. STATEMENT OF THE CASE

This matter is before the Authority on an exception to the award of Arbitrator Cary J. Williams filed by the Union 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

The grievance in this case concerns the scheduling of a grievance procedure meeting involving a separate dispute. The meeting under step 2 of the negotiated grievance procedure for that dispute was scheduled in advance for a specific day to commence at the beginning of the aggrieved employee's work shift. The union representative assigned to represent the employee was scheduled for the earlier shift on the day of the meeting. Consequently, he requested that the time of the meeting and the aggrieved employee's work shift be changed to coincide with his work shift or that he be paid overtime compensation for the time spent attending the meeting. The Activity refused and the meeting was held with the union representative attending after his workday had ended. The union representative filed the grievance in this case that was submitted to arbitration on the issue of whether the refusal to reschedule the meeting violated the collective bargaining agreement and, if not, whether the union representative should have been paid overtime compensation for the time attending the meeting. The Arbitrator determined that it was not unreasonable for the Activity to maintain the meeting schedule to accommodate the assigned work shift of the aggrieved employee. He also noted that the meeting was scheduled after the regular workday of management representatives as well as the union representative. He determined that the representative was not entitled to overtime compensation for the time attending the meeting and, accordingly, denied the grievance.

III. EXCEPTION

The Union contends that the award is contrary to the provisions of the Fair Labor Standards Act (FLSA), as amended, 29 U.S.C. Section 201 et seq. and 5 CFR part 551, subpart D. The Union argues that the time spent by the union representative at the meeting constituted "hours of work" for purposes of entitlement to overtime compensation because the meeting was primarily for the benefit of the Activity and was directed and controlled by the Activity.

IV. ANALYSIS AND CONCLUSIONS

We conclude that the Union fails to establish that the award denying entitlement to overtime compensation is contrary to FLSA and implementing regulations. In NTEU v. Gregg, No. 83-546 (D.D.C. Sept. 28, 1983), the court addressed the issue of whether Federal employees engaged in collective bargaining were entitled to overtime compensation for weekend negotiations when they were not otherwise in a duty status. The employees asserted that the failure to pay them overtime compensation for the weekend negotiations violated FLSA. Specifically, they argued that they were entitled to overtime compensation for having worked longer than 40 hours during a single workweek. 29 U.S.C. Section 207(a). The court noted that for purposes of FLSA, "hours of work" is defined as "all time spent by an employee performing an activity for the benefit of an agency and under the control or direction of the agency." 5 CFR Section 551.401(a). The court further noted that "official time" granted an employee by an agency to perform representational functions during the hours when the employee is otherwise in a duty status shall be considered hours of work. 5 CFR Section 551.424(b). The court explained that the key to whether time spent performing representational functions outside regular working hours is overtime work is that the employee representative 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. Gregg, slip op. at 7, 11. Under these provisions the court concluded that the employees were not entitled to overtime compensation under FLSA. The court ruled that the activities in which the employees were engaged on the weekend "cannot be considered primarily for the benefit of the agency." To the court, their responsibilities during these negotiations were to represent on behalf of the union the employees in the bargaining unit in collective bargaining negotiations with the employing agency; they were in no way charged with any other responsibilities. Slip op. at 5. The court also ruled that because the employees were not already in an overtime duty status on the weekend in question, there was no entitlement to overtime compensation under 5 CFR Section 551.424(b). As stated by the court, the employees' participation in the negotiations was not required by the agency, but was required because of their role as officers and negotiators for the union. Slip op. at 7.

Applying NTEU v. Gregg to this case, we find that the union representative was not entitled to overtime compensation under FLSA. The activities of the grievant cannot be considered primarily for the benefit of the Activity; his responsibilities during the grievance meeting were to represent the employee who had filed the grievance. Additionally, because the grievant in this case was not already in an overtime duty status at the direction of the Activity at the time of the grievance meeting in dispute, there was no entitlement to overtime compensation under 5 CFR Section 551.424(b). His participation was not required by the Activity, but was required by his assignment to the case by the local union president. Therefore, no basis is provided for finding the award deficient.

V. DECISION

Accordingly, the Union's exception is denied.

Issued, Washington, D.C., August 19, 1986.
/s/ Jerry L. Calhoun
Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY