U.S. Department of Health and Human Services, Social Security Administration, New York Region and American Federation of Government Employees, Local 3369 (Authority decision, September 30, 1996)

Final FLRA decision. The Authority strikes the arbitrator's award of straight-time pay for union officials' activities outside their regular duty hours. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award is generally excluded from judicial review unless it involves an unfair labor practice under 5 U.S.C. § 7116. This decision does not address an unfair labor practice.

Plain-English summary

Two union officials performed official-time activities connected with a trip from New York to Washington, D.C. An arbitrator awarded them straight-time pay for activities outside their regular duty hours, along with travel and per diem. The agency challenged the pay award but did not contest travel and per diem. The Authority held that pay for official-time activities performed during nonduty hours requires a wrongful denial of a request to perform those activities during scheduled duty hours. Because the arbitrator found no such denial, the Authority removed the straight-time pay remedy.

Decision snapshot

• Authority: Arbitration exceptions under 5 U.S.C. § 7122(a); official time under 5 U.S.C. § 7131(d).
• Outcome: Straight-time pay remedy struck; travel and per diem were not contested.
• Key point: Nonduty official-time work did not support extra pay without a wrongful denial of requested duty-time official time.

Full text (FLRA public release)

[ v52 p328 ]
52:0328(30)AR

The decision of the Authority follows:

52 FLRA No. 30

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF HEALTH AND HUMAN
SERVICES

SOCIAL SECURITY ADMINISTRATION

NEW YORK REGION(1)

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

LOCAL 3369

(Union)

0-AR-2711

_____

DECISION

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 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 remedy from the award.

II. Background and Arbitrator's Award

The local Union president, who is on 100 percent official time, performed various official time activities in Washington, D.C., on Monday, September 21, 1992. His travel between New York and Washington, D.C., and the performance of the official time activities, encompassed over 14 hours. Another Union official also performed official time activities in Washington, D.C., on September 21. He traveled to Washington, D.C., from New York on Sunday, September 20, and returned to New York on Monday, September 21. The Agency denied both officials travel and per diem and compensation for performance of more than 8 hours of official time activities. The Arbitrator determined that under Authority case law, the officials were entitled to straight-time compensation for official time activities performed on nonduty time.(2)

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.(3)

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 official time to cover the performance of official time activities outside regular duty time. The Union relies on the Authority's decision in 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).

IV. Analysis and Conclusions

The Authority has upheld awards of straight-time compensation when management wrongfully denies an employee's request for official time negotiated pursuant to section 7131(d) of the Statute, and the employee thereafter performs the official time activities on nonduty time. E.g., U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service and National Weather Service Employees Organization, 36 FLRA 352, 358 (1990). In these awards, the arbitrators found that: (1) an employee requested official time to perform official time activities during the employee's regularly scheduled duty hours; (2) management wrongfully denied the request; and (3) the employee thereafter performed the official time activities on nonduty time. See Local 1164, American Federation of Government Employees, AFL-CIO and Social Security Administration Boston Region, 19 FLRA 936, reconsideration denied, 20 FLRA 876 (1985); Social Security Administration and American Federation of Government Employees, AFL-CIO, Local 3231, 19 FLRA 932, reconsideration denied, 20 FLRA 876 (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 890 (1985); Social Security Administration and American Federation of Government Employees, AFL-CIO, 19 FLRA 887, reconsideration denied, 20 FLRA 876 (1985).

In upholding these awards, the Authority stated that the fact that the activities for which compensation was sought were performed on nonduty time did not preclude an award of compensation because section 7131(d) does not require an employee to be in a duty status to be entitled to official time. However, the Authority found wrongful denials justifying compensation for official time performed on nonduty time only where official time activities would have been performed during the employee's duty time, but for management's denial of the official time request.(4) See Wright-Patterson Air Force Base, Ohio, 2750th Air Base Wing and American Federation of Government Employees, Local No. 1138, 23 FLRA 390, 394 (1986) (finding of a wrongful denial of official time was limited to the scheduled number of duty hours).

In this case, the Arbitrator found no denial by management of any request to perform official time activities during the scheduled duty hours of either grievant. Moreover, as each of the grievants was on 100 percent official time, there could be no such denial. In this regard, 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 is 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. Here, there was no such denial. 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.(5)

V. Decision

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

FOOTNOTES:
(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. The Arbitrator also awarded the
   grievants travel and per diem, which the Agency does not now contest.

3. As an exhibit, the Agency has
   attached a letter to one of the grievants explaining management's denial of the grievance. The Union objects to the exhibit because it was not offered into evidence at the arbitration. In the absence of any indication in the record disputing the Union's contention, pursuant to section 2429.5 of the Authority's Regulations, we have not considered the exhibit. U.S. Department of Veterans Affairs Medical Center, Newington, Connecticut and National Association of Government Employees, Local R1-109, 49 FLRA 165, 169 n.* (1994).

4. The decision in SSA, on which
   the Union relies, does not fully describe the circumstances concerning the finding of a wrongful denial of official time. 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 the otherwise uniform precedent on this issue, and we will no longer follow it.

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