21:0635(80)NG - AFGE, National EPA Council and EPA -- 1986 FLRAdec NG
[ v21 p635 ]
21:0635(80)NG
The decision of the Authority follows:
21 FLRA No. 80
Case No. 0-NG-678
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, NATIONAL EPA COUNCIL
Union
and
ENVIRONMENTAL PROTECTION AGENCY
Agency
Case No. 0-NG-678
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute). It concerns the
negotiability of the following two Union proposals which relate to
official time, overtime compensation, and travel and per diem for
employees representing the Union in negotiations.
Union Proposal 1
The employer agrees to provide official time, including travel
and per diem costs, for three union representatives to prepare
union counter proposals and other negotiations related duties for
the union during actual negotiations. These representatives will
not be negotiators for the union.
Union Proposal 2
EPA employees who are union negotiators will receive the same
type of compensation, compensatory time or overtime, as does
management where negotiations extend beyond normal duty hours.
II. Positions of the Parties
According to the Union, Union Proposal 1 is in response to the
Agency's history of consistently limiting its negotiating team to one
person. Consequently, under section 7131(a) of the Statute, the Union's
entitlements as to official time have been limited to one negotiation
team member. Union Proposal 1 is intended to allow official time,
travel and per diem for an additional three representatives who will be
available to provide support (e.g., preparation of counter proposals,
research and clerical functions) to the Union team during negotiations.
The Agency argues that employees representing unions in negotiations
may receive only the amount of official time to which they are entitled
under section 7131(a) of the Statute. Because Union Proposal 1 would
exceed that amount, the Agency argues that it is outside the duty to
bargain. As to the question of travel and per diem, the Agency argues
that the Supreme Court's decision in Bureau of Alcohol, Tobacco and
Firearms v. FLRA, 464 U.S. 89 (1983) (BATF) requires a conclusion that
the subject is not within the duty to bargain. Regarding Union Proposal
2, the Agency contends that neither the Statute nor the laws governing
payment for overtime permit overtime compensation for employees
representing a union in negotiations.
The Union disputes the Agency's contentions. It asserts that the
official time aspect of Union Proposal 1 is negotiable under section
7131(d) of the Statute. It contends that the travel and per diem aspect
concerns a negotiable condition of employment and is not inconsistent
with statute. Concerning Union Proposal 2, the Union argues that
employees on official time are eligible for overtime compensation under
the laws which govern overtime in the Federal sector. Therefore, even
if they are not actually entitled to overtime compensation, the subject
is within the Agency's obligation to bargain.
III. Analysis and Conclusions
A. Negotiation of Additional Official Time
The Authority has found that official time, beyond that authorized
under section 7131(a), for employees who are participating in
negotiations on behalf of the union in a support capacity is negotiable
under section 7131(d). National EPA Council, American Federation of
Government Employees, AFL-CIO and Environmental Protection Agency, 16
FLRA 625 (1984). Based on the reasons set forth in that case, the
Authority finds that aspect of Union Proposal 1 which concerns official
time within the duty to bargain.
B. Negotiation of Travel and Per Diem
In National Treasury Employees Union and Department of the Treasury,
U.S. Customs Service, 21 FLRA No. 2 (1986) the Authority took the BATF
decision into consideration in deciding the question of the
negotiability of travel and per diem. Contrary to the Agency's
arguments, BATF does not compel a conclusion that the issue of payment
by an agency of otherwise appropriate and proper travel expenses for
employees on official time pursuant to section 7131 is outside the duty
to bargain. The Authority notes particularly that there is nothing in
the proposal or the submissions of the parties which indicates that the
travel and per diem provisions of Union Proposal 1 are to be applied in
any manner which is inconsistent with governing legal and regulatory
provisions. Therefore, the Authority concludes, based on its reasoning
set forth in the Customs Service case, that the travel and per diem
provisions in Union Proposal 1 are within the duty to bargain.
C. Negotiability of Overtime Compensation
The Statute and its legislative history are silent on the subject of
overtime compensation for employees who are on official time pursuant to
section 7131. Consequently, the various statutory provisions which
relate to overtime compensation of Federal employees control the issue
raised by Union Proposal 2. Those relevant provisions are:
(1) 5 U.S.C. 5542, 5543 - overtime compensation for General
Schedule employees;
(2) 5 U.S.C. 5544 - overtime compensation for prevailing rate
employees; and
(3) Fair Labor Standards Act, as amended, 29 U.S.C. 201 et seq.
- overtime compensation for certain Federal employees.
These provisions basically authorize overtime compensation for "work"
in excess of 8 hours per day and/or 40 hours per week. The question
then is whether representational activities performed on behalf of a
union are "work." In addressing this question, the Authority held in
Patent Office Professional Association and Patent and Trademark Office,
Department of Commerce, 21 FLRA No. 74 (1986), that representational
activities performed by employees outside the normal workday do not
constitute the performance of hours of work within the meaning of 5
U.S.C. Section 5542. In that case the Authority relied on NTEU v.
Gregg, No. 83-546, slip op. at 4-5 (D.D.C. Sept. 28, 1983), in which the
district court held that, in order for activities to be considered
"work" under 5 U.S.C. Section 5542 and the Fair Labor Standards Act,
they must be primarily for the benefit of the agency. The same standard
has been applied to determining what constitutes "work" under 5 U.S.C.
Section 5544. 60 Comp. Gen. 431, 433 (1981). In NTEU v. Gregg the
court specifically ruled that representational activities performed on
behalf of a union did not meet the required standard and, therefore, did
not make a General Schedule employee eligible for overtime compensation.
Because the standards are the same, the same conclusion must be reached
with respect to the prevailing rate overtime provisions. The Authority
therefore concludes that payment for overtime for union representational
activity is not consistent with law.
Additionally, the Authority concludes that representational activity
does not make an employee eligible for compensatory time off. In order
to be eligible for compensatory time off, a General Schedule employee
must be eligible for overtime pay. In Social Security Administration
and American Federation of Government Employees, Local 1164, AFL-CIO, 19
FLRA No. 4 (1985), the Authority rejected a portion of an arbitrator's
award which ordered that compensatory time off be given for time spent
outside a normal work day in representational activity because it was
inconsistent with the General Schedule overtime provisions contained in
5 U.S.C. 5542, 5543. See also Patent and Trademark Office, supra.
Similarly, under the Fair Labor Standards Act, compensatory time off may
in some circumstances be granted in lieu of overtime pay. 5 CFR Section
551.531. Prevailing rate employees have no eligibility for compensatory
time off whatsoever, but must be paid for overtime work. Federal
Personnel Manual, FPM Supplement 532-1, Subchapter 8, S8-4(b)(10).
Thus, there is no legal authorization to pay overtime or allow
compensatory time off to employees engaged in representational
activities on behalf of a union. Therefore, Union Proposal 2 conflicts
with Federal statute and is not within the duty to bargain.
IV. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency shall upon request (or as
otherwise agreed to by the parties) bargain concerning Union Proposal 1.
/*/ IT IS FURTHER ORDERED that the Union's petition for review insofar
as it relates to Union Proposal 2 be, and it hereby is, dismissed.
Issued, Washington, D.C., May 8, 1986
/s/ JERRY L. CALHOUN
Jerry L. Calhoun, Chairman
/s/ HENRY B. FRAZIER III
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(*) In finding this proposal within the duty to bargain the Authority
makes no judgment as to its merits.