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28 FLRA NO. 137

NAVAL STATION MARE ISLAND

              Activity

      and

INTERNATIONAL ASSOCIATION OF
FIREFIGHTERS, LOCAL F-48

              Union

Case No. 0-AR-1360

DECISION

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator Charles A. Askin filed by the Union under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Department of the Navy (Agency) filed an opposition.

II. Background and Arbitrator's Award

The Union filed a grievance concerning the interpretation of Article 28.1(C) of the parties' collective bargaining agreement. This Article provides that firefighters will be permitted to trade duty time with each other up to the maximum allowed by law. Trading of duty time is a practice among employees in fire protection that allows them to substitute for one another on regular tours of duty in order to attend to personal matters. The grievance was submitted to arbitration. The issue before the Arbitrator was whether, under law, the parties' agreement allowed firefighters to trade time for periods up to 1 calendar year.

In the arbitration proceeding, the Union argued that the 1974 amendments to the Fair Labor Standards Act (FLSA), 29 U.S.C. 20.1 were intended to permit the trading of time by firefighters of public agencies, including Federal fire-fighters. It also argued that under 29 C.F.R. SS 553.18, "employees of public agencies" engaged in fire protection are, permitted to trade time for periods up to 1 calendar year. The Activity argued that the practice of trading time is not  addressed by the FLSA. It also argued that under the FLSA, 29 U.S.C. 204(f), the Civil Service Commission or its successor, the Office of Personnel Management (OPM)--and not the Department of Labor--is authorized to administer the FLSA for Federal employees. In particular, the Activity contended that OPM has determined that Federal firefighters are not entitled to trade time beyond a pay period.

The Arbitrator noted that although the submitted issue involved a question of statutory construction, the Union alleged a contract violation and had the burden of proving the violation. The Arbitrator analyzed the FLSA and 29 C.F.R. SS 553.18 and determined that the Union failed to prove that the parties' agreement allowed for the trading of time by Federal firefighters for periods up to 1 calendar year. In particular, the Arbitrator found that the FLSA did not address the trading of time by Federal firefighters. He also found that the relevant provisions of title 29 of the Code of Federal Regulations pertained only to state and local government employees and concluded, therefore, that 29 C.F.R. SS 553.18 did not apply to Federal firefighters. Finally, he found that the Civil Service Commission, pursuant to its authority to administer the FLSA for Federal employees, had determined in a letter issued in 1977 that Federal firefighters were allowed to trade time only for 1 pay period. For these reasons, the Arbitrator denied the Union's grievance.

III. Positions of the Parties

A. Union's Exception

The Union contends in its exception that the Arbitrator's award is contrary to law and regulation, specifically 29 C.F.R. SS 553.18. The Union argues that the Civil Service Commission's 1977 letter is inconsistent with 29 C.F.R. SS 553.18 and that the Arbitrator erred in relying on the letter as a basis for denying the grievance.

B. Agency's Opposition

The Agency contends in its opposition that the Arbitrator was correct in finding that 29 C.F.R. 553.18 does not apply to Federal firefighters. Further, the Agency contends, consistent with more recent advice by OPM, that the Arbitrator's reliance on the Civil Service Commission letter for guidance in reaching his conclusion was not misplaced.

IV. Analysis and Conclusion

We conclude that the Union has failed to establish that  the Arbitrator's award is deficient. specifically, the Union has failed to establish that the award is contrary to law and regulation. The Arbitrator found that Federal firefighters are not covered by 29 C.F.R. 553.18 but are subject to the directives of the Civil Service Commission or OPM, which is authorized under 29 U.S.C. 204(f) to administer the FLSA for Federal employees. He further found that the Civil Service Commission had ruled that Federal firefighters may only trade time within a single pay period. Thus, he concluded that Federal firefighters were not allowed to trade time for periods up to I year. In disputing these findings and conclusions of the Arbitrator, the Union is simply attempting to relitigate before the Authority the merits of its position in this case. See Social Security Administration, Albuquerque Data Operations Center and American Federation of Government Employees, Local 3512, 23 FLRA No. 41 (1986) (exception to award denied where the exception failed to demonstrate that the arbitrator's award was contrary to regulation).

We note that the most recent amendments to Department of Labor regulations in this area expressly apply only to employees of state and local governments, including employees engaged in fire protection activities. 52 Fed. Reg. 2012, 2032 (1987) (to be codified at 29 C.F.R. 553.1(c)), which defines "public agency" to mean "a State, a political subdivision of a State or an interstate governmental agency." 52 Fed. Reg. 2032 (1987). Moreover, the provisions of those regulations pertaining to "substitution" or "trading time" do not address the length of the time period within which employees are able to trade time. See 52 Fed. Reg. 2038 (1987) (to be codified at 29 C.F.R. 553.31).

V. Decision

For the above reasons, the Union's exception is denied.

Issued, Washington, D.C., September 21, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

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