On Columbus Day, October 9, 2000, the grievant,
an air traffic controller who is also a union representative, performed
representational functions at home for the unit, believing that
he was doing so on approved official time. However, when he received
pay at straight time for 8 hours on Columbus Day, when he expected
to receive premium day, the union filed a grievance on his behalf,
as well as a national grievance claiming the agency violated the
agreement whenever it denies the use of official time for the performance
of union representational duties on holidays.
The arbitrator sustained the grievance, concluding, among other
things, that "a binding past practice was established . . .
in connection with the payment of appropriate premium pay for performance
of representational duties on Sunday[s] and holidays." The
agency filed exceptions, claiming, among other things, that the
performance of representational duties on holidays is not the performance
of actual work and that under its appropriation acts Sunday premium
pay cannot be paid unless the employee actually worked on a Sunday.
FLRA noted that 5 USC 5546(b) states that an employee who performs
work on a holiday is entitled to premium day, but does not address
the issue of whether the performance of representational functions
constitutes work within the meaning of this provision. However,
it noted that it already has held that
. . . the performance of representational activities under '
7131(d) does not involve the performance of the work of an agency.
See AFGE Council 214, AFL-CIO, 31 FLRA 1259 (1988). The
Authority has similarly held that the performance of representational
activities does not involve "work" within the meaning
of ' 7106(a)(2)(B). See, e.g., United States Dep't of Def.,
Army and Air Force Exchange Serv., Dallas, Tex., 53 FLRA 20
(1997). We find no reason to construe the term "performs
work on a holiday" under ' 5546(b) any differently. Accordingly,
we find that just as the performance of representational activities
does not constitute the "work" of an agency within the
meaning of ' 7106 of the Statute, the performance of representational
activities does not constitute the performance of "work on
a holiday" under ' 5546(b).
FLRA went on to note that union representational activities are
not considered "work" in other contexts also. For example,
in 60 Fed. Reg. 43,935, 43,937 (1995), involving the revision of
OPM's performance management regulations, OPM rejected a suggestion
that union officials be granted presumptive ratings of fully successful
because employee appraisals had to be based solely on the performance
of work, duties, and responsibilities that accomplish the agency
mission and for which the employee is accountable to the employing
agency. FLRA accordingly concluded that "the grievant's performance
of representational activities on the Columbus Day holiday cannot
be considered compensable for purposes of premium pay," and
found the award of premium pay was deficient because contrary to
5 U.S.C. ' 5546(b).
FLRA used the same analysis and reached the same conclusion regarding
representational activities performed on Sundays. This conclusion
was further supported by the agency's appropriation acts since 1995
which have provided that no funds could be used to pay Sunday premium
pay to an employee unless the employee actually performed work on
Sunday. "Accordingly, the performance of representational activities
on Sundays is not compensable for purposes of premium pay under
5 U.S.C. ' 5546(a)."
Although the arbitrator had found that there was a binding past
practice of paying premium pay for the performance of representational
functions, FLRA noted "there can be no binding practice that
requires the performance of an unlawful or illegal act." Thus
the arbitrator's "reliance on a past practice cannot support
a conclusion requiring the payment of premium pay in these circumstances."
FLRA accordingly set aside the award. |