Department of Transportation, Federal Aviation Administration and National Air Traffic Controllers Association, 0-AR-3734, June 17, 2004, 60 FLRA No. 7.

FLRA set aside an award in which the arbitrator interpreted the agreement as requiring the agency to pay premium pay to union representatives who perform representational functions on Sundays and holidays because the award violated 5 USC 5546(b). In FLRA's view, performing representational functions does not constitute "work" within the meaning of ' 5546(b).

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.