19:0887(104)AR - SSA and AFGE -- 1985 FLRAdec AR



[ v19 p887 ]
19:0887(104)AR
The decision of the Authority follows:


 19 FLRA No. 104
 
 SOCIAL SECURITY ADMINISTRATION
 Agency
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 Union
 
                                            Case No. O-AR-825
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator William J. Hannan filed by the Agency under section 7122(a)
 of the Federal Service Labor-Management Relations Statute and part 2425
 of the Authority's Rules and Regulations.
 
    A grievance was filed and submitted to arbitration on the issue of
 whether the Activity violated the parties' collective bargaining
 agreement in denying the grievant union official's request for three
 hours of official time for legal research and case preparation for an
 arbitration hearing.  According to the Arbitrator, when the grievant's
 request was denied, she spent three hours of personal nonduty time on
 such preparation.  Noting both section 7131(d) of the Statute and the
 official time provisions of the parties' collective bargaining
 agreement, the Arbitrator determined that the request was reasonable and
 should have been granted.  Accordingly, he sustained the grievance and
 directed as follows:
 
          The Grievant is to be given three hours, with pay, of
       administrative or compensatory time for her personal use at such
       time as mutually agreed to between herself and her Supervisor.
 
    In its first exception, the Agency essentially contends that to the
 extent the award grants three hours of compensatory time off, the award
 is contrary to law.  The Authority agrees.
 
    In Social Security Administration and American Federation of
 Government Employees, Local 1164, AFL-CIO, 19 FLRA No. 4 (1985), the
 Authority specifically held that the union official's performance on
 nonduty time of representational functions attendant to a grievance
 arbitration matter was not the performance of "hours of work officially
 ordered or approved" that constituted overtime work under the governing
 provisions of 5 U.S.C. 5542(a) for which overtime pay or compensatory
 time off could be granted.  Section 5542(a) was determined to govern
 because it was not contested that the union official was an employee
 exempt from coverage under the Fair Labor Standards Act.  Accordingly,
 the award of compensatory time off was found deficient as not authorized
 by law.  In terms of this case, and for the same reasons, the Authority
 finds the award deficient as not authorized by law to the extent it
 grants three hours of compensatory time off.
 
    In its second exception the Agency primarily contends that to the
 extent the award grants three hours of administrative leave, the award
 is deficient because the Arbitrator was not authorized to grant
 administrative leave in lieu of official time in that the grievant was
 solely entitled to official time.  The Authority agrees.
 
    The Federal Personnel Manual provides authority to agencies in
 certain situations to grant brief periods of excused absence without
 charge to leave, commonly referred to as administrative leave.  FPM
 Supplement 990-2, book 630, subchapter S11.  Because corrective action
 for the denial of official time is not indicated as an appropriate
 situation for the granting of administrative leave and because the
 Statute effectively provides a remedy when official time under section
 7131(d) of the Statute is wrongfully denied, the Authority finds that
 the award must be modified to substitute the remedy provided by the
 Statute.  As has been noted, the Arbitrator with reference to the
 agreement provisions for official time and their administration to
 conform to the Statute ruled that the grievant should have been granted
 official time.  Thus, the Arbitrator effectively found that all the
 conditions of section 7131(d) had been met (which conditions do not
 include that during the time, the employee otherwise would have been in
 a duty status).  /1/ Consequently, the grievant under the express terms
 of the Statute was entitled, and remains entitled, to be granted
 official time.  The Authority determines that where official time is
 wrongfully denied and the representational functions are thereafter
 performed on other than official time, the statutory provision entitles
 the aggrieved employee to be paid for the amount of time that should
 have been official time.  In this respect, both Congress in the
 legislative history to the Statute, H.R. Rep. No. 1403, 95th Cong. 2d
 Sess. 58 (1978), and the U.S. Supreme Court in Bureau of Alcohol,
 Tobacco and Firearms v. FLRA, 104 S.Ct. 439, 445 (1983) equated official
 time to "paid time." See American Federation of Government Employees,
 Local 3615 and Social Security Administration, Arlington, Virginia, 17
 FLRA No. 126 (1985).  Consequently, the Authority finds in terms of this
 case that the award should have granted the grievant compensation for
 that amount of time spent performing union representational duties in a
 nonduty status which the Arbitrator ruled should have been performed on
 official time.  See General Services Administration, Washington, D.C.,
 18 FLRA No. 52 (1985).
 
    For these reasons, the award is accordingly modified by substituting
 the following sentence for the last sentence of the award.  /2/
 
          The grievant is to be compensated at the appropriate
       straight-time rate for the three hours of nonduty time spent in
       preparation for the arbitration hearing involved.
 
 S