19:0890(105)AR - Air Force HQ Oklahoma City Air Logistics Center, Tinker AFB, OK and AFGE Local 916 -- 1985 FLRAdec AR

[ v19 p890 ]
The decision of the Authority follows:

 19 FLRA No. 105
                                            Case No. O-AR-716
    This matter is before the Authority on exceptions to the award of
 Arbitrator John P. Owen filed on behalf of the Activity by the
 Department of the Air Force (the Agency) under section 7122(a) of the
 Federal Service Labor-Management Relations Statute and part 2425 of the
 Authority's Rules and Regulations.
    The parties submitted to arbitration the issue of whether the
 Activity violated the parties' collective bargaining agreement by
 denying the grievant union official's request for official time to
 prepare a second step grievance.  The record indicates that the grievant
 requested and was granted 5-1/2 hours of official time for processing
 grievances on the day in question, and that when his request for two
 additional hours for preparation of the subject second step grievance
 was denied, he spent his personal time after duty hours to accomplish
 that task.  The Arbitrator determined that the Activity's denial of the
 grievant's request was violative of the parties' agreement, which
 pertinently provided that union officials will be granted a reasonable
 amount of official time for the preparation of grievances, and directed
 that the grievant's payroll account be credited with two hours of
 official time.  Subsequently, in response to the Activity's request for
 a clarification of the remedy, the Arbitrator in effect directed that
 the grievant union official "be granted a future two (2) hours of
 official time at the beginning of a pay period to be used at his
 discretion . . . . "
    In one of its exceptions, the Agency essentially contends that the
 award is deficient because the remedy ordered by the Arbitrator is not
 authorized in the circumstances of this case.  The Authority agrees.
    Section 7131(d) of the Statute /1/ expressly authorizes the parties
 to negotiate for the granting of official time for the performance of
 the specified representational activities.  Because the Statute does not
 authorize the granting of official time as corrective action 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 specifically found that the
 Activity violated the parties' collective bargaining agreement in
 denying the grievant's request for additional official time.  In this
 regard, the language of section 7131(d) expressly states that when the
 enumerated conditions are met (which conditions do not include that
 during the time, the employee would otherwise have been in a duty
 status), an "employee . . . shall be granted official time." Thus, with
 the Arbitrator essentially having found that all the conditions of
 section 7131(d) had been met, 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. 1043, 95th Cong., 2d Sess. 58
 (1978), and the 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 the 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).  Accordingly, the Arbitrator's clarified award is
 modified by substituting the following for the remedy provided:  /2/
          The grievant is to be compensated at the appropriate
       straight-time rate for the nonduty time spent in preparation of
       the grievance involved.
 See id. at 2 & n.1.  Issued, Washington, D.C., August 22, 1985
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ Section 7131(d) provides:
          (d) Except as provided in the preceding subsections of this
          (1) any employee representing an exclusive representative, or
          (2) in connection with any other matter covered by this
       chapter, any employee in an appropriate unit represented by an
       exclusive representative,
          shall be granted official time in any amount the agency and the
       exclusive representative involved agree to be reasonable,
       necessary, and in the public interest.
    /2/ In view of this decision it is not necessary to address the
 Agency's other exception.