19:0932(109)AR - SSA and AFGE Local 3231 -- 1985 FLRAdec AR
[ v19 p932 ]
The decision of the Authority follows:
19 FLRA No. 109 SOCIAL SECURITY ADMINISTRATION Agency and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES AFL-CIO, LOCAL 3231 Union Case No. O-AR-770 DECISION This matter is before the Authority on exceptions to the award of Arbitrator J. Scott Tharp 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 in this case on the issue of whether the activity properly denied the grievant union official's request for official time in order to prepare post-hearing briefs in two arbitration cases. According to the Arbitrator, the grievant had requested 49 1/4 hours of official time to prepare the briefs, but was granted only 16 hours. Consequently, the grievant took 18 3/4 hours of leave without pay and spent 14 1/2 hours of personal nonduty time in addition to the 16 hours of official time in order to prepare the briefs. The Arbitrator noted that consistent with section 7131 of the Statute, the parties had agreed in their collective bargaining agreement that union representatives will be granted reasonable official time which is necessary for the performance of labor-management relations functions. In this regard, the Arbitrator noted that the grievant testified in considerable detail concerning the complexities of the cases involved while the Activity primarily contended that the allowed time was sufficient without presenting the management representatives who wrote the Activity's briefs to testify that the matters involved were less complex than described by the grievant. Accordingly, the Arbitrator ruled that the grievant should have been granted the full amount of official time requested. Thus, he sustained the grievance and ordered that the grievant be compensated for the 18 3/4 hours of leave without pay and be granted 14 1/2 hours of administrative leave for the personal time spent preparing the briefs. In its exceptions the Agency primarily contends that the award of 14 1/2 hours of administrative leave 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, which had been negotiated 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. /2/ 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 representation duties in other than a leave 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 award is modified by substituting the following sentence for the last sentence of the award. /3/ Accordingly, the grievance is sustained for the reasons set forth above, and it is ordered that grievant be compensated for the 18 3/4 hours of leave without pay she was required to take for the two cases involved and that she be compensated at the appropriate straight-time rate for the 14 1/2 hours of nonduty time spent in preparing briefs in the two cases involved. See id. at 2 & n.1. Issued, Washington, D.C., August 22, 1985 Henry B. Frazier III, Acting Chairman 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 section-- (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 so deciding, the Authority notes that the Activity did not establish before the Arbitrator and does not argue before the Authority that the amount of time spent by the union official in preparation of the briefs was not "reasonable, necessary, and in the public interest." While the Statute does not define what would be reasonable and necessary time within the meaning of section 7131(d), the legislative history indicates that this section was intended to enable the exclusive representative to seek through negotiations access to official time utilized by management for its "interface" activities. Thus, the amount of official time utilized by management for a particular activity would be a criterion for defining the amount of reasonable time allowable under section 7131(d). In terms of this case, as noted, there was no testimony as to the amount of time utilized by management in the preparation of the briefs involved. Award at 8. /3/ In view of this decision, it is not necessary that the Authority address the other exceptions to the award.