22:0056(5)AR - Justice, Bureau of Federal Prisons, Federal Correctional Institution, Seagoville, TX And AFGE, Council of Prison Locals, Local 1637 -- 1986 FLRAdec AR
[ v22 p56 ]
The decision of the Authority follows:
22 FLRA No. 5 U.S. DEPARTMENT OF JUSTICE, BUREAU OF FEDERAL PRISONS, FEDERAL CORRECTIONAL INSTITUTION, SEAGOVILLE, TEXAS Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, COUNCIL OF PRISON LOCALS, LOCAL NO. 1637 Union Case No. 0-AR-991 DECISION I. STATEMENT OF THE CASE This matter is before the Authority on exceptions to the award of Arbitrator Charles N. Carnes filed by the Activity under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. II. BACKGROUND AND ARBITRATOR'S AWARD The dispute before the Arbitrator arose when the Activity proposed to suspend the grievant for 14 days for continuing to work on a particular project after being instructed by his supervisor to stop. The Activity's notice of proposed suspension advised the grievant, among other things, that he would be granted a reasonable amount of official time to review the materials upon which the proposed action was based and to present a reply. The grievant's request for eight hours of "administrative time" to prepare his reply was denied by the Activity's Personnel Office on the ground that there was no provision in the parties' collective bargaining agreement for granting any time at that stage of the proceeding. The grievant then prepared his reply to the notice of proposed action on his own time after duty hours. The grievant eventually was suspended for three days and filed the grievance before the Arbitrator in this case. The grievance contested the merits of the suspension action and also raised a number of procedural issues, including the Activity's denial of the grievant's request for time to prepare his case. As to the merits, the Arbitrator determined that the Activity had established just and sufficient cause for the 3-day suspension. As to the pertinent procedural issue, however, the Arbitrator found that the grievant's rights were violated when his request for time to prepare his case was denied. The Arbitrator noted that the Activity had promised the grievant a reasonable amount of official time for that purpose and was obligated to keep its promise. The Arbitrator also found that the negotiated grievance procedures of the parties' agreement cover all matters grievable under section 7121 of the Statute and provide that employees will be allowed a reasonable amount of official time to present their grievances. The Arbitrator concluded that the subject matter of the dispute before him met the broad definition of "grievance" under section 7103(a)(9) of the Statute for which official time was allowable under the agreement. The Arbitrator further concluded that in the circumstances involved the grievant should have been granted four hours of official time to prepare his case. As a remedy, the Arbitrator awarded the grievant four hours of pay. III. EXCEPTIONS In its exceptions, the Agency contends that the award of four hours pay is contrary to law. More specifically, the Agency argues that the award is contrary to the Back Pay Act, 5 U.S.C. Section 5596, because it in effect requires the retroactive payment of four hours of overtime pay to the grievant and the findings necessary for such a payment under the Back Pay Act were not made. The Agency also argues that the award is contrary to section 7131(d) of the Statute because official time can only be granted in circumstances where the employee would otherwise be in a duty status and the grievant in this case performed the case preparation work on his own time during nonduty hours. IV. ANALYSIS AND CONCLUSIONS The Authority finds that the Agency has failed to establish that the Arbitrator's award is deficient as alleged. In a recent decision, American Federation of Government Employees and Social Security Administration, 21 FLRA No. 14 (1986), the Authority reiterated its previous indications that section 7131(d) of the Statute /*/ expressly authorizes parties to negotiate for the granting of official time for the performance of specified activities and that the Statute effectively provides a remedy when official time under section 7131(d) is wrongfully denied. Thus, where official time, authorized by provisions of a collective bargaining agreement consistent with section 7131(d) of the Statute, is wrongfully denied and the covered activities are thereafter performed on nonduty time, section 7131(d) entitles the aggrieved employee to be paid for the amount of time that should have been official time. In this case, while the grievant was not engaged in union representational activities, section 7131(d)(2) of the Statute expressly provides for official time for bargaining unit employees "in connection with any other matter covered by this chapter." The Arbitrator found the dispute was a "grievance" covered by the Statute and the parties' agreement and that under the agreement the grievant was entitled to four hours of official time. Thus, the Arbitrator effectively found that the conditions of section 7131(d) had been met. With regard to the Agency's specific contentions, the Authority first finds that the Agency's argument that the Arbitrator's award is contrary to the Back Pay Act because the Arbitrator awarded the grievant retroactive overtime pay without making the necessary findings for such an award is without merit. The Authority has determined that performance of representational activities on nonduty time (outside regular working hours) is not overtime work. See Social Security Administration and American Federation of Government Employees, Local 1164, AFL-CIO, 19 FLRA No. 4 (1985); National Treasury Employees Union v. Gregg, No. 83-546, slip op. at 4-5 (D.D.C. Sept. 28, 1983). The Authority therefore concludes, contrary to the Agency's contention, that since the grievant's performance on nonduty time of case preparation work for which official time should have been granted under section 7131(d)(2) was not overtime uork, the Arbitrator did not award retroactive overtime pay and his award is not contrary to the Back Pay Act. With regard to the Agency's argument that under section 7131(d) of the Statute and employee must "otherwise be in a duty status" in order to be eligible to receive official time, such argument is also without merit. While subsections (a), (b) and (c) of section 7131 are explicit in regard to requiring an employee to be in a duty status in order to receive official time, subsection (d) is silent in that regard. In interpreting that subsection, the Authority has clearly indicated that it is not required that an employee would otherwise have been in a duty status in order to be entitled to official time under Section 7131(d). See Local 1164, American Federation of Government Employees, AFL-CIO and Social Security Administration, Boston Region, 19 FLRA No. 110 (1985). The Authority therefore concludes that the Agency has also failed to establish that the Arbitrator's award is contrary to section 7131(d) of the Statute as alleged. V. DECISION Accordingly, for the above reasons, the Agency's exceptions are denied. Issued, Washington, D.C., June 4, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (*) 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.