24:0245(29)AR - National Archives and Records Administration and AFGE Council 236 Local 2928 -- 1986 FLRAdec AR



[ v24 p245 ]
24:0245(29)AR
The decision of the Authority follows:


 24 FLRA No. 29
 
 NATIONAL ARCHIVES AND 
 RECORDS ADMINISTRATION
 Agency
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, COUNCIL 236, LOCAL 2928
 Union
 
                                            Case No. 0-AR-1128
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on an exception to the award of
 Arbitrator Gerald Cohen filed by the Agency under section 7122(a) of the
 Federal Service Labor-Management Relations Statute (the Statute) and
 part 2425 of the Authority's Rules and Regulations.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    The grievance in this case arose when the grievant was charged with
 absence without leave (AWOL) for a period of time in which she was away
 from her worksite at the Winnebago Avenue office.  The grievant was a
 Union official entitled under the agreement to spend 35 percent of her
 time "to perform (her) official representational duties." On the day in
 question, she told her supervisor at 7:30 a.m. that she would be using
 official time for Union duties;  the supervisor agreed to release her at
 that time.  The grievant worked on Union business for approximately an
 hour and a half at the Winnebago Avenue worksite and then prepared to
 leave the building to go to the Union office at the Page Avenue
 worksite.  Before she left, another employee was arrested by the police
 in connection with a domestic matter and taken to the police station.
 The grievant left the Winnebago Avenue building at the same time as the
 police.  As she was leaving, her supervisor ordered her not to leave and
 warned that if she did she would be charged annual leave or AWOL.  The
 grievant left the building despite the supervisor's warning and went to
 the police station where she assisted the arrested employee.  The
 grievant then went to the Page Avenue Union office where she performed
 Union representational duties until the afternoon.  The grievant refused
 to take annual leave and was charged with AWOL for the time spent away
 from the building.
 
    The matter was submitted to arbitration.  The Arbitrator stated the
 issues to be:  (1) whether the Agency violated the national agreement by
 its procedure for granting official time for Union representation, and
 (2) whether the Agency violated the agreement by charging the grievant
 with AWOL.  The Arbitrator ruled that the Agency had agreed that the
 grievant could spend a maximum of 35 percent of her time performing
 Union duties and as a result had relinquished a portion of its right to
 control her activities.  He stated that Union representatives were
 responsible for using the official time allotted them wisely and that if
 official time was abused, the correction of the abuse lies with the
 Union.  He found that the Agency's right to deny official time under the
 agreement arises when official time is requested but cannot be granted
 because of workload considerations or because there is no available
 employee to replace the Union representative.  He found no restriction
 in the agreement concerning where Union representational duties could be
 performed and ruled that the Agency had no right to inquire as to the
 nature or the location of the work to be done.  The Arbitrator found as
 fact that the grievant requested and was granted official time and he
 ruled that the supervisor violated the agreement when she later denied
 the grievant permission to leave the Winnebago Avenue site.  As his
 award the Arbitrator sustained the grievance and ordered the AWOL charge
 stricken and the time charged to official time with backpay as
 appropriate.
 
                          III.  AGENCY EXCEPTION
 
    The agency filed an exception to that portion of the award which
 pertains to the time spent by the grievant at the police station and the
 time spent traveling to the station.  The Agency contends that this
 portion of the award is contrary to section 7131(d) /*/ of the Statute
 because it allows official time for a nonrepresentational purpose.  The
 Agency contends that representing an employee in a police matter does
 not constitute a grievance, arbitration or other contract administration
 matter.  The Agency also excepts to the Arbitrator's ruling that the
 grievant had the right to use official time wherever she wished
 notwithstanding the supervisor's objections and contends in this regard
 that the award fails to draw its essence from the agreement.
 
                       IV.  ANALYSIS AND CONCLUSION
 
    We agree with the Agency's contention that the Arbitrator's award is
 contrary to law, specifically section 7131(d) of the Statute.  The plain
 language of that section is that official time may be negotiated only
 for an employee representing an exclusive representative or in
 connection with matters covered by the Statute.  The legislative history
 of the Statute confirms that official time negotiated under section
 7131(d) is to be used for labor-management relations activity.  See H.R.
 Rep. No. 1403, 95th Cong., 2d Sess. 59 (1978), reprinted in Committee on
 Post Office and Civil Service, House of Representatives, 96th Cong., 1st
 Sess., Legislative History of the Federal Service Labor-Management
 Relations Statute of 1978, Committee Print No. 96-7, at 705 (1979)
 (Legislative History);  S. Rep. No. 969, 95th Cong., 2d Sess. 112, 113
 (1978), Legislative History at 772, 773.  Examples of the proper uses of
 official time for representational purposes include the investigation
 and attempted informal resolution of employee grievances, participation
 in formal grievance resolution procedures, attendance or preparation for
 meetings of committees on which both the labor organization and
 management are represented and discussion of problems in contract
 administration with management officials.  S. Rep. No. 95-969 at 113.
 See also Social Security Administration and American Federation of
 Government Employees, AFL-CIO, Local 3231, 19 FLRA No. 109 (1985) at
 n.2.
 
    Consistent with the Statute, agencies and labor organizations may
 negotiate amounts of official time which are reasonable, necessary and
 in the public interest.  The official time must be used for
 labor-management purposes, however.  In the present case, the Arbitrator
 ruled that the Agency had no right to restrict the grievant's use of
 official time once it had determined that it was not constrained by such
 matters as workload considerations and had granted the time.  However,
 there is no indication in the record that the grievant's use of official
 time for the purpose of assisting an employee in a private matter with
 the police was related to any labor-management activities under the
 Statute.  The grievant's supervisor acted within her authority when she
 challenged the grievant's use of previously granted official time
 because she suspected that the time was not to be used for
 labor-management purposes.  If the grievant believed that she was
 improperly denied official time, her recourse was to obey the order and
 then file a grievance.  See, for example, Bigelow v. Department of
 Health and Human Services, 705 F.2d 962, 965 (Fed. Cir. 1984);
 Department of the Air Force, McGuire Air Force Base and American
 Federation of Government Employees, Local No. 1778, 6 FLRA 283 (1981).
 Consequently, we find that insofar as the award sustained the grievance
 and ordered backpay for the time spent by the grievant traveling to and
 at the police station, it is deficient as contrary to section 7131(d) of
 the Statute.
 
                               V.  DECISION
 
    The award is modified by setting aside that portion which pertains to
 the AWOL charge and orders backpay for the time spent by the grievant in
 traveling to and at the police station.
 
    Issued, Washington, D.C., November 26, 1986.
                                       Jerry L. Calhoun, Chairman
                                       Henry B.Frazier III, Member
                                       Jean McKee, Member