24:0245(29)AR - National Archives and Records Administration and AFGE Council 236 Local 2928 -- 1986 FLRAdec AR
[ v24 p245 ]
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 FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (*) 5 U.S.C. Section 7131(d) provides: (d) Except as provided in the preceding subsection 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.