26:0012(3)AR AFGE VS HHS, SSA -- 1987 FLRAdec AR

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The decision of the Authority follows:

26 FLRA NO. 3






Case No. O-AR-1213



This matter is before the Authority on exceptions to the award of Arbitrator Justin C. Smith 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. The Union filed an opposition. 1


This case is one of several in a dispute submitted by the parties to the Arbitrator concerning official time for employees' representational activities. By agreement of the parties, a two-phase arbitration process was established to resolve the basic dispute and the resulting individual grievances. The first phase of the process involved the interpretation of the official time provisions of the Statute and the parties' collective bargaining agreement.   

In the second phase, the Arbitrator held hearings to resolve, by bench decisions when practicable, specific grievances pending in the various regions of the Agency. The exceptions in this case have been filed to bench decisions of the Arbitrator rendered on July 31, 1986, related to claims arising in the Agency's regional offices. In those decisions the Arbitrator generally ruled that by denying official time and related travel and per diem expenses for Union officials for the representational purposes involved, the Agency violated the parties' agreement which had been negotiated consistent with the Statute. Specifically, the Arbitrator sustained the individual grievances and awarded reimbursement for wrongfully denied official time at appropriate straight-time rates for the time spent by the grievants in performing the representational activities. He also awarded travel and per diem expenses in some instances and decided a number of issues related to the overall dispute.


In its exceptions, the Agency argues that: (1) the Arbitrator's award of compensation at straight-time rates for 250 minutes of non-duty time spent by an employee representative in connection with the processing of an unfair labor practice charge is contrary to the Statute; (2) the Arbitrator's determination that management was obligated to pay travel and per diem without regard to its past practice is contrary to the Travel Expense Act and Government-wide regulation; (3) the Arbitrator exceeded his authority by resolving a claim for travel and per diem that arose in 1986; and, (4) the Arbitrator was functus officio, that is, without authority to resolve claims arising before a date asserted by the Agency.


Upon careful consideration of the record before us in this matter, including the Agency's exceptions, the Union's opposition, and the transcript of the proceeding on July 31, 1986, we conclude that the Agency has failed to establish that the Arbitrator's bench decisions on that date are deficient as alleged. Specifically, we find as follows:

1. The award of compensation at straight-time rates.

The Agency alleges that the Arbitrator's award of compensation at straight-time rates for 250 minutes of non-duty  time spent by an employee representative in connection with the processing of an unfair labor practice charge is contrary to sections 7106(a)(2), 7106(b)(1) and 7131(c) of the Statute and the parties' agreement. We find that the Agency's allegations constitute nothing more than disagreement with the Arbitrator's interpretation and application of the parties' agreement. As the Agency acknowledges, the agreement provides for reasonable official time necessary for the performance of labor-management relations activities (Agency Brief at 5). The Arbitrator clearly interpreted the agreement to encompass official time for the representational activity in this case. Thus, the Agency in this exception is attempting to have its interpretation of the parties' agreement substituted for that of the Arbitrator.

More specifically, we find that the Agency's assertion that the award violates management's rights under section 7106(a)(2) and section 7106(b)(1) of the Statute is totally without merit and borders on the frivolous. The Arbitrator awarded compensation for official time he found had been wrongfully denied under the parties' collective bargaining agreement. The award does not in any way affect the Agency's rights to direct and assign the employee, to assign work to him or to establish his tour of duty as the Agency contends.

The Agency also fails to substantiate its assertion that this award is contrary to section 7131 of the Statute. The Agency argues that since the time was spent in connection with the processing of an unfair labor practice charge, the time was subject to section 7131(c) of the Statute, which provides that the Authority shall determine whether official time should be authorized and limits authorized official time to hours the employee would otherwise be in a duty status.

We reject the Agency's argument. The employee notified his supervisor that an extension of official time was necessary in order to complete certain representational activities after his regular duty day. Moreover, as the Union establishes in its opposition, the grievant requested official time under the parties' collective bargaining agreement and not pursuant to section 7131(c) of the Statute.

The Authority has previously indicated that section 7131(d) of the Statute expressly authorizes the parties to negotiate for the granting of official time for the performance of representational activities and that the Statute provides a remedy when official time under section 7131(d) is wrongfully denied. Specifically, the Authority has determined that where official time authorized by the official time provisions of a collective bargaining agreement is wrongfully denied and the representational functions are performed on non-duty time, section 7131(d) entitles the aggrieved employee to be paid for the amount of time that should have been official time. For example, American Federation of Government Employees and Social Security Administration, 21 FLRA No. 14 (1986), slip op. at 4-5. Moreover, the Authority has held that it is not required that an employee otherwise would have been in a duty status in order to be entitled to official time under section 7131(d). For example, U.S. Department of Justice, Bureau of Federal Prisons, Federal Correctional Institution, Seagoville, Texas and American Federation of Government Employees, Council of Prison Locals, Local No. 1637, 22 FLRA No. 5 (1986), slip op. at 4. See also Wright - Patterson Air Force Base, Ohio, 2750th Air Base Wing and American Federation of Government Employees, Local 1138, 23 FLRA No. 55 (1986), where the Authority modified the award to provide compensation at straight-time rates for employees who attended an arbitration hearing as union witnesses outside their regular duty hours.

In this case, the Arbitrator effectively found that the parties' collective bargaining agreement provided for official time for an employee's representational activities in connection with the processing of unfair labor practice charges and that in the specific circumstances presented, the grievant was entitled to 250 minutes of official time under the agreement. The Arbitrator therefore effectively found that all of the conditions of section 7131(d) had been met. Consequently, we find that the Arbitrator properly awarded the grievant compensation for the amount of non-duty time spent performing th