39:0546(44)AR - - AFGE, National Council of Field Labor Locals and DOL, Mine Safety and Health Administration, Denver, CO - - 1991 FLRAdec AR - - v39 p546



[ v39 p546 ]
39:0546(44)AR
The decision of the Authority follows:


39 FLRA No. 44

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL COUNCIL OF FIELD LABOR LOCALS

(Union)

and

U.S. DEPARTMENT OF LABOR

MINE SAFETY AND HEALTH ADMINISTRATION

DENVER, COLORADO

(Agency)

0-AR-1925

DECISION

February 13, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Garth L. Mangum filed by the Agency pursuant to section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.

The grievance concerned the Agency's denial of the grievant's request for official time and travel expenses to attend a hearing on his claim before the Department of Labor's Office of Workers' Compensation Programs (OWCP). Under the Federal Employment Compensation Act, 5 U.S.C. ºº 8101, et seq. (FECA), OWCP is empowered to review workers' compensation claims for all Federal employees. The Arbitrator determined that the parties' collective bargaining agreement required that the grievant be given official time for the purpose of attending the OWCP hearing. The Arbitrator directed the Agency to: (1) grant official time to the grievant; (2) restore the grievant's leave; and (3) compensate the grievant for travel expenses incurred in connection with his attendance at the hearing.

For the reasons discussed below, we deny the Agency's exceptions.

II. Background and Arbitrator's Award

The grievant is an underground coal mine inspector for the Agency and is stationed in Price, Utah. After he became concerned that his hearing was being affected by exposure to noise during his work, he had audiograms taken which showed some hearing loss. He then filed a claim with OWCP for compensation for an occupation-related hearing loss. OWCP referred him for further testing and ruled that, although there was some hearing loss, it was not sufficient to constitute a rateable hearing loss for purposes of compensation.

The grievant then requested a hearing from OWCP. The hearing was scheduled to be held in Salt Lake City. The grievant asked the Agency for permission to use an Agency automobile and to travel to and from Salt Lake City on official time for the hearing. His supervisor responded that he had no objection but would have to check to see if that was authorized. The supervisor asked a secretary in the office to check. She called OWCP and was told that the grievant would have to travel on his own time, in his own vehicle, and at his own expense.

OWCP informed the Agency in writing that it had scheduled a hearing in the grievant's compensation case. OWCP requested the Agency to complete and return a form that stated, in pertinent part:

While the employing agency is not a party to such hearing, it has [an] interest in the outcome of the hearing, and frequently possesses information pertinent to issues raised at the hearing. Therefore, the employing agency is given the opportunity to have a representative in attendance at the hearing and to request that it receive a copy of the hearing transcript.

Where the employing agency sends a representative to a scheduled hearing, the representative will attend primarily in the role of an observer without the right to question the claimant or make any argument. However, since the claimant is entitled to present evidence in support of the claim, the agency representative may, upon the specific request of the claimant or the claimant's representative, be asked by the OWCP hearing representative to give oral testimony at the hearing. Where the employing agency wishes to have a representative attend a hearing, it should assume that its representative will be subject to being called upon to give testimony.

Where the employing agency requests that it receive a copy of the hearing transcript, either by completion of this questionnaire or by written request by the agency representative at the hearing, the employing agency will be allowed 15 days following release of the requested transcript to submit comments or additional material or inclusion in the record and study by the OWCP Hearing Representative in reaching a decision. Any comments or materials submitted by the agency are subject to review and comment by the claimant and/or the claimant's representative.

Arbitrator's Award, Attachment A. The Agency indicated on the form that an Agency representative would not attend the hearing, but that the Agency did wish to receive a copy of the hearing transcript. Id.

The grievant used his own vehicle and took annual leave, but did so under protest. Following the hearing, the OWCP hearing officer affirmed the denial of the grievant's claim. Subsequently, the grievant filed a grievance seeking restoration of his leave and reimbursement for his travel expenses on the basis that the Agency's denial of official time and travel expenses violated the parties' collective bargaining agreement. The Agency denied the grievance and the grievance was submitted to arbitration.

The Union contended before the Arbitrator that: (1) the parties' agreement required official time to be awarded to the grievant for his attendance at the OWCP hearing; (2) official time and travel expenses had been granted for other statutory appeal proceedings; (3) one Union representative had been granted official time and travel expenses to represent an employee in an OWCP hearing and a bargaining unit employee had been granted the same for his own hearing, and no unit employee had been denied official time and travel expenses before; and (4) "the filling out of papers relevant to the grievant's case by both himself and members of management was performed on official time and the appeal hearing should be equally a matter of official time and travel." Award at 2.

The Agency contended that, under the parties' agreement and sections 7103(a)(14)(C) and 7131 of the Statute, official time and travel could not be granted for the purpose of attending an OWCP appeal.

The Arbitrator stated that the issues before him concerned: (1) the relationship between the parties' collective bargaining agreement and the specifications of the Statute; and (2) the meaning of Article 8, Section 3(B) and (D) of the agreement. Award at 3. See Appendix for the relevant text of Article 8 of the parties' collective bargaining agreement.

The Arbitrator rejected the Agency's argument that, pursuant to section 7103(a)(14)(C) of the Statute, the grievance could not be appealed through the grievance procedure because Federal employees' compensation was a matter "specifically provided for" by statute. The Arbitrator noted that the issue presented by the grievance was not the rejection of the grievant's appeal by OWCP, but rather the Agency's rejection of the grievant's request that he be allowed official time and travel to attend the OWCP hearing on his appeal of the OWCP decision. Award at 4.

The Arbitrator noted that the Union cited section 7131(d)(2) of the Statute. That section states that, except as provided in the preceding subsections of section 7131, "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." The Arbitrator stated:

The 'chapter' reference is to the entire Chapter 71 Labor Management Relations of the Civil Service Reform Act of 1978. That proviso is too all-encompassing to be of much assistance in deciding this issue, except in the negative sense that it does not explicitly prohibit time and travel for an occasion such as that in question. Since nothing in relevant law forbids the award of official time and travel under the circumstances, the arbitrator must find his decision within the provisions of the collective bargaining agreement.

Award at 4-5.

The Arbitrator stated that Article 8, Section 3(B) of the parties' agreement authorizes official time for bargaining unit employees who attend third-party proceedings when the employee is the affected party in a statutory appeal proceeding. Award at 5. He further noted that Article 8, Section 3(D) provides that "a bargaining unit employee may utilize a reasonable amount of official time and will be reimbursed for travel to and from meetings specified in this Section.'" Id. Based on his interpretation of Article 8, the Arbitrator concluded that the Agency had violated Article 8, Section 3(B) and (D) because: (1) the grievant was a bargaining unit employee; (2) OWCP was a third party relative to the grievant and the Agency; and (3) the OWCP hearing was statutorily authorized. Id. Accordingly, the Arbitrator found that "the grievant's claim meets every requirement of the collective bargaining agreement" and made the following award:

The grievance is sustained. Pay for the day in question is to be removed from the leave category and is to be compensated as official time. The grievant is to be compensated at standard mileage rates for the travel connected with his attendance at the February 10, 1989 O[W]CP hearing.

Id.

III. Positions of the Parties

A. Agency's Exceptions

The Agency contends that the Arbitrator's award is contrary to law because it "grants official time for an activity that is not covered by the Statute." Exceptions at 6. The Agency asserts that the Arbitrator erred in not addressing the applicability of section 7131 of the Statute. According to the Agency, section 7131 governs official time for Federal employees and permits official time to be used only for matters relating to labor-management relations activities, and "there is no indication that the grievant's use of official time for the purpose of attending an OWCP appeal was related to any labor-management activities under the Statute." Id. In this regard, the Agency takes the position that no labor-management dispute was involved in this case because the Agency was not a party to the dispute. Id. at 8.

The Agency also maintains that the Arbitrator's award does not concern a labor-management matter covered by the Statute because the activity in question--the OWCP appeal hearing--is not a condition of employment under the Statute. According to the Agency, matters specifically provided for by Federal statute cannot be subject to negotiations as a "condition of employment." Id. at 10. The Agency asserts that because an OWCP appeal hearing is specifically provided for in 5 U.S.C. º 8124, the Agency could not bargain concerning official time for the grievant's OWCP appeal hearing and could not award official time for that purpose "without contravening the Statute." Exceptions at 10.

Further, the Agency argues that the Arbitrator erred in interpreting the parties' agreement to permit "a bargaining employee to receive official time to attend any statutorily authorized third party proceeding." Id. at 11 (emphasis in original). Under this interpretation, according to the Agency, a "bargaining unit employee would receive official time to appear in traffic court to appeal an off-duty traffic ticket before a hearing officer so long as the traffic proceeding was statutorily authorized." Id. at 11-12.

Finally, the Agency contends that the Arbitrator's award of travel expenses to the grievant is contrary to law. According to the Agency, "if an employee is not entitled to official time, he is not entitled to receive travel for the appearance either." Id. at 12.

B. Union's Opposition

The Union contends that the Agency's exceptions constitute nothing more than disagreement with the Arbitrator's decision because neither law nor regulation expressly prohibits the grant of official time and travel for attendance at an OWCP hearing. Further, the Union argues that the Arbitrator correctly interpreted Article 8 of the parties' agreement. Opposition at 4.

The Union asserts that, if official time and travel expenses may be granted for other statutory appeals such as those before the Equal Employment Opportunity Commission (EEOC) and the Merit Systems Protection Board (MSPB), official time and travel expenses should be granted to an employee to attend an OWCP hearing. Id. at 3. According to the Union, official time is granted to attend hearings at those agencies even though nothing in the laws governing those agencies, as with OWCP, covers an award of official time. Id.

The Union points out that testimony before the Arbitrator indicated that the Agency had granted official time and travel expenses in at least two prior OWCP appeal hearings and that Agency officials and the grievant had been given official time to complete the paperwork necessary to the grievant's OWCP appeal. Id. at 4-5. According to the Union, the grievant's OWCP hearing should be equally a matter for which official time and travel expenses should be authorized.

The Union disputes the Agency's contention that the grievant's appeal concerns a matter that is not related to a condition of employment of unit employees. According to the Union, "[i]f an employee suffers an injury on the job, the matter clearly affects working conditions within the meaning of the Statute." Id. at 2.

The Union also disputes the Agency's contentions that the Agency was not a party to the grievant's appeal and that the grievant's attendance at the OWCP hearing did not constitute a labor-management relations matter. The Union claims that the Agency was given an opportunity to attend the hearing and to request transcripts. According to the Union, "[a]n agency cannot simply stay away from a statutory appeal proceeding and then argue that the issue of official time and travel is not covered as a labor-management matter." Id.

IV. Analysis and Conclusions

We conclude that the Agency has failed to demonstrate that the award is deficient. Accordingly, we will deny the Agency's exceptions.

A. The Award is Consistent with Law

The Agency contends that the Arbitrator erred in not addressing the applicability of section 7131(d). As discussed below, we find that section 7131(d) does not render the award deficient because it does not apply in the circumstances of this case.

Section 7131(d) provides that representatives of an exclusive representative, or any bargaining unit employee, may be granted official time "in any amount the agency and the exclusive representative involved agree to be reasonable, necessary, and in the public interest." The Authority has held in cases arising out of negotiability appeals under section 7105(a)(2)(E) that official time to be negotiated under this section is to be used for a purpose that is related to "labor-management relations activity." American Federation of Government Employees, Local 2761 and Department of the Army, Army Publications Distribution Center, St. Louis, Missouri, 32 FLRA 1006, 1012 (1988) (AFGE, Local 2761).

Thus, section 7131(d) relates only to the granting of official time in connection with labor-management relations activities. Under section 7131(d), official time may be authorized and is subject to certain limitations insofar as the official time concerns labor-management relations activities. Accordingly, official time negotiated pursuant to section 7131(d) must relate to labor-management relations activities. See, for example, AFGE, Local 2761 and National Federation of Federal Employees and Department of the Interior, Bureau of land Management, 29 FLRA 1491, 1503-04 (Bureau of Land Management), enforced in part and reversed in part as to other matters sub nom. Department of the Interior, Bureau of Land Management v. FLRA, 873 F.2d 1505 (D.C. Cir. 1989).

However, in our view, section 7131(d) does not preclude parties to a collective bargaining agreement from agreeing to provide official time for other matters; that is, matters other than those relating to labor-management relations activities. In other words, section 7131(d) affirmatively permits the negotiation of official time for labor-management relations activities; it does not preclude parties from agreeing to provide for official (paid) time in other circumstances unrelated to labor-management relations activities, provided that the granting of official time in those other circumstances is otherwise consistent with the Statute and other applicable laws and regulations.

Official time may be granted for a variety of matters. For example, official time may be granted to employees to attend hearings before the EEOC and to respond to requests for discovery made in accordance with MSPB discovery procedures. See 29 C.F.R. º 1613.214(a)(2) and 5 C.F.R. º 1201.73(a). Consistent with an agency's broad discretion to grant paid time in a variety of circumstances, parties may agree in their collective bargaining agreements to provide official time for other matters. In such circumstances, an arbitrator's interpretation of a collective bargaining agreement provision dealing with official time will not be found deficient under the Statute unless the award is contrary to law, rule, or regulation or other grounds stated in section 7122 of the Statute. To the extent that earlier Authority decisions suggest that all collective bargaining agreement provisions dealing with official time must relate solely to labor-management relations activities, they will no longer be followed. Of course, any provisions dealing with official time for labor-management relations activities must be consistent with section 7131 of the Statute.

As set forth in the appendix to this decision, the parties' collective bargaining provision in this case authorizes a unit employee to use "a reasonable amount of official time to attend meetings with management and third party proceedings when he/she is the affected employee or witness in a grievance, or statutory appeal proceeding." As is clear from the Arbitrator's award, the Arbitrator interpreted the provision as granting official time under certain specified conditions, not restricted solely to labor-management relations activities. As so interpreted, section 7131(d) of the Statute does not apply. The Agency cites no law, rule, or regulation with which the Arbitrator's award is inconsistent. Accordingly, we reject the Agency's contention that the award is inconsistent with section 7131(d) of the Statute.

Further, we reject the Agency's argument that, pursuant to section 7103(a)(14)(C) of the Statute, the grievance could not be appealed through the grievance procedure because Federal employees' compensation was a matter "specifically provided for" by statute. As the Arbitrator correctly noted, the issue presented by the grievance was not the rejection of the grievant's appeal by OWCP, but rather the Agency's rejection of the grievant's request that he be allowed official time and travel to attend the OWCP hearing on his appeal of the OWCP decision. Award at 4. The section cited by the Agency, 5 U.S.C. º 8124, does not address the matter of official time for the grievant's attendance at the OWCP appeal hearing so as to exclude that matter from the definition of "conditions of employment."

Accordingly, we conclude that the Arbitrator's award of official time to the grievant to attend the OWCP appeal hearing in this case is consistent with law.

B. The Arbitrator's Interpretation of the Parties' Agreement Provides No Basis for Finding the Award Deficient

The Agency's contention that the Arbitrator's interpretation of the parties' agreement is erroneous provides no basis for finding that the award is deficient. The Arbitrator found, specifically interpreting and applying Article 8, Section 3(B) of the parties' agreement, that the grievant was entitled to official time and travel expenses for the purpose of attending the OWCP hearing. Further, because the grievant's attendance at the OWCP hearing is a matter for which official time may be granted, the Arbitrator determined that it is also a matter for which travel expenses are authorized under Article 8, Section 3(D) of the parties' agreement. The Agency's contention that the Arbitrator's interpretation of the parties' agreement is erroneous constitutes nothing more than disagreement with the Arbitrator's interpretation and application of the parties' agreement. The Agency has not demonstrated that the award fails to draw its essence from the agreement or that the Arbitrator exceeded his authority in interpreting the parties' contractual provision in the manner that he did. See, for example, Adjutant General, State of Oklahoma, Air National Guard, Tulsa, Oklahoma and National Association of Government Employees, Local R8-17, 34 FLRA 691, 695 (1990).

V. Decision

The Agency's exceptions are denied.

APPENDIX

ARTICLE 8
Official Time and Travel Expenses for
Representational Activity

Section 1--General

(A) Management recognizes that whateve