19:0887(104)AR - SSA and AFGE -- 1985 FLRAdec AR
[ v19 p887 ]
The decision of the Authority follows:
19 FLRA No. 104 SOCIAL SECURITY ADMINISTRATION Agency and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Union Case No. O-AR-825 DECISION This matter is before the Authority on exceptions to the award of Arbitrator William J. Hannan 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. A grievance was filed and submitted to arbitration on the issue of whether the Activity violated the parties' collective bargaining agreement in denying the grievant union official's request for three hours of official time for legal research and case preparation for an arbitration hearing. According to the Arbitrator, when the grievant's request was denied, she spent three hours of personal nonduty time on such preparation. Noting both section 7131(d) of the Statute and the official time provisions of the parties' collective bargaining agreement, the Arbitrator determined that the request was reasonable and should have been granted. Accordingly, he sustained the grievance and directed as follows: The Grievant is to be given three hours, with pay, of administrative or compensatory time for her personal use at such time as mutually agreed to between herself and her Supervisor. In its first exception, the Agency essentially contends that to the extent the award grants three hours of compensatory time off, the award is contrary to law. The Authority agrees. In Social Security Administration and American Federation of Government Employees, Local 1164, AFL-CIO, 19 FLRA No. 4 (1985), the Authority specifically held that the union official's performance on nonduty time of representational functions attendant to a grievance arbitration matter was not the performance of "hours of work officially ordered or approved" that constituted overtime work under the governing provisions of 5 U.S.C. 5542(a) for which overtime pay or compensatory time off could be granted. Section 5542(a) was determined to govern because it was not contested that the union official was an employee exempt from coverage under the Fair Labor Standards Act. Accordingly, the award of compensatory time off was found deficient as not authorized by law. In terms of this case, and for the same reasons, the Authority finds the award deficient as not authorized by law to the extent it grants three hours of compensatory time off. In its second exception the Agency primarily contends that to the extent the award grants three hours of administrative leave, the award is deficient because the Arbitrator was not authorized to grant administrative leave in lieu of official time in that the grievant was solely entitled to official time. The Authority agrees. The Federal Personnel Manual provides authority to agencies in certain situations to grant brief periods of excused absence without charge to leave, commonly referred to as administrative leave. FPM Supplement 990-2, book 630, subchapter S11. Because corrective action for the denial of official time is not indicated as an appropriate situation for the granting of administrative leave and because the Statute effectively provides a remedy when official time under section 7131(d) of the Statute is wrongfully denied, the Authority finds that the award must be modified to substitute the remedy provided by the Statute. As has been noted, the Arbitrator with reference to the agreement provisions for official time and their administration to conform to the Statute ruled that the grievant should have been granted official time. Thus, the Arbitrator effectively found that all the conditions of section 7131(d) had been met (which conditions do not include that during the time, the employee otherwise would have been in a duty status). /1/ Consequently, the grievant under the express terms of the Statute was entitled, and remains entitled, to be granted official time. The Authority determines that where official time is wrongfully denied and the representational functions are thereafter performed on other than official time, the statutory provision entitles the aggrieved employee to be paid for the amount of time that should have been official time. In this respect, both Congress in the legislative history to the Statute, H.R. Rep. No. 1403, 95th Cong. 2d Sess. 58 (1978), and the U.S. Supreme Court in Bureau of Alcohol, Tobacco and Firearms v. FLRA, 104 S.Ct. 439, 445 (1983) equated official time to "paid time." See American Federation of Government Employees, Local 3615 and Social Security Administration, Arlington, Virginia, 17 FLRA No. 126 (1985). Consequently, the Authority finds in terms of this case that the award should have granted the grievant compensation for that amount of time spent performing union representational duties in a nonduty status which the Arbitrator ruled should have been performed on official time. See General Services Administration, Washington, D.C., 18 FLRA No. 52 (1985). For these reasons, the award is accordingly modified by substituting the following sentence for the last sentence of the award. /2/ The grievant is to be compensated at the appropriate straight-time rate for the three hours of nonduty time spent in preparation for the arbitration hearing involved. See id. at 2 & n.1. Issued, Washington, D.C., August 22, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ 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. /2/ In view of this decision, it is not necessary to address the other exceptions to the award.