[ v19 p890 ]
The decision of the Authority follows:
19 FLRA No. 105 U.S. DEPARTMENT OF THE AIR FORCE, HEADQUARTERS OKLAHOMA CITY AIR LOGISTICS CENTER, TINKER AIR FORCE BASE, OKLAHOMA Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 916 Union Case No. O-AR-716 DECISION This matter is before the Authority on exceptions to the award of Arbitrator John P. Owen filed on behalf of the Activity by the Department of the Air Force (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 parties submitted to arbitration the issue of whether the Activity violated the parties' collective bargaining agreement by denying the grievant union official's request for official time to prepare a second step grievance. The record indicates that the grievant requested and was granted 5-1/2 hours of official time for processing grievances on the day in question, and that when his request for two additional hours for preparation of the subject second step grievance was denied, he spent his personal time after duty hours to accomplish that task. The Arbitrator determined that the Activity's denial of the grievant's request was violative of the parties' agreement, which pertinently provided that union officials will be granted a reasonable amount of official time for the preparation of grievances, and directed that the grievant's payroll account be credited with two hours of official time. Subsequently, in response to the Activity's request for a clarification of the remedy, the Arbitrator in effect directed that the grievant union official "be granted a future two (2) hours of official time at the beginning of a pay period to be used at his discretion . . . . " In one of its exceptions, the Agency essentially contends that the award is deficient because the remedy ordered by the Arbitrator is not authorized in the circumstances of this case. The Authority agrees. Section 7131(d) of the Statute /1/ expressly authorizes the parties to negotiate for the granting of official time for the performance of the specified representational activities. Because the Statute does not authorize the granting of official time as corrective action 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 specifically found that the Activity violated the parties' collective bargaining agreement in denying the grievant's request for additional official time. In this regard, the language of section 7131(d) expressly states that when the enumerated conditions are met (which conditions do not include that during the time, the employee would otherwise have been in a duty status), an "employee . . . shall be granted official time." Thus, with the Arbitrator essentially having found that all the conditions of section 7131(d) had been met, 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. 1043, 95th Cong., 2d Sess. 58 (1978), and the 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 the 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). Accordingly, the Arbitrator's clarified award is modified by substituting the following for the remedy provided: /2/ The grievant is to be compensated at the appropriate straight-time rate for the nonduty time spent in preparation of the grievance 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 Agency's other exception.