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19:0932(109)AR - SSA and AFGE Local 3231 -- 1985 FLRAdec AR

[ v19 p932 ]
The decision of the Authority follows:

 19 FLRA No. 109
                                            Case No. O-AR-770
    This matter is before the Authority on exceptions to the award of
 Arbitrator J. Scott Tharp 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 in this case on
 the issue of whether the activity properly denied the grievant union
 official's request for official time in order to prepare post-hearing
 briefs in two arbitration cases.  According to the Arbitrator, the
 grievant had requested 49 1/4 hours of official time to prepare the
 briefs, but was granted only 16 hours.  Consequently, the grievant took
 18 3/4 hours of leave without pay and spent 14 1/2 hours of personal
 nonduty time in addition to the 16 hours of official time in order to
 prepare the briefs.  The Arbitrator noted that consistent with section
 7131 of the Statute, the parties had agreed in their collective
 bargaining agreement that union representatives will be granted
 reasonable official time which is necessary for the performance of
 labor-management relations functions.  In this regard, the Arbitrator
 noted that the grievant testified in considerable detail concerning the
 complexities of the cases involved while the Activity primarily
 contended that the allowed time was sufficient without presenting the
 management representatives who wrote the Activity's briefs to testify
 that the matters involved were less complex than described by the
 grievant.  Accordingly, the Arbitrator ruled that the grievant should
 have been granted the full amount of official time requested.  Thus, he
 sustained the grievance and ordered that the grievant be compensated for
 the 18 3/4 hours of leave without pay and be granted 14 1/2 hours of
 administrative leave for the personal time spent preparing the briefs.
    In its exceptions the Agency primarily contends that the award of 14
 1/2 hours of administrative leave 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, which had been negotiated 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.  /2/ 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 representation duties in
 other than a leave 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 award is
 modified by substituting the following sentence for the last sentence of
 the award.  /3/
          Accordingly, the grievance is sustained for the reasons set
       forth above, and it is ordered that grievant be compensated for
       the 18 3/4 hours of leave without pay she was required to take for
       the two cases involved and that she be compensated at the
       appropriate straight-time rate for the 14 1/2 hours of nonduty
       time spent in preparing briefs in the two cases involved.
 See id. at 2 & n.1.  Issued, Washington, D.C., August 22, 1985
                                       Henry B. Frazier III, Acting
                                       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
          (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 so deciding, the Authority notes that the Activity did not
 establish before the Arbitrator and does not argue before the Authority
 that the amount of time spent by the union official in preparation of
 the briefs was not "reasonable, necessary, and in the public interest."
 While the Statute does not define what would be reasonable and necessary
 time within the meaning of section 7131(d), the legislative history
 indicates that this section was intended to enable the exclusive
 representative to seek through negotiations access to official time
 utilized by management for its "interface" activities.  Thus, the amount
 of official time utilized by management for a particular activity would
 be a criterion for defining the amount of reasonable time allowable
 under section 7131(d).  In terms of this case, as noted, there was no
 testimony as to the amount of time utilized by management in the
 preparation of the briefs involved.  Award at 8.
    /3/ In view of this decision, it is not necessary that the Authority
 address the other exceptions to the award.