19:0936(110)AR - Local 1164, AFGE and SSA Boston Region -- 1985 FLRAdec AR

 19 FLRA No. 110
 
 LOCAL 1164, AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, AFL-CIO
 Union
 
 and
 
 SOCIAL SECURITY ADMINISTRATION,
 BOSTON REGION
 Activity
 
                                            Case No. O-AR-819
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award, as
 clarified, of Arbitrator Theodore Role 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, among others, of whether the Activity violated the parties'
 collective bargaining agreement when it refused to grant the grievant
 union official's request for two hours of official time in order to
 prepare for the presentation of a grievance to the Activity's area
 director.  According to the Arbitrator, when the grievant's request was
 denied, she spent two hours of nonduty time on such preparation.  Noting
 both section 7131(d) of the Statute and the official time provisions of
 the parties' agreement that were negotiated to be consistent with the
 Statute, the Arbitrator ruled that the request was reasonable and that
 by denying the request, the Activity violated the Statute and the
 parties' agreement.  Accordingly, in his award as clarified, the
 Arbitrator found that the grievant should be given two hours of
 administrative leave to make her whole for the personal time spent
 preparing for the grievance presentation involved.
 
    In its exceptions the Agency primarily contends that the award of two
 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 both to
 section 7131(d) and 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.  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 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 award as clarified is modified to substitute the following in place
 of the provision for administrative leave.  /2/
 
          I find that the grievant is to be compensated at the
       appropriate straight-time rate for the two hours of nonduty time
       spent in preparation for the grievance presentation 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 for the Authority
 to address the other exceptions to the award.