U.S. Federal Labor Relations Authority

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22:0056(5)AR - Justice, Bureau of Federal Prisons, Federal Correctional Institution, Seagoville, TX And AFGE, Council of Prison Locals, Local 1637 -- 1986 FLRAdec AR

[ v22 p56 ]
The decision of the Authority follows:

 22 FLRA No. 5
 LOCAL NO. 1637
                                            Case No. 0-AR-991
    This matter is before the Authority on exceptions to the award of
 Arbitrator Charles N. Carnes filed by the Activity under section 7122(a)
 of the Federal Service Labor-Management Relations Statute and part 2425
 of the Authority's Rules and Regulations.
    The dispute before the Arbitrator arose when the Activity proposed to
 suspend the grievant for 14 days for continuing to work on a particular
 project after being instructed by his supervisor to stop.  The
 Activity's notice of proposed suspension advised the grievant, among
 other things, that he would be granted a reasonable amount of official
 time to review the materials upon which the proposed action was based
 and to present a reply.  The grievant's request for eight hours of
 "administrative time" to prepare his reply was denied by the Activity's
 Personnel Office on the ground that there was no provision in the
 parties' collective bargaining agreement for granting any time at that
 stage of the proceeding.  The grievant then prepared his reply to the
 notice of proposed action on his own time after duty hours.  The
 grievant eventually was suspended for three days and filed the grievance
 before the Arbitrator in this case.  The grievance contested the merits
 of the suspension action and also raised a number of procedural issues,
 including the Activity's denial of the grievant's request for time to
 prepare his case.
    As to the merits, the Arbitrator determined that the Activity had
 established just and sufficient cause for the 3-day suspension.  As to
 the pertinent procedural issue, however, the Arbitrator found that the
 grievant's rights were violated when his request for time to prepare his
 case was denied.  The Arbitrator noted that the Activity had promised
 the grievant a reasonable amount of official time for that purpose and
 was obligated to keep its promise.  The Arbitrator also found that the
 negotiated grievance procedures of the parties' agreement cover all
 matters grievable under section 7121 of the Statute and provide that
 employees will be allowed a reasonable amount of official time to
 present their grievances.  The Arbitrator concluded that the subject
 matter of the dispute before him met the broad definition of "grievance"
 under section 7103(a)(9) of the Statute for which official time was
 allowable under the agreement.  The Arbitrator further concluded that in
 the circumstances involved the grievant should have been granted four
 hours of official time to prepare his case.  As a remedy, the Arbitrator
 awarded the grievant four hours of pay.
    In its exceptions, the Agency contends that the award of four hours
 pay is contrary to law.  More specifically, the Agency argues that the
 award is contrary to the Back Pay Act, 5 U.S.C. Section 5596, because it
 in effect requires the retroactive payment of four hours of overtime pay
 to the grievant and the findings necessary for such a payment under the
 Back Pay Act were not made.  The Agency also argues that the award is
 contrary to section 7131(d) of the Statute because official time can
 only be granted in circumstances where the employee would otherwise be
 in a duty status and the grievant in this case performed the case
 preparation work on his own time during nonduty hours.
    The Authority finds that the Agency has failed to establish that the
 Arbitrator's award is deficient as alleged.  In a recent decision,
 American Federation of Government Employees and Social Security
 Administration, 21 FLRA No. 14 (1986), the Authority reiterated its
 previous indications that section 7131(d) of the Statute /*/ expressly
 authorizes parties to negotiate for the granting of official time for
 the performance of specified activities and that the Statute effectively
 provides a remedy when official time under section 7131(d) is wrongfully
 denied.  Thus, where official time, authorized by provisions of a
 collective bargaining agreement consistent with section 7131(d) of the
 Statute, is wrongfully denied and the covered activities are thereafter
 performed on nonduty time, section 7131(d) entitles the aggrieved
 employee to be paid for the amount of time that should have been
 official time.  In this case, while the grievant was not engaged in
 union representational activities, section 7131(d)(2) of the Statute
 expressly provides for official time for bargaining unit employees "in
 connection with any other matter covered by this chapter." The
 Arbitrator found the dispute was a "grievance" covered by the Statute
 and the parties' agreement and that under the agreement the grievant was
 entitled to four hours of official time.  Thus, the Arbitrator
 effectively found that the conditions of section 7131(d) had been met.
    With regard to the Agency's specific contentions, the Authority first
 finds that the Agency's argument that the Arbitrator's award is contrary
 to the Back Pay Act because the Arbitrator awarded the grievant
 retroactive overtime pay without making the necessary findings for such
 an award is without merit.  The Authority has determined that
 performance of representational activities on nonduty time (outside
 regular working hours) is not overtime work.  See Social Security
 Administration and American Federation of Government Employees, Local
 1164, AFL-CIO, 19 FLRA No. 4 (1985);  National Treasury Employees Union
 v. Gregg, No. 83-546, slip op. at 4-5 (D.D.C. Sept. 28, 1983).  The
 Authority therefore concludes, contrary to the Agency's contention, that
 since the grievant's performance on nonduty time of case preparation
 work for which official time should have been granted under section
 7131(d)(2) was not overtime uork, the Arbitrator did not award
 retroactive overtime pay and his award is not contrary to the Back Pay
 Act.  With regard to the Agency's argument that under section 7131(d) of
 the Statute and employee must "otherwise be in a duty status" in order
 to be eligible to receive official time, such argument is also without
 merit.  While subsections (a), (b) and (c) of section 7131 are explicit
 in regard to requiring an employee to be in a duty status in order to
 receive official time, subsection (d) is silent in that regard.  In
 interpreting that subsection, the Authority has clearly indicated that
 it is not required that an employee would otherwise have been in a duty
 status in order to be entitled to official time under Section 7131(d).
 See Local 1164, American Federation of Government Employees, AFL-CIO and
 Social Security Administration, Boston Region, 19 FLRA No. 110 (1985).
 The Authority therefore concludes that the Agency has also failed to
 establish that the Arbitrator's award is contrary to section 7131(d) of
 the Statute as alleged.
    Accordingly, for the above reasons, the Agency's exceptions are
    Issued, Washington, D.C., June 4, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
                ---------------  FOOTNOTES$ ---------------
    (*) 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.