24:0245(29)AR - National Archives and Records Administration and AFGE Council 236 Local 2928 -- 1986 FLRAdec AR
[ v24 p245 ]
24:0245(29)AR
The decision of the Authority follows:
24 FLRA No. 29
NATIONAL ARCHIVES AND
RECORDS ADMINISTRATION
Agency
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL 236, LOCAL 2928
Union
Case No. 0-AR-1128
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on an exception to the award of
Arbitrator Gerald Cohen filed by the Agency under section 7122(a) of the
Federal Service Labor-Management Relations Statute (the Statute) and
part 2425 of the Authority's Rules and Regulations.
II. BACKGROUND AND ARBITRATOR'S AWARD
The grievance in this case arose when the grievant was charged with
absence without leave (AWOL) for a period of time in which she was away
from her worksite at the Winnebago Avenue office. The grievant was a
Union official entitled under the agreement to spend 35 percent of her
time "to perform (her) official representational duties." On the day in
question, she told her supervisor at 7:30 a.m. that she would be using
official time for Union duties; the supervisor agreed to release her at
that time. The grievant worked on Union business for approximately an
hour and a half at the Winnebago Avenue worksite and then prepared to
leave the building to go to the Union office at the Page Avenue
worksite. Before she left, another employee was arrested by the police
in connection with a domestic matter and taken to the police station.
The grievant left the Winnebago Avenue building at the same time as the
police. As she was leaving, her supervisor ordered her not to leave and
warned that if she did she would be charged annual leave or AWOL. The
grievant left the building despite the supervisor's warning and went to
the police station where she assisted the arrested employee. The
grievant then went to the Page Avenue Union office where she performed
Union representational duties until the afternoon. The grievant refused
to take annual leave and was charged with AWOL for the time spent away
from the building.
The matter was submitted to arbitration. The Arbitrator stated the
issues to be: (1) whether the Agency violated the national agreement by
its procedure for granting official time for Union representation, and
(2) whether the Agency violated the agreement by charging the grievant
with AWOL. The Arbitrator ruled that the Agency had agreed that the
grievant could spend a maximum of 35 percent of her time performing
Union duties and as a result had relinquished a portion of its right to
control her activities. He stated that Union representatives were
responsible for using the official time allotted them wisely and that if
official time was abused, the correction of the abuse lies with the
Union. He found that the Agency's right to deny official time under the
agreement arises when official time is requested but cannot be granted
because of workload considerations or because there is no available
employee to replace the Union representative. He found no restriction
in the agreement concerning where Union representational duties could be
performed and ruled that the Agency had no right to inquire as to the
nature or the location of the work to be done. The Arbitrator found as
fact that the grievant requested and was granted official time and he
ruled that the supervisor violated the agreement when she later denied
the grievant permission to leave the Winnebago Avenue site. As his
award the Arbitrator sustained the grievance and ordered the AWOL charge
stricken and the time charged to official time with backpay as
appropriate.
III. AGENCY EXCEPTION
The agency filed an exception to that portion of the award which
pertains to the time spent by the grievant at the police station and the
time spent traveling to the station. The Agency contends that this
portion of the award is contrary to section 7131(d) /*/ of the Statute
because it allows official time for a nonrepresentational purpose. The
Agency contends that representing an employee in a police matter does
not constitute a grievance, arbitration or other contract administration
matter. The Agency also excepts to the Arbitrator's ruling that the
grievant had the right to use official time wherever she wished
notwithstanding the supervisor's objections and contends in this regard
that the award fails to draw its essence from the agreement.
IV. ANALYSIS AND CONCLUSION
We agree with the Agency's contention that the Arbitrator's award is
contrary to law, specifically section 7131(d) of the Statute. The plain
language of that section is that official time may be negotiated only
for an employee representing an exclusive representative or in
connection with matters covered by the Statute. The legislative history
of the Statute confirms that official time negotiated under section
7131(d) is to be used for labor-management relations activity. See H.R.
Rep. No. 1403, 95th Cong., 2d Sess. 59 (1978), reprinted in Committee on
Post Office and Civil Service, House of Representatives, 96th Cong., 1st
Sess., Legislative History of the Federal Service Labor-Management
Relations Statute of 1978, Committee Print No. 96-7, at 705 (1979)
(Legislative History); S. Rep. No. 969, 95th Cong., 2d Sess. 112, 113
(1978), Legislative History at 772, 773. Examples of the proper uses of
official time for representational purposes include the investigation
and attempted informal resolution of employee grievances, participation
in formal grievance resolution procedures, attendance or preparation for
meetings of committees on which both the labor organization and
management are represented and discussion of problems in contract
administration with management officials. S. Rep. No. 95-969 at 113.
See also Social Security Administration and American Federation of
Government Employees, AFL-CIO, Local 3231, 19 FLRA No. 109 (1985) at
n.2.
Consistent with the Statute, agencies and labor organizations may
negotiate amounts of official time which are reasonable, necessary and
in the public interest. The official time must be used for
labor-management purposes, however. In the present case, the Arbitrator
ruled that the Agency had no right to restrict the grievant's use of
official time once it had determined that it was not constrained by such
matters as workload considerations and had granted the time. However,
there is no indication in the record that the grievant's use of official
time for the purpose of assisting an employee in a private matter with
the police was related to any labor-management activities under the
Statute. The grievant's supervisor acted within her authority when she
challenged the grievant's use of previously granted official time
because she suspected that the time was not to be used for
labor-management purposes. If the grievant believed that she was
improperly denied official time, her recourse was to obey the order and
then file a grievance. See, for example, Bigelow v. Department of
Health and Human Services, 705 F.2d 962, 965 (Fed. Cir. 1984);
Department of the Air Force, McGuire Air Force Base and American
Federation of Government Employees, Local No. 1778, 6 FLRA 283 (1981).
Consequently, we find that insofar as the award sustained the grievance
and ordered backpay for the time spent by the grievant traveling to and
at the police station, it is deficient as contrary to section 7131(d) of
the Statute.
V. DECISION
The award is modified by setting aside that portion which pertains to
the AWOL charge and orders backpay for the time spent by the grievant in
traveling to and at the police station.
Issued, Washington, D.C., November 26, 1986.
Jerry L. Calhoun, Chairman
Henry B.Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(*) 5 U.S.C. Section 7131(d) provides:
(d) Except as provided in the preceding subsection 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.