[ v19 p932 ]
19:0932(109)AR
The decision of the Authority follows:
19 FLRA No. 109
SOCIAL SECURITY ADMINISTRATION
Agency
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES AFL-CIO, LOCAL 3231
Union
Case No. O-AR-770
DECISION
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
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 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.