AFGE Local 1164 and Social Security Administration Boston Region (Authority decision, August 22, 1985)

Final FLRA decision. The Authority resolves exceptions to an arbitration award. Under 5 U.S.C. § 7123(a)(1), orders involving arbitral awards are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116. This decision does not state that it involves one.

Plain-English summary

An SSA union official used two hours of personal time to prepare a grievance presentation after the agency denied official time. An arbitrator awarded administrative leave. The Authority agreed that official time had been wrongly denied but found administrative leave was the wrong remedy. It modified the award to require straight time pay for the two hours.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a) and official time under § 7131(d).
• Outcome: Award modified to provide two hours of straight time compensation.
• Key point: Wrongly denied official time performed during personal time called for pay, not administrative leave.

Full text (FLRA public release)

[ v19 p936 ]

19:0936(110)AR

The decision of the Authority follows:

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.