American Federation of Government Employees
Whiteman Air Force Base, Missouri
       Official Time        

Use of Official Time US Code Title 5 Section 7131

Employees who serve as union representatives occupy a critically important position in the day-to-day conduct of labor-management relations. The balancing of duties they perform as agency employees and those performed on behalf of bargaining unit employees, however, is not always an easy or smooth process. Numerous questions routinely occur, including such matters as how much official time can be used and under what circumstances.

Official time usually refers to on-the-clock time provided to federal employees and their union representatives to participate in labor-management activities. There are two broad categories of official time. The first is referred to as "statutory" official time, which is used to carry out specific activities provided for in statute or regulation, e.g., negotiating a labor agreement USC Title 5 Sec. 7131(a). In most cases, organizations establish the conditions for using this time via statutes or regulations such as the: (FLRA-Federal Labor Relations Authority USC Title 5 Sec. 7131), (MSPB-Merit Systems Protection Board 5 CFR Section 1200), OSC Office of Special Council, (EEOC-Equal Employment Opportunity Commission 29 CFR Part 1614.605 & EEOC Regulation MD-110 Chapter 6), and (OSHA-Occupational Safety and Health Administration, 29 CFR part 1960.10(d) & EO 12196), (OWCP-Office of Workers Compensation, 20 CFR 10.701)  

The more common situation involves "contractual" official time USC Title 5 Sec. 7131(d). Questions concerning who may use this time, how much time is available, what procedures are necessary to obtain and use it, and precisely when it may be used are issues negotiated and usually specified in the collective bargaining agreement.

Federal labor agreements routinely contain provisions that allow union officials to use "official time" to carry out various representational functions; for example, presentation of a grievance, service on a safety committee, or participation in meetings with management.

Employees who are union officials are not entitled to use official time, however, for the conduct of internal union business USC Title 5 Sec. 7131(b); for example, soliciting new members or running for union office.

Labor agreements vary greatly in the activities for which official time is permitted, as well as in the amount of time allowed and the procedures for obtaining and using it.

In general, so long as an employee/union official uses official time for agreed-upon purposes and within the limits and procedures in the agreement, penalizing him/her through lower performance ratings or other adverse decisions constitutes a violation of the federal labor relations law.

Often official time is referred to by some management and non-labor supporters as "union business". They do not accept that official time is "official business". They do not consider the benefits to the agency, employees, and the taxpayers of having a few well trained, experienced union representatives on official time for which management can plan around compared to a larger number of untrained, inexperienced employees using much more "official time" which creates a work schedule problem or interrupts the flow of work.

The overwhelming majority of officers and stewards are volunteers, who provide representational services not only during the work day, but carry out a multitude of other union duties on their own time. The use of official time for representational purposes is legal, necessary, and totally proper. It was a balance struck twenty-five years ago in return for unions being compelled to represent "non-members."  In fact, most time spent on official time is generated by management initiatives such as: attending meetings, responding to management changes, representing employees adversely affected by management decisions, etc.

A complainant who is an employee of an agency shall have a reasonable amount of official time, if otherwise on duty, to prepare an EEO complaint and to respond to agency and EEOC requests for information. If the complainant has designated another agency employee as a representative, that employee shall have a reasonable amount of official time, if otherwise on duty, to prepare the complaint and respond to agency and EEOC requests for information. 29 CFR 1614.605(b). A complainant's right of EEO representation is sufficiently tied to his employment status, so that abridgment of that right by the agency would result in a direct and personal harm to a term, condition, or privilege of the complainant's employment, and thus render him aggrieved. (Story v. Department of the Treasury, EEOC No. 05970843 (1999), 100 FEOR 3003). Denying the complainant official time to represent co-workers in connection with petitions for EEOC review of MSPB decisions was "tantamount to reprisal discrimination." (Harrell v. U.S. Postal Service, EEOC No. 01942166 (1995), 95 FEOR 3213).

A union is entitled to have the same number of representatives on official time as management when engaged in bargaining.

Negotiating ground rules is an integral part of the negotiations process. Members of the union's bargaining team are entitled to statutory official time for this purpose. (Department of Defense Dependents Schools, 14 FLRA 191, 84 FLRR 1-1416).

The time which union representatives devote to reviewing grievances and general representational activities is not encompassed within "statutory" official time and is not an automatic entitlement. However, necessary official time for these purposes may be negotiated. (VA Medical Center, Brockton, Mass., 23 FLRA 542, 86 FLRR 1-1797).

In negotiating official time union and management negotiators may settle upon "any amount agreed to be reasonable." 5 USC 7131(d).

Attending a union convention is not considered internal union business, and official time may be provided for this purpose. (HHS, Social Security Administration, 46 FLRA 1118, 93 FLRR 1-1003)

Management is required to negotiate in good faith over union proposals for official time to meet with elected congressional representatives ("lobbying"). (DVA, Regional Office, Atlanta, 47 FLRA 1118, 93 FLRR 1-1157). However, certain Department of Defense activities have been exempted from this requirement based on language contained in DOD budget authorizations. (Office of the Adjutant General, New Hampshire National Guard, (54 FLRA 301, 98 FLRR 1-1113)).

Proposals that would allow union representatives to use up to 100% of their time on representational functions are generally negotiable. (DOD Dependent Schools, 21 FLRA 640, 86 FLRR 1-1569).

 

FLRA Federal Labor Relations Authority  (The Authority)

U.S. Code Title 5 Sec. 7131. - (Official Time)

(a)

Any employee representing an exclusive representative in the negotiation of a collective bargaining agreement under this chapter shall be authorized official time for such purposes, including attendance at impasse proceeding, during the time the employee otherwise would be in a duty status. The number of employees for whom official time is authorized under this subsection shall not exceed the number of individuals designated as representing the agency for such purposes.

(b)

Any activities performed by any employee relating to the internal business of a labor organization (including the solicitation of membership, elections of labor organization officials, and collection of dues) shall be performed during the time the employee is in a non-duty status.

(c)

Except as provided in subsection (a) of this section, the Authority shall determine whether any employee participating for, or on behalf of, a labor organization in any phase of proceedings before the Authority shall be authorized official time for such purpose during the time the employee otherwise would be in a duty status.

(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

 

MSPB Merit Systems Protection Board

1201.33 Federal witnesses.

(a) Every Federal agency or corporation must make its employees or personnel available to furnish sworn statements or to appear as witnesses at the hearing when ordered by the judge to do so. When providing those statements or appearing at the hearing, Federal employee witnesses will be in official duty status (i.e., entitled to pay and benefits including travel and per diem, where appropriate).

(b) A Federal employee who is denied the official time required by paragraph (a) of this section may file a written request that the judge order the employing agency to provide such official time. The judge will act on such a request promptly and, where warranted, will order the agency to comply with the requirements of paragraph (a) of this section.

(c) An order obtained under paragraph (b) of this section may be enforced as provided under Subpart F of this part.

[As amended by 62 FR 48935, Sept. 18, 1997]

 
EEOC Equal Employment Opportunity Commission
[Code of Federal Regulations]
[Title 29, Volume 4]
[Revised as of July 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1614.605]

[Page 286-287]
 
                             TITLE 29--LABOR
 
                           CHAPTER XIV--EQUAL
                         EMPLOYMENT OPPORTUNITY
                               COMMISSION
 
PART 1614--FEDERAL SECTOR EQUAL EMPLOYMENT OPPORTUNITY--Table of Contents
 
               Subpart F--Matters of General Applicability
 
Sec. 1614.605  Representation and official time.

    (a) At any stage in the processing of a complaint, including the 
counseling stage Sec. 1614.105, the complainant shall have the right to 
be accompanied, represented, and advised by a representative of 
complainant's choice.
    (b) If the complainant is an employee of the agency, he or she shall 
have a reasonable amount of official time, if otherwise on duty, to 
prepare the complaint and to respond to agency and EEOC requests for 
information. If the complainant is an employee of the agency and he 
designates another employee of the agency as his or her representative, 
the representative shall have a reasonable amount of official time, if 
otherwise on duty, to prepare the complaint and respond to agency and 
EEOC requests for information. The agency is not obligated to change 
work schedules, incur overtime wages, or pay travel expenses to 
facilitate the choice of a specific representative or to allow the 
complainant and representative to confer. The complainant and 
representative, if employed by the agency and otherwise in a pay status, 
shall be on official time, regardless of their tour of duty, when their 
presence is authorized or required by the agency or the Commission 
during the investigation, informal adjustment, or hearing on the 
complaint.
    (c) In cases where the representation of a complainant or agency 
would conflict with the official or collateral duties of the 
representative, the Commission or the agency may, after giving the 
representative an opportunity to respond, disqualify the representative.
    (d) Unless the complainant states otherwise in writing, after the 
agency has received written notice of the name, address and telephone 
number of a representative for the complainant, all official 
correspondence shall be with the representative with copies to the 
complainant. When the complainant designates an attorney as 
representative, service of all official correspondence shall be made on 
the attorney and the complainant, but time frames for receipt of 
materials shall be computed from the time of receipt by the attorney. 
The complainant must serve all official correspondence on the

[[Page 287]]

designated representative of the agency.
    (e) The Complainant shall at all times be responsible for proceeding 
with the complaint whether or not he or she has designated a 
representative.
    (f) Witnesses who are Federal employees, regardless of their tour of 
duty and regardless of whether they are employed by the respondent 
agency or some other Federal agency, shall be in a duty status when 
their presence is authorized or required by Commission or agency 
officials in connection with a complaint.

[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37661, July 12, 1999]



EEOC MD110 Chapter 6 VIII (C)(EEO Official Time)

WITNESSES AND REPRESENTATIVES IN THE FEDERAL EEO PROCESS
  1.  
    1. Official Time

      Section 1614.605  provides that complainants are entitled to a representative of their choice during pre-complaint counseling and at all stages of the complaint process. Both the complainant and the representative, if they are employees of the agency where the complaint arose and was filed, are entitled to a reasonable amount of official time to present the complaint and to respond to agency requests for information, if otherwise on duty. § 1614.605(b). Former employees of an agency who initiate the EEO process concerning an adverse action relating to their prior employment with the agency are employees within the meaning of § 1614.605, and their representatives, if they are current employees of the agency, are entitled to official time. Witnesses who are federal employees, regardless of whether they are employed by the respondent agency or some other federal agency, shall be in a duty status when their presence is authorized or required by Commission or agency officials in connection with the complaint.

      1. Reasonable Amount of Official Time

        "Reasonable" is defined as whatever is appropriate, under the particular circumstances of the complaint, in order to allow a complete presentation of the relevant information associated with the complaint and to respond to agency requests for information. The actual number of hours to which complainant and his/her representative are entitled will vary, depending on the nature and complexity of the complaint and considering the mission of the agency and the agency's need to have its employees available to perform their normal duties on a regular basis. The complainant and the agency should arrive at a mutual understanding as to the amount of official time to be used prior to the complainant's use of such time. Time spent commuting to and from home should not be included in official time computations because all employees are required to commute to and from their federal employment on their own time.
         

      2. Meeting and Hearing Time

        Most of the time spent by complainants and their representatives during the processing of a typical complaint is spent in meetings and hearings with agency officials or with EEOC Administrative Judges. Whatever time is spent in such meetings and hearings is automatically deemed reasonable. Both the complainant and the representative are to be granted official time for the duration of such meetings or hearings and are in a duty status regardless of their tour of duty. If a complainant or representative has already worked a full week and must attend a hearing or meeting on an off day, that complainant or representative is entitled to official time, which may require that the agency pay overtime.
         

      3. Preparation Time

        Since presentation of a complaint involves preparation for meetings and hearings, as well as attendance at such meetings, conferences, and hearings, complainants and their representatives are also afforded a reasonable amount of official time, as defined above, to prepare for meetings and hearings. They are also to be afforded a reasonable amount of official time to prepare the formal complaint and any appeals that may be filed with the Commission, even though no meetings or hearings are involved. However, because investigations are conducted by agency or Commission personnel, the regulation does not envision large amounts of official time for preparation purposes. Consequently, "reasonable," with respect to preparation time (as opposed to time actually spent in meetings and hearings), is generally defined in terms of hours, not in terms of days, weeks, or months. Again, what is reasonable depends on the individual circumstances of each complaint.
         

      4. Aggregate Time Spent on EEO Matters

        The Commission considers it reasonable for agencies to expect their employees to spend most of their time doing the work for which they are employed. Therefore, an agency may restrict the overall hours of official time afforded to a representative, for both preparation purposes and for attendance at meetings and hearings, to a certain percentage of that representative's duty hours in any given month, quarter, or year. Such overall restrictions would depend on the nature of the position occupied by the representative, the relationship of that position to the mission of the agency, and the degree of hardship imposed on the mission of the agency by the representative's absence from his/her normal duties. The amount of official time to be afforded to an employee for representational activities will vary with the circumstances.

        Moreover, § 1614.605(c) provides that in cases where the representation of a complainant or agency would conflict with the official or collateral duties of the representative, the Commission or the agency may, after giving the representative an opportunity to respond, disqualify the representative. At all times, the complainant is responsible for proceeding with the complaint, regardless of whether s/he has a designated representative.

        The Commission does not require agencies to provide official time to employee representatives who are representing complainants in cases against other federal agencies. However, the Commission encourages agencies to provide such official time.
         

      5. Requesting Official Time

        The agency must establish a process for deciding how much official time it will provide a complainant. Agencies further must inform complainants, their representatives, and others who may need official time, such as witnesses, of the process and how to claim or request official time.
         
      6. Denial of Official Time

      If the agency denies a request for official time, either in whole or in part, the agency must include a written statement in the complaint file noting the reasons for the denial. If the agency's denial of official time is made before the complaint is filed, the agency shall provide the complainant with a written explanation for the denial, which it will include in the complaint file if the complainant's subsequently files a complaint.

 

OSHA Occupational Safety and Health Administration

29 CFR Part 1960.10(d)

Employees shall be authorized official time to participate in the activities provided for in section 19 of the Act, Executive Order 12196, this part, and the agency occupational safety and health program.

(section 19 of the Act is:  Entire section 19 of 29 CFR)


Executive Order 12196 of February 26, 1980

  

Presidential Documents (in part)

  

Occupational Safety & Health Programs for Federal Employees

1-7  General Provisions

1-701  Employees shall be authorized official time to participate in the activities provided for by this order.

 

OWCP - Office of Workers Compensation

20 CFR 10.701 - Who may serve as a representative?


Section Number: 10.701
Section Name: Who may serve as a representative?


A claimant may authorize any individual to represent him or her in
regard to a claim under the FECA, unless that individual's service as a
representative would violate any applicable provision of law (such as 18
U.S.C. 205 and 208). A Federal employee may act as a representative
only:

(a) On behalf of immediate family members, defined as a spouse,
children, parents, and siblings of the representative, provided no fee
or gratuity is charged; or

(b) While acting as a union representative, defined as any
officially sanctioned union official, and no fee or gratuity is charged.

 

Note: Official time is not a fee or gratuity. Representatives of the Agency before all steps of processing and proceedings of OWCP claims/appeals  are on duty/official time. As a representative of AFGE Local 2361, you are an officially sanctioned union official, the agency by contractual agreement agrees to recognize union officials, therefore the agency has also agreed you are sanctioned.(LMA, Article 11 Section 1).  20 CFR 10.701 falls under Article 11 Section 4(d) of the LMA. You have a duty and responsibility to ensure employees and the union are protected and the employer has performed their obligations of the contractual agreement in Article 28 Section 6, and you would be working within the confines a government Act (Law) the  "Federal Employees' Compensation Act".