American Federation of Government Employees, AFL-CIO, Local 1692 (Union) and Headquarters, 323rd Flying Training Wing (ATC), Mather Air Force Base, California (Activity) 



[ v03 p305 ]
03:0305(47)NG
The decision of the Authority follows:


 3 FLRA No. 47
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1692
 (Union)
 
 and
 
 HEADQUARTERS, 323RD FLYING TRAINING
 WING (ATC), MATHER AIR FORCE BASE,
 CALIFORNIA
 (Activity)
 
                                            Case No. 0-NG-183
 
                      DECISION ON NEGOTIABILITY ISSUE
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101 ET SEQ.).
 
                              UNION PROPOSAL
 
    MANAGEMENT WILL ALLOW EQUAL OFFICIAL TIME TO THE UNION NEGOTIATION
 TEAM, AS ALLOTTED TO THE
 
    MANAGEMENT NEGOTIATION TEAM, FOR PREPARATION OF CONTRACT
 NEGOTIATIONS.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL PROVIDING THAT EQUAL
 OFFICIAL TIME TO PREPARE FOR CONTRACT NEGOTIATIONS BE ALLOTTED TO THE
 UNION AND MANAGEMENT NEGOTIATORS IS WITHIN THE DUTY TO BARGAIN OR, AS
 ALLEGED BY THE AGENCY, VIOLATES SECTION 7131(B) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE).  /1/
 
                                  OPINION
 
    CONCLUSION:  THE SUBJECT PROPOSAL DOES NOT VIOLATE SECTION 7131 OF
 THE STATUTE.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
 AUTHORITY'S RULES AND REGULATIONS (45 FED.REG. 3482 ET SEQ. (1980)), THE
 AGENCY'S ALLEGATION THAT THE DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO
 BARGAIN IS SET ASIDE.  THE REQUEST TO SUBMIT WRITTEN PRESENTATIONS IN
 THE INSTANT CASE, FILED BY THE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, PURSUANT TO SEC.  2429.9 OF THE AUTHORITY'S RULES,
 IS DENIED.  TO HOLD OTHERWISE WOULD CAUSE AN UNWARRANTED DELAY IN THE
 PROCESSING OF THE CASE.  SEE ALSO SEC. 2424.8 OF THE AUTHORITY'S RULES
 (45 FED.REG.  3512(1980)).
 
    REASONS:  AS PREVIOUSLY STATED, THE AGENCY ALLEGES THAT THE UNION'S
 PROPOSAL VIOLATES SECTION 7131(B) OF THE STATUTE.  MORE SPECIFICALLY,
 THE AGENCY CONTENDS THAT THE STATUTE GRANTS OFFICIAL TIME TO AN EMPLOYEE
 IN THE NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT BUT DOES NOT
 PROVIDE OFFICIAL TIME IN CONNECTION WITH PREPARATION FOR SUCH
 NEGOTIATIONS.  ACCORDING TO THE AGENCY, PREPARATION FOR NEGOTIATIONS
 MUST BE CONSTRUED AS "INTERNAL UNION BUSINESS" WITHIN THE MEANING OF
 SECTION 7131(B) OF THE STATUTE IN THAT, UNLIKE TIME SPENT IN
 NEGOTIATIONS, PREPARATION IS NOT OF MUTUAL CONCERN TO BOTH THE UNION AND
 MANAGEMENT.
 
    IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2823
 AND VETERANS ADMINISTRATION REGIONAL OFFICE, CLEVELAND, OHIO, CASE NO.
 O-NG-8, 2 FLRA NO. 1 (OCT.  9, 1979), THE AUTHORITY RECENTLY STATED,
 WITH REGARD TO THE INTERPRETATION AND APPLICATION OF SECTION 7131(B) OF
 THE STATUTE, AS FOLLOWS:
 
    SECTION 7131(B) OF THE STATUTE REQUIRES THAT ACTIVITIES RELATING TO
 THE INTERNAL BUSINESS
 
    OF A LABOR ORGANIZATION BE PERFORMED BY AN EMPLOYEE WHILE THAT
 EMPLOYEE IS IN A NON-DUTY
 
    STATUS, I.E., NOT ON DUTY TIME.
 
   .          .          .          .
 
 
    THE STATUTE DOES NOT EXPRESSLY DEFINE THE PHRASE "INTERNAL BUSINESS
 OF A LABOR
 
    ORGANIZATION." SECTION 7131(B) MERELY LISTS EXAMPLES OF SOME
 ACTIVITIES WHICH ARE RELATED TO
 
    THE "INTERNAL BUSINESS OF A LABOR ORGANIZATION," I.E., SOLICITATION
 OF MEMBERSHIP, ELECTION OF
 
    LABOR ORGANIZATION OFFICIALS, AND COLLECTION OF DUES.  NONE OF THESE
 SPECIFIC EXAMPLES HAVE
 
    ANY RELATIONSHIP TO . . . THE SUBJECT OF THE DISPUTED PROPOSAL.
 
    THE PROVISION REGARDING OFFICIAL TIME IN THE VERSION OF THE BILL
 REPORTED OUT OF THE
 
    SENATE-HOUSE CONFERENCE COMMITTEE, WHICH WAS ENACTED AND SIGNED INTO
 LAW (SEC. 7131), WAS
 
    IDENTICAL TO THAT IN THE BILL (H.R. 11280) REPORTED OUT OF THE HOUSE
 COMMITTEE (SEC. 7132) AND
 
    IN THE FINAL VERSION OF THE BILL PASSED BY THE HOUSE (THE "UDALL
 SUBSTITUTE").  THE REPORT
 
    WHICH ACCOMPANIED THE HOUSE COMMITTEE BILL INDICATED THAT SUBSECTION
 (B) OF THE PROVISION ON
 
    OFFICIAL TIME WAS INTENDED TO REQUIRE THAT MATTERS SOLELY RELATING TO
 THE INTERNAL BUSINESS OF
 
    A LABOR ORGANIZATION BE PERFORMED WHEN AN EMPLOYEE IS IN A NON-DUTY
 STATUS
 
    (H.R. REP. NO. 95-1403, 95TH CONG., 2D SESS. 58-59 (1978)).
 
    THE AUTHORITY FURTHER NOTED THAT PROPONENTS OF THE UDALL SUBSTITUTE
 INDICATED DURING FLOOR DEBATE THAT SUBSECTION (B) WAS MEANT TO BE
 STRICTLY CONSTRUED TO APPLY ONLY TO THOSE ACTIVITIES CONCERNING THE
 "STRUCTURE AND INSTITUTION" OF THE LABOR ORGANIZATION.  IN THIS REGARD,
 THE AUTHORITY REFERRED TO THE FOLLOWING STATEMENT OF REPRESENTATIVE CLAY
 (124 CONG.REC.H 9638 (DAILY ED. SEPT. 13, 1978)):
 
    SECTION 7132(B) OF THE UDALL COMPROMISE BARS THE USE OF OFFICIAL TIME
 FOR CONDUCTING THE
 
    INTERNAL BUSINESS OF A LABOR ORGANIZATION.  THE SECTION ALSO LISTS
 THREE SUCH ACTIVITIES
 
    REFLECTING OUR INTENTION THAT "INTERNAL BUSINESS" BE STRICTLY
 CONSTRUED TO APPLY ONLY TO THOSE
 
    ACTIVITIES REGARDING THE STRUCTURE AND INSTITUTION OF THE LABOR
 ORGANIZATION.  ACTIVITIES THAT
 
    INVOLVE LABOR-MANAGEMENT CONTACTS ARE NOT INCLUDED IN THIS SECTION.
 NOR IS PREPARATION FOR
 
    SUCH ACTIVITIES, SUCH AS GRIEVANCES, BARGAINING, UNFAIR LABOR
 PRACTICE PROCEEDINGS, INCLUDED
 
    WITHIN THIS SECTION. TITLE VII IMPOSES HEAVY RESPONSIBILITIES ON
 LABOR ORGANIZATIONS AND ON
 
    AGENCY MANAGEMENT.  THESE ORGANIZATIONS SHOULD BE ALLOWED OFFICIAL
 TIME TO CARRY OUT THEIR
 
    STATUTORY REPRESENTATIONAL ACTIVITIES JUST AS MANAGEMENT USES
 OFFICIAL TIME TO CARRY OUT ITS
 
    RESPONSIBILITIES.
 
    THE AUTHORITY ALSO REFERRED TO THE FOLLOWING STATEMENT OF
 REPRESENTATIVE FORD TO THE SAME EFFECT (124 CONG.REC.H 9650 (DAILY ED.
 SEPT. 13, 1978)):
 
    SECTION 7132(B) OF THE COMPROMISE PRECLUDES THE USE OF OFFICIAL TIME
 BY EMPLOYEES FOR
 
    CONDUCTING THE INTERNAL BUSINESS OF A LABOR ORGANIZATION.  THIS
 SUBSECTION SPECIFICALLY
 
    PROVIDES THAT EMPLOYEES SHALL NOT SOLICIT MEMBERSHIP, ENGAGE IN
 ELECTIONEERING, OR COLLECT
 
    DUES ON OFFICIAL TIME.  THE INCLUSION OF THESE THREE CATEGORIES
 REFLECTS THE GENERAL INTENTION
 
    THAT "THE INTERNAL BUSINESS OF A LABOR ORGANIZATION" ENCOMPASSES
 THOSE ACTIVITIES DIRECTED TO
 
    THE INSTITUTIONAL STRUCTURE OF SUCH ORGANIZATIONS.  THIS SECTION DOES
 NOT, THEREFORE, APPLY TO
 
    ACTIVITIES OF LABOR ORGANIZATIONS THAT INVOLVE AN "INTERFACE" WITH
 AGENCY MANAGEMENT, SUCH AS
 
    NEGOTIATIONS, GRIEVANCES, NEGOTIABILITY DISPUTES, AND UNFAIR LABOR
 PRACTICES.  NOR DOES THIS
 
    SECTION APPLY TO PREPARATION FOR SUCH "INTERFACT" ACTIVITIES.
 MANAGEMENT, OF COURSE, ENGAGES
 
    IN ALL THESE ACTIVITIES, INCLUDING PREPARATION, ON OFFICIAL TIME, AND
 SUBSECTION 7132(D)(2)
 
    MAKES THE USE OF OFFICIAL TIME BY EMPLOYEES FOR THESE ACTIVITIES A
 SUBJECT OF NEGOTIATED
 
    AGREEMENT BETWEEN THE AGENCY AND EXCLUSIVE REPRESENTATIVE.
 
    THE SENATE-HOUSE CONFERENCE REPORT DID NOT ADDRESS THE INTENDED
 APPLICATION OF SECTION 7131(B) AS REFLECTED IN THE HOUSE COMMITTEE
 REPORT AND STATEMENTS ON THE HOUSE FLOOR SET FORTH ABOVE.
 
    THE DISPUTED PROPOSAL IN THE INSTANT CASE CLEARLY DOES NOT RELATE
 SOLELY TO THE STRUCTURE AND INSTITUTION OF THE LABOR ORGANIZATION.
 RATHER, THE PROPOSAL SPECIFICALLY INVOLVES THE ALLOTMENT OF OFFICIAL
 TIME TO UNION NEGOTIATORS FOR THE PURPOSE OF PREPARING FOR CONTRACT
 NEGOTIATIONS WITH MANAGEMENT.  AS PREVIOUSLY NOTED, CONGRESS INTENDED
 THAT ACTIVITIES SUCH AS COLLECTIVE BARGAINING NEGOTIATIONS WHICH INVOLVE
 LABOR-MANAGEMENT CONTACTS, AS WELL AS PREPARATION FOR SUCH ACTIVITIES,
 ARE NOT "INTERNAL BUSINESS OF A LABOR ORGANIZATION" WITHIN THE MEANING
 OF SECTION 7131(B) OF THE STATUTE.  ACCORDINGLY, SECTION 7131(B) WOULD
 NOT BAR NEGOTIATIONS UNDER SECTION 7131(D) (SEE NOTE 1, SUPRA) ON THE
 PROPOSAL AT ISSUE AND THE AGENCY ALLEGATION THAT THE PROPOSAL IS NOT
 WITHIN THE DUTY TO BARGAIN MUST BE SET ASIDE.  /2/ MOREOVER, SUCH
 PROPOSAL WOULD BE CONSISTENT WITH THE CONTEMPLATION OF CONGRESS, AS SET
 FORTH ABOVE (SUPRA PP. 3-4).
 
    IN SUMMARY, AS INDICATED ABOVE, THE AMOUNT OF OFFICIAL TIME TO BE
 USED BY UNION NEGOTIATORS TO PREPARE FOR COLLECTIVE BARGAINING
 NEGOTIATIONS IS A MATTER WHICH FALLS WITHIN THE DUTY TO BARGAIN AS
 PROVIDED IN SECTION 7131(D) OF THE STATUTE, AS DISTINGUISHED FORM THE
 USE OF OFFICIAL TIME BY EMPLOYEES REPRESENTING AN EXCLUSIVE
 REPRESENTATIVE IN THE ACTUAL "NEGOTIATION OF A COLLECTIVE BARGAINING
 AGREEMENT" WHICH IS EXPRESSLY AUTHORIZED BY SECTION 7131(A) OF THE
 STATUTE ITSELF (SUPRA NOTE 1).  MOREOVER, AS PREVIOUSLY STATED, THE USE
 OF OFFICIAL TIME TO PREPARE FOR NEGOTIATIONS IS A MATTER WHICH IS NOT
 EXCEPTED FROM THE DUTY TO BARGAIN AS "INTERNAL BUSINESS OF A LABOR
 ORGANIZATION" UNDER SECTION 7131(B) OF THE STATUTE.
 
    IN SO CONCLUDING, HOWEVER, THE AUTHORITY NOTES THAT THE INSTANT CASE
 DOES NOT PRESENT AND THE AUTHORITY THEREFORE DOES NOT RULE ON THE
 QUESTION OF WHAT ACTIVITIES WOULD PROPERLY CONSTITUTE "PREPARATIONS"
 UNDER THE OFFICIAL TIME PROVISIONS OF THE STATUTE.  SUCH QUESTIONS ARE
 MORE APPROPRIATELY RESOLVED BY THE PARTIES DURING NEGOTIATIONS OR BY
 ARBITRATORS IN THE SPECIFIC FACTUAL CONTEXTS OF INDIVIDUAL CASES,
 SUBJECT TO REVIEW BY THE AUTHORITY PURSUANT TO SECTION 7122 OF THE
 STATUTE AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS.
 NEVERTHELESS, IT SHOULD BE EMPHASIZED THAT THE AUTHORITY DOES NOT INTEND
 AND SHOULD NOT BE CONSTRUED AS HAVING CONCLUDED HEREIN THAT OFFICIAL
 TIME ALLOTTED FOR "PREPARATIONS" MAY PROPERLY BE USED BY UNION
 REPRESENTATIVES FOR MATTERS WHICH INVOLVE THE "INTERNAL BUSINESS OF A
 LABOR ORGANIZATION" WITHIN THE MEANING OF SECTION 7131(B) OF THE
 STATUTE.
 
    ISSUED, WASHINGTON, D.C., MAY 30, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ SECTION 7131 OF THE STATUTE (92 STAT. 1214) PROVIDES IN PART, AS
 FOLLOWS:
 
    SEC. 7131.  OFFICIAL TIME
 
    (A) ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE
 NEGOTIATION OF A
 
    COLLECTIVE BARGAINING AGREEMENT UNDER THIS (STATUTE) SHALL BE
 AUTHORIZED OFFICIAL TIME FOR
 
    SUCH PURPOSES, INCLUDING ATTENDANCE AT IMPASSE PROCEEDING(S), 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
 
    NONDUTY STATUS.
 
   .          .          .          .
 
 
    (D) EXCEPT AS PROVIDED IN THE PRECEDING SUBSECTIONS OF THIS SECTION--
 
    (1) ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE, OR
 
    (2) IN