National Labor Relations Board, Washington, DC (Respondent) and National Labor Relations Union (Charging Party) 



[ v06 p213 ]
06:0213(36)CA
The decision of the Authority follows:


 6 FLRA No. 36
 
 NATIONAL LABOR RELATIONS BOARD
 WASHINGTON, D.C.
 Respondent
 
 and
 
 NATIONAL LABOR RELATIONS BOARD UNION
 Charging Party
 
                                            Case No. 53-CA-396
 
                            DECISION AND ORDER
 
    THIS MATTER IS BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY PURSUANT
 TO THE TRANSFER OF THE PARTIES' STIPULATED RECORD BY THE AUTHORITY'S
 REGIONAL DIRECTOR, REGION 5, IN ACCORDANCE WITH SECTION 2429.1(A) OF THE
 AUTHORITY'S RULES AND REGULATIONS (5 CFR 2429.1(A)).
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THE SUBJECT CASE,
 INCLUDING THE PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS, AND
 BRIEFS SUBMITTED BY THE RESPONDENT AND THE GENERAL COUNSEL, THE
 AUTHORITY FINDS:  THE COMPLAINT HEREIN ALLEGES THAT THE RESPONDENT
 VIOLATED SECTION 7116(A)(1), (5) AND (8) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE BY REFUSING TO GRANT OFFICIAL TIME TO
 TWO UNION REPRESENTATIVES FOR THE TIME SPENT BY THESE EMPLOYEES IN
 CERTAIN PREPARATORY ACTIVITIES FOR FEDERAL SERVICE IMPASSES PANEL
 PROCEEDINGS.  THE UNDISPUTED FACTS, AS STIPULATED BY THE PARTIES, ARE AS
 FOLLOWS:
 
    THE PARTIES WERE COVERED AT ALL TIMES MATERIAL HEREIN BY A NATIONAL
 NEGOTIATED AGREEMENT FOR ALL PROFESSIONAL EMPLOYEES OF THE REGIONAL,
 SUBREGIONAL AND RESIDENT OFFICES OF THE NATIONAL LABOR RELATIONS BOARD
 (NLRB).  THE AGREEMENT ALLOWS FOR LOCAL NEGOTIATIONS FOR MATTERS OF
 LOCAL CONCERN.  DURING ONE SUCH LOCAL NEGOTIATING SESSION /1/ AT NLRB
 REGION 5 (BALTIMORE, MARYLAND), THE PARTIES WERE UNABLE TO REACH
 AGREEMENT AND, AFTER MEDIATION EFFORTS WERE EXHAUSTED, REQUESTED THE
 ASSISTANCE OF THE FEDERAL SERVICE IMPASSES PANEL (PANEL).  THE PANEL
 ESTABLISHED JUNE 27, 1979, AS THE DATE FOR A PRE-HEARING CONFERENCE AND
 JUNE 28, 1979, AS THE HEARING DATE.
 
    WILLIAM G. KOCOL, AN EMPLOYEE OF THE NLRB, LOCATED IN CHICAGO,
 ILLINOIS, WAS DESIGNATED TO REPRESENT THE NATIONAL LABOR RELATIONS BOARD
 UNION (UNION) IN THIS PANEL PROCEEDING.  KOCOL TRAVELED TO BALTIMORE
 FROM CHICAGO ON JUNE 25, 1979, ARRIVING AT 4:00 P.M.  KOCOL SPENT THE
 HOUR FROM 4:00 TO 5:00 P.M. AT THE REGIONAL OFFICE PREPARING FOR THE
 HEARING.  THIS INCLUDED TALKING TO POTENTIAL WITNESSES, DISCUSSING THE
 MANNER OF PRESENTATION, IDENTIFYING EXHIBITS TO BE PLACED INTO EVIDENCE,
 AND BRIEFLY DISCUSSING SETTLEMENT POSSIBILITIES.  HE CONTINUED HIS
 PREPARATION THE ENTIRE NEXT DAY-- ASSEMBLING EXHIBITS, PREPARING WITNESS
 SUMMARIES, AND READING THE PERTINENT FEDERAL AND AGENCY PERSONNEL
 REGULATIONS.  THE PREPARATION ALSO INCLUDED SPENDING FROM 2:00 TO 5:00
 P.M. MEETING WITH THE LOCAL PRESIDENT, JOHN GLYNN, AND PREPARING FOR HIS
 TESTIMONY.  THE PANEL PRE-HEARING CONFERENCE AND HEARING WERE HELD ON
 THE NEXT TWO DAYS AS SCHEDULED.
 
    THE NLRB GRANTED KOCOL OFFICIAL TIME FOR THE FLIGHT TO AND FROM
 BALTIMORE, AND FOR THE TIME SPENT ON JUNE 27 AND 28 AT THE ACTUAL PANEL
 PROCEEDINGS.  HE WAS DENIED OFFICIAL TIME FOR THE ONE HOUR (4:00-5:00
 P.M.) ON JUNE 25 AND THE EIGHT HOURS (8:30-5:00 P.M.) ON JUNE 26, WHICH
 WERE CONSIDERED PREPARATORY IN NATURE AND NOT SPECIFICALLY REQUIRED BY
 THE PANEL.  JOHN GLYNN WAS GRANTED OFFICIAL TIME FOR HIS TIME SPENT AT
 THE PRE-HEARING CONFERENCE AND THE HEARING ON JUNE 27 AND 28;  BUT WAS
 DENIED OFFICIAL TIME FOR THE THREE HOURS (2:00-5:00 P.M.) ON JUNE 26
 DURING WHICH HE ENGAGED IN PREPARATORY ACTIVITIES WITH KOCOL.
 
    THE SECOND INCIDENT INVOLVED IN THIS COMPLAINT OCCURRED ON AUGUST 27,
 1979.  IN THIS SITUATION, RATHER THAN HOLDING A HEARING, THE PANEL
 DETERMINED THAT THE IMPASSE SHOULD BE RESOLVED PURSUANT TO WRITTEN
 SUBMISSIONS FROM THE PARTIES.  WILLIAM KOCOL, WHO WAS REPRESENTATIVE FOR
 THE UNION IN THIS CASE AS WELL, SPENT FIVE AND ONE-HALF HOURS REVIEWING
 CORRESPONDENCE EXCHANGED BETWEEN RESPONDENT AND THE UNION ON THE
 MATTER,
 REVIEWING NOTES OF A MEETING WITH RESPONDENT'S OFFICIALS, HOLDING
 DISCUSSIONS WITH OTHER UNION AND MANAGEMENT OFFICIALS TO OBTAIN AND
 VERIFY FACTS, REVIEWING PERTINENT STATUTES AND REGULATIONS, FORMULATING
 THE UNION'S ARGUMENT AND THE MANNER IN WHICH THE PAPER WOULD BE
 PREPARED, WRITING SEVERAL OUTLINES, WRITING AND REVISING THE LONG-HAND
 DRAFT AND PROOFREADING THE TYPED COPY OF THE DRAFT.  KOCOL REQUESTED
 OFFICIAL TIME FOR THE ABOVE ACTIVITIES.  THE NLRB GRANTED KOCOL OFFICIAL
 TIME FOR TWO AND ONE-HALF HOURS-- THE TIME SPENT ACTUALLY WRITING AND
 REVISING THE LONG-HAND DRAFT AND PROOFREADING THE FINAL COPY-- ON THE
 BASIS THAT THE ACTUAL ACT OF WRITING THE SUBMISSION WAS REQUIRED BY THE
 PANEL IN LIEU OF A HEARING.  KOCOL WAS DENIED OFFICIAL TIME FOR THE
 REMAINING THREE HOURS, WHICH WERE CONSIDERED PREPARATORY IN NATURE.
 
    THE RESPONDENT'S POSITION IS THAT PREPARATION TIME FOR PANEL
 PROCEEDINGS IS NOT ENCOMPASSED WITHIN THE TERM "ATTENDANCE AT IMPASSE
 PROCEEDINGS," UNDER SECTION 7131(A) OF THE STATUTE, BUT RATHER WOULD
 MORE APPROPRIATELY FALL WITHIN THE NEGOTIABLE AREA UNDER SECTION
 7131(D).  THE GENERAL COUNSEL ARGUES THAT THE PREPARATION FOR PANEL
 PROCEEDINGS IS AN INTEGRAL PART OF THE NEGOTIATION PROCESS AND SHOULD BE
 INCLUDED WITHIN THE MEANING OF SECTION 7131(A).  THE GENERAL COUNSEL
 POINTS TO THE FACT THAT ALL OF MANAGEMENT'S PREPARATION IS ON OFFICIAL
 TIME AND THEREFORE, TO ALLEVIATE THE INEQUITY, THE UNION'S PREPARATION
 FOR PANEL PROCEEDINGS SHOULD ALSO BE ALLOWED ON OFFICIAL TIME.
 
    THE PROVISIONS OF THE STATUTE WHICH ARE IMMEDIATELY RELEVANT TO THIS
 CASE ARE SECTIONS 7103(A)(12) AND 7131(A) AND (D).
 
    SEC. 7103.  DEFINITIONS;  APPLICATION
 
    (A) FOR THE PURPOSE OF THIS CHAPTER--
 
    (12) 'COLLECTIVE BARGAINING' MEANS THE PERFORMANCE OF THE MUTUAL
 OBLIGATION OF THE
 
    REPRESENTATIVE OF AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE OF
 EMPLOYEES IN AN APPROPRIATE
 
    UNIT IN THE AGENCY TO MEET AT REASONABLE TIMES AND TO CONSULT AND
 BARGAIN IN A GOOD-FAITH
 
    EFFORT TO REACH AGREEMENT WITH RESPECT TO THE CONDITIONS OF
 EMPLOYMENT AFFECTING SUCH
 
    EMPLOYEES AND TO EXECUTE, IF REQUESTED BY EITHER PARTY, A WRITTEN
 DOCUMENT INCORPORATING ANY
 
    COLLECTIVE BARGAINING AGREEMENT REACHED, BUT THE OBLIGATION REFERRED
 TO IN THIS PARAGRAPH DOES
 
    NOT COMPEL EITHER PARTY TO AGREE TO A PROPOSAL OR TO MAKE A
 CONCESSION(.)
 
    SEC. 7131.  OFFICIAL TIME
 
    (A) ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE
 NEGOTIATION OF A
 
    COLLECTIVE BARGAINING AGREEMENT UNDER THE CHAPTER SHALL BE AUTHORIZED
 OFFICIAL TIME FOR SUCH
 
    PURPOSES, INCLUDING ATTENDANCE AT IMPASSE PROCEEDINGS, 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.
 
    (D) EXCEPT AS PROVIDED IN THE PRECEEDING 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.
 
    THE AUTHORITY HAS PREVIOUSLY ADDRESSED THE ISSUE OF PREPARATION TIME
 FOR COLLECTIVE BARGAINING NEGOTIATIONS IN AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1692, AND HEADQUARTERS, 323RD
 FLYING TRAINING WING (ATC), MATHER AIR FORCE BASE, CALIFORNIA, 3 FLRA
 NO. 47(1980).  IN THAT CASE, THE AUTHORITY FOUND THAT PREPARATION TIME
 FOR NEGOTIATIONS WAS A NEGOTIABLE MATTER, COVERED BY SECTION 7131(D) OF
 THE STATUTE AND NOT A RIGHT GUARANTEED BY THE STATUTE UNDER SECTION
 7131(A):
 
    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 FROM THE USE OF
 
    OFFICIAL TIME BY EMPLOYEES REPRESENTING AN EXCLUSIVE REPRESENTATIVE
 IN THE ACTUAL "NEGOTIATION
 
    OF COLLECTIVE BARGAINING AGREEMENT" WHICH IS EXPRESSLY AUTHORIZED BY
 SECTION 7131(A) OF THE
 
    STATUTE ITSELF . . .  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.
 
    THE AUTHORITY CONCLUDES, FOR THE REASONS MORE FULLY SET FORTH IN
 MATHER AIR FORCE BASE, SUPRA, THAT THE TIME SPENT IN ATTENDANCE AT
 IMPASSE PROCEEDINGS IS "OFFICIAL TIME" UNDER SECTION 7131(A);  HOWEVER,
 PREPARATION TIME FOR SUCH ACTIVITY IS NOT A MATTER OF RIGHT BUT A MATTER
 THAT FALLS WITHIN THE DUTY TO BARGAIN, AS PROVIDED IN SECTION 7131(D) OF
 THE STATUTE.
 
    ACCORDINGLY, THE RESPONDENT'S REFUSAL TO GRANT OFFICIAL TIME IN THE
 CIRCUMSTANCES OF THIS CASE DOES NOT CONSTITUTE A VIOLATION OF THE
 STATUTE, AND THE COMPLAINT ALLEGING A VIOLATION OF SECTION 7116(A)(1),
 (5) AND (8) OF THE STATUTE SHALL BE DISMISSED.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 53-CA-396 BE, AND
 IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JULY 1, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ THE AGENCY HAS NOT CONTESTED HEREIN NOR DOES THE AUTHORITY PASS
 ON WHETHER THE STATUTE AUTHORIZES OFFICIAL TIME FOR LOCAL N