Association of Civilian Technicians, Granite State Chapter (Association) and The Adjutant General, State of New Hampshire (Activity)
[ v07 p241 ]
The decision of the Authority follows:
7 FLRA NO. 36 7 FLRA 241 19 NOV 1981 ASSOCIATION OF CIVILIAN TECHNICIANS, GRANITE STATE CHAPTER Association and THE ADJUTANT GENERAL, STATE OF NEW HAMPSHIRE Activity Case No. O-NG-317 DECISION AND ORDER ON NEGOTIABILITY ISSUE This case comes before theFederal Labor Relations Authority (the Authority) pursuant to section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute) (5 U.S.C. 7101-7135). Based on the record in this case, the issue presented is the negotiability of the following Association proposal: Upon receipt of the employer's proposals and counterproposals the union negotiating team will be granted official time equal to the time used by management, or hours whichever is less, prior to the first negotiating session as part of the actions required as a result of negotiations. Question Before the Authority The specific question before the Authority is whether the Association's proposal, which pertains to official time following receipt of the employer's proposal and counterproposals and prior to the first negotiating session, is outside the duty to bargain and outside of the purview of section 7131(a) of the Statute as alleged by the Activity. Opinion Conclusion and Order: The proposal is outside of the purview of section 7131(a) of the Statute. However, the proposal is within the [ v7 p241 ] duty to bargain pursuant to section 7131(d) of the Statute. 1 Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations (5 CFR 2424.10 (1981)), IT IS ORDERED that the Activity shall upon request (or as otherwise agreed to by the parties) bargain concerning the Association's proposal. 2 Reasons: The Authority has held in several decisions that disputed proposals relating to use of official time for union representatives for preparation in collective bargaining negotiations concerned matters [ v7 p242 ] which fall within the duty to bargain under section 7131(d) of the Statute. 3 After discussing in detail the matter of official time for such preparations, in Mather Air Force Base, 4 the Authority stated: In summary . . . 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 a collective bargaining agreement" which is expressly authorized by section 7131(a) of the Statute itself . . . . (Emphasis in original.) Based on the express language of the instant proposal and the record in this case, the proposal here in dispute is concerned with the amount of official time or a specified number of hours to be used by Association negotiators to prepare for collective bargaining negotiations, that is, to review the employer's proposals and counterproposals prior to the parties' first, joint negotiating session. In the circumstances of the instant case, the Authority is of the opinion that such review constitutes "preparations" under the [ v7 p243 ] official time provisions of the Statute. Accordingly, consistent with the reasons set forth in greater detail in Mather Air Force Base, the proposal here in dispute must be held to be within the duty to bargain. Issued, Washington, D.C., November 19, 1981 Ronald W. Haughton, Chairman Henry B. Frazier III, Member Leon B. Applewhaite, Member FOOTNOTES Footnote 1 Section 7131 of the Statute provides as follows: 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 nonduty 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. Footnote 2 In deciding that the proposal is within the duty to bargain, the Authority, of course, makes no judgment as to its merit. Footnote 3 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) (hereinafter cited as Mather Air Force Base); Federal Uniformed Firefighters, Local F-169 and U.S. Army Armament Research & Development Command, Dover, New Jersey, 3 FLRA No. 49 (1980); International Association of Machinists and Aerospace Workers, Lodge 2424 and Department of the Army, Aberdeen Proving Ground, Maryland, 5 FLRA No. 54 (1981). Footnote 4 Note 3 supra.