United States Air Force, 2750th Air Base Wing Headquarters, Air Force Logistics Command, Wright-Patterson AFB, Ohio and Wright-Patterson AFB Fire Fighters Local F-88, International Association Of Fire Fighters, AFL-CIO (Labor Organization)

 



[ v07 p738 ]
07:0738(118)CA
The decision of the Authority follows:


 7 FLRA No. 118
 
 UNITED STATES AIR FORCE
 2750TH AIR BASE WING HEADQUARTERS
 AIR FORCE LOGISTICS COMMAND
 WRIGHT-PATTERSON AFB, OHIO
 Respondent
 
 and
 
 WRIGHT-PATTERSON AFB FIRE FIGHTERS
 LOCAL F-88, INTERNATIONAL ASSOCIATION
 OF FIRE FIGHTERS, AFL-CIO
 Labor Organization
 
                                            Case No. 5-CA-376
 
                            DECISION AND ORDER
 
    THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
 DIRECTOR'S "ORDER TRANSFERRING CASE TO THE FEDERAL LABOR RELATIONS
 AUTHORITY" 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 THIS CASE, INCLUDING THE
 PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS AND BRIEFS
 SUBMITTED BY THE RESPONDENT AND THE GENERAL COUNSEL, AND AN AMICUS BRIEF
 SUBMITTED BY THE OFFICE OF PERSONNEL MANAGEMENT (OPM), THE AUTHORITY
 FINDS:
 
    WRIGHT-PATTERSON AFB FIRE FIGHTERS, LOCAL F-88, INTERNATIONAL
 ASSOCIATION OF FIRE FIGHTERS, AFL-CIO (THE UNION) IS THE EXCLUSIVE
 REPRESENTATIVE OF A BARGAINING UNIT OF FIREFIGHTERS WHO ARE EMPLOYEES OF
 THE 2750TH AIR BASE WING HEADQUARTERS, WRIGHT-PATTERSON AFB, OHIO (THE
 RESPONDENT).  THE UNION IS ALSO THE EXCLUSIVE REPRESENTATIVE OF A UNIT
 OF NON-SUPERVISORY GENERAL SCHEDULE (GS) FIREFIGHTERS AND INSPECTORS
 EMPLOYED BY THE DEFENSE ELECTRONICS SUPPLY CENTER, DAYTON, OHIO (DESC).
 /1/
 
    JOHN M. GIBBS, THE PRESIDENT OF THE UNION, AND MICHAEL E. LUDWICK,
 THE UNION'S CHIEF NEGOTIATOR IN CONTRACT BARGAINING WITH DESC, ARE BOTH
 EMPLOYEES OF THE RESPONDENT.  ON OR ABOUT JANUARY 24, 1980, THE UNION
 REQUESTED THAT THE RESPONDENT GRANT OFFICIAL TIME TO GIBBS AND LUDWICK
 FOR THE TIME THEY WOULD BE ENGAGED IN NEGOTIATING A COLLECTIVE
 BARGAINING AGREEMENT ON BEHALF OF THE UNION WITH DESC.  THE RESPONDENT
 DENIED THE REQUEST.
 
    THE GENERAL COUNSEL ISSUED A COMPLAINT ALLEGING THAT THE RESPONDENT
 VIOLATED SECTION 7116(A)(1) AND (8) OF THE STATUTE /2/ BY REFUSING TO
 GRANT OFFICIAL TIME TO TWO OF ITS EMPLOYEES WHILE THEY WERE ENGAGED IN
 NEGOTIATING A COLLECTIVE BARGAINING AGREEMENT BETWEEN THE UNION AND
 DESC.  THE ALLEGATION IS THAT THE RESPONDENT'S REFUSAL TO GRANT OFFICIAL
 TIME UNDER THESE CIRCUMSTANCES IS CONTRARY TO THE REQUIREMENTS OF
 SECTION 7131(A) OF THE STATUTE.  /3/ THE QUESTION STIPULATED BY THE
 PARTIES IS "WHETHER RESPONDENT IS REQUIRED BY (SECTION) 7131(A) TO GRANT
 OFFICIAL TIME TO UNION NEGOTIATORS LUDWICK AND GIBBS, ITS EMPLOYEES,
 WHILE THEY ARE ENGAGED IN CONTRACT NEGOTIATIONS WITH THE DEFENSE
 ELECTRONICS SUPPLY CENTER, DAYTON, OHIO."
 
    THE GENERAL COUNSEL CONTENDS THAT SECTION 7131(A) "CLEARLY PROVIDES
 OFFICIAL TIME FOR ANY EMPLOYEE AS LONG AS THE EMPLOYEE IS REPRESENTING
 THE UNION IN BARGAINING UNDER THE STATUTE." IN THIS REGARD, THE GENERAL
 COUNSEL ASSERTS THAT THERE IS NO INDICATION IN THE STATUTE OR ITS
 LEGISLATIVE HISTORY THAT CONGRESS INTENDED TO LIMIT THE APPLICATION OF
 SECTION 7131(A) ONLY TO THOSE SITUATIONS WHERE THE UNION REPRESENTATIVE
 IS NEGOTIATING AN AGREEMENT WITH THE AGENCY WHICH EMPLOYS THE
 REPRESENTATIVE.  ON THE OTHER HAND, THE RESPONDENT, AND OPM AS AMICUS,
 CONTEND THAT SECTION 7131(A), WHEN READ IN THE CONTEXT OF THE STATUTE AS
 A WHOLE, MUST BE INTERPRETED TO AUTHORIZE OFFICIAL TIME ONLY FOR THOSE
 EMPLOYEES REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN COLLECTIVE
 BARGAINING AGREEMENT NEGOTIATIONS WHO ARE MEMBERS OF THE BARGAINING UNIT
 FOR WHICH THE AGREEMENT IS SOUGHT.  THE RESPONDENT AND OPM ASSERT THAT
 ADOPTION OF AN INTERPRETATION THAT DOES NOT LIMIT OFFICIAL TIME
 ENTITLEMENT TO EMPLOYEES IN THE BARGAINING UNIT WOULD BE INCONSISTENT
 WITH THE STATUTE AND ITS PURPOSES.
 
    AS SET FORTH IN N. 3, SUPRA, SECTION 7131(A) OF THE STATUTE REQUIRES
 THAT AN EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE
 NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT UNDER THE STATUTE BE
 AUTHORIZED OFFICIAL TIME FOR SUCH PURPOSES DURING THE TIME THE EMPLOYEE
 OTHERWISE WOULD BE IN A DUTY STATUS.  NEITHER THE LANGUAGE OF SECTION
 7131(A) NOR ITS LEGISLATIVE HISTORY INDICATES THAT CONGRESS DEFINITIVELY
 ADDRESSED THE MATTER HERE IN ISSUE.  HOWEVER, WHEN READ IN CONJUNCTION
 WITH OTHER RELATED PROVISIONS OF THE STATUTE AND IN SUCH A MANNER AS TO
 EFFECTUATE THE PURPOSES OF THE STATUTE, IT IS CLEAR THAT SECTION 7131(A)
 CANNOT BE INTERPRETED TO REQUIRE RESPONDENT IN THIS CASE TO GRANT
 OFFICIAL TIME TO TWO OF ITS EMPLOYEES WHILE THEY ARE ENGAGED IN
 COLLECTIVE BARGAINING NEGOTIATIONS ON BEHALF OF THE UNION WITH DESC.
 
    SECTION 7131(A) MUST, OF COURSE, BE CONSTRUED IN A MANNER CONSISTENT
 WITH THE OVERALL SCHEME OF THE STATUTE.  THAT SCHEME DEMONSTRATES THAT
 CONGRESS INTENDED COLLECTIVE BARGAINING UNDER THE STATUTE TO OPERATE
 WITHIN A FRAMEWORK OF APPROPRIATE BARGAINING UNITS IN WHICH EMPLOYEES,
 THROUGH THEIR EXCLUSIVE REPRESENTATIVE, CAN PARTICIPATE IN DECISIONS
 WHICH AFFECT THEM.  THUS, SECTION 7103(A)(12) DEFINES "COLLECTIVE
 BARGAINING" AS:
 
    (T)HE 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 . .
 . .
 
    ADDITIONALLY, SECTION 7101 SETS FORTH CONGRESS' FINDING THAT THE
 STATUTORY PROTECTION OF THE RIGHT OF EMPLOYEES TO BARGAIN COLLECTIVELY
 AND PARTICIPATE "THROUGH LABOR ORGANIZATIONS OF THEIR OWN CHOOSING IN
 DECISIONS WHICH AFFECT THEM . . . FACILITATES AND ENCOURAGES THE
 AMICABLE SETTLEMENTS OF DISPUTES BETWEEN EMPLOYEES AND THEIR EMPLOYERS
 INVOLVING CONDITIONS OF EMPLOYMENT(.)" FURTHER EVIDENCE OF CONGRESS'
 INTENT THAT COLLECTIVE BARGAINING OPERATE WITHIN THE CONTEXT OF AN
 APPROPRIATE BARGAINING UNIT FRAMEWORK IS FOUND IN SECTIONS 7111 /4/ AND
 7112 /5/ OF THE STATUTE. MOREOVER, DECISIONS OF THE AUTHORITY HAVE HELD
 THAT THE DUTY TO BARGAIN UNDER THE STATUTE DOES NOT EXTEND TO CONDITIONS
 OF EMPLOYMENT AFFECTING EMPLOYEES OUTSIDE THE BARGAINING UNIT IN AN
 AGENCY.  /6/ IT IS APPARENT, THEREFORE, THAT THE OFFICIAL TIME PROVISION
 OF SECTION 7131(A) IS INTENDED TO APPLY IN THE CONTEXT OF COLLECTIVE
 BARGAINING IN AN APPROPRIATE UNIT IN AN AGENCY BETWEEN THE AGENCY AND
 EMPLOYEES REPRESENTING THE EXCLUSIVE REPRESENTATIVE OVER CONDITIONS OF
 EMPLOYMENT WHICH AFFECT EMPLOYEES IN THAT UNIT.
 
    ACCORDINGLY, THE AUTHORITY CONCLUDES, CONSISTENT WITH THE OVERALL
 SCHEME OF THE STATUTE AS DESCRIBED ABOVE, THAT OFFICIAL TIME ENTITLEMENT
 UNDER SECTION 7131(A) ACCRUES ONLY TO AN EMPLOYEE, SERVING AS A
 REPRESENTATIVE OF AN EXCLUSIVE REPRESENTATIVE, WHO IS A MEMBER OF THE
 BARGAINING UNIT TO WHICH THE RIGHT TO NEGOTIATE THE BARGAINING AGREEMENT
 APPLIES.  /7/ THEREFORE, THE AUTHORITY FINDS THAT THE RESPONDENT IN THE
 INSTANT CASE DID NOT VIOLATE SECTION 7116(A)(1) AND (8) OF THE STATUTE
 AND THAT THE COMPLAINT SHOULD BE DISMISSED.  /8/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 5-CA-376 BE, AND
 IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JANUARY 22, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ THE PARTIES STIPULATED THAT ALTHOUGH THE RESPONDENT AND DESC ARE
 BOTH SUBORDINATE ELEMENTS OF THE DEPARTMENT OF DEFENSE, THEY ARE
 SEPARATE ORGANIZATIONS IN TERMS OF FUNCTION AND MISSION AND ARE NOT
 INTERRELATED IN ANY ORGANIZATIONAL MANNER.  THE STIPULATION ALSO SHOWS
 THAT THEY HAVE SEPARATE "PERSONNEL MANNING, BUDGETS, MISSIONS,
 ORGANIZATIONS, REGULATIONS, AND CHAINS OF COMMAND."
 
    /2/ SEC. 7116.  UNFAIR LABOR PRACTICES
 
    (A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
 PRACTICE FOR AN AGENCY--
 
    (1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
 EXERCISE BY THE EMPLOYEE OF
 
    ANY RIGHT UNDER THIS CHAPTER;
 
   .          .          .          .
 
 
    (8) TO OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF THIS
 CHAPTER.
 
    /3/ 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.
 
    /4/ SECTION 7111, ENTITLED "EXCLUSIVE RECOGNITION OF LABOR
 ORGANIZATIONS," PROVIDES THAT AN AGENCY SHALL ACCORD EXCLUSIVE
 RECOGNITION TO A LABOR ORGANIZATION IF THE ORGANIZATION HAS BEEN
 SELECTED AS THE REPRESENTATIVE BY A MAJORITY OF THE EMPLOYEES IN AN
 APPROPRIATE UNIT WHO CAST VALID BALLOTS IN A SECRET BALLOT ELECTION, AND
 FURTHER PROVIDES THE PROCEDURES FOR ACCORDING EXCLUSIVE RECOGNITION.
 
    /5/ SECTION 7112, ENTITLED "DETERMINATION OF APPROPRIATE UNITS FOR
 LABOR ORGANIZATION REPRESENTATION," PROVIDES THE STANDARDS BY WHICH THE
 AUTHORITY DETERMINES THE APPROPRIATENESS OF ANY BARGAINING UNIT.
 
    /6/ SEE E.G., DEPARTMENT OF THE ARMY, MILITARY DISTRICT OF
 WASHINGTON, 4 FLRA NO. 60(1980), WHERE THE AUTHORITY FOUND A PROPOSAL
 THAT MERIT PROMOTION PROCEDURES BE APPLIED IN FILLING POSITIONS OUTSIDE
 OF THE BARGAINING UNIT NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY,
 SINCE THE DEFINITION OF "COLLECTIVE BARGAINING" UNDER SECTION
 7103(A)(12) ONLY PERTAINS TO A DUTY TO BARGAIN OVER CONDITIONS OF
 EMPLOYMENT WHICH AFFECT EMPLOYEES WITHIN THE BARGAINING UNIT.
 
    /7/ FOR THE FOREGOING REASONS, THE AUTHORITY FINDS UNPERSUASIVE THE
 GENERAL COUNSEL'S ARGUMENT THAT CONGRESS, BY REJECTING LANGUAGE LIMITING
 OFFICIAL TIME TO NEGOTIATIONS BETWEEN THE PARTIES, "INTENDED OFFICIAL
 TIME TO BE GRANTED FOR NEGOTIATIONS TO ANY INDIVIDUAL EMPLOYED IN AN
 EXECUTIVE AGENCY."
 
    /8/ THIS DECISION CONCERNS ONLY ENTITLEMENTS TO OFFICIAL TIME UNDER
 SECTION 7131(A), AND DOES NOT ADDRESS OFFICIAL TIME WHICH MAY BE
 NEGOTIATED UNDER SECTION 7131(D).