12:0731(140)CA - Naval Space Surveillance Systems, Dahlgren, Virginia and AFGE Local 2096; Naval Surface Weapons Center, Dahlgren, Virginia and AFGE Local 2096 -- 1983 FLRAdec CA



[ v12 p731 ]
12:0731(140)CA
The decision of the Authority follows:


 12 FLRA No. 140
 
 U.S. NAVAL SPACE SURVEILLANCE
 SYSTEMS, DAHLGREN, VIRGINIA
 Respondent
 
 and
 
                                            Case No. 3-CA-1603
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2096
 Charging Party
 
 U.S. NAVAL SURFACE WEAPONS CENTER,
 DAHLGREN, VIRGINIA
 Respondent
 
 and
 
                                            Case No. 3-CA-1778
                                                     9 FLRA No. 30
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2096
 Charging Party
 
                  DECISION AND ORDER UPON RECONSIDERATION
 
    On March 17, 1983, the Authority issued an Order granting the motion
 for reconsideration of its decision in U.S. Naval Space Surveillance
 Systems, Dahlgren, Virginia and U.S. Naval Surface Weapons Center,
 Dahlgren, Virginia, 9 FLRA No. 30 (1982), which had been filed by the
 Department of the Navy (Navy) on behalf of the U.S. Naval Surface
 Weapons Center, Dahlgren, Virginia (Weapons Center), the Respondent in
 Case No. 3-CA-1778.  In granting the Navy's motion for reconsideration,
 the Authority stayed its order in 9 FLRA No. 30 pending completion of
 the proceeding upon reconsideration, and granted leave to the parties to
 file statements of position on the issue of whether Respondent Weapons
 Center violated section 7131(d) of the Statute when it refused to
 bargain with the Union concerning a proposal to grant official time to a
 Weapons Center employee for representing the Union in contract
 negotiations with another employee.  /1/ The Navy (on behalf of
 Respondent Weapons Center), the Charging Party, and the General Counsel
 filed statements of position.
 
    In its Decision and Order with respect to Case No. 3-CA-1778, /2/ the
 Authority found in pertinent part that the Respondent Weapons Center
 (whose agent, Resio, also was the representative and spokesman for
 USNSSS) violated the Statute when it refused to bargain with the Union
 under section 7131(d) of the Statute concerning a proposal to grant
 official time to a Weapons Center employee, Union Executive Vice
 President Ezra Green, for representing the Union in contract
 negotiations with another employer (USNSSS).  Further, the Authority
 dismissed an allegation that the Weapons Center had violated section
 7131(a) of the Statute by refusing to grant official time to Green for
 such purposes.  The Authority noted that, under section 7131(a),
 entitlement to official time accrues only to an employee within the unit
 involved in the negotiations.  The Authority's findings and conclusions
 in this latter regard are not at issue herein.  The issue to be decided
 now is whether an employer is required to negotiate under section
 7131(d) concerning the authorization of official time for its
 employee(s) to represent the Union in contract negotiations involving
 employees of another employer.
 
    In reaching its conclusion which is here at issue, the Authority
 relied upon an earlier decision in Department of Defense, Department of
 the Navy, Polaris Missile Facility Atlantic, Charleston, South Carolina,
 6 FLRA No. 67 (1981), and a previous Interpretation and Guidance, 7 FLRA
 No. 105 (1982).  For the reasons set forth below, it is concluded that
 these cases are not controlling herein, and that the purposes and
 policies of the Statute will best be effectuated by dismissing in its
 entirety the complaint in Case No. 3-CA-1778.
 
    In Polaris Missile Facility Atlantic, an activity was alleged to have
 unilaterally changed existing conditions of employment by denying
 official time to one of its employees, the president of the union which
 exclusively represented a unit of the activity's employees, for the
 purpose of representing employees in a unit of exclusive recognition at
 a separate activity (the Naval Weapons Station).  The Authority
 concluded, in agreement with the Judge, that the evidence failed to
 establish the existence of a past practice whereby the activity
 knowingly and consistently granted official time to its employees to
 represent employees at other activities.  Accordingly, the complaint was
 dismissed on that basis.  The complaint did not allege that the union
 had been denied the right to negotiate for such official time under
 section 7131(d) of the Statute, and the Authority did not consider
 whether section 7131(d) would have required the activity to negotiate
 with respect thereto.
 
    Similarly, in its Interpretation and Guidance, supra, the Authority
 did not address the issue presented herein.  Rather, the question was
 whether section 7131(a) of the Statute applies to the negotiation of a
 local agreement which supplements a national or controlling (master)
 agreement.  In concluding that section 7131(a) does not entitle
 employees to official time for negotiating local supplemental
 agreements, the Authority emphasized that such entitlement to official
 time only flows to an employee representing an exclusive representative
 in the negotiation of a collective bargaining agreement "affecting
 employees in the appropriate unit." (Emphasis in original.) The
 Authority added that when the parties at the level of exclusive
 recognition agree to authorize the creation of local supplemental
 agreements affecting employees in the appropriate unit, they "remain
 empowered under section 7131(d) of the Statute to negotiate official
 time for employees representing the exclusive representative at the
 local level. . . . "
 
    By contrast, the Weapons Center and the Charging Party herein were
 not engaged at all in the negotiation of a collective bargaining
 agreement involving conditions of employment affecting any Weapons
 Center employee.  Only USNSSS, a completely separate activity, was
 engaged in negotiations with the Union, and those negotiations
 consequently concerned only conditions of employment of USNSSS
 employees.  Any agreement reached in such negotiations would not apply
 to or affect Weapons Center employees in any way.  The Authority now
 concludes, consistent with the purposes and policies of the Statute as
 discussed herein, that the Weapons Center had no obligation under
 section 7131(d) of the Statute to negotiate with the Charging Party
 concerning the authorization of official time for one of its employees
 to represent the Union in a different collective bargaining unit engaged
 in collective bargaining with a different activity.  /3/
 
    Congress has specifically declared in section 7101(a)(1) of the
 Statute that it is "the right of employees to organize, bargain
 collectively, and participate through labor organizations of their own
 choosing in decisions which affect them (that) (A) safeguards the public
 interest, (B) contributes to the effective conduct of public business,
 and (C) facilitates and encourages the amicable settlements of disputes
 between employees and their employers involving conditions of
 employment. . . . " /4/ Requiring an employer to bargain on demand with
 regard to official time for its employee(s) to engage in collective
 bargaining with a separate and independent agency or activity regarding
 conditions of employment of the other agency's or activity's employee(s)
 clearly does not fall within the stated intent of Congress.  In the
 Authority's opinion, requiring the Agency to negotiate over official
 time, under the circumstances of this case, would not be consistent with
 an effective and efficient government as provided for under section
 7101(b) of the Statute.
 
                                   ORDER
 
    Upon reconsideration, IT IS ORDERED that the complaint in Case No.
 3-CA-1778 be, and it hereby is, dismissed in its entirety.  
 
 Issued, Washington, D.C., August 31, 1983
 
                                       Barbara J. Mahone, Chairman
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 Opinion of Ronald W. Haughton, Member:
 
    I agree that the Statute does not require an agency to negotiate
 official time for an employee in one bargaining unit to bargain for
 employees in another unit.  If there were any doubt on this point, it
 would be appropriate to consider section 7101(b) and interpret the
 language of the Statute "in a manner consistent with the requirement of
 an effective and efficient Government." The fact is though we simply
 have a matter of the consideration of the clear and applicable language
 of section 7131(d).  Accordingly, it is not necessary to go further.  It
 is of interest to note that section 7101(b) relating to effective and
 efficient government has not been raised or argued by either party.
 
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7131(d) provides:
 
          Sec. 7131.  Official time
 
                                .  .  .  .
 
          (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.
 
 
    /2/ The Authority dismissed in its entirety the complaint in Case No.
 3-CA-1603 against the Respondent U.S. Naval Space Surveillance Systems,
 Dahlgren, Virginia (USNSSS).  The dismissal of that complaint is not at
 issue herein.
 
 
    /3/ The Authority notes that the General Counsel's statement of
 position filed herein urges the foregoing conclusion.  Thus, in the
 General Counsel's view, "an employer has no duty to bargain with the
 exclusive representative of its employees under (s)ection 7131(d) of the
 Statute over a proposal to grant official time to a unit employee for
 representing that exclusive representative in contract negotiations with
 another employer.  . . . (S)uch a proposal is not encompassed within
 (s)ection 7131(d) of the Statute or within the duty to bargain since the
 proposal does not relate to conditions of employment affecting the unit
 employees at the employer which was requested to bargain over the
 granting of such official time." (Emphasis in original.)
 
 
    /4/ This conclusion is buttressed by the language of section
 7103(a)(12) of the Statute which provides:
 
          Se