14:0360(60)CA - Navy, Naval Construction Battalion Center, Port Hueneme, CA and NAGE Local R12-29 -- 1984 FLRAdec CA
[ v14 p360 ]
The decision of the Authority follows:
14 FLRA No. 60 DEPARTMENT OF THE NAVY NAVAL CONSTRUCTION BATTALION CENTER PORT HUENEME, CALIFORNIA Respondent and NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R12-29 Charging Party Case No. 8-CA-566 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain of the unfair labor practices alleged in the complaint and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. The Judge also found no merit to other allegations contained in the complaint and recommended that they be dismissed. Thereafter, the General Counsel filed timely exceptions limited to the Judge's Recommended Order. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, /1/ conclusions /2/ and Recommended Order, only to the extent consistent herewith. The complaint herein alleged, among other things, that the Respondent violated section 7116(a)(1) and (5) of the Statute when it unilaterally changed an established past practice of granting official time to its employees for the purpose of representing the Union in negotiating a collective bargaining agreement covering the employees of a separate activity, without affording the Union prior notice and an opportunity to bargain concerning the decision to change such practice. The record establishes, as stipulated by the parties, that employees of the Respondent had previously been granted official time to serve as representatives of the Union in collective bargaining negotiations with the Naval Regional Medical Clinic, a tenant activity located at Respondent's Port Hueneme, California facility. Moreover, the record reflects, as found by the Judge, that Respondent changed this existing past practice on May 28, 1980, without prior notice to the Union and without affording the Union an opportunity to bargain over the change. The Judge concluded that such conduct was violative of section 7116(a)(1) and (5) of the Statute. The Authority disagrees. After the Judge issued his Decision herein, the Authority held in U.S. Naval Space Surveillance Systems, Dahlgren, Virginia, 12 FLRA No. 140 (1983), upon reconsideration of a prior decision, that an activity has no obligation under section 7131(d) of the Statute /3/ to negotiate concerning the authorization of official time for any of its employees to represent the Union in collective bargaining on behalf of employees of a separate and independent activity. In so concluding, the Authority reasoned that the Employer and the Union in that case were not engaged in the negotiation of a collective bargaining agreement involving conditions of employment affecting any employees of that Employer; rather, a completely separate activity was engaged in negotiations with the Union, and those negotiations consequently concerned only conditions of employment of that activity's employees. It follows, therefore, in the circumstances of the instant case, that there was no obligation on the part of the Respondent to bargain over the decision to change its past practice of providing official time to its employees to serve as representatives of the Union in bargaining with the Naval Regional Medical Clinic, inasmuch as the Clinic is a different employer and the negotiations in question would not affect the conditions of employment of Respondent's employees. Accordingly, the Respondent's failure to give prior notice and an opportunity to bargain to the Union over its decision to change the past practice at issue was not violative of section 7116(a)(1) and (5) of the Statute. See Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 11 FLRA No. 66 (1983); Department of the Navy, Supervisor of Shipbuilding, Conversion and Repair, Groton, Connecticut, 4 FLRA 578 (1980). ORDER IT IS ORDERED that the complaint in Case No. 8-CA-566 be, and it hereby is, dismissed. Issued, Washington, D.C., April 26, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No.: 8-CA-566 E. A. Jones, Esq. For the General Counsel Ronald E. Steensland For the Charging Party Basil L. Mayes Robert F. Griem For the Respondent Before: FRANCIS E. DOWD Administrative Law Judge DECISION Preliminary Statement This is a proceeding under the Federal Service Labor-Management Relations Statute, (herein the Statute), 92 Stat. 1191, 5 U.S.C. 7101, et seq. On September 19, 1980, the Acting Regional Director for Region 8 of the Federal Labor Relations Authority, pursuant to a charge originally filed on June 18, 1980, by the National Association of Government Employees, Local R12-29, herein called the Union, and amended on September 10, 1980, issued a Complaint and Notice of Hearing alleging that the Department of the Navy, Naval Construction Battalion Center, Port Hueneme, California, herein called Respondent, has engaged in, and is engaging in, unfair labor practices within the meaning of Section 7116(a)(1), (5), and (8) of the Statute. Specifically, the Complaint alleged that (1) Respondent on or about May 28, 1980, notified the Union that it refused to grant official time for employees employed by Respondent to engage in collective bargaining negotiations with the Naval Regional Medical Clinic, herein called the Medical Clinic, a tenant activity located at Respondent's Port Hueneme, California, facility, because said employees were not members of the Medical Clinic bargaining unit; (2) by its May 28, 1980, action Respondent unilaterally implemented a policy of denying union representatives official time to engage in collective bargaining negotiations when the union representatives are not included in the bargaining unit involved in said negotiations without affording the Union prior notice or an opportunity to bargain concerning this change of policy; (3) by its May 28, 1980 action, Respondent unilaterally changed an existing past practice of affording union representatives official time to engage in collective bargaining negotiations although they are not included in the bargaining unit involved in said negotiations. On October 3, 1980, Respondent filed an Answer substantially denying the allegations of the Complaint. A hearing was held in Port Hueneme, California at which the parties were represented by counsel and afforded full opportunity to adduce evidence and call, examine, and cross-examine witnesses and argue orally. Briefs filed by Respondent and the General Counsel have been duly considered. Upon consideration of the entire record in this case, including my evaluation of the testimony and evidence presented at the hearing, and from my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommended order. Findings of Fact 1. The Construction Battalion Center is a large Activity located at Port Hueneme, California, with several separate Activities located on its property as tenants. One such tenant Activity is the Naval Regional Medical Clinic, herein referred to as the Medical Clinic. It should be noted that the Medical Clinic has not been named as a Respondent. 2. NAGE Local R12-29 is the exclusive representative of a unit of Construction Battalion Center employees. NAGE Local R12-29 is also the exclusive representative of another separate unit comprised of all nonsupervisory and professional employees of the Medical Clinic and the branch clinic, Point Mugu. 3. At the time the Union was first recognized by the Respondent as the exclusive representative, the Medical Clinic, (then called the Navy Hospital), was a department and an organizational part of Respondent. In 1969 the Medical Clinic became a tenant entity at Respondent's facility under the Navy's Bureau of Medicine chain of command-- organizationally separate from Respondent. At that time Respondent permitted union representatives in Respondent's employ to continue, on official time, normal union representational services for the Medical Clinic unit, e.g., handling personnel problems, grievances, and contract negotiations. This arrangement continued until on or about May 28, 1980. During that period-- from 1969 to May 28, 1980-- two contracts were negotiated between the Medical Clinic and the Union, one approved October 5, 1973, the second on September 5, 1975. The union negotiators for each Medical Clinic contract who were employed by Respondent were on official time paid by Respondent up to the amount of official time negotiated by the parties pursuant to Executive Order 11491. The same practice regarding the allowance of official time for Union representatives employed by Respondent was followed with regard to the Navy Commissary, which has been a separate tenant entity at Respondent's facility since 1975. 4. The most recent collective-bargaining agreement between the Medical Clinic and the Union expired in or about 1978. On April 17, 1980, the Union through Clem Priebe, local president, requested by letter to the Medical Clinic, negotiations on the contract between the Union and the Medical Clinic. The Medical Clinic agreed by letter of April 28, 1980, to meet to establish ground rules and a timetable for renegotiation of the agreement. On May 12 and 13, 1980, meetings were held with the following attendees: Clem Priebe, Union National Representative Scott Richards, Union Chief Steward Bill Leathers, Medical Clinic representative Lieutenant D. M. Nachreiner and Calvin Skyrme of Respondent's labor relations office. /4/ Clem Priebe and Leathers were on official time. At these meetings, /5/ the parties discussed management's proposed ground rules (G.C. Exh. No. 5) of which paragraph number 8 stated as follows: 8. Official Time: In accordance with 5 USC 7131 - Public Law 95-4454, those individuals employed by the Naval Regional Medical Clinic shall be authorized official time in the negotiation of a collective bargaining agreement. The Union objected to this proposal because it meant that Priebe and Leathers would not be eligible for official time and, instead, would have to take annual leave or leave without pay. Moreover, the Union did not have anyone at the Medical Clinic to participate in the negotiations. The net result of these negotiations was that nothing was resolved on the official time issue. The Union would not accept the proposal and the Clinic, according to Skyrme, "would not authorize official time and non-Clinic employees." Notwithstanding the disagreement on this particular issue, impasse was not reached, and no final decision was made by Respondent's representatives. The last meeting ended with the expectation that there would be more meetings, and I credit Priebe that one was scheduled for June 3. Priebe testified and Skyrme confirmed that Mr. Richards of the Union planned to submit written proposals on the ground rules. /6/ 5. Respondent's Civilian Personnel Officer Norman S. Hill, testified that in or around May 1980, Respondent underwent an audit by the Navy Inspector General. As a result of the inspection, Respondent received a directive from the Chief of Naval Operations, Washington, D.C., recommending that the Respondent notify the Union of Navy policy prohibiting Respondent from granting its employees official time to conduct union business at Respondent's tenant activities, i.e., the Medical Clinic. Hill testified that Respondent had no discretion but to implement the recommendation, which it did by way of the May 28, 1980 letter to the Union from Commanding Officer J. J. Shanley. 6. A relevant excerpt from that memorandum is as follows: Subj: Official time; authorization use of Ref: (a) CSRA Public Law 95-454, Section 7131, "Official Time" 1. I have recently been advised by the Civilian Personnel Office that the National Association of Government Employees, Local R12-29, has requested administrative leave to conduct negotiations for a new bargaining agreement with the Naval Regional Medical Clinic, Port Hueneme, California. In the process of establishing ground rules for negotiations, the main issue raised was, in accordance with reference (a), the authorization of official time for those union officials representing the bargaining unit. 2. The Department of Navy policy is to authorize official time to only those union representatives who are directly employed by the bargaining unit. The bargaining unit, or the employer in this case, being the Naval Regional Medical Clinic. The Naval Regional Medical Clinic does not have the authority to grant official time to employees of the Construction Battalion Center who are Local R12-29 officers. 3. Therefore, in conformance with Department of Navy policy, union representatives of NAGE Local R12-29 not directly employed by a bargaining unit, i.e., Naval Regional Medical Clinic, or the Branch Navy Commissary Store, will be required to use either annual leave or leave without pay in collective bargaining agreement negotiations, or in representations of those matters arising from unit (employee) grievances or adverse actions. 4. It is not the intent of the Naval Construction Battalion Center to limit or restrict the present relationship with NAGE Local R12-29 within the Construction Battalion Center, but only to define command authority as to the authorization of official time for units which are separate commands. 7. On May 30, 1980, Clem Priebe and representatives of the Union met with representatives of Respondent, including the Commanding Officer, Captain J. J. Shanley, regarding the request by Respondent in the May 28, 1980, memo that the Union notify Respondent of its understanding of the Respondent's policy. In the meeting the Union expressed its opinion that the Civil Service Reform Act authorized official time for union officials to represent tenant activities. Respondent indicated that it was standing by its declarations in the May 28, 1980 memo. No change in the policy expressed in the memo resulted from the meeting. The minutes for this meeting were received in evidence as G.C. Exh. No. 7. 8. On June 10, prior to filing the charge in this case, the Union, accompanied by its West Coast National Vice-President, John Carpenter, again met-- without success-- with representatives of Respondent concerning the denial of official time. Respondent reiterated that it was only following Navy policy. The Union rejoined that it disagreed with Respondent's position and might have to file an unfair labor practice charge. ISSUES A. Whether the Respondent is obligated under Section 7131(a) of the Statute to authorize official time for an employee representing an exclusive representative in the negotiation of a collective bargaining agreement under the Statute during the time the employee otherwise would be in a duty status if the employee is not a member of the bargaining unit for which the agreement is sought. B. Whether Respondent's refusal to grant official time was a violation of Sections 7116(a)(8) and (1). C. Whether Respondent violated Sections 7116(a)(5) and (1) by unilaterally changing a past practice of granting official time to its employees for the purpose of representing Medical Clinic employees and negotiating a collective bargaining contract for the Medical Clinic. Discussion and Conclusions of Law A. Statutory Interpretation - Meaning of Section 7131(a), Courts have long held that statutes are to be considered in their entirety and not as if each of their provisions was independent and unaffected by the others. See Alexander v. Cosden Pipe Line Co., 290 U.S. 484 (1933). The U.S. Supreme Court has also held that courts have some latitude to adopt a restricted rather than a literal reading of statutory language when the literal reading would lead to unreasonable or absurd results. See Helvering v. Hammel, 311 U.S. 504 (1964). The foregoing rules of statutory construction are applicable herein. The resolution of the first issue presented in this case hinges upon the meaning which is given to section 7131(a) of the Statute. This section of the Statute provides: (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 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. Also of relevance to this discussion is Section 7131(d) which provides as follows: (d) Except as provided in the preceding subsection 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. Respondent contends that section 7131 must be narrowly interpreted to mean that only employees representing an exclusive representative who are employed in the bargaining unit for which they are acting are entitled to official time. Thus, Respondent argues that the kind of employee described in Section 7131(a) is a "unit employee." The General Counsel, on the other hand, favors a broad interpretation of Section 7131(a) and argues that the word "employee" in this particular statutory context should receive the same meaning as in Section 7103(a)(2) where "employee" is defined as "an individual employed in an agency." Generally, where the statutory language is not clear on its face - as in this case - resort is directed to the legislative history. Based upon my review of the legislative history, I have reached the following conclusions. First, no special significance may be placed on the use of the word "any" at the beginning of Section 7131(a). Second, the word "employee" and its meaning was not specifically discussed in terms of "who" Congress was talking about when it used the word employee in Section 7131(a). Third, the main thrust of all discussions on Section 7131 dealt with the subject matter of negotiations. Thus, it is quite clear that Section 7131(a) involves official time for contract negotiations and Section 7131(d) involves official time for all other matters. The question is whether Congress was consciously intending to give the word "employee" in Section 7131(a) a different meaning than in Section 7131(d). If so, why did Congress remain silent on the subject and not explain its reasons for such a significant and far reaching difference, if that, were the case? Why would Congress use the phrase "employee representing an exclusive representative" in both (a) and (d) but intend two different meanings, without explaining its reasons? Such an explanation was obviously called for. The answer, in my opinion, is that Congress did not intend two different meanings for the word "employee" in Section 7131(a) and (d). What Congress intended, I believe, is that the word "employee" meant the same thing in both (a) and (d) and, more specifically, Congress meant "unit employee". This conclusion is supported by the legislative history, brief as it is. Thus, at H.R. Rep. No. 95-1403, 58-59, (95th Congress 2d Sess. 1978), Legislative History, p. 704-705, the discussion of the official time provisions commenced with the following introductory statement: "This entire section provides standards for determining when an individual may or may not be authorized official time (paid time) to engage in activities concerning labor-management relations". Thus, the focus was on individuals performing a variety of labor-management relations activities. The Report briefly explained the purpose of Section 7131(a), (b) and (c) and then summarized (d)(1) and (2) as follows: Section 7132(d) /7/ makes all other matters concerning official time for unit employees engaged in labor-management relations activity subject to negotiation between the agency and the exclusively recognized labor organization involved. The General Counsel argues that the foregoing statement represents a Congressional intent to differentiate between a broad authorization of official time for contract negotiations in Section 7131(a) and a narrow authorization to unit employees in Sec. 7131(b). This contention is rejected. The more likely interpretation advanced by Respondent, which I adopt, is that the entire phrase - "all other matters concerning unit employees" - relates back and encompasses Section 7131(a) and clearly demonstrates that Congress was speaking of unit employees in both (a) and (d). Indeed, the very absence of any legislative history discussing the scope of the word "employee" is convincing evidence to me that Congress simply assumed that the individuals engaged in collective bargaining and other "labor-management relations activity" were the same individuals affected by such bargaining, namely, employees in the bargaining unit. /8/ This conclusion, as argued by Respondent, fits into the overall statutory scheme of encouraging collective bargaining and communications within appropriate units. Congressional recognition and emphasis on employees in appropriate bargaining units may be demonstrated by examining other sections of the Statute. In this case Congress expressed a clear statement of purpose in Section 7101 where it found that statutory protection of the employees' right to organize, to bargain collectively and to participate through their freely selected labor organizations in decisions affecting them "facilitates and encourages the amicable settlements of disputes between employees and their employers involving conditions of employment." The collective bargaining envisioned by Congress is to occur between the representative of an agency /9/ and the exclusive representative of an appropriate unit. Collective bargaining is defined in Section 7103(a)(12) as follows: '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 . . .. This language clearly shows Congress' obvious intent was to facilitate communication between an agency representative and the employees of a given unit over which the agency representative has managerial responsibility. In order to provide a framework within which the defined collective bargaining can occur, Congress set up an elaborate system in Sections 7111 and 7112 to determine the appropriateness of units for labor organization representation and the designation of exclusive recognition. All of this is designed to ensure that employees with a clear and identifiable community of interest may effectively deal with their particular agency employer. Again we see the recurring theme of Congress' intent to encourage and facilitate bargaining and communication between employees of an appropriate unit and the agency managers in charge of that unit. The Statute's central theme of providing bargaining rights about conditions of employment for employees in a given unit is further evidenced in Federal Labor Relations Authority decisions concerning the duty to bargain. They clearly point out that the duty to bargain does not extend to conditions of employment affecting non-bargaining unit employees. (See National Council of Field Labor Locals, American Federation of Government Employees and U.S. Department of Labor, 3 FLRA No. 44; International Association of Fire Fighters, Local F-61 and Philadelphia Naval Shipyard, 3 FLRA No. 66; and, for a recent decision involving official time under Section 7131(d), see American Federation of Government Employees, AFL-CIO, Local 3804, 7 FLRA No. 34 (Nov. 19, 1981). Thus, the Authority has found that, in encouraging bargaining and setting up a framework in which bargaining would occur, Congress clearly intended only to encourage bargaining within identified appropriate units and about subjects affecting those unit employees. Of course, I realize there are some who would argue that since management has substantial latitude in making its selection of representatives for negotiations, it would be inequitable to impose limitations on unions. But the answer to this is that while Congress knowingly granted unions something under the Statute - official time for negotiations - that unions did not have under the Order, Congress also recognized that it was not giving unions full parity with agency management. Thus, Congressman William Ford in discussing Section 7132 (now Section 7131) stated clearly that even though agency management engaged in "interface" activities, including preparations, on official time, Section 7131(d) made these same interface activities a subject of negotiation as far as the exclusive representative is concerned. Legislative History, p. 957, Congressional Record H 9650 (Sept. 13, 1978). Also, Congress in Section 7131(a) knowingly permitted the agency to control or dictate the number of union representatives entitled to receive official time for contract negotiations. Indeed, if one reads Section 7131 in its entirety from (a) through (d), one should conclude that on the whole it contains more limitations on the rights of unions than it grants privileges. The only exception is the first sentence in Section 7131(a) which is the subject of this case. The use of official time in (b) is precluded, in (c) it is to be determined by the Authority, and in (d) it is subject to negotiation with the agency. Based upon the foregoing, I reject this "equitable" or "equal partner" agreement. As previously noted, Respondent also argues that a statute should not be interpreted in a manner which leads to an absurd result. Thus, it is argued that reliance on the General Counsel's broad interpretation of Section 7131(a) would mean that a Union - which admittedly has the right to designate its own representatives - could designate any employee of any agency anywhere in the world to represent them in contract negotiations. /10/ There is genuine concern that under such a broad interpretation government employees would become professional negotiators for labor organizations and lead to government subsidization of the contract negotiation departments of labor organizations. /11/ Coupled with this concern is the obvious opportunity for abuse. For example, if the bargaining unit is in San Diego, California and the Union designates as representatives non-unit employees from Seattle, Boston and Miami, would an agency have any right at all to challenge the reasonableness of the Union's designations in light of the cost to the government in terms of money and efficiency of operations? /12/ Under the General Counsel's theory, the Union's right to designate its own representatives is paramount and if the purpose is contract negotiations the agency is obligated by Section 7131(a) to provide official time and by the Authority's Interpretation and Guidance, 2 FLRA No. 31 (1979) to pay travel and per diem expenses. From my review of the legislative history it doesn't appear that Congress had this particular result in mind when it decided to provide employees with official time for contract negotiations. And, in my view, such a result, whether characterized as absurd or not, would at the very least place an unreasonable burden on the government. Further, such a broad interpretation of Section 7131(a) would extend a benefit to employees outside the bargaining unit without any legislative explanation. Finally, the General Counsel's broad interpretation of Section 7131(a) is, in my opinion, incompatible with the statutory mandate in Section 7101 which states "the provisions of this chapter should be interpreted in a manner consistent with the requirement of an effective and efficient government." In its brief, Respondent makes the following argument against such a broad interpretation of the Statute: Certainly the General Counsel's position of an untrammeled right of union negotiators to official time and absence from their regular jobs without regard to separate employer limitations can hardly be said to be consistent with the requirement of an effective and efficient Government. The "special requirements and needs of the Government" cannot be met if one employer Activity is required to reduce its productive work effort and to subsidize, in whole or part, the negotiations being conducted with other employer Activities without any control whatsoever on job criticality, or number of employees it must release from their regular jobs, or the duration or frequency of such release, while at the same time being required to pay not only the regular pay, but also their costs of any travel and per diem, and even beyond that to be then confronted with the additional problems of how to reallocate the work or, regulations permitting, hire additional persons to take over the productive work normally performed by those employees. Respondent contends that Congress could not and did not so intend. I find Respondent's argument to be persuasive not only because of the monetary cost involved but particularly because of the disruptive effects it has on the unit from which the designated representative has been selected. One of the responsibilities of agency management (and its labor relations advisors) is to explain to supervisors why employees under their supervision are entitled - by statute or contractual agreement - to be released from their jobs to conduct authorized labor-management relations activities on behalf of the exclusive representative. Such explanations are more readily understood when the representative's labor-management relations activities benefit the working conditions of his or her co-workers in the same unit at the same job site. But it is much more difficult to try and explain to a supervisor why his or her employee is leaving the city for several weeks to conduct contract negotiations for some other bargaining unit, or to explain why the employee is leaving the city for two days to fly from Cleveland to San Diego to attend a one-hour meeting concerning "negotiations." The only explanation, according to the General Counsel, is to simply say that these employees have a statutory right to official time for this particular purpose (i.e. "negotiations") because this is what Congress intended. It seems to me that if this really is what was contemplated by Congress there necessarily would be a lengthy discussion of this in the legislative history. Indeed, when one considers the number of pending cases /13/ in which agencies are opposing the General Counsel's interpretation, it seems obvious that this controversial issue would have been raised by agency representatives in the proceedings before the House and the Senate, had there been any inkling that Section 7131(a) was being given or could be given the broad interpretation now requested by the General Counsel. On balance, given a choice between a narrow or broad interpretation of the word "employee" in Section 7131(a), I conclude for the reasons discussed above that the statute should be construed narrowly. Accordingly, I find and conclude that the word "employee" in Section 7131(a) means "unit employee." This statutory interpretation, it seems to me, is more reasonable, less disruptive to labor management relations, and more consistent with other statutory provisions, especially including Sections 7101, 7111(a) and, 7114(a)(1) and (4). In this regard, Section 7112 states: (a)(1) The Authority shall determine the appropriateness of any unit. The Authority shall determine in each case whether, in order to ensure employees the fullest freedom in exercising the rights guaranteed under this chapter, the appropriate unit should be established on an agency, plant, installation, functional, or other basis and shall determine any unit to be an appropriate unit only if the determination will ensure a clear and identifiable community of interest among the employees in the unit and will promote effective dealings with, and efficiency of the operations of the agency involved. Section 7112 determinations made by the Authority that certain employees have a "community of interest" and that establishment of such a unit "will promote effective dealings with, and efficiency of the operations of, the agency involved" are at the very heart of the statutory "procedures" referred to in Section 7101 to "meet the special requirements and needs of . . . an effective and efficient Government." Accordingly, Section 7131(a) when read in conjunction with other statutory provisions does not provide a statutory grant of official time to non-bargaining unit employees. /14/ B. Whether Respondent's conduct violates Section 7116(a)(8) and (1). Having found that Section 7131(a) does not mandate the granting of official time for non-bargaining unit employees, I find and conclude that Respondent by its conduct herein did not violate Section 7116(a)(8) and (1). Accordingly, this allegation in the complaint is dismissed. C. Whether Respondent violated Section 7116(a)(5) and (1) by its unilateral change of an established past practice of granting official time to its employees for the purpose of participating in contract negotiations for the Medical Clinic. /15/ It is well established case law, under the Executive Order and the Statute, that parties may establish terms and conditions of employment by practice, or other form of tacit or informal agreement, and that this, like other established terms and conditions of employment, may not be altered by either party in the absence of agreement or impasse following good faith bargaining. /16/ This principle is applicable herein. With respect to the facts of this case, it is important once again to make clear which bargaining units and which agencies are involved in this alleged violation of Section 7116(a)(5). While it is true that the negotiations of ground rules pertained to the Medical Clinic bargaining unit, it is not the Medical Clinic which has been named as Respondent. Rather, the Respondent is the Activity employing the employees who had been designated by the Union to serve outside of their own unit as Union negotiators for the Medical Clinic unit. The record firmly establishes that a practice dating back to 1969 existed whereby Respondent knowingly and consistently authorized Union representatives or its payroll to perform representative functions on official time at the Medical Clinic - including the negotiation of collective bargaining agreements. The record is equally clear that the practice was abruptly ended on May 28, 1980, without prior notice to the Union /17/ of the change and without affording it an opportunity to bargain over the change. /18/ Indeed, Respondent did not even wait for the Union's counterproposals which were being drafted by Mr. Richards. That the change had a substantial impact is equally apparent; if union representatives employed by Respondent were to negotiate at the Medical Clinic, they would have had to do so on annual leave or on their own time. /19/ The record shows that the Union, faced with this choice, elected to challenge Respondent's position through the instant proceeding. In its defense, Respondent asserts that its May 28 letter informing the Union of its policy on official time was an agency-wide regulation within the meaning of Section 7117 and that the Union should have challenged the "compelling need" for the regulation by filing a petition with the Authority pursuant to Part 2424 of the Rules and Regulations. In my opinion Respondent has failed to prove the existence of an agency-wide regulation. Surely, a letter from the head of one Activity to a Union official in a single bargaining unit saying "this is Navy policy" is insufficient evidence of an agency-wide regulation. Accordingly, I do not reach the question of whether the Union was required to utilize Part 2424 and obtain a compelling need determination by the Authority. /20/ Respondent's second defense is that the charge was prematurely filed because no agreement had been reached as to (1) composition of the negotiating team, (2) the hours the parties agreed to negotiate, and (3) the date on which Medical Clinic negotiations would begin. I reject this defense. Agreement on the foregoing was not reached because the Respondent elected to issue its May 28th letter changing its past practice of permitting its employees to represent the Medical Clinic on official time. Accordingly, it was not necessary - with respect to the alleged violation of Section 7116(a)(5) - to have a specific request (and denial) for official time to attend a specific negotiating session at an established time, date and place. Respondent's third defense is that the Medical Clinic bargaining unit was defunct and no longer viable. Respondent apparently contends that its actions with respect to its own unit employees; i.e. its denial of official time and its change of existing practice - may be excused because of its belief that the Medical Clinic (a different Activity with its own unit) had no obligation to bargain. I need not decide whether Respondent is a proper party to assert this defense because, in my opinion, this defense may not be raised in an unfair labor practice proceeding. Accordingly, I adhere to my ruling at the hearing excluding evidence of on the alleged defunctness of the Medical Clinic unit. /21/ The proper forum in which to raise a "question concerning representation" is a representation proceeding. Neither the evidence in the record nor the Respondent's ; offer of proof demonstrates that a question concerning representation has been properly raised by the Medical Clinic itself or, for that matter, Respondent herein. Accordingly, this defense is rejected. /22/ Having rejected each of Respondent's defenses, I find and conclude that Respondent violated Section 7116(a)(5) and (1) by unilaterally changing its past practice of permitting its employees to represent the Union in collective bargaining negotiations and other matters with the Medical Clinic. ORDER Pursuant to 5 U.S.C. 7118(a)(7) and Section 2423.26 of the Final Rules and Regulations of the Federal Labor Relations Authority, U.S. Fed. Reg. 3482, 3510 (1980), it is hereby ordered that the Department of the Navy, Naval Construction Battalion Center, Port Hueneme, California, shall: 1. Cease and desist from: (a) Unilaterally instituting changes with respect to the existing practice of granting official time to unit employees to engage in representational activities, without prior notice to National Association of Government Employees, Local R12-29, the exclusive representative of its employees, or any other exclusive representative. (b) In any like or related manner, interfering with, restraining, or coercing any employee in the exercise of the rights guaranteed by the Federal Labor Relations Statute. 2. Take the following affirmative action designed and found necessary to effectuate the policies of the Statute: (a) Notify National Association of Government Employees, Local R12-29, AFL-CIO, the exclusive representative of its employees of any change in the existing practice of granting official time to unit employees to engage in representational activities, and upon request, meet and negotiate with National Association of Government Employees, Local R12-29, AFL-CIO, with respect to usage of official time by employees designated by the exclusive representative. (b) Post at its Port Hueneme, California, facility, copies of the attached notice marked "Appendix." Copies of said notice, to be furnished by the Regional Director for Region 8, after being signed by an authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 8, in writing, within 30 days from the date of this order, what steps it has taken to comply herewith. FRANCIS E. DOWD Administrative Law Judge Dated: January 13, 1982 Washington, D.C. APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT unilaterally institute changes with respect to the existing practice of granting official time to unit employees to engage in representational activities without first notifying the National Association of Government Employees, Local R12-29, AFL-CIO, the exclusive representative, and affording it the opportunity to bargain concerning the changes. WE WILL, upon request, meet and negotiate in good faith with the National Association of Government Employees, Local R12-29, AFL-CIO, with respect to usage of official time, by employees designated by the exclusive representatives. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Statute. (Agency or Activity) Dated: . . . By: (Signature) This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material. If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region VIII, whose address is: 350 South Figueroa Street, 10th Floor, Los Angeles, California, 90071, and whose telephone number is: (213) 688-3805. --------------- FOOTNOTES$ --------------- /1/ With respect to the Judge's dictum "that compelling need issues are statutorily barred from being litigated in unfair labor practice proceedings," see Defense Logistics Agency (Cameron Station, Virginia), et al., 12 FLRA No. 86 (1983), appeal docketed sub nom. Defense Logistics Agency v. FLRA, No. 83-2017 (D.C. Cir. Sept. 26, 1983), where the Authority reached an opposite conclusion. /2/ Noting particularly the absence of exceptions, the Authority adopts the Judge's conclusion that the Respondent's refusal to grant official time for its employees to represent the Union in negotiating an agreement covering the employees of the Naval Regional Medical Clinic, a separate activity, was not a failure to comply with section 7131(a) in violation of section 7116(a)(1) and (8) of the Statute. See United States Air Force, 2750th Air Base Wing Headquarters, Air Force Logistics Command, Wright-Patterson AFB, Ohio, 7 FLRA No. 118 (1982). /3/ Section 7131(d) provides: (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. /4/ Under a personnel services contract between the two Activities; the Regional Medical Clinic contracted with the Construction Battalion Center for the performance of its personnel services. /5/ A subsequent meeting was held on May 21. /6/ It should be stressed, I believe, that the parties to the negotiations on ground rules were the Medical Clinic (which is not named as a Respondent) and NAGE Local R12-29. The Respondent herein was not a party to the negotiations described above. However, the Respondent is being charged with unfair labor practice because of its conduct vis-a-vis its own unit employees, Priebe and Leathers. /7/ At that time, the provision was numbered Section 7132. It was later renumbered 7131 and passed without change in language. /8/ A less likely conclusion would be that Congress - when it wrote Section 7131(a) - assumed that employees designated by the exclusive representative to negotiate contracts were different from employees in Section 7131(d) designated to perform other functions such as handling grievances and representing the union at formal discussions. Why would Congress differentiate between unit and non-unit employee representatives solely on the basis of the function to be performed? In the absence of any supporting legislative history, I am unable to attribute such an intention to Congress. /9/ Decisions under the Executive Order, as well as the Statute, show that the word "agency" has a variety of meanings. Section 2421.4 of the Authority's Rules and Regulations defines Activity as "any facility, organizational entity, or geographical subdivision or combination thereof, of any agency." Respondent correctly asserts that the word "Agency" has been construed to mean "Activity" by the Authority and correctly points out that elections have been conducted, unions have been recognized, and contracts negotiated in appropriate units at the "Activity" level of federal government agencies. Respondent correctly points out that the General Counsel, by relying on Section 7103(a)(2) and (3) has not confined its request for official time to the Activity or employing command, but rather, to any Agency. This broad interpretation will be discussed later. /10/ And, in this regard, the question arises whether the phrase "negotiation of a collective bargaining agreement" in Section 7131(a) also encompasses any negotiations during the "life" of the contract changing the terms and conditions of employment which are in existence by virtue of an existing contract or established practice. /11/ The basic issue is not so much whether this is an absurd result but, rather, whether this particular result was contemplated or intended by Congress. /12/ In the case at bar, admittedly no travel and per diem is involved. How many Construction Battalion Center employees might be named as union negotiators for bargaining with the Regional Medical Clinic was not decided upon and the record is devoid of testimony as to such potential impact. Nor is it clear whether Respondent and the Medical Clinic have separate budgets. Assuming, however, the existence of separate budgets and the necessity to pay travel and per diem, from which budget would the money be paid? If from the Respondent's budget, how could such expenses be reasonably anticipated and included in budget estimates? If two different Executive agencies were involved, the problem would be further exacerbated. These questions illustrate the unreasonable result achieved if the General Counsel's position is adopted. /13/ U.S. Dept. of the Army, 94th U.S. Army Reserve Command, Hanscom Air Force Base, Bedford, Mass., 1-CA-274, stipulated to the Authority on Sept. 4, 1980; Sacramento Air Force Command, 9-CA-367, stipulated to the Authority on October 20, 1980; Little Creek Amphibious Base, 3-CA-382, 383, ALJ decision stated June 3, 1981; Veterans Administration, Cincinnati, Ohio, 5-CA-795, ALJ decision dated May 20, 1981; and United States Department of Defense, Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas, 6-CA-973, ALJ decision dated December 23, 1981. See also Veterans Administration, Muskogee, Oklahoma, 6-CA-399 et al, ALJ decision dated December 8, 1981; and Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 5-CA-470, 517, ALJ Decision dated May 27, 1981. In its brief, Respondent also cites U.S. Department of the Navy, Naval Submarine Base, New London, Conn., 1-CA-224. /14/ In National Federation of Federal Employees, Local 1451, 3 FLRA No. 14, the Authority ruled nonnegotiable a proposal held to concern "matters which are beyond those directly affecting unit employees." The Authority also noted that the individuals (management representatives) who were the subject of the disputed proposals were not unit employees. The Authority has also held that an agency's obligation to bargain under the Statute extends only to "conditions of employment of bargaining unit employees." International Association of Fire Fighters, Local F-61 and Philadelphia Naval Shipyard, 3 FLRA No. 66, and American Federation of Government Employees, AFL-CIO, Local 2, 4 FLRA No. 60. In both these cases, the Authority further stated that even though the agencies had no obligation to bargain, they were not prohibited from doing so, at their own election. In a converse situation, the Authority upheld the union's refusal to negotiate an agency proposal which would have infringed upon the union's prerogative of designating its own representatives from within the bargaining unit. However, the Authority observed that "(T)his is not to say, however, that a union may not, if it so elects, bargain over such matters. Indeed, there is merit to formalizing the bargaining relationship to the extent that it would lead to stability at the workplace and, in fact, many collective bargaining agreements in the Federal Sector provide for a formalized bargaining relationship." American Federation of Government Employees, AFL-CIO, 4 FLRA No. 39. /15/ Although I have found no violations of Section 7116(a)(8), it does not necessarily follow that there is no violation of Section 7116(a)(5). It depends upon the facts of each case. For example, see U.S. Army, U.S. Army Materiel Development and Readiness Command, Warren, Michigan, 7 FLRA No. 30, where the Authority found a Section 7116(a)(8) violation but dismissed a Section 7116(a)(5) allegation, concluding the agency had no obligation to bargain about its institution of a change in the procedure by which employees could revoke their dues deduction authorizations. There, the Authority characterized the Respondent's unilateral change as an attempt "to comply with a statutory provision requiring it as a matter of law to change the existing policy . . . ." In my opinion, such a defense is not available to Respondent in the present case, however, because its change of past practice was not required by Section 7131(a) nor by any other statutory provision. Thus, Respondent was under no statutory mandate. /16/ Department of the Navy, Naval Underwater Systems Center, Newport Naval Base, 3 FLRA No. 64. /17/ The record shows clearly that no final determination on whether Respondent would authorize official time was made prior to May 28, 1980. That the decision to change was a fait accompli is apparent from the Respondent's response in each of the meetings held with the Union after May 28, 1980. Respondent indicated in those meetings that it would not consider changing the May 28, 1980, decision. /18/ Certainly Respondent's contention that the Union failed to request bargaining on the impact of the change is not relevant where Respondent's refusal to negotiate the change itself is at issue. Department of the Air Force, 47th Flying Training Wing, Laughlin Air Force Base, Texas, 2 FLRA No. 24 (1980). /19/ That a change occurred is reflected in the fact that union representatives Clem and Ted Priebe each were required to use three hours annual leave to negotiate at the Medical Clinic on September 12, 1908. /20/ If I had to resolve this issue I would adhere to my view, as expressed in other decisions presently on appeal to the Authority, that compelling need issues are statutorily barred from being litigated in unfair labor practice proceedings under Section 7118. Defense Logistics Agency, 1-CA-213, OALJ-81-131 (July 7, 1981); and Headquarters, Defense Logistics Agency, et al, 3-CA-666 et al., OALJ-81-133 (July 10, 1981). /21/ Even if Respondent had been permitted to introduce evidence to support its contention that there were as of April 1980 no Medical Clinic unit employees on dues deduction with the Union, such evidence would have been insufficient to rebut the presumption of continued viability raised by the existence of the expired contract. The National Labor Relations Board has held, with court approval, that a showing of actual financial support, where such support is made voluntary, is not the equivalent of establishing the number of employees who continue to desire representation by the union. Bartenders Association of Pocatello, 213 NLRB No. 74 (1974). A union may enjoy the support of employees who receive the benefits of representation and desire continued representation but who are content neither to join the union nor give it financial support. Terrell Machine Company v. NLRB, 427 F.2d 1088 (4th Cir. 1970). Had Respondent or the Medical Clinic filed an RA petition under circumstances where, as here, it lacked a good faith doubt as to the continued viability of the Medical Clinic, such a filing would have been no defense to a subsequent refusal by Respondent to authorize official time to the Union's representatives to bargain at the Medical Clinic. Cf. Federal Aviation Administration, Atlanta Airway Facility, Sector 12, Atlanta, Georgia, 3 A/SLMR 366, A/SLMR No. 287 (1973); Army and Air Force Exchange Service, South Texas Area Exchange, Lackland Air Force Base, Texas, 6 A/SLMR 316, A/SLMR No. 669 (1976).