14:0360(60)CA - Navy, Naval Construction Battalion Center, Port Hueneme, CA and NAGE Local R12-29 -- 1984 FLRAdec CA



[ v14 p360 ]
14:0360(60)CA
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).
 
 
    /22/ Cf. Defense Supply Agenc