15:0998(186)CA - DOD, Air Force, San Antonio Air Logistics Center, Kelly AFB, TX and International Association of Firefighters Local F-89 -- 1984 FLRAdec CA



[ v15 p998 ]
15:0998(186)CA
The decision of the Authority follows:


 15 FLRA No. 186
 
 UNITED STATES DEPARTMENT OF DEFENSE
 DEPARTMENT OF THE AIR FORCE
 SAN ANTONIO AIR LOGISTICS CENTER
 KELLY AIR FORCE BASE, TEXAS
 Respondent
 
 and
 
 INTERNATIONAL ASSOCIATION OF
 FIREFIGHTERS, LOCAL F-89, AFL-CIO
 Charging Party
 
                                            Case No. 6-CA-973
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that the Respondent had engaged in
 certain unfair labor practices alleged in the complaint, and
 recommending that it be ordered to cease and desist therefrom and take
 certain affirmative action.  Thereafter, the Respondent filed exceptions
 to the Judge's Decision and an accompanying brief.  /1/
 
    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, conclusions and recommendations only to the extent
 consistent herewith.
 
    The Judge found that the Respondent failed to comply with the
 provisions of section 7131(a) of the Statute /2/ in violation of section
 7116(a)(1) and (8) of the Statute by its refusal to grant official time
 to an employee for the purpose of representing the Charging Party in
 negotiations with the Respondent involving a bargaining unit other than
 his own.  The Judge did not consider that portion of the complaint which
 alleged that the Respondent, by such conduct, also violated section
 7116(a)(1) and (5) of the Statute since the denial of official time to
 the employee was contrary to a past practice.  /3/ Subsequent to the
 Judge's Decision, the Authority, in United States Air Force, 2750th Air
 Base Wing, Headquarters Air Force Logistics Command, Wright-Patterson
 AFB, Ohio, 7 FLRA 738, at 741-42 (1982), concluded that " . . .
 consistent with the overall scheme of the Statute . . . , the official
 time entitlement under section 7131(a) accrues only to an employee,
 serving as a representative of an exclusive representative, who is a
 member of the bargaining unit to which the right to negotiate the
 bargaining agreement applies." /4/ Accordingly, the Respondent herein
 had no obligation under section 7131(a) to grant official time to the
 employee involved because that employee was not a member of the
 bargaining unit involved in the negotiations.  Thus, the Respondent's
 refusal to grant him official time did not violate section 7116(a)(1)
 and (8) of the Statute, and therefore such allegation of the complaint
 must be dismissed.
 
    The Authority further concludes that the Respondent did not violate
 section 7116(a)(1) and (5) of the Statute, as alleged in the complaint,
 by unilaterally changing an established past practice of granting
 official time to the employee for the purpose of representing the
 Charging Party during negotiations for a collective bargaining agreement
 covering employees in a bargaining unit other than the one in which the
 employee is included.  /5/
 
    The clear language of the Statute indicates an intention that
 employees have the right to bargain collectively with their agency only
 through the exclusive representative chosen by the employees in an
 appropriate bargaining unit.  In this regard, section 7103(a)(12)
 defines "collective bargaining" as "the performance of the mutual
 obligation of the representative of the agency and the exclusive
 representative of employees in an appropriate unit in the agency to meet
 . . . and to consult and bargain in a good-faith effort to reach
 agreement with respect to the conditions of employment affecting such
 employees . . . " Further, section 7111(a) of the Statute provides that
 "(a)n agency shall accord exclusive recognition to a labor organization
 if the organization has been selected as the representative . . . by a
 majority of the employees in an appropriate unit . . . . " Finally,
 section 7114(a)(1) provides that, "(a) labor organization which has been
 accorded exclusive recognition is the exclusive representative of the
 employees in the unit it represents and is entitled to act for, and
 negotiate collective bargaining agreements covering, all employees in
 the unit." Thus, the obligation of an agency to bargain in good-faith
 concerning the conditions of employment of its employees extends only to
 the conditions of employment of those employees in an appropriate
 bargaining unit represented by the exclusive representative.  In this
 regard, see, U.S. Naval Space Surveillance Systems, Dahlgren, Virginia
 and U.S. Naval Surface Weapons Center, Dahlgren, Virginia, 12 FLRA No.
 140 (1983), aff'd sub nom., American Federation of Government Employees,
 AFL-CIO, Local 2096 v. Federal Labor Relations Authority, No. 82-1897(L)
 and 83-1894 slip op. at 6 (4th Cir., July 12, 1984);  Department of the
 Navy, Naval Construction Battalion Center, Port Hueneme, California, 14
 FLRA No. 60 (1984).  Although the foregoing cases involved situations in
 which the employee for whom official time was being sought was not only
 not employed in the unit in which the representational duties were
 performed, but was an employee of a different activity, the same
 considerations addressed by the Authority in those cases would apply
 herein.
 
    In the instant case, it is clear that the employee for whom official
 time was being sought is not included in the bargaining unit for which
 the Charging Party is the exclusive representative.  Accordingly, the
 Respondent was not obligated to bargain with the Charging Party
 concerning conditions of employment affecting that employee, i.e.,
 whether official time would be granted to such non-unit employee for the
 purpose of representing the Charging Party in negotiations with the
 Respondent, and Respondent therefore was free to alter or abrogate any
 past practice with respect to this matter without first notifying and
 bargaining in good faith with the Charging Party.  In these
 circumstances, that portion of the complaint alleging a violation of
 section 7116(a)(1) and (5) of the Statute must also be dismissed.  /6/
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 6-CA-973 be, and it
 hereby is, dismissed.
 
    Issued, Washington, D.C., August 31, 1984
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Major Lewis G. Brewer
    For the Respondent
 
    Elizabeth Martinez, Esquire
    For the General Counsel
 
    Before:  LOUIS SCALZO
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This case arose as an unfair labor practice proceeding under the
 provisions of the Federal Service Labor-Management Relations Statute, 92
 Stat. 1191, 5 U.S.C. 7101, et seq., (hereinafter called "the Statute")
 and the Rules and Regulations issued thereunder.
 
    It was alleged in the complaint that since on or about February 4,
 1981, the Respondent failed and refused to comply with the provisions of
 Section 7131(a) of the Statute by failing and refusing to grant official
 time to Joe L. Hoffman, an employee not in the bargaining unit, for the
 purpose of representing the Charging Party in collective bargaining
 negotiations on behalf of employees assigned to the Respondent's Fire
 Protection Branch.  This pattern of conduct was alleged to be violative
 of Sections 7116(a)(1) and (8) of the Statute.  As a separate alternate
 theory, counsel for the General Counsel also alleged that the conduct
 described violated Sections 7116(a)(1) and (5) of the Statute because it
 involved a unilateral change in the terms and conditions of employment.
 
    Counsel representing the General Counsel advised during the hearing,
 and noted in a post-hearing brief, that no remedial order was being
 sought in connection with alleged violations other than those associated
 with Section 7131(a) of the Statute (Tr. 85-86).  /7/ Accordingly, only
 alleged violations of Sections 7116(a)(1) and (8) based upon the alleged
 failure to comply with Section 7131(a) will be considered.
 
    Counsel representing the Respondent argues that Section 7131(a) does
 not obligate an agency to grant official time for collective bargaining
 purposes to an employee unless the employee is a member of the
 bargaining unit being represented, and further that the complaint should
 be dismissed in this case because Mr. Hoffman was not a member of the
 bargaining unit.
 
    The Respondent and the General Counsel were represented by counsel
 during the hearing, and all parties were afforded full opportunity to be
 heard, adduce relevant evidence, and examine and cross-examine
 witnesses.  Post-hearing briefs were filed by counsel representing the
 General Counsel and counsel representing the Respondent.  Based upon the
 entire record herein, including my observations of the witnesses and
 their demeanor, the exhibits and other relevant evidence adduced at the
 hearing, and the briefs filed, I make the following findings of fact,
 conclusions and recommendations.
 
                             Findings of Fact
 
    The record disclosed that approximately 6,000 civilian employees are
 employed at the San Antonio Air Logistics Center, kelly Air Force Base,
 
    The record disclosed that approximately 16,000 civilian employees are
 Texas.  /8/ Approximately 75 of these are included in a small bargaining
 unit comprised of covered employees in the Fire Protection Branch at
 Kelly Air Force Base.  The Charging Party is the exclusive
 representative of covered employees in the Fire Protection Branch.
 Another small bargaining unit composed of about 50 non-appropriated fund
 employees is represented by the International Association of Machinists
 and Aerospace Workers.  Approximately 14,000 covered employees are
 included in a third bargaining unit represented by the American
 Federation of Government Employees.
 
    Mr. Hoffman was employed as a firefighter by the Respondent from July
 24, 1972 to March 1, 1980.  He was a member of Local F-89, and served on
 the Local's grievance committee for a number of years.  He became
 president of Local F-89 in July of 1979.  On March 1, 1980 he
 transferred to the Maintenance Directorate, Engine Division, Kelly Air
 Force Base.  The transfer operated to remove him from the bargaining
 unit represented by Local F-89, as employees in the Maintenance
 Directorate were represented by the American Federation of Government
 Employees.  However, he continued to serve as the president of Local
 F-89 until February 19, 1981.  As of October 6, 1981, the date of the
 hearing, Mr. Hoffman was a member of Local F-89, but held no office.
 Nevertheless, he was eligible to hold office in the Local although he
 was not a member of the bargaining unit represented by the Local.
 
    The record disclosed a series of meetings wherein Mr. Hoffman was
 granted official time to participate in representational activity after
 he left the bargaining unit.  In May of 1980, /3/ Mr. Hoffman received
 official time to represent the Charging Party during a meeting where
 Respondent's representatives discussed with bargaining unit employees,
 issues relating to the subject of attire to be worn by firefighters when
 on duty.  Mr. Hoffman's presence at the meeting was requested by his
 supervisor in the Maintenance Directorate.
 
    On September 22, 1980, and November 12, 1980, he received official
 time to attend meetings for the purpose of discussing issues relating to
 the firefighters alarm room work schedule.  The meetings were also
 attended by other officials of Local F-89, and responsible
 representatives of the Respondent.  Local F-89, requested the Respondent
 to permit Mr. Hoffman to attend on official time, and the request was
 granted.  On December 5, 1980, he represented Local F-89 at a meeting
 with Respondent's representatives where the Respondent's policy
 regarding mandatory training was discussed.  A request by the Charging
 Party for him to attend on official time was granted.  Again, on January
 9, 1981, under similar circumstances, he again represented the
 firefighters bargaining unit with regard to issues pertaining to
 mandatory training, and a seniority issue relating to personnel changes.
 
    By memorandum dated January 26, 1981, Mr. Dorvis G. Hensley, Chief of
 the Fire Protection Branch, wrote to Mr. James Gobar, Vice President of
 Local F-89 to request a February 4, 1981 meeting for the purpose of
 discussing the impact and implementation of a policy involving mandatory
 training for firefighter personnel.  On January 26, 1981, Mr. Gobar
 agreed to the meeting date, and requested that Mr. Hoffman be allowed to
 attend the meeting on official time.  He was informed by Chief Hensley,
 and a representative of the Kelly Air Force Base Labor Relations Office,
 that Mr. Hoffman would not be allowed to attend the meeting on official
 time.  He did subsequently represent the firefighters at the February 4,
 1981 meeting, but did so by taking annual leave /10/ (Tr. 30).
 
    The Respondent's answer admitted that since on or about February 4,
 1981, the Respondent failed and refused to grant official time to Joe L.
 Hoffman, an employee of the Respondent as defined in Section
 7103(a)(2)(A) of the Statute, but not an employee in the bargaining unit
 represented by the Charging Party, to represent employees of the
 firefighters bargaining unit for collective bargaining purposes.  At the
 hearing the Chief of the Respondent's Labor Relations Office, Civilian
 Personnel Office testified that, based on Office of Personnel Management
 policy, the Respondent has refused to grant official time to
 nonbargaining unit employees for the purpose of representing employees
 in bargaining units (Tr. 69).
 
                        Discussion and Conclusions
 
    The record discloses that following Mr. Hoffman's transfer out of the
 bargaining unit, the Respondent recognized the Charging Party's right to
 receive official time for Mr. Hoffman to engage in collective bargaining
 activity.  In fact, he received official time to participate in
 collective bargaining sessions on September 22, 1980, November 12, 1980,
 December 5, 1980, and January 9, 1981.  However, the Respondent's
 position on this issue was reversed by representatives of the Respondent
 on January 26, 1981 (Tr. 45-47), and on February 4, 1981 (Tr. 62-63).
 In this regard the Respondent admitted factual allegations set out in
 paragraph eight of the complaint to the effect that since on or about
 February 4, 1981, Respondent failed and refused, and continues to fail
 and refuse, to grant official time to Joe L. Hoffman, an employee as
 defined in 5 U.S.C. 7103(a)(2)(A) and an employee outside the bargaining
 unit, to represent employees of the bargaining unit for collective
 bargaining purposes.
 
    Section 7131(a) 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 proceeding, during the time the
       employee otherwise would be in a duty status.  The number of
       employees for whom official time is authorized under this
       subsection shall not exceed the number of individuals designated
       as representing the agency for such purposes.
 
    The word "employee" is defined in pertinent part in Section
 7103(a)(2)(A) of the Statute as follows:
 
    (2) 'employee' means an individual, - . . . .
 
    (A) employed in an agency . . . .
 
    The word "agency" is defined in pertinent part in Section 7103(a)(3)
 of the Statute in the following terms:
 
          (3) 'agency' means an Executive agency . . . , the Library of
       Congress, and the Government Printing Office . . . .
 
    The Respondent argues that the term "employee" as used in Section
 7131(a) should be construed so as to preclude grants of official time to
 non-bargaining unit employees employed by the Respondent.  A number of
 reasons exist for not adopting the Respondent's position.  It is
 well-settled that, "where the language of an enactment is clear, and
 construction according to its terms does not lead to absurd or
 impractical consequences, the words employed are to be taken as the
 final expression of the meaning intended." Browder v. United States, 312
 U.S. 335, 338 (1941).  It is also well-established that words used in a
 statute are to , be given their ordinary meaning on the absence of
 persuasive reasons to the contrary.  Burns v. Alcala, 420 U.S. 575,
 580-581 (1975).  In this case it can hardly be argued that the results
 of a literal interpretation would be absurd or impractical.  Moreover,
 the language of Section 7131(a), as amplified by Sections 7103(a)(2)(A)
 and 7103(a)(3), indicates, without ambiguity, that the Congress
 contemplated grants of official time to "any employee" representing an
 exclusive representative in the negotiation of a collective bargaining
 agreement, during the time the employee otherwise would be in a duty
 status.  /11/ The legislative history of Section 7131(a) disclosed
 nothing to the contrary.  The language of Section 7131(a) does
 specifically restrict the number of employees for whom official time is
 authorized, by limiting the number of union representatives to the
 number designated by the agency;  however, no persuasive rationale was
 advanced for interpreting Section 7131(a) so as to have the effect of
 imposing an additional significant limitation on a union's right to
 select collective bargaining representatives.
 
    The Authority's Interpretation and Guidance relating to Section
 7131(a), authorizes travel and per diem expenses for union
 representatives covered by Section 7131(a).  The Authority noted that,
 as stated in Section 7101(a) of the statute, "labor organizations and
 collective bargaining are in the public interest." It was also held that
 although neither the Statute nor its legislative history adverted to the
 payment of travel expenses or per diem during participation in
 negotiation activities, union representatives so involved were engaged
 in "official business for the Government," and further that management
 representatives were uniformly paid travel expenses and per diem.  The
 Authority pointed out that travel and per diem should be paid because
 Congress had indicated an intent that similar prerogatives be accorded
 employees serving as union representatives likewise engaged in
 collective bargaining negotiations.  The following statement of
 Representative Clay, in discussing the prescription of official time for
 employees engaged in internal union business under Section 7132(b) of
 the House Bill (which was enacted as Section 7131(b) of the Statute),
 was quoted:
 
          Section 7132(b) of the Udall compromise bars the use of
       official time for conducting the internal business of a labor
       organization . . . .  Activities that involve labor-management
       contacts are not included in this section . . . .  Title VII
       imposes heavy responsibilities on labor organizations and on
       agency management.  These organizations should be allowed official
       time to carry out their statutory representational activities just
       as management uses official time to carry out its
       responsibilities.
 
    It follows that if the Charging Party herein were compelled to select
 employee collective bargaining representatives solely from those agency
 employees within the bargaining unit in order to be entitled to official
 time, the choice of representatives would, in many cases, be extremely
 limited.  However, the Respondent's power to select its own employee
 representatives would not be limited in any way.  This being the case,
 it would, to say the least, be grossly unfair to impose such stringent
 limitations upon the Charging Party.  This inequity is even more
 pronounced in the light of statutory language, which clearly indicates
 that "any employee" may be selected to represent a bargaining unit in
 collective bargaining, and receive official time under Section 7131(a).
 At a minimum this must mean non-bargaining unit employees of the
 Respondent at Kelly Air Force Base, Texas.  /12/
 
    In American Federation of Government Employees, AFL-CIO, 4 FLRA No.
 39 (September 26, 1980), a labor organization was charged with
 violations of Section 7116(b)(5) and (1) based upon a refusal to
 negotiate certain agency proposals.  In essence the proposals prescribed
 the organizational level and segment from which the union would have to
 designate its representatives when dealing with agency management.  The
 Authority ordered dismissal of the complaint and noted the following:
 
          In our view, it is within the discretion of both agency
       management and labor organizations holding exclusive recognition
       to designate their respective representatives when fulfilling
       their responsibilities under the Statute . . . .
 
          The proposals in the instant case, as noted above, would
       generally require the Respondent to designate its representatives
       from prescribed organizational levels and segments when dealing
       with agency management in the performance of certain
       representational functions.
 
          As such, the proposals would infringe upon the Respondent's
       prerogative to designate its own representatives for such
       purposes.  The proposals, therefore, are outside the required
       scope of bargaining and the Respondent's refusal to bargain cannot
       be held to constitute a violation of the Statute.
 
    It is noted that in American Federation of Government Employees,
 AFL-CIO, the proposals would have (among other things) limited the
 union's right to select employee representatives engaged in collective
 bargaining falling within the purview of Section 7131(a).
 
    In a similar case involving a non-bargaining unit agency employee
 engaged in collective bargaining negotiations, Administrative Law Judge
 Garvin Lee Oliver reached the conclusion that a non-bargaining unit
 employee would have been entitled to official time for representational
 activity involving the negotiation of a collective bargaining agreement,
 but for the fact that the representative in question was not entitled to
 official time because the number of union representatives exceeded the
 number designated as agency representatives.  Little Creek Amphibious
 Base, Case Nos. 3-CA-382 and 3-CA-383 (June 3, 1981).
 
    Based on the foregoing, it is concluded that Mr. Hoffman was an
 "employee" within the meaning of Section 7103(a)(2)(A);  that he was
 employed by an "agency" as defined in Section 7103(a)(3);  that on
 February 4, 1981, he was an employee representing an exclusive
 representative in the negotiation of a "collective bargaining agreement"
 within the meaning of Section 7131(a);  that he was designated under the
 provisions of Section 7131(a) to represent the Charging Party in
 collective bargaining negotiations on February 4, 1981, during a period
 when he would otherwise have been on duty;  and that the Respondent
 refused to grant official time to Mr. Hoffman in connection with the
 February 4, 1981 meeting because he was not a member of the bargaining
 unit which the Charging Party represented.  This constituted a violation
 of Section 7131(a).  It is also determined that Respondent's failure to
 comply with the provisions of Section 7131(a) of the Statute was
 violative of Sections 7116(a)(8) and (1) of the Statute.
 
    Having found that the Respondent violated Sections 7116(a)(8) and
 (1), it is recommended that the Authority issue the following Order:
 
                                   ORDER
 
    Pursuant to Section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations, and Section 7118 of the Federal
 Service Labor-Management Relations Statute, the Authority hereby orders
 that the Department of the Air Force, San Antonio Air Logistics Center,
 Kelly Air Force Base, Texas, shall:
 
    1.  Cease and desist from:
 
          (a) Failing and refusing to authorize official time for Joe L.
       Hoffman in accordance with the provisions of 5 U.S.C. 7131(a), for
       duty time spent in representing the International Association of
       Firefighters Local F-89, AFL-CIO, during collective bargaining
       negotiations with the Department of the Air Force, San Antonio Air
       Logistics Center, Kelly Air Force Base, Texas.
 
          (b) In any like or related manner interfering with, restraining
       or coercing employees in the exercise of rights assured by the
       Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purpose and policies of the Statute:
 
          (a) Upon request grant to Joe L. Hoffman, official time for the
       period of annual leave utilized by him on February 4, 1981, to
       represent the International Association of Firefighters Local
       F-89, AFL-CIO, in collective bargaining negotiations with the
       Department of the Air Force, San Antonio Air Logistics Center,
       Kelly Air Force Base, Texas, and restore to him any annual leave
       utilized on February 4, 1981, for such collective bargaining
       negotiations.
 
          (b) Post at its facilities at the Department of the Air Force,
       San Antonio Air Logistics Center, Kelly Air Force Base, Texas,
       copies of the attached notice marked "Appendix" on forms to be
       furnished by the Federal Labor Relations Authority.  Upon receipt
       of such forms they shall be signed by the Commander, San Antonio
       Air Logistics Center, Kelly Air Force Base, Texas, and shall be
       posted and maintained for 60 consecutive are customarily posted.
       Reasonable steps shall be taken by the Respondent to insure that
       such notices are not altered, defaced, or covered by other
       material.
 
          (c) Pursuant to Section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director, Region 6, Federal Labor
       Relations Authority, in writing, within 30 days from the date of
       this Order, as to what steps have been taken to comply herewith.
 
                                       LOUIS SCALZO
                                       Administrative Law Judge
 
    Dated:  December 23, 1981
    Washington, D.C.
 
                          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 fail or refuse to authorize official time to Joe L.
 Hoffman in accordance with the provisions of 5 U.S.C. 7131(a), for duty
 time spent in representing the International Association of Firefighters
 Local F-89, AFL-CIO, during collective bargaining negotiations with the
 Department of the Air Force, San Antonio Air Logistics Center, Kelly Air
 Force Base, Texas.
 
    WE WILL NOT, in any like or related manner, interfere with, restrain
 or coerce our employees in the exercise of rights assured by the Federal
 Service Labor-Management Relations Statute.
 
    WE WILL upon request grant to Joe L. Hoffman, official time for the
 period of annual leave utilized by him on February 4, 1981, to represent
 the International Association of Firefighters Local F-89, AFL-CIO, in
 collective bargaining negotiations with the Department of the Air Force,
 San Antonio Air Logistics Center, Kelly Air Force Base, Texas, and
 restore to him any annual leave utilized on February 4, 1981, for such
 collective bargaining negotiations.
                                       (Agency or Activity)
                                       By:  (Signature)
 
    Dated:  . . .
 
    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 6,
 whose address is:  P.O. Box 2640, Dallas, TX 75221, and whose telephone
 number is:  (214) 767-4996.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The exceptions and brief filed by the General Counsel were
 untimely and therefore have not been considered by the Authority.
 
 
    /2/ Section 7131(a) provides in pertinent part:
 
          Sec. 7131.  Official time
 
          (a) Any employee representing an exclusive representative in
       the negotiation of a collective bargaining agreement under this
       chapter shall be authorized official time for such purposes,
       including attendance at impasse proceeding, during the time the
       employee otherwise would be in a duty status. . . .
 
 
    /3/ Section 7116(a)(1), (5) and (8) provides:
 
          Sec. 7116.  Unfair labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;
 
                                .  .  .  .
 
          (5) to refuse to consult or negotiate in good faith with a
       labor organization as required by this chapter;
 
                                .  .  .  .
 
          (8) to otherwise fail or refuse to comply with any provision of
       this chapter.
 
 
    /4/ See also U.S. Department of the Army, 94th U.S. Army Reserve
 Command, Hanscom Air Force Base, Massachusetts, 8 FLRA 83 (1982).
 
 
    /5/ In so concluding, the Authority does not adopt the Judge's
 rationale at page 2 of his Decision for deciding not to consider this
 issue.
 
 
    /6/ Of course, this decision does not address the Charging Party's
 right to designate the employee as its bargaining representative even
 though such representative is neither in the bargaining unit nor
 exclusively represented by the Charging Party, and should not be
 construed as precluding the employee from participating in such
 negotiations other than on official time.  As the Fourth Circuit
 observed in affirming the Authority's decision in U.S. Naval Space
 Surveillance Systems, Dahlgren, Virginia, supra, " . . . while
 management and labor are both free to establish and employ their own
 cadres of professional negotiators at their own expense, the Union in
 this case may not use the official time provisions of 5 U.S.C. 7131(a)
 or (d) to compel employer subsidization of non-unit negotiators." AFGE
 Local 2096 v. FLRA, supra, slip op. at 10.
 
 
    /7/ The complaint raises the issue of whether, under the provisions
 of Section 7131(a), Mr. Hoffman should have been granted official time
 to participate in a collective bargaining session scheduled for February
 4, 1981.  If, as alleged, Mr. Hoffman was entitled to official time,
 then there would be no statutory or other basis for permitting the
 Charging Party to lose Section 7131(a) rights through the collective
 bargaining process.  That is, although the conduct of the Respondent in
 such a case would involve a failure to comply with Section 7131(a),
 action in this regard carries no obligation pursuant to Section
 7116(a)(5), to bargain over the change.  American Federation of
 Government Employees, AFL-CIO, Local 2904, 7 FLRA No. 28 (November 12,
 1981);  U.S. Army Materiel Development and Readiness Command, Warren,
 Michigan, 7 FLRA No. 30 (November 12, 1981).
 
    Since bargaining was not contemplated, counsel for the General
 Counsel clearly indicated that no remedial order was sought based upon
 alleged violations of Section 7116(a)(1) and (5).  The alternative
 theory based upon alleged violations of Sections 7116(a)(1) and (5)
 would have validity only within the context of a case involving a prior
 past practice of granting official time falling within the purview of
 Section 7131(d) of the Statute.  Here the complaint filed relies only
 upon the language of Section 7131(a) as the basis for the alleged unfair
 labor practice.  (General Counsel's post-hearing brief at 3).
 
 
    /8/ The Department of the Air Force employs approximately 239,000
 civilian employees at over 1000 geographical locations (Tr. 68).
 
 
    /9/ It is also noted that on April 14, 1980, he was granted and
 received official time in connection with an appearance as a witness at
 an Authority consolidation hearing pertaining to a proposed
 consolidation of five Air Force Logistical Command fire prevention units
 represented by the Charging Party, as distinct from two represented by
 the American Federation of Government Employees.  He testified on behalf
 of the Charging Party.  On November 19, 1981, the Authority determined
 that the petition for consolidation of unit, encompassing all Air Force
 Logistical Command fire prevention units, other than those represented
 by the American Federation of Government Employees, was appropriate.
 Air Force Logistics Command, United States Air Force, Wright-Patterson
 Air Force Base, Ohio, 7 FLRA No. 33 (November 19, 1981).  An election
 was directed to determine whether the employees wished to be represented
 in the consolidated unit found appropriate.  The new unit would consist
 of all five of the Air Force Logistical Command fire prevention units
 represented by the Charging Party, and would include the Kelly Air Force
 Base, Texas unit, together with units located at Wright-Patterson, Air
 Force Base, Ohio;  Tinker Air Force Base, Oklahoma;  McClellan Air Force
 Base, California;  and Robins Air Force Base, Georgia.
 
 
    /10/ The record reflects no evidence that the Respondent questioned
 Mr. Hoffman's right to be present at the meeting, nor does it indicate
 that official time was denied by the Respondent because the number of
 Local F-89 representatives exceeded the number designated by the
 Respondent.
 
 
    /11/ The Authority has held that the phrase "negotiation of a
 collective bargaining agreement" in Section 7131(a) refers to any
 agreement that is entered into as a result of the performance of the
 mutual obligation of the parties to bargain in a good faith effort to
 reach agreement with respect to conditions of employment affecting
 employees in the appropriate unit, and that the language used reflects
 the intent of the Congress to encompass under Section 7131(a), all
 negotiations between an exclusive representative and an agency,
 regardless of whether such negotiations pertain to the negotiation or
 renegotiation of a basic collective bargaining agreement.
 Interpretation and Guidance, 2 FLRA No. 31 (December 19, 1979).
 
    The Authority position would tend to indicate that the restrictive
 interpretation urged by the Respondent is not entirely without merit;
 however, the Authority has also held that there would be no basis for
 granting official time under Section 7131(a) for periods of time spent
 in preparing to engage in collective bargaining negotiations.  That is,
 Section 7131(a) would be applicable only to periods of time spent at the
 bargaining table in "actual" negotiations, as distinct from periods
 spent in preparation for, or periods intervening between collective
 bargaining sessions.  American Federation of Government Employees,
 AFL-CIO, Local 1692 and Headquarters, 323rd Flying Training Wing (ATC)
 Mather Air Force Base, California, 3 FLRA No. 47 (May 30, 1980);
 Federal Uniformed Fire-Fighters, Local F-169, and U.S. Army Armament
 Research & Development Command, Dover, New Jersey, 3 FLRA No. 49 (May
 30, 1980);  International Association of Machinists and Aerospace
 Worker