17:0557(84)NG - AFGE Local 1698 and Navy, Aviation Supply Office, Consolidated Civilian Personnel Division -- 1985 FLRAdec NG



[ v17 p557 ]
17:0557(84)NG
The decision of the Authority follows:


 17 FLRA No. 84
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 1698 
 Union 
 
 and
 
 DEPARTMENT OF THE NAVY, 
 AVIATION SUPPLY OFFICE, 
 CONSOLIDATED CIVILIAN PERSONNEL DIVISION 
 Agency
 
                                            Case No. 0-NG-693
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute), and presents an issue
 concerning the negotiability of the following Union proposal.
 
                              Union Proposal
 
                                ARTICLE IX
 
                               OFFICIAL TIME
 
          Section 6.b:  The grant of official time to Union Officers,
       other than the President of AFGE, Local 1698, and Stewards shall
       be limited to representational efforts on behalf of employees
       within the bargaining unit described in Article I, Section 2 of
       this agreement.  With the exception of the AFGE, Local 1698
       President, no official time will be granted to permit any
       representation, labor management relations, or collective
       bargaining efforts undertaken on behalf of any other bargaining
       unit or bargaining unit employees.  Official time shall not be
       granted to permit attention to any internal Union business.
 
          Section 6.c:  The grant of official time set forth in Section
       6.a. above shall also apply to the AFGE, Local 1698 President with
       respect to labor management and representation activities at other
       Activities on the ASO Compound for which AFGE Local 1698 is the
       exclusive bargaining representative.
 
    Upon careful consideration of the entire record, including the
 parties' contentions, the Authority makes the following determination.
 The record indicates that the Union herein is the exclusive
 representative of four separate bargaining units located on the
 Philadelphia Aviation Supply Office (ASO) compound.  In addition to the
 ASO, the other bargaining units are:  the Naval Publications and Forms
 Center, the Navy International Logistics Control Office and the Naval
 Air Technical Services Facility.  The Union's president is employed in
 the ASO bargaining unit.  The proposal seeks to authorize official time
 for the Union president to conduct collective bargaining and
 representational functions within the ASO bargaining unit and also in
 the three other bargaining units represented by the Union on the
 compound.
 
    The Union asserts that bargaining on its proposal is authorized under
 section 7131(a) of the Statute /1/ because that section "also entitles
 the exclusive representative of the bargaining unit to official time for
 negotiations, whether or not that 'employee' is a 'unit employee'." /2/
 A position similar to the Union's herein was put forward by the General
 Counsel in United States Air Force, 2750th Air Base Wing Headquarters,
 Air Force Logistics Command, Wright-Patterson AFB, Ohio and
 Wright-Patterson AFB Fire Fighters Local F-88, International Association
 of Fire Fighters, AFL-CIO, 7 FLRA 738 (1982).  The Authority found,
 however, that no obligation to bargain pursuant to section 7131(a) of
 the Statute arises when a proposal seeks official time for persons
 outside the bargaining unit for which a new collective bargaining
 agreement is to be negotiated.  Hence, based on 2750th Air Base Wing
 Headquarters and the reasons stated therein, the disputed proposal
 herein is not within the duty to bargain under section 7131(a) of the
 Statute.  See also National Weather Service Employees Organization and
 National Oceanic and Atmospheric Administration, 15 FLRA No. 8 (1984).
 
    The Union also contends that its proposal is negotiable because, in
 its view, section 7131(d)(1) of the Statute /3/ "was intended to
 authorize negotiations over official time for the employee designated by
 the union as its official representative, whether or not he or she was a
 'unit employee'." /4/ However, in Department of the Navy, Naval
 Construction Battalion Center, Port Hueneme, California and National
 Association of Government Employees, Local R12-29, 14 FLRA No. 60
 (1984), the Authority determined that no bargaining obligation arose
 pursuant to section 7131(d) of the Statute in circumstances identical to
 those herein.  Hence, based on Port Hueneme, and the reasons and cases
 cited therein, section 7131(d) does not authorize bargaining on the
 disputed proposal.  /5/
 
    Finally, the Union contends that section 7135(a)(1) /6/ of the
 Statute permits the "grandfathering" of the prior contractual official
 time agreement, authorizing official time for Union officials to conduct
 negotiations on behalf of other bargaining units, into any new
 collective bargaining agreement, or at least obligates management to
 negotiate over its continuance.  Assuming, without deciding that such a
 provision was lawful prior to the effective date of the Statute, section
 7135(a)(1), nevertheless, does not obligate the Agency either to
 negotiate over, or continue the prior provision in any new agreement.
 The operative effect of section 7135(a)(1) was examined by the Authority
 in Interpretation and Guidance, 2 FLRA 265, 271 (1979).  The Authority
 concluded that the section permitted the parties to mutually agree to
 renew or to continue lawful provisions negotiated prior to the effective
 date of the Statute, even if in conflict with Statutory requirements.
 However, an objection by either party to the continuance or renewal of
 such provisions prevents the continuance or renewal of the provisions
 pursuant to section 7135(a)(1).  Turning to the instant dispute, the
 proposal, as set forth above, has been found to conflict with section
 7131(a) and (d)(1) of the Statute and the ASO has refused to bargain on
 it.  Consequently, the proposal is outside the ASO's duty to bargain,
 even in circumstances where agreement on the same or similar proposal
 had been reached prior to the Statute's effective date.
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the petition for review be, and it
 hereby is, dismissed.  Issued, Washington, D.C., April 17, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7131(a) provides:
 
          Sec. 7131.  Official time
 
          (a) Any employee representing an exclusive representative in
       the negotiation of a collective bargaining agreement under this
       chapter shall be authorized official time for such purposes,
       including attendance at impasse proceeding, during the time the
       employee otherwise would be in a duty status.  The number of
       employees for whom official time is authorized under this
       subsection shall not exceed the number of individuals designated
       as representing the agency for such purposes.
 
 
    /2/ Union Reply Brief at 4-5.
 
 
    /3/ Section 7131(d)(1) provides, in pertinent part:
 
          (d) Except as provided in the preceding subsections of this
       section--
 
          (1) any employee representing 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/ Union Reply Brief at 4.
 
 
    /5/ American Federation of Government Employees, AFL-CIO and U.S.
 Environmental Protection Agency, 15 FLRA No. 96 (1984) (Union Proposal
 2) contains a discussion of the meaning and purpose of section 7131(d)
 of the Statute.
 
 
    /6/ Section 7135(a)(1) provides:
 
          Sec. 7135.  Continuation o