17:0557(84)NG - AFGE Local 1698 and Navy, Aviation Supply Office, Consolidated Civilian Personnel Division -- 1985 FLRAdec NG
[ v17 p557 ]
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 of existing laws, recognitions, agreements, and procedures (a) Nothing contained in this chapter shall preclude-- (1) the renewal or continuation of an exclusive recognition, certification of an exclusive representative, or a lawful agreement between an agency and an exclusive representative of its employees, which is entered into before the effective date of this chapter.