18:0855(101)CA - HHS, SSA, Baltimore, MD and AFGE Local 1501 -- 1985 FLRAdec CA



[ v18 p855 ]
18:0855(101)CA
The decision of the Authority follows:


 18 FLRA No. 101
 
 DEPARTMENT OF HEALTH AND HUMAN 
 SERVICES, SOCIAL SECURITY ADMINISTRATION 
 BALTIMORE, MARYLAND 
 Respondent 
 
 and 
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 1501 
 Charging Party
 
                                            Case No. 79-CA-30198
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that the Respondent had not engaged in
 the unfair labor practices alleged in the complaint, and recommending
 that the complaint be dismissed in its entirety.  The General Counsel
 filed exceptions to the Judge's Decision.
 
    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 recommended Order, as modified herein.
 
    In adopting the Judge's conclusion that the complaint should be
 dismissed, the Authority finds it unnecessary to pass upon whether the
 Respondent's denial of official time to off-site assistant local
 representatives of the Union constituted a rejection of the terms of the
 collective bargaining agreement, /1/ because it is concluded, in
 agreement with the Respondent's contention, that this proceeding is
 barred by section 7116(d) of the Statute.
 
    As found by the Judge, on July 13, 1982, the American Federation of
 Government Employees, AFL-CIO (AFGE) filed a "national" grievance which
 alleged violations of Article 30, Appendix F, and related provisions, of
 the National Agreement between AFGE and the Respondent covering all
 employees in a consolidated nationwide bargaining unit.  Subsequently,
 AFGE set forth 31 issues it believed were presented by the grievance.
 Issue No. 11, as set forth by the Arbitrator in his interim Opinion and
 Award, issued February 22, 1984, stated:
 
          Issue 11:  Whether Management has violated the Master agreement
       by interfering with the Union's discretion in its choice of
       representatives, specifically by:
 
                                  * * * *
 
          (5) refusing to grant official time to present grievances,
       unless the person requesting happens to be the on-site
       representative in the office where Management alleges the
       grievance occurred.  /2/
 
    On February 10, 1983, after AFGE's national grievance had been filed,
 the Charging Party, AFGE Local 1501, filed the original unfair labor
 practice charge in this proceeding.
 
    Section 7116(d) of the Statute provides in pertinent part:
 
          (I)ssues which can be raised under a grievance procedure may,
       in the discretion of the aggrieved party, be raised under the
       grievance procedure or as an unfair labor practice under this
       section, but not under both procedures.
 
 In the Authority's view, the issue which is the subject matter of both
 the instant complaint and the national grievance covering the entire
 consolidated unit is the refusal of the Social Security Administration
 to give official time to local representatives and assistant local
 representatives of AFGE who are not employed at the same sites wherein
 the labor relations matters arise.  See Department of the Treasury, U.S.
 Customs Service, Region VIII, San Francisco, California, 13 FLRA 631
 (1984).  Thus, the Authority finds that the prior invocation of the
 grievance procedure under the parties' negotiated agreement by AFGE, the
 exclusive bargaining representative of the consolidated nationwide
 bargaining unit herein, constituted an election of that procedure under
 section 7116(d) of the Statute, thereby precluding the Charging Party
 from raising the same issue subsequently as an unfair labor practice.
 In this regard, since the issue between the Agency and AFGE involved the
 terms of the collective bargaining agreement applicable nationwide, the
 AFGE, as the exclusive bargaining representative, is the "aggrieved
 party" having the discretion to choose under which procedure the issue
 was to be raised.  See Department of Defense Dependents Schools, Pacific
 Region, 17 FLRA No. 135 (1985).  Accordingly, the Authority shall
 dismiss the instant complaint.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 79-CA-30198 be, and it
 hereby is, dismissed in its entirety.  
 
 Issued, Washington, D.C., June 28, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Mr. Wilson G. Schuerholz
    For the Respondent
 
    Mr. Michael Teefy
    For the Charging Party
 
    Daniel Minahan, Esquire
    For the General Counsel
 
    Before:  GARVIN LEE OLIVER, Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This decision concerns an unfair labor pr8ctice complaint issued by
 the Regional Director, Region VII, Federal Labor Relations Authority,
 Denver, Colorado against the Social Security Administration, Baltimore,
 Maryland (Respondent), based on a charge filed by the American
 Federation of Government Employees, AFL-CIO (Charging Party or Union).
 The complaint alleged, in substance, that Respondent violated sections
 7116(a)(1) and (5) of the Federal Service Labor-Management Relations
 Statute, 5 U.S.C. 7101 et seq. (the Statute), by refusing on two
 occasions to recognize the Union's properly designated assistant local
 representative for its downtown Seattle district office, for purposes of
 official time, within the meaning of Article 30, Appendix F, Section F
 of the collective bargaining agreement.  The complaint alleged that
 Respondent thereby clearly, patently, and flagrantly breached the terms
 of such provision and unilaterally rejected its terms, and thus has
 refused to bargain in good faith and interfered with rights guaranteed
 by the Statute.
 
    Respondent's answer admitted the jurisdictional allegations relating
 to the Respondent, Charging Party, and the charge, but denied any
 violation of the Statute.
 
    A hearing was held in Seattle, Washington.  The Respondent, Charging
 Party, and the General Counsel were represented and afforded full
 opportunity to be heard, adduce relevant evidence, examine and
 cross-examine witnesses, and file post-hearing briefs.  Based on the
 entire record, including my observation of the witnesses and their
 demeanor, I make the following findings of fact, conclusions of law, and
 recommendations.
 
                           II.  Findings of Fact
 
    The Union is the exclusive representative of employees of the
 Respondent in a consolidated, nationwide bargaining unit.  At all times
 material herein, a collective bargaining agreement has existed between
 the Union and Respondent covering such employees.  Article 30, Official
 Time, of such agreement provides, in part, as follows:
 
          Article 30-- Official Time
 
                                 . . . .
 
          Section 2-- Designation
 
          A. In accordance with Appendices A through F the employer will
       recognize union officials designated by the president of each
       local union or council, or designee, as appropriate users of
       official duty hours for union representational activities and
       labor-management relations functions.
 
          B.  The Union will provide the Administration with lists of
       designated union officials at the respective levels after the
       effective date of this agreement and notify the Administration of
       subsequent changes.  These lists will include each official's
       name, location and telephone number.
 
                                .  .  .  .
 
          Appendix F-- Official Time and Labor Relations in Field Offices
 
                                .  .  .  .
 
          E.  Normally, the Local President shall designate one (1) Local
       Representative and one (1) Assistant Local Representative for each
       field office installation to coordinate and conduct
       labor-management relations within that installation.  Such Local
       Representatives and Assistants shall be recognized as primary or
       alternate representatives of the Union within that installation.
       The responsibilities of Local Representatives should include but
       are not limited to:
 
          meetings and discussions concerning labor-management relations
       issues initiated locally;
 
          employee grievances within the installation;
 
          management notice of proposals to change conditions of
       employment initiated locally.
 
          Additional assistant representatives may be designated for
       field installations in excess of 75 employees but there will be no
       more than one (1) primary Local Representative.
 
          To the extent practicable, local bargaining issues will be
       negotiated locally by the Local President and/or Local
       Representatives.  The parties will endeavor to minimize travel
       expenses for such negotiations.  In the event that there is no
       Local Representative or Assistant Local Representative available,
       labor-management relations will be conducted with the Local
       President (or designee) directly.
 
          F. Consistent with 5 USC 71 and the terms of this agreement,
       Council officers and representatives and Local Officers and
       Representatives will be granted reasonable official time which is
       necessary for the performance of labor-management relations.
 
          Such activities include time needed for:
 
          meetings with management representatives on conditions of
       employment;
 
          grievances, complaints and appeals (formal and informal);
 
          other matters which may involve a labor-management relationship
       or interface.
 
          Time for negotiations is granted in accordance with 5 USC 71.
 
    Official time will not be granted for internal union business in
 accordance with 5 USC 7131(b).
 
    The amount and occasion of official time is generally governed by
 Section J and this Section of this Appendix.  For the purposes of
 Section J2 (union initiated activities), the following provisions apply:
 
          Assistant Local Representatives:  No official time is granted,
       except when approved in advance by local management or when
       replacing the Primary Local Representative.  When replacing the
       Local Representative, time used by the assistant representative
       under J2 will be charged against the total hours available to the
       local representative.
 
          Local Representative:  Up to 4 hours per week for offices under
       70 employees, up to 10 hours per week for offices with 70 or more
       employees.  Time in excess of 6-month cumulative averages based on
       a fixed 6-month calendar period may be approved as necessary on a
       case-by-case basis.  Local Representatives and local management
       may choose to schedule usage of official time on some regular
       basis, provided that the terms of this agreement are not
       compromised by such scheduling.
 
                                .  .  .  .
 
    J.  Official time for union representatives falls generally into two
 categories:
 
          1.  Time for union representational activities initiated
 
 .  by the Administrator.
 
          2.  Time for representational activities initiated by union
       representatives-- the total amount of official time which may be
       used for the purpose of handling grievances and other complaints,
       meetings and consulting with management at the request of the
       Union and handling other such representational functions shall be
       governed by provisions and allowances in Section F of this
       Appendix.
 
    K.  The Union will make every reasonable effort to use the Local
 Representative of the office in which the grievance arises for the first
 and second step of the grievance.
 
    The Local President shall designate the individual who will be the
 representative for those grievances which proceed to the third step.
 
    Articles 24 and 25 contain the grievance and arbitration procedures.
 
    As indicated in the agreement, the local representative is a
 first-line union contract in a field office.  The local representative
 attends meetings and discussions about local conditions of employment,
 normally handles grievances within the installation of the first and
 second step, and receives notices from local management of changes in
 conditions of employment initiated locally.  The local representative is
 expected to deal with management on a day-to-day basis.  An assistant
 local representative acts in the absence of the local representative and
 also may function concurrently with the primary local representative
 where the matter calls for his or her special expertise.  (Tr. 18-19,
 31, 42, 127, 153).
 
    On December 14, 1982, the Union, by Jeffrey Saul, vice-president,
 Local 1501, notified Gene Barnes, district manger of the Seattle
 district, that Mary O'Malley, an employee of the South Seattle branch
 office, had been designated by the Union as the assistant local
 representative for the Seattle district office (G.C. Exh. 3).  The
 Seattle district office is one of the largest field offices in the
 state, having from 70-100 employees.  (Tr. 19, 48).  It is six to eight
 miles and a 15-20 minute drive from the South Seattle branch office (Tr.
 20).
 
    In order to reply to the letter, district management conferred with
 Respondent's regional la0or relations personnel who, in turn, conferred
 with the Central Office about a consistent application of the official
 time provisions of the agreement in this situation.  Based on this
 advice, Respondent, by Barnes, advised Saul, by memorandum dated
 December 23, 1982, that O'Malley would not be granted official time to
 serve as assistant local representative.  Respondent stated that this
 determination was based on Article 30, Appendix F, Sections E and K of
 the national agreement, and that, "It was clearly the intent of the
 parties involved in the national contract negotiations that local issues
 would be handled by local representatives and local management." (G.C.
 Exh. 4).  A few days earlier, on December 14, 16, 17 and 22, 1982,
 O'Malley's supervisor denied her official time to prepare an unfair
 labor practice charge as the assistant local representative of the
 Seattle district office.  The denial was based on the same grounds
 subsequently asserted in Barnes' letter (Tr. 51, 56, 69, 80, 158,
 166-171, G.C. Exh. 9).
 
    On January 24, 1983, Saul wrote to Ruth Ruby, Respondent's assistant
 regional commissioner for management and budget, informing her that Bob
 Gray, another employee in the Seattle South branch office, would replace
 O'Malley as the assistant local representative for the Seattle district
 office (G.C. Exh. 6).  By letter dated February 24, 1983, Ruby replied
 to Saul refusing to recognize Gray as the alternate local representative
 for the purpose of official time.  Ruby also claimed that this action
 was pursuant to Article 30, Appendix F, Sections E and K of the
 agreement, and stated, "Because of the union commitment to name and use
 on-site representatives, Mr. Gray will not be granted official time"
 (G.C. Exh. 7).
 
    The parties stipulated that Mary O'Malley and Robert Gray were
 recognized pursuant to Mr. Saul's designation as assistant local
 representatives of the downtown Seattle district office (Tr. 61).  The
 issue is strictly whether, as such designees, they were entitled to
 official time pursuant to the agreement to serve in such capacities.
 The parties also agreed that Ms. O'Malley received official time during
 the relevant period in order to serve in other Union capacities and
 functions (Tr. 67-68).
 
    In April 1983, Saul designated James Bolin, a Seattle district office
 employee, as the assistant local representative for the District Office.
  Bolin, however, accepted the appointment only on the condition that he
 not be empowered to bind the union in negotiations (Tr. 24).
 
    Negotiations Regarding National Agreement
 
    Negotiations for the national agreement took from June 1980 to
 December 21, 1981.  The official time article referenced above was an
 article of major importance.  It was the last article of which agreement
 was reached.  (Tr. 130).
 
    During the course of the negotiations Respondent and the Union
 offered various proposals concerning official time (G.C. Exh. 11, 12).
 Nancy Ann Williams, one of Respondent's negotiators, and Witold
 Skwierczynski, one of the Union's negotiators, were called by Respondent
 and testified in detail regarding the various proposals and the
 developments during the course of the negotiations.
 
    The fundamental disagreement between these negotiators concerned the
 account of the final bargaining session which produced agreement on the
 official time appendix in issue.  Williams testified that during these
 negotiations management made it quite clear that it was concerned about
 who local management would be dealing with in the day-to-day labor
 relations communications and grievance processing, and that the
 representative, whether called a local representative or on-site
 representative or steward, needed to be someone employed in the
 installation where they were actually providing the services.  Williams
 testified that the Union said they fully understood and endorsed this
 position.  Williams acknowledged that management attempted to insert the
 term "on-site" in what became Appendix F, paragraph E.  She stated that
 John Harris, chief negotiator for the Union for field operations,
 indicated that there were political reasons within the Union why he
 could not have that kind of language in the agreement, but that he fully
 understood and had no quarrel with the management position that the
 local representative should be somebody on site.  Williams testified
 that management came away from the negotiations with the understanding
 that local representatives and assistant representatives would be people
 employed in the installations where they were providing the services.
 Off-site designees would have no right to official time unless,
 consistent with past practice, a good showing of need was made.
 
    Witold Skwierczynski testified that management attempted to insert
 the term "on-site" into the appendix.  He denied that John Harris had
 endorsed the concept during the negotiations.  He testified that Harris
 flatly rejected it, as the Union had done in the past, on the basis that
 it would create an impossible situation.  He testified that management
 then withdrew the proposal and also agreed to delete the term "on-site"
 from a later counter-proposal dealing with the representatives who would
 handle grievances at the first and second step.  Again, simply the term
 "local representative" was agreed upon.
 
    Practices Under the Agreement
 
    Pam Smith, a management official in the Seattle region, testified
 that as soon as the new contract went into effect in 1982, she dealt
 with the two local presidents that covered the installations in the
 region.  These dealings concerned, in part, obtaining the Union
 designations of local representatives and discussing the official time
 such representatives would receive.  She stated that the conversations
 with the local presidents always concerned the designation of someone in
 the particular offices to be the local representative, and the amount of
 time it was necessarily taking them to obtain the on-site persons.  She
 testified that the initial list provided her by Jeff Saul of the Seattle
 local only included on-site representatives, or his designation was left
 blank (Tr. 160-161, 166).  Saul recalled that he designated himself as
 alternative representative for Bellevue, but acknowledged that he was
 subsequently once denied official time to serve at that branch office
 (Tr. 29, 45).
 
    Smith testified that the Oregon local president, Randy Randall,
 initially designated some off-site persons as alternate representatives.
  According to Smith, she then advised Randall that off-site
 representatives could not receive official time, and Randall replied
 that he did not expect the off-site designees to receive official time
 and was working towards getting on-site representatives as the
 alternates.  (Tr. 165).  Smith testified that sometime later she did
 grant an exception which Randall had requested and, as a result, gave
 official time to an off-site representative where a special showing of
 need was made (Tr. 172-173;  175-178).
 
    Saul once designated himself local representative at Respondent's
 Yakima, Washington field office with Respondent's agreement and was
 granted official time in this connection.  However, management was aware
 of the special need, and Saul had explained that he hoped in the future
 to appoint a permanent on-site representative.  (Tr. 36-38;  Resp. Exh.
 1).
 
    The National Official Time Grievance
 
    On July 13, 1982, the Union filed an institutional grievance under
 Article 24, Section 10 of the national agreement.  The grievance alleged
 "repeated and continuing violations of Article 30, Appendix F and
 related provisions of the National Agreement, past practice and
 understandings concerning official time and union representation." The
 grievance alleged that the violations were, among other things,
 "evidence of bad faith in the negotiation of the National Agreement."
 (Resp. Exh. 5(a)).  On October 26, 1982, the Union set forth 31 issues
 it believed were involved in the grievance.  Issue 11 was stated to be:
 
          Management in many locations is not recognizing the Union's
       structure and its list of designees.  Management is frequently
       interfering with the internal business of the Union by attempting
       to regulate what its lines of communication and structure should
       be, including attempting to veto our choices of representative,
       our internal organization, etc. (Resp. Exh. 5(b)).
 
    At about the same time, the Union delivered to the Respondent in a
 shopping cart documents showing more than 1,000 individual instances
 where official time had been denied to Union representatives.  The
 Respondent and the Union agreed that additional denials of official time
 touching on the issues raised in the grievance would be, figuratively,
 added to the "shopping cart." The Union's mechanism for accomplishing
 this was to have the documentary evidence of a denial of official time,
 usually a grievance or an SSA Form 75, sent to the Union's
 representative on the grievance, Gayla Reiter.  Unless the evidence of a
 particular denial of official time is forwarded in this manner, the
 denial is not considered part of the grievance by the Union.  There is
 no evidence that any of the documentation giving rise to the present
 dispute has been forwarded to Gayla Reiter.  No grievance was ever filed
 over the denial of official time to O'Malley or Gray to act as assistant
 local representatives for the Seattle district office.
 
    The national grievance was elevated to arbitration, and a hearing was
 held on August 2, 1983.  The arbitrator's interim opinion and award was
 rendered February 22, 1984.  (ALJ Exh. 1).  /3/ The arbitrator reserved
 jurisdiction for purposes of interpretation or enforcement.  As to issue
 11, noted above, the arbitrator found that denials of official time to
 designated Union officials for the performance of labor/management
 activities constituted a violation of the contract.  He noted, in part,
 as follows:
 
          The master agreement, Article 30, Appendix F:  Official Time
       and Labor Relations in Field Offices, is quite clear and needs
       little or no construction here.  The Union alone has the authority
       to designate its representatives . . . .
 
          The language of Appendix F would not seem to limit the Union's
       use of representatives to those posted in the immediate area, but
       common sense dictates that they should do so whenever possible in
       order to avoid additional expense to management . . . .
 
          However, the Union should be allowed to designate alternative
       representatives in an office for the use of official time where
       the primary representatives cannot handle a particular matter.
       Additionally, management, under the letter and spirit of the
       agreement, is obligated to grant official time to Union officers
       to present Section 10 grievances and cannot limit representation
       to on-site representatives.
 
                                .  .  .  .
 
    Position of the Parties
 
    The General Counsel contends that Respondent, by refusing to
 recognize the Union's properly designated assistant local
 representatives for purposes of official time, clearly and patently
 breached or repudiated Article 30, Appendix F of the collective
 bargaining agreement.  The General Counsel argues that the contract
 allows some official time for assistant local representatives:  that
 O'Malley and Gray were properly designated as assistant local
 representatives;  and for Respondent to state that no official time
 would be approved amounted to a clear, patent, and persistent breaches
 of the contract and, in effect, repudiated the official time provisions.
  The General Counsel claims that a union retains the prerogative to
 designate representatives of its choice, and that this imposes on the
 agency a duty to provide official time to such designated
 representative.  The General Counsel claims there is no clear and
 unmistakable evidence that the Union waived its right to designate any
 employee as an assistant local representative for official time
 purposes.
 
    The General Counsel also insists that no language in the contract
 limits official time to those assistant local representatives employed
 at the facility they represent.  The General Counsel states that Section
 E of Appendix F, providing for the designation of assistant local
 representatives "for each field office installation to coordinate and
 conduct labor-management relations within that installation" merely
 describes where the assistant representative will conduct their duties,
 not where they must be employed.  The General Counsel also asserts that
 Section K, which obligates the Union to "make every reasonable effort to
 use to the local representative of the office in which the grievance
 arises . . . " does not cover all purposes and simply describes which
 representative the Union must select for grievance processing, not the
 office where the representative must be employed.  The General Counsel
 insists that the rest of the official time article demonstrates that the
 parties knew how to draft and agree to restrictions on the physical
 location if they had intended to embody such a restriction in this
 situation.  The General Counsel claims that the arbitrator's award also
 thoroughly shatters Respondent's argument that the contract can be read
 to require the designation of on-site assistant local representatives.
 
    The General Counsel also maintains that the practices of the parties
 in implementing the agreement do not support Respondent's position.
 Finally, the General Counsel urges that the testimony of Witold
 Skwierczynski should be credited, and contends that nothing in the
 bargaining history leading to the national agreement indicates that only
 on-site assistant local representatives are entitled to official time.
 
    The General Counsel also maintains that the national official time
 grievance does not bar consideration of the merits of the case under
 section 7116(d).  The General Counsel claims that the national official
 time grievance did not clearly raise the same issue raised in the
 Union's unfair labor practice charge.  The General Counsel states that
 the state of the grievance at the time the charge is filed is
 controlling, and evidence bearing on the processing of the grievance
 after February 9, 1983 should have been excluded from the record.
 
    Respondent defends on the basis that its determination that an
 off-site representative was not entitled to official time was not a
 clear, patent, flagrant breach of the contract, but was instead
 management's legitimate and reasonable interpretation of the language of
 the applicable provision.  Respondent relies on Nancy Ann Williams'
 testimony concerning the bargaining history particularly the Union's
 alleged endorsement of management's position that assistant
 representatives would be employed in the installation where they were
 rendering the services.  Respondent also claims that the language of
 Article 30, Appendix F, paragraph E and F reflect this concept.
 Respondent points out that paragraph E speaks of assistant local
 representatives "for each field office installation" and indicates that
 the duties of such representatives are all centered on being "initiated
 locally," or concern matters "within the installation." Respondent also
 relies on the other actions of the parties in implementing the
 agreement, claiming that this demonstrates that off-site representatives
 were not normally designated or afforded official time in the absence of
 a showing of need.  Respondent also asserts that the national grievance
 illustrates that there was much in the official time area which was in
 dispute, thus lending further weight to its position that the instant
 matter is indeed an arguable interpretation question and not bad faith.
 
    Respondent also makes the affirmative defense that the case is barred
 under section 7116(d) by the national official time grievance.
 Respondent claims that the issues were covered by the grievance filed in
 July 1982, as further elaborated on by the Union's letter of October 6,
 1982, and discussed as issue 11 in the arbitrator's award.
 
                Discussion, Conclusion, and Recommendations
 
    The complaint alleges that Respondent refused on two occasions to
 recognize the Union's properly designated assistant local
 representatives for its downtown Seattle district office, for purposes
 of official time, within the meaning of the contractual provision
 contained in Article 30, Appendix F, section F, thereby clearly,
 patently and flagrantly breaching such provision and unilaterally
 rejecting its terms.
 
    Two basic criteria must be met for a breach of contract to rise to
 the level of an unfair labor practice:  (1) the conduct must constitute
 a clear, patent, and flagrant breach of the contract, as opposed to an
 arguable interpretation of the contract /4/ and (2) the conduct must
 involve persistent breaches of the contract so as to constitute a
 rejection of the collective bargaining agreement, /5/ or otherwise
 demonstrate a complete repudiation of the collective bargaining
 agreement.  /6/
 
    Section 2423.18 of the Rules and Regulations, 5 C.F.R. 2423.18, based
 on section 7118(a)(7) and (8) of the Statute, provides that the General
 Counsel "shall have the burden of proving the allegations of the
 complaint by a preponderance of the evidence." It is concluded that a
 preponderance of the evidence does not establish that Respondent
 violated sections 7116(a)(1) and (5), as alleged.
 
    The record does not demonstrate that Respondent's action in denying
 official time to off-site assistant local representatives was a clear,
 patent, and flagrant breach of Article 30, Appendix F, section F of the
 contract.  In other words, the breach is not easily seen, obvious, and
 outrageously noticeable.  The contract, when read as a whole, is not
 clear on its face in this regard.  Cf. Harry S. Truman Memorial Veterans
 Hospital, Columbia, Missouri, 11 FLRA No. 90 (1983).  The alleged breach
 is not so patent that Respondent could not have reasonable thought
 otherwise.  Cf. Food Service and Quality Service, U.S. Department of
 Agriculture, Washington, D.C., supra, 7 FLRA at 673.  Nor does
 Respondent's action demonstrate a flagrant breach such as to suggest a
 lack of good faith.  Ibid. Respondent's action was based on its
 interpretation of the language of the negotiated agreement and the
 account of its negotiator concerning the negotiations leading to that
 agreement.  In this proceeding, Respondent also defended on the basis of
 the practice of the parties in implementing that agreement.
 Respondent's interpretation is arguably within the terms of the
 negotiated agreement.
 
    With regard to the second criterion, the record does show two
 instances of refusal to recognize off-site assistant local
 representatives for purposes of official time.  However, this does not
 constitute a rejection of the terms of the collective bargaining
 agreement or of the principles of collective bargaining.  Rather, it was
 part of the good faith disagreement over contract terms.  Respondent has
 taken a consistent position in good faith and had no obligation to
 acquiesce in the Union's position.  The record demonstrates that the
 parties have previously had other similar disputes over the official
 time provisions of the contract.  Their past conduct demonstrates full
 acceptance of the grievance and arbitration route to the resolution of
 their differences over official time.
 
    The Union's right to designate its own representatives when dealing
 with agency management in fulfilling its responsibilities under the
 Statute is well settled.  Department of the Air Force, 915th Tactical
 Fighter Group, Homestead Air Force Base, 13 FLRA 135, 13 FLRA No. 33
 (1983).  However, here the parties have provided in their collective
 bargaining agreement for a formalized bargaining relationship.  See,
 American Federation of Government Employees, AFL-CIO and U.S. Air Force,
 Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 4
 FLRA 272 (1980).  The essence of this unfair labor practice complaint
 involves differing and arguable interpretations of Article 30, Appendix
 F, the official time provisions of their collective bargaining agreement
 negotiated pursuant to section 7131(d) of the Statute.  The language of
 the agreement is susceptible to an interpretation, as set forth in the
 positions of the parties, above, which might, or might not, authorize
 Respondent's actions.  Thus, the appropriate avenue for resolution of
 the dispute is through the grievance and arbitration procedures
 contained in the parties agreement pursuant to section 7121 of the
 Statute.  See fn. 4.
 
    In these circumstances, the denial of official time, a contractual
 right, did not rise to the level of interference with rights guaranteed
 by the Statute, e.g. the right to form, join, or assist a labor
 organization, and constitute a separate violation of section 7116(a)(1)
 of the Statute.  Cf. Department of the Air Force, Base Procurement
 Office, Vandenburg Air Force Base, California, A/SLMR No. 485, 5 A/SLMR
 112, FLRC No. 75A-25, 4 FLRC 587 (1976);  Iowa National Guard and
 National Guard Bureau, 8 FLRA No. 101, 8 FLRA 500, 512-513 (1982).
 
    Based on the foregoing, it is unnecessary to consider other issues
 raised by the parties.  It is recommended that the Authority issue the
 following Order:
 
                                   ORDER
 
    IT IS HEREBY ORDERED that the complaint in Case No. 79-CA-30198 be,
 and it hereby is, DISMISSED.
 
                                       GARVIN LEE OLIVER
                                       Administrative Law Judge
 
    Dated:  August 8, 1984
    Washington, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ In so concluding the Authority rejects the Judge's comments
 concerning the criteria which must be met in order for a breach of
 contract to rise to the level of an unfair labor practice.  In this
 regard, see U.S. Customs Service, Region VII, Los Angeles, California,
 10 FLRA 251 (1982);  Harry S. Truman Memorial Veterans Hospital,
 Columbia, Missouri, 11 FLRA 516 (1983);  Internal Revenue Service, and
 Internal Revenue Service, Detroit District, 12 FLRA 445 (1983).
 
 
    /2/ Although not a factor involved in the disposition of the case
 herein, the Authority notes that the Arbitrator sustained the Union's
 position on this issue.
 
 
    /3/ Over the General Counsel's objection, the February 10, 1984
 hearing record was held to allow for the receipt of the arbitrator's
 award.  The award was provided by Respondent and was received as ALJ
 Exhibit No. 1.  Thereafter, the parties filed their briefs in the case.
 
 
    /4/ Oklahoma City Air Logistics Center, Tinker Air Force Base,
 Oklahoma, 3 FLRA 512 (1980);  Internal Revenue Service and Brookhaven
 Service Center, 6 FLRA 713 at 725 (1981);  Food Safety and Quality
 Service, U.S. Department of Agriculture, Washington, D.C., 7 FLRA 665
 (1982);  Division of Military and Naval Affairs, State of New York,
 Albany, New York, 8 FLRA 307 (1982).
 
 
    /5/ Internal Revenue Service and Internal Revenue Service, Detroit
 District, 12 FLRA No. 87 (1983);  Kaiserslautern American High School,
 Department of Defense Dependents Schools, Germany North Region, 9 FLRA
 184 (1982).
 
 
    /6/ Great Lakes Program Service Center, Social Security
 Administration, Department of Health and Human Services, Chicago,
 Illinois, 9 FLRA 499 (1982);  Veterans Administration Hospital,
 Danville, Illinois, 4 FLRA 80 (1980). 
 
 
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