19:0169(17)CA - Air Force HQ, Air Force Logistics Command, Wright-Patterson AFB, OH and AFGE Council 214 Local 1626 -- 1985 FLRAdec CA



[ v19 p169 ]
19:0169(17)CA
The decision of the Authority follows:


 19 FLRA No. 17
 
 DEPARTMENT OF THE AIR FORCE,
 HEADQUARTERS, AIR FORCE LOGISTICS
 COMMAND, WRIGHT-PATTERSON AIR FORCE
 BASE, OHIO
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, COUNCIL 214 AND AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES,
 LOCAL 1626, AFL-CIO
 Charging Party
 
                                            Case Nos. 5-CA-30027 
                                                      5-CA-30055
 
                            DECISION AND ORDER
 
    This matter is before the Authority pursuant to the Regional
 Director's "Order Transferring Case to the Federal Labor Relations
 Authority" in accordance with section 2429.1(a) of the Authority's Rules
 and Regulations.
 
    Upon consideration of the entire record in these cases, including the
 parties' stipulation of facts, accompanying exhibits, and briefs
 submitted by the General Counsel, the Charging Party /1/ and the
 Respondent, the Authority finds:
 
    At all times material herein, the American Federation of Government
 Employees, AFL-CIO, has been the exclusive representative and the
 American Federation of Government Employees, Council 214, AFL-CIO, has
 been an agent of the exclusive representative, with respect to the
 employees of a consolidated unit of all non-supervisory non-professional
 employees paid from appropriated funds and serviced by AFLC Civilian
 Personnel Offices at the following AFLC facilities and units:
 
    Hill Air Force Base (AFB), Ogden, Utah
 
    Kelly AFB, San Antonio, Texas
 
    McClellan AFB, Sacramento, California
 
    Robins AFB, Warner Robins, Georgia
 
    Tinker AFB, Oklahoma City, Oklahoma
 
    Wright-Patterson AFB, Dayton, Ohio
 
    Newark Air Station, Newark, Ohio
 
    Detachment 21, Air Force Contract Maintenance Center, Wichita, Kansas
 
    Cataloguing and Standardization Office, Battle Creek, Michigan
 
    Security Police or Guards, Tinker AFB, Oklahoma City, Oklahoma
 
    Professional Nurses at Kelly AFB and Robins AFB
 
    The bargaining unit employees at each of the above facilities are
 represented by separate local unions affiliated with American Federation
 of Government Employees, Council 214, AFL-CIO, as the designated agent
 of the exclusive representative for the consolidated unit herein.
 
    On May 3, 1979, the parties executed a Master Labor Agreement (MLA).
 Following reopener negotiations, the May 1979 MLA was superseded by the
 MLA which became effective on June 28, 1982.  Each local facility has a
 local agreement which supplements the MLA, except the facility in
 Wichita, Kansas.
 
    The Respondent had authorized official time for local Union
 representatives negotiating local supplements to the MLA prior to
 October 1982, when it informed the exclusive representative that
 official time for such local negotiations no longer would be authorized.
  The exclusive representative requested bargaining over this change.
 The Respondent denied the request and advised that all official time
 functions are included in Article 4 of the MLA and that no agreement on
 official time to negotiate local supplements had been reached by the
 parties in the 1982 MLA.  The negotiation of local supplements under the
 1982 MLA began about September 1982 at some of the subordinate
 installations of the Respondent.
 
    Preliminarily, the Respondent contends that section 7116(d) of the
 Statute bars the processing of this case because AFGE Local 916 at
 Tinker Air Force Base filed a grievance raising the same issues as those
 involved in the unfair labor practice complaints herein.  /2/ The
 Authority concludes that section 7116(d) does not bar this proceeding,
 noting that the initial charge was filed on October 25, 1982, prior to
 the filing of the grievance, which occurred on November 29, 1982.  See
 Department of Justice, Bureau of Prisons, Federal Correctional
 Institution, Butner, North Carolina, 18 FLRA No. 100 (1985), and cases
 cited therein.  Moreover, it is concluded that the Respondent has failed
 to establish that the issues raised herein and under the grievance
 procedure are the same.
 
    The issues as stipulated by the parties include, inter alia, whether
 the Respondent, by unilaterally discontinuing its practice of granting
 official time to local Union negotiators for time spent negotiating
 local supplemental agreements to the MLA at the facilities throughout
 the bargaining unit, without giving the exclusive representative notice
 of or an opportunity to bargain over the change, violated section
 7116(a)(1) and (5) of the Statute.  /3/ The General Counsel and the
 Charging Party contend that, until October 1982, the Respondent
 authorized official time for local Union representatives to negotiate
 local supplemental agreements, at which time the Respondent unilaterally
 discontinued its past practice.  The Respondent contends that the
 provisions of the MLA and the Authority's decision in Interpretation and
 Guidance, 7 FLRA 682 (1982), in which the Authority determined that the
 official time provisions of section 7131(a) of the Statute /4/ do not
 encompass negotiations below the level of exclusive recognition which
 are designed to create local agreements to supplement a master
 agreement, preclude finding a statutory violation herein and have
 superseded any past practice which might be found.  /5/
 
    Subsequent to the issuance of the consolidated complaint herein, the
 United States Court of Appeals for the District of Columbia Circuit
 reversed the Authority's determination in Interpretation and Guidance, 7
 FLRA 582 (1982), concluding that the official time provisions of section
 7131(a) of the Statute encompass the negotiation of local agreements
 supplementing master agreements where such local negotiations are
 authorized by the parties at the level of exclusive recognition.
 American Federation of Government Employees, AFL-CIO v FLRA, 750 F.2d
 143 (D.C. Cir., 1984).  The Authority is constrained to follow the
 court's legal interpretation of the language of section 7131(a) of the
 Statute, for the reasons set forth therein.
 
    As applied herein, the record indicates that the MLA between the
 parties at the level of exclusive recognition provides for the
 negotiation of local agreements to supplement the MLA.  /6/ Accordingly,
 the Authority concludes that, in the circumstances of this case, the
 Respondent's refusal to grant official time to local Union
 representatives for the negotiation of local supplements authorized by
 the MLA improperly denied those employees an entitlement thereto under
 section 7131(a) of the Statute.  Therefore, it follows that the
 Respondent interfered with, restrained or coerced unit employees in
 their exercise of a right assured by the Statute, and thereby violated
 section 7116(a)(1) of the Statute.  /7/
 
    The alleged violation of section 7116(a)(5) of the Statute must be
 dismissed.  That allegation is based upon the assertion that the
 Respondent's refusal to grant local Union representatives official time
 for the negotiation of local supplementary agreements constituted a
 unilateral change in an established past practice which should have been
 bargained with the Union.  As it has been determined that the local
 Union representatives had a right to official time under section 7131(a)
 of the Statute in the circumstances described above, the parties had
 neither a right nor a duty to bargain over such matter.
 
    The Authority concludes, in view of the resolution herein, that it is
 unnecessary to reach the additional issues raised by the parties.
 Accordingly, those additional portions of the consolidated complaint in
 Case Nos. 5-CA-30027 and 5-CA-30055 shall be dismissed.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Federal
 Service Labor-Management Relations Statute, the Authority hereby orders
 that the Department of the Air Force, Headquarters, Air Force Logistics
 Command, Wright-Patterson Air Force Base, Ohio, shall:
 
    1.  Cease and desist from:
 
    (a) Refusing to grant official time, pursuant to section 7131(a) of
 the Statute, to its employees who are the designated local
 representatives of the American Federation of Government Employees,
 Council 214, AFL-CIO, its employees' exclusive representative for
 negotiating agreements to supplement the Master Labor Agreement at local
 facilities in the bargaining unit.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
    (a) Rescind the announced change of policy in granting official time
 to local Union representatives for time spent in negotiations of local
 supplemental agreements to the Master Labor Agreement.
 
    (b) Grant official time to its employees who are the designated local
 representatives of the American Federation of Government Employees,
 Council 214, AFL-CIO, its employees' exclusive representative, for their
 time spent in negotiating local supplemental agreements to the Master
 Labor Agreement, and make them whole for any loss of annual leave, or
 other benefits, caused by its refusal to grant them such official time.
 
    (c) Post at its facilities where bargaining unit employees are
 located copies of the attached Notice on forms to be furnished by the
 Federal Labor Relations Authority.  Upon receipt of such forms, they
 shall be signed by an authorized representative of the Respondent and
 posted in conspicuous places, including all bulletin boards and other
 places where notices to employees are customarily posted, and shall be
 maintained for 60 consecutive days thereafter.  Reasonable steps shall
 be taken to ensure that such Notices are not altered, defaced, or
 covered by any other material.
 
    (d) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director of Region V, in writing within
 30 days from the date of this Order, as to what steps have been taken to
 comply herewith.
 
    IT IS FURTHER ORDERED that the remaining allegations of the
 consolidated complaint in Case Nos. 5-CA-30027 and 5-CA-30055 be, and
 they hereby are, dismissed.  
 
 Issued, Washington, D.C., July 18, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
                          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 refuse to grant official time, pursuant to section 7131(a)
 of the Statute, to employees who are the designated local
 representatives of the American Federation of Government Employees,
 Council 214, AFL-CIO, the exclusive representative of our employees, for
 negotiating agreements to supplement the Master Labor Agreement at local
 facilities in the bargaining unit.  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 Federal Service Labor-Management
 Relations Statute.  WE WILL rescind the announced change of policy in
 granting official time to local Union representatives for time spent in
 negotiations of local supplemental agreements to the Master Labor
 Agreement.  WE WILL grant official time to employees who are the
 designated local representatives of the American Federation of
 Government Employees, Council 214, AFL-CIO, the exclusive representative
 of our employees, for their time spent in negotiating local supplemental
 agreements to the Master Labor Agreement, and make them whole for any
 loss of annual leave, or other benefits, caused by our refusal to grant
 them such official time.
                                       (Activity)
 
 Dated:  . . .  By:  (Signature) (Title) 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 its provisions,
 they may communicate directly with the Regional Director, Region V,
 Federal Labor Relations Authority, whose address is:  175 West Jackson
 Blvd., Suite 1359-A, Chicago, Illinois 60604, and whose telephone number
 is:  (312) 353-6306.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Charging Party's brief was timely filed.  Accordingly, the
 Respondent's "Motion to Strike the Charging Party's Memorandum" is
 denied.
 
 
    /2/ Section 7116(d) provides:
 
          (d) Issues which can properly be raised under an appeals
       procedure may not be raised as unfair labor practices prohibited
       under this section.  Except for matters wherein, under section
       7121(d) and (f) of this title, an employee has an option of using
       the negotiated grievance procedure or an appeals procedure, issues
       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(.)
 
 
    /3/ Section 7116(a)(1) and (5) 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(.)
 
 
    /4/ 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(.)
 
 
    /5/ The Respon