19:0179(19)CA - VA, Cincinnati, OH and AFGE Local 2031 -- 1985 FLRAdec CA



[ v19 p179 ]
19:0179(19)CA
The decision of the Authority follows:


 19 FLRA No. 19
 
 VETERANS ADMINISTRATION
 CINCINNATI, OHIO
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2031, AFL-CIO
 Charging Party
 
                                            Case No. 5-CA-795
 
                            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 and recommending that it be ordered to
 cease and desist therefrom and take certain affirmative action.
 Thereafter, untimely exceptions to the Judge's Decision were filed by
 the Respondent, which have not been considered.  Although no timely
 exceptions were filed, as the Judge's Decision was issued prior to the
 effective date of the amendment to section 2423.29(a) of the Authority's
 Rules and Regulations, /1/ the Authority shall consider the merits of
 this case.
 
    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 Veterans Administration, Cincinnati, Ohio
 (the Respondent), by denying official time, travel and per diem to three
 of its employees who represented the Charging Party, American Federation
 of Government Employees, Local 2031, AFL-CIO (the Union), in negotiating
 a dues withholding agreement covering employees of the Columbus Veterans
 Administration Outpatient Clinic located in Columbus, Ohio, failed and
 refused to comply with the provisions of section 7131(a) of the Statute,
 thereby violating section 7116(a)(1) and (8) of the Statute.  The
 Authority disagrees.
 
    The record indicates, and the Judge found, that the employees of the
 Outpatient Clinic, Columbus, Ohio, for whom the Union here was
 negotiating a dues withholding agreement, had been made a part of a
 consolidated nationwide unit of employees within the Veterans
 Administration (VA), exclusively represented by the American Federation
 of Government Employees, AFL-CIO (AFGE), prior to the events that are
 the subject of this case.  The level of exclusive recognition,
 therefore, was at the national level, and the mutual obligation to
 negotiate existed only between the VA and AFGE, the parties at that
 level.  /2/ In Interpretation and Guidance, 7 FLRA 682 (1982), issued
 subsequent to the Judge's Decision, the Authority held that, where
 exclusive recognition is at the national level, local supplemental
 negotiations may be authorized by the parties at that level, but such
 negotiations are not part of the "mutual obligation" to bargain.  The
 Authority further found that, as "the official time provisions of
 section 7131(a) of the Statute do not encompass negotiations below the
 level of exclusive recognition," such official time may be granted only
 when it is negotiated pursuant to section 7131(d) of the Statute.  /3/
 Thereafter, in American Federation of Government Employees, AFL-CIO v.
 FLRA, 750 F.2d 143 (D.C. Cir., 1984), the United States Court of Appeals
 for the District of Columbia Circuit reversed the Authority's
 determination in Interpretation and Guidance, supra, and held that "once
 local negotiations are agreed upon (at the master level), 'a mutual
 obligation' to bargain exists at that (local) level, thus triggering the
 provisions of section 7131(a)." 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.  Department of the Air
 Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air
 Force Base, Ohio, 19 FLRA No. 17 (1985).
 
    Underlying the court's decision is the requirement that local
 negotiations must be agreed upon by the parties at the national level in
 order for the local negotiators to be entitled to official time under
 section 7131(a).  In this case, it is neither alleged nor established
 that the parties at the national level had agreed to authorize the local
 negotiations that took place herein.  /4/ Therefore, there was no
 entitlement to official time in these circumstances.
 
    In all these circumstances, the Authority finds that the Respondent
 by its action did not fail and refuse to comply with section 7131 of the
 Statute in violation of section 7116(a)(1) and (8) of the Statute.  /5/
 Accordingly, the Authority shall dismiss the complaint.  /6/
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 5-CA-795 be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C., July 18, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
                                       Case No. 5-CA-795
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Arthur L. Kraut, Esq.
    Russell C. Henry, Esq., on brief
                            For the Respondent
 
    Sharon A. Bauer, Esq.
                          For the General Counsel
 
    Before:  ALAN W. HEIFETZ
                         Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This proceeding arose pursuant to the Federal Service
 Labor-Management Relations Statute, 5 U.S.C. 7101 et seq., as a result
 of an unfair labor practice charge filed on November 7, 1980, with the
 Federal Labor Relations Authority.  Consequently, on January 21, 1981,
 the Acting Regional Director, Region V, of the Authority issued a
 Complaint and Notice of Hearing alleging that Respondent violated
 Sections 7116(a)(1) and (8) by refusing to grant official time, travel
 and per diem expenses to three Union representatives who were engaged in
 contract negotiations.
 
    A hearing was held on March 18, 1981, in Cincinnati, Ohio.  All
 parties were afforded full opportunity to examine witnesses and to
 introduce evidence.  Post hearing briefs have been filed and considered.
  Upon the entire record, including my observation of the witnesses and
 their demeanor, I make the following findings, conclusions and
 recommendations:
 
                             Findings of Fact
 
    The Veterans Administration maintains and operates, as separate
 component organizations, a Medical Center in Cincinnati, Ohio, and the
 Columbus Veterans Administration Outpatient Clinic, in Columbus, Ohio.
 
    The American Federation of Government Employees represents a
 consolidated nationwide unit within the Veterans Administration,
 including the Medical Center in Cincinnati.  The Outpatient Clinic was
 added to this consolidated unit on October 16, 1980, when AFGE was
 certified as the exclusive representative for bargaining unit employees.
 
    On October 22, 1980, AFGE designated Lonnie Carter, President of the
 Union, to be its representative with respect to the Outpatient Clinic.
 This designation and the results of the election at the Outpatient
 Clinic were known to Sidney Stell, Respondent's Assistant Chief,
 Personnel Service when Mr. Carter went to Mr. Stell's office on October
 23, 1980.  On that date, Mr. Carter requested that Mr. Stell place a
 call over FTS lines to James Doherty, Chief, Personnel Service, at the
 Outpatient Clinic, in order to set up a meeting to discuss dues
 deductions.  Mr. Stell remained in the office while Mr. Carter and Mr.
 Doherty agreed over the phone to meet on November 5, 1980, in Columbus
 to negotiate a dues deduction agreement.  Based on past practice at
 Cincinnati, Mr. Carter informed Mr. Doherty that three union
 representatives would attend the meeting, namely, Bob Barker, Brenda
 Smith and himself.  Mr. Doherty saw no problem with this and said that
 he would have two other representatives with him at the meeting.  Mr.
 Doherty also asked for a proposed agenda and a proposed dues withholding
 agreement, both of which Mr. Carter later sent.  Mr. Doherty also
 informed Mr. Carter that official time would have to come from
 Cincinnati and not from the Outpatient Clinic.  /7/
 
    Following this telephone conversation, Mr. Carter told Mr. Stell that
 he was upset because Mr. Doherty would not agree to negotiate anything
 but dues withholding.  Mr. Stell said that official time for the
 November 5 meeting would not be a problem but that Mr. Carter should put
 his request in writing, designating who would be present.  Mr. Stell
 also said that it was not Cincinnati's business why the Union was
 attending the meeting and that Mr. Carter did not have to put in his
 written request what the Union was going to negotiate at the November 5
 meeting.  /8/
 
    On October 27, 1980, the Union sent Mr. Stell a letter requesting
 official time and per diem for Mr. Carter, Mr. Robert Barker, and Ms.
 Brenda Smith (all Union officers and all employed by Respondent at
 Cincinnati) for the November 5 meeting in Columbus.
 
    On October 31, 1980, the Union received a letter from Francis J.
 Wyborski, Chief, Personnel Service, at Cincinnati, denying the official
 time and per diem requested by the Union for the November 5 meeting.
 Mr. Wyborski had never discussed with Mr. Carter the purpose of that
 meeting or the reasons for the request for official time.  In pertinent
 part, the letter stated:
 
          The negotiated agreement between the VA Medical Center
       Cincinnati/Fort Thomas and Local 2031, AFGE is specific in its
       coverage of eligible non-supervisory employees at the Cincinnati
       Division, this Medical Center and the Fort Thomas Nursing Home
       Care Unit, Fort Thomas, Kentucky.  There is no provision in
       current governing directives or statutes for granting official
       time or per diem for the purpose of participating in
       organizational activities involving another VA activity not so
       covered.  Therefore, your request must be denied. . . .
 
    On November 5, 1980, Mr. Carter, Mr. Barker and Ms. Smith met with
 three management officials of the Outpatient Clinic in Columbus, Ohio.
 They negotiated and signed a dues deduction agreement covering the
 employees at the Outpatient Clinic.  The time spent in negotiations was
 less than one hour.  Travel time from Cincinnati to Columbus was
 approximately two hours.  The three Union representatives were in leave
 without pay status during the time spent in travel and negotiations.
 Respondent continues to refuse to grant official time and per diem
 expenses to those representatives for that activity.
 
                        Discussion and Conclusions
 
    Official time is provided by Section 7131 of the Federal Service
 Labor Management Relations Statute as follows:
 
          (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 proceedings, 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.
 
    Although not pressed on brief by Respondent, the evidence adduced
 shows that the reason official time was denied was because the
 Outpatient Clinic in Columbus was not covered by the negotiated
 agreement between the Union and the Medical Center in Cincinnati.
 However, Respondent has not cited any authority, nor do I find any, for
 the proposition that the words "any employee representing an exclusive
 representative" are more restrictive than their plain meaning.  There is
 no question that the three individuals seeking official time are
 "employees" for purposes of the Statute;  /9/ that they work for, and
 that the Veterans Administration is, an "agency" within the meaning of
 the Statute;  /10/ and that the Union is an "exclusive representative"
 as that term is defined in the Statute.  /11/ The fact that these three
 employees are covered by a negotiated agreement which does not encompass
 another subcomponent of the agency is of no moment.  Likewise, the fact
 that these employees are representing an exclusive representative of
 employees in that other subcomponent is of no legal consequence.
 Official time shall be authorized for "any" employee representing "an"
 exclusive representative and therefore, unless other provisions of the
 Statute become operative, these three employees are entitled to official
 time, travel and per diem /12/ while they are engaged in negotiations
 with the Outpatient Clinic, a subcomponent of the Veterans
 Administration.  Nothing in the Statute or the legislative history
 points to any intent to limit an employee to representing only the
 exclusive representative in that employee's subcomponent of the
 employing agency.
 
    That all three employees should be granted official time, travel and
 per diem is also clear.  The number of employees granted official time
 is limited only by the number designated as representing the agency.
 Therefore, it is the agency's prerogative to limit the number of
 employees with whom it wishes to meet.  Here, representatives of the
 Outpatient Clinic acquiesced in the Union's suggestion of three
 representatives each, as had been the Union's past practice at other
 negotiations.  It is too late in the day to argue that only one
 negotiator would have been enough.  It is obvious that Respondent's left
 hand did not fully communicate and coordinate with its right.  But that
 failure should not redound to the detriment of the three Union
 negotiators who had no reason to believe that when they arrived in
 Cincinnati, they would not be facing three of their opposites.
 
    On brief, Respondent raises for the first time the defense that since
 the November 5 meeting concerned a matter relating solely to the
 internal business of the Union, to wit, dues deduction, official time
 may not be granted.  Respondent argues that official time shall be
 granted for "collective bargaining," a term limited by 5 U.S.C.
 7103(a)(12) to "conditions of employment." Respondent further posits
 that "conditions of employment" is a term defined by 5 U.S.C.
 7103(a)(14)(C) to exclude matters, "specifically provided for by Federal
 Statute" and that a Federal Statute, namely 5 U.S.C. 7115, obligates the
 agency to deduct union dues.  Since the agency is obligated to deduct
 dues, Respondent argues that it has no duty to negotiate and therefore,
 no obligation to provide official time for such negotiations.
 
    That argument must be rejected for several reasons.  First of all,
 the legislative history of the Statute clearly reveals that the agency's
 obligation to withhold dues runs directly to the individual employee and
 not to the Union.  In its discussion of dues withholding, the Conference
 Report states:
 
          Both Senate section 5231 and House section 7115(a) authorize an
       agency to deduct dues from the pay of members of a labor
       organization.  The Senate makes the obligations of the agency to
       deduct dues from members of an exclusively recognized labor
       organization dependent upon its agreement to do so as part of a
       negotiated agreement.  House section 7115(a) states that the
       agency shall make such deduction whenever it receives from an
       employee in the appropriate unit a written assignment authorizing
       it.  Further, the House specifies that the allotment shall be made
       at no cost to the exclusively recognized labor organization or the
       employee.  The Senate recedes.  /13/
 
 Since the obligation runs to the employee and not to the Union, that
 particular section does not affect a "condition of employment" which is
 within the meaning of "collective bargaining" and with respect to which
 Respondent has a duty to negotiate.  However, that is not to say that
 Respondent had absolutely no duty to negotiate with the Union over dues
 withholding.  Section 7115(a) merely obligates Respondent to honor the
 employee's written assignment which authorizes dues deduction from the
 employee's pay.  It does not speak to such matters as forms to be
 signed;  responsibility for obtaining, completing and transmitting
 forms;  countersignatures to be obtained;  notification of participation
 and withdrawal of participation in a dues withholding program;  the
 amount to be withheld and notification of any change in that amount;
 remittance to the Union;  or any other matter affecting a dues
 withholding agreement over which Respondent or the Union may wish to
 negotiate.  In short, to withhold or not to withhold is not the only
 question.
 
    The foregoing list of possible subjects for negotiations regarding
 dues withholding is not meant to be exhaustive.  Its purpose is merely
 to note that there do exist personnel practices and policies which are
 conditions of employment within the meaning of the Statute and over
 which Respondent is bound to negotiate.  Since these conditions of
 employment are not specifically provided for by Federal Statute,
 Respondent's argument must be rejected on that ground as well.
 
    Finally, Respondent's argument fails because the matter of dues
 withholding is not solely a matter of internal labor organization
 business.  While it cannot be gainsaid that an employee who is a union
 official must be in nonduty status to go from desk to desk "collecting
 dues," that is a far cry from concluding that such person must be in
 nonduty status to bargain over a procedure which involves not only the
 employee and the Union, but also the personnel and fiscal offices of the
 agency.  Respondent's own witness, Mr. Doherty, realized this because he
 expected to negotiate dues withholding at the November 5 meeting.  And,
 as a matter of fact, such an agreement was negotiated on November 5,
 1980.
 
    I conclude that by denying official time, travel and per diem to
 Lonnie Carter, Robert Barker and Brenda Smith, Respondent failed and
 refused to comply with the provisions of 5 U.S.C. 7131(a), thereby
 violating 5 U.S.C. 7116(a)(1) and (8) and I recommend that the Federal
 Labor Relations Authority issue the following order pursuant to 5 C.F.R.
 2423.29(c):
 
                                   ORDER
 
    ORDERED, that the Veterans Administration, Cincinnati, Ohio shall:
 
    1.  Cease and desist from:
 
          (a) Failing and refusing to authorize and provide official
       time, travel and per diem to employees Lonnie Carter, Robert
       Barker and Brenda Smith, pursuant to the provisions of 5 U.S.C.
       7131(a), while they are engaged in representing the American
       Federation of Government Employees, AFL-CIO, Local 2031, an
       exclusive representative, at the Columbus Veterans Administration
       Outpatient Clinic at Columbus, Ohio.
 
          (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
 purposes and policies of the Statute:
 
          (a) Provide Union representatives Lonnie Carter, Robert Barker
       and Brenda Smith official time while they are engaged in
       representing the American Federation of Government Employees,
       AFL-CIO, Local 2031, an exclusive representative, during
       Union-Agency negotiations in Cincinnati, Ohio, on November 5,
       1980, including four hours travel time as occurred during the
       employees' regular work hours and when the employees would
       otherwise have been in a work or paid leave status, and make them
       whole for any annual leave utilized, and upon submission of
       appropriate vouchers, pay to them whatever travel and per diem
       expenses employees engaged in official Agency business would be
       entitled.
 
          (b) Post at its facilities 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 an
       authorized representative and shall be posted and maintained for
       60 consecutive days thereafter in conspicuous places, including
       all bulletin boards and other places where notices are customarily
       posted.  Reasonable steps shall be taken to ensure that the
       notices are not altered, defaced or covered by any other
       materials.
 
          (c) Notify the Federal Labor Relations Authority in writing
       within 30 days from the date of this Order as to what steps have
       been taken to comply with the Order.
 
                                       ALAN W. HEIFETZ
                                       Administrative Law Judge
 
 Dated:  May 20, 1981
         Washington, D.C.
 
 
 
                                 APPENDIX
 
                          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 and provide official time,
 travel and per diem to employees Lonnie Carter, Robert Barker and Brenda
 Smith, pursuant to provisions of 5 U.S.C. 7131(a), while they are
 engaged in representing the American Federation of Government Employees,
 AFL-CIO, Local 2031, an exclusive representative, at the Columbus
 Veterans Administration Outpatient Clinic in Columbus, Ohio.  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 Statute.
 WE WILL provide Union representatives Lonnie Carter, Robert Barker and
 Brenda Smith official time while they were engaged in representing the
 American Federation of Government Employees, AFL-CIO, Local 2031, an
 exclusive representative, during Union-Agency negotiations in
 Cincinnati, Ohio, on November 5, 1980, including four hours travel time
 as occurred during the employees' regular work hours and when the
 employees would otherwise have been in a work or paid leave status, and
 make them whole for any annual leave utilized, and upon submission of
 appropriate vouchers, pay to them whatever travel and per diem expenses
 employees engaged in official Agency business would be entitled.
                                       (Agency or Activity)
 
    Dated:  . . .  BY:  . . . (Signature) 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 5, Suite A-1359, 175 West
 Jackson Boulevard, Chicago, Illinois 60604.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 2423.29(a) now provides, in pertinent part, that "in the
 absence of exceptions filed timely . . . , the findings, conclusions,
 and recommendations in the decision of the . . . Judge shall, without
 precedential significance, become the findings, conclusions, decision
 and order of the Authority, and all objections and exceptions thereto
 shall be deemed waived for all purposes."
 
 
    /2/ See Department of Health and Human Services, Social Security
 Administration, 6 FLRA 202 (1981).  See also Social Security
 Administration, Mid-America Program Service Center, Kansas City,
 Missouri, 10 FLRA 15 (1982).
 
 
    /3/ Section 7131 provides, in pertinent part, as follows:
 
          Sec. 7131.  Official time.
 
          (a) Any employee representing an exclusive representative in
       the negotiation of a collective bargaining agreement under this
       (Statute) shall be authorized official time for such purposes,
       including attendance at impasse proceedings, 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.
 
                                .  .  .  .
 
          (d) Except as provided in the preceding subsections of this
       section--
 
          (1) any employee representing an exclusive representative, or
 
          (2) in connection with any other matter covered by this
       (Statute), any employee in an appropriate unit represented by 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/ It is noted that the parties at the national level were still in
 the process of negotiating for a master agreement when the facts in this
 case arose.  It is noted further that management's Columbus
 representative had questioned whether "negotiations" were necessary at
 all, and directly challenged the necessity of the employees' travel to
 Columbus.
 
 
    /5/ Moreover, the Authority notes that the employees in question
 would not have been entitled to travel and per diem under section
 7131(a) of the Statute in any event.  Bureau of Alcohol, Tobacco and
 Firearms v. FLRA, 104 S.Ct. 439 (1983).
 
 
    /6/ In view of this disposition, the Authority finds it unnecessary
 to rule on any of the Judge's other related findings.
 
 
    /7/ These findings are based on Mr. Carter's testimony which I fully
 credit on the basis for his demeanor and his memory.  Although there
 were some discrepancies between this testimony and that of Messrs. Stell
 and Doherty, I credit his version because their memories of these events
 were not as certain and nothing in their testimony impeached Mr.
 Carter's.
 
 
    /8/ These events are, again, constructed from Mr. Carter's testimony.
  Mr. Stell's testimony was internally contradictory, his memory was not
 clear, and he was nervous on the stand.
 
 
    /9/ 5 U.S.C. 7103(a)(2).
 
 
    /10/ 5 U.S.C. 7103(a)(3).
 
 
    /11/ 5 U.S.C. 7103(a)(16).
 
 
    /12/ Official time includes travel and per diem.  See e.g., Florida
 National Guard, 5 FLRA No. 49 (1981).
 
 
    /13/ Legislative History of the Federal Service Labor-Management
 Relations Statute, Title VII of the Civil Service Reform Act of 1978,
 Committee Print No. 96-7, Committee