19:1054(122)CA - VA, VA Medical Center, Muskogee, OK and AFGE Local 2250 -- 1985 FLRAdec CA



[ v19 p1054 ]
19:1054(122)CA
The decision of the Authority follows:


 19 FLRA No. 122
 
 VETERANS ADMINISTRATION
 VETERANS ADMINISTRATION MEDICAL
 CENTER, MUSKOGEE, OKLAHOMA
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2250, AFL-CIO
 Charging Party
 
                                            Case Nos. 6-CA-399 
                                                      6-CA-567 
                                                      6-CA-577 
                                                      6-CA-802 
                                                      6-CA-804 
 
                          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 alleged in the consolidated complaint,
 and recommending that it be ordered to cease and desist therefrom and
 take certain affirmative action.  The Judge found that the Respondent
 had not engaged in other unfair labor practices alleged in the
 consolidated complaint, and recommended dismissal of those portions of
 the consolidated complaint.  Thereafter, the Respondent filed
 exceptions, the General Counsel filed cross-exceptions, /1/ and the
 Respondent filed an opposition to the General Counsel's
 cross-exceptions.
 
    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
 entire record in these cases, the Authority hereby adopts the Judge's
 findings, conclusions and recommendations only to the extent consistent
 herewith.
 
    In Case No. 6-CA-399, the Judge found that the Respondent violated
 section 7116(a)(1), (5) and (8) of the Statute /2/ by conducting a
 meeting with bargaining unit employees which was a formal discussion
 within the meaning of section 7114(a)(2)(A) of the Statute /3/ on
 January 2, 1980, and bypassing the Union by announcing a change in
 working conditions regarding the use of official time for union stewards
 and officers at that formal meeting without providing the Union with
 prior notice and the opportunity to be present.  The Authority does not
 adopt his conclusion that the Respondent violated section 7116(a)(1) and
 (8) of the Statute by failing to provide the Union advance notice of,
 and the opportunity to be represented at, the meeting alleged to be a
 formal discussion.
 
    The Authority concludes that actual representation by an exclusive
 representative at a formal discussion is sufficient to demonstrate
 compliance with the requirement of section 7114(a)(2)(A) of the Statute
 that such an exclusive representative "be given an opportunity to be
 represented." /4/ Neither section 7114(a)(2)(A) nor its legislative
 history supports a conclusion that Congress intended that a union
 representative must be given notification of a formal discussion in
 advance, specifically in his or her capacity as a union official.  /5/
 It is necessary, in the language of the Statute, only that an exclusive
 representative "be given the opportunity to be represented." Here, the
 exclusive representative was in fact represented at the formal
 discussion by its president, its third vice president and its steward,
 although they had not been notified in their capacities as union
 officials but rather as employees.  /6/ Thus, the Union had the
 opportunity to be represented and therefore no violation of section
 7116(a)(1) and (8) has been established.  /7/ Of course, when an agency
 fails to notify union officials of a formal discussion, it does so at
 its peril.  If union representatives do in fact attend, no violation
 will be found and no inquiry will be made concerning how such
 representatives received notice of or happened to be in attendance at
 the meetings.  However, if no union representatives are present at the
 formal discussion, the question of whether they were afforded adequate
 notice and an opportunity to be present would need to be resolved, and a
 finding that no such notice was given to the union's representatives
 would lead to a conclusion that the agency violated section 7116(a)(1)
 and (8) of the Statute if all of the other elements set forth in section
 7114(a)(2)(A) of the Statute were satisfied.  /8/
 
    The Authority also disagrees with the Judge's conclusion that the
 meeting constituted a bypass of the Union in violation of section
 7116(a)(1) and (5) of the Statute.  In so finding, the Authority notes
 particularly that there is no evidence that management attempted to deal
 or negotiate directly with employees on matters properly bargainable
 with their representatives.  See Internal Revenue Service (District,
 Region, National Office Units), 19 FLRA No. 48 (1985);  Department of
 Health and Human Services, Social Security Administration, 19 FLRA No.
 56 (1985).
 
    The Authority adopts the Judge's findings in Case Nos. 6-CA-567 and
 6-CA-577 that a past practice of allowing Union officers to use official
 time at their discretion was established at the facility prior to the
 January 2, 1980 meeting, after which Union officers were required to
 obtain permission from supervisors in order to take official time, in
 the same manner required of union stewards under the parties' negotiated
 agreement.  Accordingly, the Respondent's unilateral change in policy
 without affording the Union notice and an opportunity to bargain
 concerning that proposed change in established practice violated section
 7116(a)(1) and (5) of the Statute.  Social Security Administration, 13
 FLRA 112 (1983).  Furthermore, the Respondent violated section
 7116(a)(1) and (5) of the Statute when it implemented this policy by not
 authorizing official time for Union Vice President White while he was
 engaged in representing unit employees in pending grievances, meeting
 with Respondent's representatives on labor-management business, or
 otherwise involved in representational responsibilities on behalf of the
 exclusive representative, and by placing Union President Hawpe and White
 in AWOL status while they were engaged in such representational duties
 on or about May 15 and September 2, 1980, respectively.  With regard to
 the Judge's recommended remedy to make whole employees Hawpe and White
 for the periods of time on May 15 and September 2, 1980, respectively,
 when they were placed on AWOL status while performing representational
 duties, the Authority has held such a remedy appropriate under the Back
 Pay Act, 5 U.S.C. 5596, when "but for" an unjustified or unwarranted
 personnel action the employee would not have suffered a loss or
 reduction in pay, allowances, or differentials.  Department of the Air
 Force, Air Force Systems Command, Electronic Systems Division, 14 FLRA
 390 (1984).  It is clear that under the practice which existed before
 the Respondent unilaterally changed the method of allowing Union
 officers to use official time while performing representational duties,
 Hawpe and White advised the Respondent when they were going to utilize
 official time, and the request was never challenged.  The unilateral
 change in that established practice required Hawpe and White to request
 official time and the Respondent to approve or deny the request.  When
 such requests were rejected and Hawpe and White attempted to utilize
 official time nonetheless, they were placed on AWOL status and thereby
 suffered a reduction in pay.  Thus, "but for" the Respondent's unlawful
 unilateral change in the established practice concerning use of official
 time for representational duties performed by employees on behalf of the
 exclusive representative, such loss or reduction in pay would not have
 been suffered, and the Authority therefore adopts the Judge's
 recommended make whole remedy.
 
    In Case No. 6-CA-804, the Judge concluded that the question of
 Vice-President White's entitlement to a representative of his own
 choosing is a matter involving an interpretation and application of the
 parties' collective bargaining agreement, and dismissed the allegation
 that the Respondent violated the Statute by preventing him from making
 such a choice.  The Authority adopts this conclusion, noting
 particularly that even if the Respondent's action in this regard were
 more than a differing and arguable interpretation of the contract, a
 single instance of failure or refusal by a party to comply with a
 contractual provision does not under the Statute constitute a rejection
 of the collective bargaining agreement in violation of section
 7116(a)(1) and (5) of the Statute.  See, e.g., Federal Aviation
 Administration, Alaskan Regional Office, 7 FLRA 164 (1981).  See also
 Internal Revenue Service and Internal Revenue Service, Detroit District,
 12 FLRA 445 (1983);  Harry S. Truman Memorial Veterans Hospital,
 Columbia, Missouri, 11 FLRA 516 (1983);  U.S. Customs Service, Region
 VII, Los Angeles, California, 10 FLRA 251 (1982);  Kaiserslautern
 American High School, Department of Defense Dependents Schools, Germany
 North Region, 9 FLRA 184 (1982).  Accordingly, the section 7116(a)(1)
 and (5) allegations of the complaint are dismissed.  /9/ Furthermore,
 the Authority adopts the Judge's conclusion in Case No. 6-CA-804 that
 the Respondent did not violate section 7116(a)(1) and (2) of the Statute
 /10/ by charging White as AWOL while he was representing an employee in
 another bargaining unit, noting particularly the absence of evidence
 that such action by the Respondent constituted disparate treatment or
 was discriminatorily motivated.
 
    Noting particularly the absence of timely exceptions thereto, the
 Authority adopts the Judge's conclusion in Case No. 6-CA-802 that the
 Respondent met its statutory obligation to bargain regarding the
 relocation of conduit pipes.  Accordingly, the allegations raised in
 Case No. 6-CA-802 are dismissed.
 
 
                                       Henry B. Frazier III, Acting
                                       Chairman
 
 
 
    Concurring Opinion of Member McGinnis:
 
    I concur with the rationale and conclusion of this decision.
 However, in reviewing compliance with the section 7114(a)(2)(A) rights
 of a majority representative (i.e., to "be given an opportunity to be
 represented" at "formal discussions" as defined by the Statute and case
 law), I place primary emphasis on management's right to control the
 scope of such meetings.  The nature of the majority representative's
 right to be represented at a formal discussion is inextricably
 intertwined with the scope of the meeting as determined by management.
 
    As the Authority has previously noted, "formal discussions" under
 section 7114(a)(2)(A) can encompass a broad range of conduct.  Indeed,
 the term "discussions" can be misleading;  the Authority has held that a
 formal meeting called by management for the sole purpose of making an
 announcement is a "discussion" implicating section 7114(a)(2)(A) rights.
  Department of Defense, National Guard Bureau, Texas Adjutant General's
 Department, 149th TAC Fighter Group (ANG) (TAC), Kelly Air Force Base,
 15 FLRA No. 111 (1984).  On the other hand, management could conduct a
 "formal discussion" with employees encompassing actual dialogue between
 management and employees in a controlled setting.
 
    It follows that the majority representative's right to "be given an
 opportunity to be represented" at a "formal discussion" is necessarily
 tied to the scope of the actual meeting conducted.  That is, when
 management determines to make a formal announcement to employees,
 implementing a management right, the majority representative's right to
 "be given an opportunity to be represented" is limited to the right to
 be present.  No discussion need take place, even if the majority
 representative desires it.  Should management open a "formal discussion"
 to active dialogue between employees and management, the individual(s)
 representing the majority representative, upon proper identification,
 can also participate in such dialogue.  In either case, the statutory
 framework enables participation by the majority representative analogous
 to, but not greater than, participation rights afforded to unit
 employees by management in the formal discussion.
                                       William J. McGinnis, Jr., Member
 
    Having found that the Respondent failed to meet its obligations under
 the Statute in connection with certain allegations of the consolidated
 complaint, and having further found that other allegations of the
 consolidated complaint have not been established, the Authority shall
 issue the following order:
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Statute, the
 Authority hereby orders that the Veterans Administration, Veterans
 Administration Medical Center, Muskogee, Oklahoma, shall:
 
    1.  Cease and desist from:
 
    (a) Unilaterally instituting changes in an established practice with
 respect to the use of official time by unit employees serving as Union
 officers to engage in representational duties on behalf of the exclusive
 representative without providing notice to, and upon request bargaining
 with, American Federation of Government Employees, Local 2250, AFL-CIO,
 the exclusive representative of its employees, or any other exclusive
 representative.
 
    (b) In any like or related manner interfering with, restraining or
 coercing its employees in the exercise of their rights assured by the
 Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Upon request, meet and negotiate with the American Federation of
 Government Employees, Local 2250, AFL-CIO, the exclusive representative
 of its employees, with regard to any changes in established practices
 concerning the use of official time by unit employees serving as Union
 officers to engage in representational duties on behalf of the exclusive
 representative, and the implementation of any such changes, at the
 Muskogee, Oklahoma facility.
 
    (b) Make whole employees Esten Hawpe and Eugene White in accordance
 with the Back Pay Act, 5 U.S.C. 5596 (Supp. III 1979) for any loss of
 pay or other benefits they suffered on or about May 15 and September 2,
 1980, respectively, when they were placed on AWOL status while
 performing representational duties on behalf of the exclusive
 representative, American Federation of Government Employees, Local 2250,
 AFL-CIO.
 
    (c) Post at its Veterans Administration Medical Center, Muskogee,
 Oklahoma facility 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 the Director, or a designee, and shall be posted
 and maintained for 60 consecutive days thereafter, in conspicuous
 places, including bulletin boards and other places where notices to
 employees are customarily posted.  Reasonable steps shall be taken to
 insure 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, Region VI, Federal Labor
 Relations Authority, 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 those allegations of the consolidated
 complaint found unsupported herein be, and they hereby are, dismissed.
 
 Issued, Washington, D.C., August 30, 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 unilaterally institute changes in an established practice
 with respect to the use of official time by unit employees serving as
 Union officers to engage in representational duties on behalf of the
 exclusive representative without providing notice to, and upon request
 bargaining with, American Federation of Government Employees, Local
 2250, AFL-CIO, the exclusive representative of our employees, or any
 other exclusive representative.  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, upon request, meet and
 negotiate with the American Federation of Government Employees, Local
 2250, AFL-CIO, the exclusive representative of our employees, with
 regard to any changes in established practices concerning the use of
 official time by unit employees serving as Union officers to engage in
 representational duties on behalf of the exclusive representative, and
 the implementation of such changes, at the Muskogee, Oklahoma facility.
 WE WILL make whole employees Esten Hawpe and Eugene White in accordance
 with the Back Pay Act, 5 U.S.C. 5596 (Supp. III 1979) for any loss of
 pay or benefits they suffered on or about May 15 and September 2, 1980,
 respectively, when they were placed on AWOL status while performing
 representational duties on behalf of the exclusive representative,
 American Federation of Government Employees, Local 2250, AFL-CIO.
                                       (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 VI,
 Federal Labor Relations Authority, whose address is:  525 Griffin
 Street, Suite 926, Dallas, Texas 75202, and whose telephone number is:
 (214) 767-4996.
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case Nos. 6-CA-399, 6-CA-567,
                                                 6-CA-577,
                                                 6-CA-802, 6-CA-804
 
    Robert M. James and
    Roy H. Wells, Esqs.
       For the Respondent
 
    Susan E. Jelen and
    Elizabeth Martinez, Esqs.
       For the General Counsel
 
    Karla Mann
       For the Charging Party
 
    Before:  ELI NASH, JR.
       Administrative Law Judge
 
                                 Decision
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101
 et seq. (hereinafter referred to as the Statute) and the Rules and
 Regulations of the Federal Labor Relations Authority, 5 C.F.R.Chapter
 XIV, Sec. 2410 et seq.  In December 1980, the Regional Director for
 Region 6 of the Federal Labor Relations Authority, (herein called the
 Authority) pursuant to charges originally filed by the American
 Federation of Government Employees, Local 2250 (herein called the union)
 issued an Amended Order Consolidating Cases, Consolidated Complaint and
 Notice of Hearing /11/ alleging that the Veterans Administration,
 Veterans Administration Medical Center, Muskogee, Oklahoma (herein
 called the respondent) engaged in unfair labor practices within the
 meaning of section 7116(a)(1), (2), (5), and (8) of the Statute by
 refusing to negotiate with the union by unilaterally implementing new
 procedures concerning the use of official time by union officers without
 affording it an opportunity to bargain;  refusing to negotiate in good
 faith by unilaterally implementing new procedures concerning the amount
 and use of official time granted to the union's president, without
 affording it an opportunity to bargain;  refusing to negotiate in good
 faith with the union by unilaterally implementing new procedures
 concerning the amount and use of official time granted to a union
 vice-president, without affording it an opportunity to bargain;  and
 refusing to negotiate in good faith by unilaterally changing the terms
 of an agreement concerning the relocation of conduit pipes at the
 facility without affording the union notice or an opportunity to
 bargain.
 
    Respondent filed an Answer denying all the allegations of the
 Consolidated Complaint.
 
    A hearing in this matter was conducted before the undersigned in
 Muskogee, Oklahoma.  All parties were represented by counsel and were
 afforded full opportunity to be heard, to examine and cross-examine
 witnesses, to introduce evidence and to argue orally.  Also all parties
 filed timely briefs.
 
    Based upon the entire record in this matter, including my observation
 of the witnesses and their demeanor, and upon my evaluation of the
 evidence, I make the following findings, conclusions, and
 recommendations.
 
                             Findings of Fact
 
    A. Background
 
    The union at all times material herein, has been the exclusive
 bargaining representative for an appropriate unit of employees at
 Respondent's Muskogee, Oklahoma facility.  The respondent and the union
 have been parties to a collective bargaining agreement since October 24,
 1972 which agreement was amended around February 25, 1974.  Sometime in
 1979 the parties began negotiating a new collective bargaining
 agreement, however, they reached impasse on several issues.  At the time
 of the hearing, national level negotiations between the Veterans
 Administration and the union were being conducted.
 
    The collective bargaining agreement previously mentioned sets forth
 the criteria under which union stewards at the facility receive official
 time to perform various representational duties.  Article X, Section 3
 states:
 
          Should it be necessary for a Union steward to leave his
       assigned work area to investigate complaints, the steward will
       obtain permission from his immediate supervisor prior to his
       leaving.  The steward will advise the supervisor of his reason for
       leaving the jobsite and probable duration.  Unless there are
       compelling circumstances, hospital officials will authorize
       stewards to leave their work area to bring about a prompt
       disposition of a grievance or complaint without loss of pay or
       leave.  The union agrees that stewards will conduct business with
       dispatch.  Prior to discussion with an employee in another work
       area, the steward will report to the immediate supervisor in that
       particular area and state the purpose of his visit.  In each
       instance the supervisor's permission will be granted as soon as
       practicable.  The steward will report back to his supervisor at
       the time he returns to his job.  The same procedure will be
       followed by employees in seeking out and discussing complaints or
       grievances with stewards in their designated areas.
 
 However, the use of official time for union officers, which is in
 question here, is not specifically addressed in the collective
 bargaining agreement.  According to the testimony of several union
 officers, the procedure outlined in the collective bargaining agreement
 for stewards, did not apply to officers and union officers did not
 follow that procedure when taking official time.  Instead, Esten Hawpe
 local union president and a former union steward, /12/ testified that
 prior to January 1980, as an officer of the union, he merely informed
 his supervisor that he was going on labor management business.  Hawpe
 states that when informing his supervisor that he was taking official
 time he was not requesting permission to take official time but, rather
 he was informing his supervisor as a courtesy;  he did not tell the
 supervisor the nature of the labor-management business and did not take
 official time for internal union business;  he did not estimate the time
 he would need on official time or report to his supervisor when he
 returned;  and, if the supervisor was not in the area when he needed to
 take official time, Hawpe would inform the supervisor that he had been
 on official time when he returned to work.
 
    According to Hawpe, former union president Leo Woodard, had also
 taken official time in the same manner and that in Hawpe's presence,
 Woodard had informed his supervisor that he was going on
 labor-management business.  Former president Woodard also testified that
 he informed supervisors that he was taking official time as a courtesy
 and not to beg permission.  According to the testimony of both Hawpe and
 Woodard, Woodard never had problems with the use of official time.
 However, this could have been because Woodard worked a rotating shift
 and often delegated authority concerning representational duties to
 other union personnel.  Considering the nature of the work and certain
 emergencies attendant to the job, Woodard admits that there were certain
 times when arrangements "to turn you loose" had to be made.
 
    Contrary to the testimony of union officers, supervisor Myrl Goad,
 the facilities foreman, stated in a deposition that the policy was that
 both union officers and stewards had to ask for labor-management time
 from their respective supervisors.  Goad stated, it was his
 understanding that Garland Olinger, who was Hawpe's immediate
 supervisor, also followed the policy of requiring both officers and
 stewards to request time.  However, Goad did admit that he was never
 present when Olinger was involved in granting official time and that he
 was, not aware of the method used by Hawpe in taking official time.
 
    J. Eugene White, a union vice-president testified that prior to
 January 1980, in his capacity as a union officer, he used official time
 to conduct labor-management business and that he merely notified his
 supervisor and would then take the official time when needed.  White
 like Hawpe states that he did not request permission from his supervisor
 or inform his supervisor of the nature of the labor-management business,
 but was allowed to take official time without question by his
 supervisor.  White's immediate supervisor, Doyle Stiles testified that
 White requested permission to take labor-management time and that Stiles
 granted the time whenever possible.
 
    B.  Formal Meeting
 
    Sometime during the last week of December 1979, Facilities Foreman,
 Engineering Services, Myrl Goad informed a unit employee Joe Grayson,
 who worked as a pipefitter in the plumbing shop, that there was going to
 be a meeting with everyone in the shop on the following Monday.
 According to Grayson, Goad told him that there were going to be some
 changes that some of the employees would like and some that they would
 not.
 
    The following Monday, January 2, 1980, Goad held a meeting with
 approximately 12 employees from the carpentry, plumbing, electrical, and
 paint shops.  Foreman Goad and Doyle Stiles, Carpentry Foreman,
 Engineering Services were present as management representatives.  Esten
 Hawpe, union president, Eugene White, third vice-president, and William
 Marler, a union steward, were all present at the meeting but, in their
 capacity as unit employees rather than representatives of the union.
 Hawpe was a pipefitter, White was a carpenter, and Marler was an
 electrician.  The union was not notified that the meeting was to take
 place or of its purpose.  According to Goad, the purpose of the meeting
 was to emphasize existing personnel policies and regulations regarding
 tardiness and arranging for labor-management time by stewards and
 officers of the union.
 
    The meeting began with Goad stating that he had been chewed out the
 week before.  It is not clear from the record who "chewed" out Goad.
 Goad stated that from now on the supervisors were going to have to know
 where their employees were at all times and that, "if the supervisor
 cannot find you, you will be placed on AWOL (absent without leave)."
 Goad also stated that employees were spending too much time on breaks
 and in the canteen.
 
    Concerning official time, Goad told the employees that union officers
 and stewards could not spend so much time as they had spent in the past
 on official time.  Goad warned that they would now have to notify their
 supervisor of where they were going and how much time they would need.
 The supervisor would then let them know if they could be released.  He
 added that, if union officers on official time needed more time, they
 would be required to call their supervisor and request the additional
 time.  Further, he stated that official time would be allowed only in
 increments of one or two hours.  President Hawpe asked if the announced
 policy applied to union officers as well as stewards.  Goad responded
 that, he did not care whether the employee was an officer or not.  If
 official time was needed they would have to ask for it.  Hawpe requested
 this new policy in writing and Goad said he would get it.  Goad also
 stated that this policy came from "higher up".  The union never received
 any written notification policy in writing.
 
    C. Official Time for Union Officers
 
    On January 14, 1980, Hawpe and White met with the new Chief,
 Engineering Service, Ron Richter, at Richter's request.  The purpose of
 this meeting was to discuss a safety matter, but after they had finished
 discussing safety, Richter indicated that he was not happy with the way
 the union officers used official time without asking permission and
 without being under the same restrictions as stewards.  Hawpe answered
 that most of the official time used by officers was as a result of
 requests by management.  Hawpe further stated that respondent could make
 proposals concerning official time for union officers to the union and
 they could negotiate.  However, the union never received any proposals
 from respondent regarding official time.
 
    Around April 24, 1980, Richter requested another meeting with union
 president Hawpe.  The purpose of this meeting according to Hawpe was for
 Richter to inform Hawpe that if he did not work under the restrictions
 of the collective bargaining agreement placed on stewards, he would be
 placed in AWOL status by Richter.  Present at the meeting were Hawpe;
 Karla Mann, the union's second vice-president;  Tommy Jackson, chief
 steward;  Richter;  Larry Deal, a personnel officer;  and Billy Loftin,
 a personnel management specialist.  Richter told Hawpe that from this
 point on, Hawpe was to request permission to leave the worksite.
 Richter instructed Hawpe to tell his supervisor the nature of the
 business and to report back to the supervisor when he returned to the
 worksite.  Hawpe requested that the announced policy be placed in
 writing, but both Richter and Deal refused to do so.  During the
 meeting, only Hawpe's use of official time and the method he was to use
 in requesting it were discussed.  No other union officers were
 mentioned.
 
    Following the above meeting, on April 24, 1980, Hawpe sent a letter
 to Richter requesting that:
 
          In order for Union officers in Engineering Service to abide by
       your decision regarding the use of official time, it is requested
       that you provide to the Local in writing your specific
       requirements and proposed changes in this regard.
 
 The union received no response to this letter.
 
    A few days after the above meeting, sometime around May 5, 1980,
 Hawpe informed his immediate supervisor Olinger that he was leaving on
 labor-management business.  Olinger told Hawpe that he could not let him
 leave without checking with Myrl Goad.  According to Hawpe, Goad would
 then apparently check with Bill Cockerill, Assistant Chief, Engineering
 Service, Cockerill would then make the decision as to whether Hawpe
 could receive official time and would tell Goad.  Goad in turn would
 tell Olinger, who would then let Hawpe know if Hawpe could leave or not.
  Olinger told Hawpe that this was a procedure to begin that day and that
 he had been told to keep Hawpe out of the union office.  According to
 Hawpe, on previous occasions when Hawpe had requested official time
 Olinger had not consulted anyone to see whether Hawpe would be allowed
 to take the time.
 
    In his deposition Goad denies that he ever told Olinger to clear
 Hawpe's official time.  However, Goad admits that Olinger did call him a
 few times about letting Hawpe take official time.  Goad also states that
 Richter instructed him to restrict Hawpe's labor-management time since
 he thought Hawpe was spending too much time on labor-management
 business.  Goad was told to keep Hawpe's use of official time down as
 much as they could.  These instructions were communicated by Goad to
 Hawpe's supervisor Olinger.
 
    On or about May 5, an employee in the engineering department, Lester
 Rouse, sought to consult with Hawpe concerning settlement of a pending
 grievance.  Following Richter's instructions, Hawpe requested official
 time from Olinger.  Olinger contacted Goad and Hawpe's request was
 denied.  Olinger told Hawpe he could meet with Rouse in the afternoon,
 however.  Rouse made a regular trip to Tulsa as part of his duties, and
 was gone in the afternoon thereby no meeting between Hawpe and Rouse was
 possible on that day.
 
    The following day, on May 6, 1980, the union requested a meeting with
 the Medical Center Director Floyd McNair.  Chief Steward Tommy Jackson
 arranged the meeting to discuss the use of official time and the new
 procedure which Hawpe was to use.  When Hawpe informed Olinger that he
 had to leave the jobsite to meet with the Director, Olinger refused to
 allow Hawpe to leave.  Olinger told Hawpe that they did not want him
 taking care of union business.  Jackson upon learning of this, requested
 McNair have Hawpe attend the meeting, but McNair refused to override the
 supervisor.  Jackson, therefore, declined to discuss Hawpe's use of
 official time and the meeting was never held.
 
    Hawpe allegedly encountered other difficulties concerning his use of
 official time during this period.  On one occasion Hawpe was allowed
 official time by his supervisor, but when he got to the union office, he
 was told to return to the shop.  Hawpe asked if there was an emergency,
 indicating he would go to that location immediately.  Olinger replied
 that there was no emergency, but Cockerill and others wanted Hawpe out
 of the union office.  Hawpe returned to the shop, but was allowed to
 take care of the labor-management business later that day.  Hawpe
 further testified that on other occasions he was told by his supervisor
 that he would know at 2:00 if official time could be granted to Hawpe
 however, the supervisor would not know at the designated time whether
 Hawpe could take official time, thereby causing further delay.
 
    Sometime in early May 1980, Hawpe and Jackson met with the Medical
 Center Director McNair and Larry Deal to discuss the problems union
 officers were having concerning their use of official time.  McNair was
 asked why he was allowing the service chiefs to ignore the provisions of
 the collective bargaining agreement.  Hawpe explained there were no
 procedures negotiated for the use of official time by union officers.
 McNair allegedly agreed that there was no established procedure and that
 in the past union officers had used what time they needed.  McNair asked
 if the union would agree to negotiate on the official time issue.  Hawpe
 responded that the union would never refuse to negotiate.  Larry Deal
 then asked if the union would propose something.  Hawpe refused, saying
 the union was satisfied but, that it would not refuse to negotiate if
 respondent made a proposal.  No proposals were ever received from
 respondent.
 
    On or around May 15, Nurse Donna Burkybile requested that Hawpe
 represent her in a settlement discussion regarding a grievance she had
 filed, since her regular representative was unavailable.  Hawpe
 requested and was granted official time to attend the meeting from
 Foreman Goad.  Before the meeting, Goad told Hawpe that he could not
 leave to represent Burkybile as requested.  Goad explained there was no
 emergency, but that Richter had stated he would put Hawpe on AWOL if he
 left to represent Burkybile.  Hawpe represented the employee at the
 scheduled meeting and was placed on AWOL status for the hour that he was
 gone.
 
    A similar incident occurred on or around September 2, 1980, when
 White, then a union third vice-president, needed official time to
 respond to a management proposal regarding tours of duty for certain
 unit employees.  White notified his supervisor, Stiles that he would be
 taking official time.  Stiles responded that due to the workload, he
 could not allow White to go.  White told Stiles that the collective
 bargaining agreement was silent on union officers and he needed the time
 to take care of union business.  White then went to the union office to
 work for one hour.  The following day he was charged one hour AWOL and
 docked one hour on his paycheck.
 
    D.  Union Representation and Official Time to Represent An Employee
 in Another Unit
 
    On September 3, 1980, White received a call from Richter informing
 him of a meeting on September 4, at which he would receive a letter of
 counseling.  White had chosen O. D. Sanders, a national AFGE
 representative from Norman, Oklahoma, to be his representative at this
 meeting.  Article XII of the collective bargaining agreement concerning
 matters which may lead to disciplinary actions against an employer
 states, "he must be advised . . . of his right to be represented by the
 Union or any other person of his choice." By letter dated September 3,
 1980, White requested that the meeting be postponed until September 10
 when his representative would be available.  Richter postponed the
 meeting until September 8, but declined to postpone it any further.  At
 the scheduled meeting on September 8, White and Chief Steward Jackson
 were present.  Jackson allegedly was present to represent the union and
 not to represent White individually.  Jackson protested that White's
 personal representative was not present and that Richter was therefore
 denying White's right to a representative of his own choice as stated in
 the collective bargaining agreement.  Nevertheless, Richter proceeded to
 read White's letter of counseling and presented the letter to White.  At
 that time, Richter also verbally counseled White on his use of official
 time.
 
    In addition to being a local union officer, White was District
 President for the National Veterans Administration Council in which
 capacity, White serviced a district covering the states of Kansas,
 Missouri, Oklahoma, and Arkansas.  On two previous occasions White had
 represented an employee at the Veterans Administration in Fayetteville,
 Arkansas, at the employee's request.  White informed his supervisor of
 the absences stating that he would be on official time the two days he
 was absent from work.  However, White was placed on AWOL status for both
 occasions by Respondent, resulting in a total loss of 15 hours from his
 paycheck.  Further, as already noted White was reprimanded on September
 4, 1980 by Richter for representing the employee in Fayetteville.
 
    E.  Conduit Pipes
 
    In approximately March 1979, White, as union safety representative
 received complaints from engineering employees regarding some conduit
 pipes located in the sub-basement of C-Wing of the facility.  The pipes
 involved were located in a walk area where engineering employees
 occasionally worked.  The pipes were mounted with pieces of unistrut
 with sharp edges that were approximately chest high.  The union
 considered the pipes hazardous to personnel who could be working in the
 area.  The area involved also contained steam lines which could impair
 visibility because of steam leakage.  White notified Hawpe, who brought
 up the safety hazard matter at the March 29, 1979 monthly
 union-management meeting.  At that meeting, Director McNair, promised to
 investigate the situation.
 
    On April 2, 1979, McNair wrote Leo Woodard, then union president, and
 stated:
 
          The Resident Engineer has been informed about the pipe and
       conduit in the sub-basement of C-wing.  The relocation of the
       pipes in this area will be included as a completion item in the
       contract.  This means that the contractor will not be paid for the
       job until these items are relocated to our satisfaction.
 
    During an official safety and fire protection survey at the facility
 around mid-September 1980, the District Safety and Fire Protection
 Engineer noted that in the C-Wing sub-basement of Building One was a new
 conduit which presented "a head-bumping hazard." The Safety Engineer
 recommended that the conduit be padded and painted to provide visual
 warning.  Although the Safety Engineer's recommendation was followed and
 the pipes were padded and painted, the union contended that respondent
 had agreed to relocate the pipes and had not done so.  Hawpe went to
 Richter and requested information regarding the completion date of the
 contract which covered the conduit pipes in question.  Richter refused
 to give the completion date, but Hawpe was able to ascertain that the
 contractor had been paid sometime around June 1980.
 
                                Discussion
 
    A. Formal Discussion - 6-CA-399
 
    The evidence is uncontroverted that a meeting was held on January 2,
 1980 and that the subject matter involved was tardiness and use of
 official time for union stewards and officers.  There is no contention
 by respondent that the exclusive representative was not given any
 notification of this meeting or an opportunity to be present.  I agree
 with the General Counsel that Air Force Logistics Command, Newark, Ohio,
 4 FLRA No. 70 is controlling in this matter.  In that case, where the
 union was not notified as the exclusive representative of changes in
 working conditions, the Authority stated:
 
          Thus, the collective bargaining relationship envisaged by the
       Statute requires that each party have the ability to function as
       an equal partner within the relationship.  It follows that each
       party should therefore deal with the other on an equal footing.
 
    In this matter, although three union officials were part of the unit
 and worked under the supervision of Foreman Goad none of these officers
 was informed of the meeting or of its subject matter.  Nor were they
 allowed to participate in the meeting as union representatives.  Such a
 meeting, obviously held to discuss working conditions and without giving
 notice to union officials as union representatives clearly impeded its
 ability to perform as an equal partner with activity management.
 
    Respondent's argument is that the meeting was not a formal discussion
 within the meaning of section 7114(a)(2)(A), but merely a reaffirmation
 of the existing policy on tardiness, absence, and leave.  Respondent
 further contends that union officers were present.  The latter argument
 is rejected since the evidence shows that union officers were not
 notified of this meeting in their capacity as union representatives, but
 attended the meeting as employees.  As to the former argument, the
 matters discussed in this meeting involved working conditions of the
 employees involved and supervisor Goad announced changes in the manner
 in which union officers would be allowed to take official time for union
 business and representational duties at the facility.  Such action in
 holding a meeting to announce changes in working conditions and
 precluding participation by the collective bargaining representative
 constitutes a violation of the Statute.
 
    It is therefore, found that, respondent's action herein constitutes a
 bypass of the union by not giving it notification or an opportunity to
 be present at a formal discussion where certain changes in working
 conditions of its employees were announced, is in violation of section
 7116(a)(1), (5), and (8) of the Statute.
 
    B.  New Procedures Concerning Use of Official Time By Union
 Officers-- 6-CA-567 and 6-CA-577
 
    1.  Generally
 
    The use of official time for representational activities of an
 exclusive representative is subject to bargaining by the parties.  See
 Department of the Navy, Naval Underwater Systems Center, Newport Naval
 Base, 3 FLRA No. 64 (1980).  Further, established terms and conditions
 of employment, may not be altered by either party absent agreement or
 impasse following good faith bargaining.  In my view, the actions of the
 parties concerning use of official time by union officers constituted
 the establishment by past practice of a term or condition of employment.
 
    Beginning in the fall of 1979, the need for official time apparently
 increased dramatically at the facility.  At that same time, union
 president Hawpe was in light duty status and performing very little, if
 any, pipefitting work.  Further, the union was taking the position that
 its officers were entitled to the same time for labor-management
 relation as management agents.  In all these circumstances, it is no
 wonder that Engineering Chief Richter became concerned with the amount
 of time being used by union officials in this shop and it would not be
 unreasonable to assume from this record that management made certain
 efforts to curb the use of official time, particularly use of such time
 by then union president Hawpe.
 
    I credit union witnesses that prior to 1980, union officers did not
 follow the provisions of Article X of the contract when taking official
 time to perform representational duties.  I further credit union
 officers that they merely informed their supervisors as a courtesy that
 they were taking official time and were not questioned by supervisors
 regarding use of such time, and that union officers were not alloted
 official time in hourly increments.  In fact, the record demonstrates
 that a rather lax policy was employed in granting official time to union
 officers specifically those in the Engineering Service.  Thus, it
 appears that a past practice of allowing unfettered usage of official
 time to union officers existed at the facility prior to January 1980.
 The changes announced on January 2, 1980 meeting unilaterally altered
 that past practice since union officers were then required to wait for
 approval of official time, take that official time in increments of one
 or two hours and to basically follow the provisions of Article X of the
 collective bargaining agreement concerning union stewards, even though
 union officers had not been required to follow such procedures when
 performing official union business at the facility prior to that time.
 
    It is further noted that the parties collective bargaining agreement
 contains no provision for use of official time by union officers.  Prior
 to January 1980, at least the union was operating under the assumption
 that its officers were free to use official time without so requesting.
 Management did nothing to disavow this notion until a new service chief
 attempted to apply a provision in the contract which the parties had not
 previously applied.  It is clear from the record and the credited
 testimony of union officers that both parties recognized a distinction
 between officers and stewards for official purposes.  Thus, in my view a
 practice of allowing union officers to use official time at their
 discretion was established at the Muskogee facility.  If indeed, Richter
 suspected abuse of use of that time by union officers then disciplinary
 action along those lines should have been initiated.  However, in order
 to change the existing past practice bargaining is required under the
 Statute.  Furthermore, the evidence clearly established that the parties
 had amended the agreement and still had placed no restrictions on union
 officers use of official time.
 
    Respondent maintains that, among other things, Veterans
 Administration policy dictated that local management require union
 officials to obtain permission for official time usage.  While this may
 be true, the record in this matter reveals that such a policy was not
 enforced by respondent until after January 1980 and that prior to that
 time union officers, at least, did not have to obtain permission from
 supervisors in order to take official time to perform official union
 function at the Muskogee facility.
 
    Based on the foregoing, it is found that respondent's unilateral
 announcement which restricted or changed the manner in which union
 officers could use official time and the imposition of different
 criteria for union officers to use official time without affording the
 exclusive representative notice or an opportunity to bargain concerning
 the restrictions constituted a violation of section 7116(a)(1) and (5)
 of the Statute.
 
    2.  Hawpe
 
    The General Counsel contends that president Hawpe as the most visible
 union officer was the primary objective of management's attempts to
 control the use of official time by union officers.  In my view, the
 General Counsel established by a preponderance of the evidence that
 Hawpe's use of official time for representational purposes was
 restricted without notification to or bargaining with the union.  As
 previously stated, Hawpe was on restricted duty status during the
 greater part of 1980 and while it appears that respondent might have
 been somewhat concerned with the fact that he was not able to perform
 his pipefitting duties, it is also clear that respondent was not happy
 with the amount of time consumed by Hawpe in representational activities
 and that the change was directed primarily at him.  The record also
 shows that on two different occasions while Hawpe was on restricted duty
 status and no claim could be made that an emergency or other condition
 existed which would prevent his being released from work, Hawpe was not
 allowed to represent employees, even though requested as their
 representative.  Hawpe under the new procedure was also required to go
 through several levels of supervision to obtain official time and even
 then his requests for official time were sometimes not answered.  The
 record as a whole supports a finding that respondent did implement such
 restrictions on Hawpe's activities as union president without notice to
 a bargaining with the union.  /13/ It is concluded that such
 restrictions on Hawpe's use of official time as a union officer, without
 notice to a bargaining with the union was violative of section
 7116(a)(1) and (5) of the Statute.
 
    3.  White
 
    On September 2, 1980, White, as a union officer requested official
 time to submit a response to management concerning a change in a tour of
 duty.  According to the credited testimony of White, the request was
 made to his supervisor Doyle Stiles in the same manner that he always
 made such requests.  Stiles claimed that White could not be spared, but
 White left asserting that he was required only to inform his supervisor.
  White was charged one hour AWOL.
 
    It is noted that former union president Woodard states that there
 were certain situations in which provisions would have to be made to
 "turn us loose".  I find that this was not one of those occasions and
 that the General Counsel has established by a preponderance of the
 evidence that respondent's refusal to allow White to take official time
 to perform representational duties was violative of the Statute.  Here
 respondent presented no evidence that an emergency situation existed or
 that any other appropriate reason existed for not allowing White to
 pursue his representational duties as a union officer as he had done in
 the past.  In these circumstances, it is found that the General Counsel
 established that Stiles' refusal to allow White official time and
 charging him AWOL for pursuing representational duties as a union
 officer was violative of section 7116(a)(1) and (5) of the Statute.
 
    c.  Denying White a Representative of his Own Choosing-- and Charging
 Him AWOL Because of his Activities on Behalf of the Union 6-CA-804.
 
    The General Counsel contends that White was denied his right to a
 representative of his choice as allowed by Article 12 of the collective
 bargaining agreement.  Without doubt the counseling session, which
 included both a counseling letter and verbal counseling, constituted a
 disciplinary action which entitled White to union representation.
 However, a union representative, Chief Steward White was present during
 the entire meeting.  The General Counsel asserts that Jackson's presence
 did not diminish White's right to his chosen representative since
 Jackson clearly represented the union and not White.  White therefore
 refused to speak during the meeting since he was not represented by
 Sanders, his chosen representative.  Although Richter claimed the
 meeting could not be postponed because of the seriousness of the issue
 and although Steward Jackson was present the General Counsel asserts
 that White's contract rights should have taken precedence since the
 requested postponement was only for two days.  Also it is contended that
 White's choice of Sanders was not unreasonable considering White's
 position in the union and Sanders nearness.  According to the General
 Counsel's theory since Sanders was to be present in Muskogee on
 September 10, 1980, on other matters, he should have been allowed to
 represent White.  Under this rationale the question is not whether White
 was denied a union representative, but whether terms of the contract
 were breached.
 
    It is established that absent a patent breach or lack of good faith
 on a respondent's part, the proper forum to resolve disputes over the
 meaning of provisions contained in a collective bargaining agreement
 would be that which the parties themselves adopted for such a purpose.
 American Federation of Government Employees, AFL-CIO, Local 1661 and
 Department of Justice, Bureau of Prisons, Federal Correctional
 Institution, Danville, Connecticut, 2 FLRA No. 56 (1980);  American
 Federation of Government Employees, AFL-CIO, Local 1917 and United
 States Department of Justice, Immigration and Naturalization Service, 4
 FLRA No. 29 (1980).
 
    In this instance, the question of entitlement to a representative of
 his own choosing is not argued as being a statutory right but rather one
 arising from a contractual term arrived at between the parties.  The
 criteria for establishing whether such a breach is an unfair labor
 practice of course depends on the seriousness of the breach.  In this
 matter, White was clearly not denied union representation because a
 union representative, the Chief Steward was, in fact, present during the
 meeting.  What appears to have occurred was the union's testing of the
 contractual terms and Respondent's insistence that the matter be handled
 expeditiously.  In my view, the refusal to extend the meeting another
 two days was neither patent nor does it establish lack of good faith on
 respondent's part.  Furthermore, it has not been established on this
 record that respondent's interpretation of the clause concerning a
 representative of ones own choosing, would constitute a unilateral
 change in the terms of the contract.  It is therefore, concluded that
 this matter involves an interpretation and application of the parties
 collective bargaining agreement, and must be resolved in a manner
 provided for under that agreement.
 
    The General Counsel also contends that White was charged AWOL for
 representing an employee, on two occasions, in Fayetteville, Arkansas
 "to punish him" for union activities in violation of section 7116(a)(1)
 and (2) of the Statute.  The General Counsel asserts that White was
 placed on AWOL status in retaliation for his having asserted his rights
 as a union representative, that he told his supervisor that he was
 taking official time and that the denial of the time constituted a
 disciplinary action against White.  The General Counsel's reliance on
 Corpus Christi Army Depot, Corpus Christi, Texas, 4 FLRA 80 (1980) is
 misplaced.  In that case the Authority found that a past practice of
 allowing certain usage of time had been established.  In this matter,
 while it has already been found that respondent allowed unfettered usage
 of official time to union officials to perform representational duties
 in the Muskogee unit the record does not support a finding that official
 time was allowed to District union officers to perform such functions or
 that union officers performed such representational duties outside the
 Muskogee unit for which respondent granted official time.  Section
 7131(d)(2) states in pertinent part:
 
       . . . 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 agree to be
       reasonable, necessary and in the public interest.
 
 Under section 7131(d) it is not clear that respondent had any obligation
 to grant White official time to represent an employee outside the
 Muskogee unit.  Nor does the record support a finding that White was
 entitled to such official time under the parties negotiated agreement.
 A review of the agreement between the parties shows that it is silent on
 this matter.  Thus, any entitlement to such time would have to be
 supported by some informal or tacit agreement between the parties.  I
 find that no such agreement existed and that there is no statutory or
 contractual entitlement to use such time.
 
    Accordingly, it is found that respondent's placing White in AWOL
 status did not constitute discrimination against him because of his
 union activities.
 
    D.  The Conduit Pipes-- 6-CA-802
 
    Respondent contends that it has no statutory obligation to bargain
 with the union on expenditure of funds or use of a specific technology
 to correct a safety hazard.  Even if such a statutory obligation exists,
 it is my view that the General Counsel failed to establish by a
 preponderance of the evidence that Respondent refused to bargain over a
 change in the location of conduit pipes.
 
    The record indicates that the parties did indeed discuss safety
 matters concerning the pipes and that respondent agreed not to pay to
 contractor until the "items are relocated to our satisfaction." Further,
 the record reveals that in correcting the safety hazard substantial
 changes were made, including relocation, padding and other safety
 related work on the conduit pipes in question.  Furthermore, the union
 offered no formal proposals concerning the correction of the hazard, but
 relied on the judgment of Director McNair to correct the problem.
 Finally, the contractor was paid.  It is noted, that the Engineering
 Report relied on as indicating a safety hazard in the pipes did not
 require that all pipes be relocated and the safety hazard was corrected
 to the extent that it was possible under the engineering conditions as
 they existed.  While the union may not have been entirely satisfied with
 the relocation and color coding when the work was completed it is clear
 from the record that all of the pipes could not have possibly been
 relocated and the work which was done was apparently, in the best
 judgment of the contractor and respondent, satisfactory since the
 contractor was paid.  In the total circumstances of the case, I find
 that respondent met its obligation, if any, to bargain over the matter.
 /14/
 
    Based on the aforementioned, I find that the record does not
 establish bad faith bargaining on respondent's part over this matter and
 recommend dismissal of the complaint in Case No. 6-CA-802.
 
    Having found that respondent violated section 7116(a)(1), (2), (5),
 and (8) of the Statute as alleged in Cases 6-CA-399, 6-CA-567 and
 6-CA-577, I recommend that the Authority adopt the following Order.
 Having further found that respondent did not violate section 7116(a)(1),
 (2) and (5) it is recommended that the complaint in Cases 6-CA-802 and
 6-CA-804 be dismissed in their entirety.
 
                                   ORDER
 
    Pursuant to 5 U.S.C. 7118(a)(7) and Section 2423.6 of the Rules and
 Regulations, 45 Fed.Reg. 3482, 3510 (1980), it is hereby ordered that
 the Veterans Administration, Veterans Administration Medical Center,
 Muskogee, Oklahoma shall:
 
    1.  Cease and desist from:
 
          (a) Unilaterally instituting changes with respect to usage of
       official time by union officers, without providing notice to, and
       upon request, bargaining with American Federation of Government
       Employees, Local 2250, AFL-CIO, the exclusive representative of
       its employees, or any other exclusive representative.
 
          (b) Dealing directly with unit employees at the Muskogee,
       Oklahoma facility represented by the American Federation of
       Government Employees, Local 2250, AFL-CIO with respect to
       personnel policies and practices or other matters affecting the
       general working conditions of employees at that facility.
 
          (c) Conducting formal discussions between management and unit
       employees, or their representatives, concerning personnel policies
       and practices, or other matters affecting general working
       conditions of employees in the unit, without notifying and
       affording American Federation of Government Employees, Local 2250,
       AFL-CIO, the opportunity to be represented at formal discussions
       between management and employees, as their representative,
       concerning personnel policies and practices, or other matters
       affecting general working conditions of employees in the unit.
 
          (d) In any like or related manner interfering with, restraining
       or coercing its employees of their rights assured by the Statute.
 
    2.  Take the following affirmative action:
 
          (a) Upon request, meet and negotiate only with the American
       Federation of Government Employees, Local 2250, AFL-CIO, the
       exclusive representative of its employees, with regard to
       personnel policies and practices, or other matters affecting the
       general working conditions of employees at the Muskogee, Oklahoma
       facility.
 
          (b) Notify the American Federation of Government Employees,
       Local 2250, AFL-CIO, of and afford it the opportunity to be
       represented at formal discussions between management and unit
       employees, as their representative, concerning personnel policies
       and practices, or other matters affecting general working
       conditions of employees in the unit.
 
          (c) Make whole employees Esten Hawpe and Eugene White for the
       period of time on May 15 and September 2, 1980, respectively when
       they were placed on AWOL status while performing representational
       duties.
 
          (d) Post at its Veterans Administration Medical Center,
       Muskogee, Oklahoma facility 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 the
       Director, and shall be posted and maintained by him for 60
       consecutive days thereafter, in conspicuous places, including
       bulletin boards and other places where notices to employees are
       customarily posted.  The Director shall take reasonable steps to
       insure that such notices are not altered, defaced, or covered by
       any other material.
 
          (e) 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 herewith.
 
                                       ELI NASH, JR.
                                       Administrative Law Judge
 
 Dated:  December 8, 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 THE
 FEDERAL
 LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY OUR
 EMPLOYEES THAT:
 
 WE WILL NOT institute changes concerning the procedures for usage of
 official time by union officers without first notifying the American
 Federation of Government Employees, Local 2250, AFL-CIO and affording it
 the opportunity to bargain concerning the implementation of such changes
 and their impact on adversely affected employees.  WE WILL NOT deal
 directly with unit employees of the Veterans Administration Medical
 Center, Muskogee, Oklahoma represented exclusively by the American
 Federation of Government Employees, Local 2250, AFL-CIO, with respect to
 personnel policies and practices, or other matters affecting the general
 working conditions of employees in the Veterans Administration Medical
 Center, Muskogee, Oklahoma.  WE WILL NOT conduct formal discussions
 between management and unit employees, or their representatives,
 concerning personnel policies and practices or other matters affecting
 general working conditions of employees in the unit, without notifying
 and affording, American Federation of Government Employees, Local 2250,
 AFL-CIO, the exclusive representative of our employees, or any other
 exclusive representative of our employees, the opportunity to be
 represented at such discussions.  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, upon request, meet and
 negotiate in good faith only with the American Federation of Government
 Employees, Local 2250, AFL-CIO, with respect to personnel policies and
 practices, or other matters affecting the general working conditions of
 employees in Veterans Administration Medical Center, Muskogee, Oklahoma.
  WE WILL upon request make whole employees Esten Hawpe and Eugene White
 for periods of time they were denied official time to perform
 representational duties in the Muskogee, Oklahoma facility.
                                       (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 materials.  If employees have any
 question concerning this Notice, or compliance with any of its
 provisions, they may communicate directly with the Regional Director,
 Federal Labor Relations Authority, Region VI, whose address is:  Bryan &
 Ervay Street, Old Post Office Building, Room 450, Dallas, TX 75221;  and
 telephone number is (214) 767-4996.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1A/ Member McGinnis' separate opinion is set forth, infra.
 
 
    /1/ The General Counsel's cross-exceptions were not timely filed and
 have not been considered by the Authority.
 
 
    /2/ Section 7116(a)(1), (5) and (8) 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;
 
                                .  .  .  .
 
          (8) to otherwise fail or refuse to comply with any provision of
       this chapter.
 
 
    /3/ Section 7114(a)(2)(A) provides:
 
          Sec. 7114.  Representation rights and duties
 
                                .  .  .  .
 
          (a)(2) An exclusive representative of an appropriate unit in an
       agency shall be given the opportunity to be represented at--
 
          (A) any formal discussion between one or more representatives
       of the agency and one or more employees in the unit or their
       representatives concerning any grievance or any personnel policy
       or practices or other general condition of employment(.)
 
 
    /4/ To the extent that they are inconsistent herewith, Norfolk Naval
 Shipyard, Portsmouth, Virginia, 6 FLRA 74 (1981) and Internal Revenue
 Service, Fresno Service Center, Fresno, California, 7 FLRA 371 (1981),
 rev'd on other grounds sub nom. Internal Revenue Service, Fresno Service
 Center, Fresno, California v. FLRA, 706 F.2d 1019 (9th Cir. 1983), shall
 no longer be followed.  That is, to the extent that the Norfolk Naval
 Shipyard and IRS, Fresno cases stand for the proposition that, to be
 adequate, the required prior notice of a formal discussion must be
 specifically given to the union qua union, they are hereby rejected.
 
 
    /5/ The Authority recently noted that a formal discussion may be a
 meeting called for the purpose of making a statement or announcement.
 In such circumstances, the exclusive representative's interest protected
 by section 7114(a)(2)(A) is to hear, along with unit employees, about
 matters of interest to unit employees and to be in a position to take
 appropriate action to safeguard those interests.  See Department of
 Defense, National Guard Bureau, Texas Adjutant General's Department,
 149th TAC Fighter Group (ANG) (TAC), Kelly Air Force Base, 15 FLRA No.
 111 (1984), wherein the Authority considered whether the meeting in
 question constituted a "discussion" as that term is used in section
 7114(a)(2)(A) of the Statute even though no dialogue occurred at the
 meeting.  It was stipulated that the union had received no prior notice
 of the meeting, and there was no showing or finding that any employees
 attending the meeting were union representatives.
 
 
    /6/ Cf. United States Air Force, Air Force Logistics Command,
 Aerospace Guidance and Metrology Center, Newark, Ohio, 4 FLRA 512
 (1980), rev. sub nom. United States Air Force v. FLRA, 681 F.2d 466 (6th
 Cir. 1982), where the Authority held, with regard to notice of a change
 in conditions of employment, that an agency violates the Statute when it
 fails to give notice to a union official in his or her capacity as a
 union representative.  The Court of Appeals for the Sixth Circuit
 observed:  "The Authority's decision appears to interject needless
 formality into (the) process.  It seems to require that union officials
 be specifically addressed according to the role, employee or union
 representative, to which the speaker's message pertains.  That could
 hardly have been the result intended." United States Air Force, 681 F.2d
 at 468.
 
 
    /7/ The Authority in so concluding finds it unnecessary to, and does
 not, pass upon whether the meeting was a "formal discussion" within the
 meaning of section 7114(a)(2)(A) of the Statute.
 
 
    /8/ These elements are identified and discussed in Bureau of
 Government Financial Operations, Headquarters, 15 FLRA No. 87 (1984),
 petition for review filed sub nom. National Treasury Employees Union v.
 FLRA, No. 84-1493 (D.C. Cir. Oct. 1, 1984).
 
 
    /9/ As noted by the Judge, White's entitlement to a representative of
 his own choosing is not argued on the basis of the Statute, but only on
 the basis of the negotiated agreement.
 
 
    /10/ Section 7116(a)(1) and (2) of the Statute 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;
 
          (2) to encourage or discourage membership in any labor
       organization by discrimination in connection with hiring, tenure,
       promotion, or other conditions of employment(.)
 
 
    /11/ At the hearing the General Counsel moved to sever case number
 6-CA-791 from the Consolidated Complaint.  The severance was granted,
 thereby, eliminated paragraph 5(d) of the Consolidated Complaint
 concerning the broadening of the scope of work assignments for
 timekeepers.  It also eliminated the September 22, 1980 date from
 paragraph 6(a) and 6(b) of the Consolidated Complaint.  Further,
 paragraph 5(b) was amended to include a second date, which now reads
 about May 16, 1980.
 
 
    /12/ Hawpe during the period involved herein was employed by
 respondent as a pipefitter.  However, during the greater part of 1980,
 Hawpe was unable to perform his assigned duties because of a job related
 injury.  Hawpe spent a large part of 1980 sitting in the plumbing office
 answering the telephone and ordering materi