23:0512(71)CA - VA Central Office, Washington, DC and Veterans Administration Medical Center, Cincinnati, OH and AFGE Local 2031 -- 1986 FLRAdec CA



[ v23 p512 ]
23:0512(71)CA
The decision of the Authority follows:


 23 FLRA No. 71
 
 VETERANS ADMINISTRATION CENTRAL 
 OFFICE, WASHINGTON, D.C. AND VETERANS 
 ADMINISTRATION MEDICAL CENTER, 
 CINCINNATI, OHIO
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 2031, AFL-CIO
 Charging Party
 
                                            Case Nos. 5-CA-40056 
                                                      5-CA-40059
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This consolidated unfair labor practice case is before the Authority
 on exceptions to the attached Chief Administrative Law Judge's Decision
 filed by the General Counsel.  The Respondent filed an opposition to the
 General Counsel's exceptions.  The consolidated complaint alleged that
 the Respondent, Veterans Administration Central Office, Washington, D.C.
 and Veterans Administration Medical Center, Cincinnati, Ohio, violated
 section 7116(a)(1), (5) and (8) of the Statute by refusing to grant
 official time for certain negotiations to agents of the Charging Party,
 American Federation of Government Employees, Local 2031, AFL-CIO (Local
 2031), and by changing a past practice of granting such official time
 without providing Local 2031 with notice and an opportunity to bargain
 concerning such change.
 
                              II.  Background
 
    The Charging Party, Local 2031, is an agent of the American
 Federation of Government Employees, AFL-CIO which is the certified
 exclusive representative at the national level for a consolidated unit
 of nonprofessional employees at various Veterans Administration
 facilities throughout the country.  Local 2031 functions as the local
 representative of some of the employees in the nationwide consolidated
 unit.  As found by the Chief Judge, the charges in this case arose when
 a supervisory official of the Respondent, located in Cincinnati, Ohio,
 refused to grant requests for official time on two separate occasions to
 representatives of Local 2031 employed at his facility.  The official
 time was requested to negotiate a local supplementary agreement on
 behalf of employees in the nationwide consolidated unit located at a
 separate facility, the Veterans Administration Outpatient Clinic, in
 Columbus, Ohio.  The local supplemental agreement was provided for by
 the terms of the parties' master agreement.
 
    The section 7116(a)(1) and (5) portion of the complaint alleged that
 the Respondent unilaterally changed a past practice of granting official
 time to Union negotiators for local bargaining.  The Chief Judge noted
 that official time was granted for two sets of negotiations involving
 four days over a period of 26 months.  One day was unprecedential, and
 the other three were granted by an official under unusual circumstances
 detailed more fully in the Chief Judge's Decision.
 
              III.  Chief Administrative Law Judge's Decision
 
    The Chief Judge concluded that the Authority's decision in
 Interpretation and Guidance, 7 FLRA 682 (1982), which determined that
 the official time provisions of section 7131(a) of the Statute do not
 encompass negotiations below the level of exclusive recognition which
 are designed to create local agreements to supplement a master
 agreement, is controlling in this case.  The Chief Judge determined that
 the negotiations in this case were not encompassed by section 7131(a)
 and recommended that the alleged violations of section 7116(a)(1) and
 (8) of the Statute be dismissed.
 
    The Chief Judge also concluded that application of the Authority's
 decision in Interpretation and Guidance, supra, rendered irrelevant the
 Respondent's contention that local Union representatives employed at one
 facility were not entitled to official time either statutorily or by the
 terms of the parties' Master Agreement to represent employees at a
 separate and independent facility where the Union representatives are
 themselves not employed.  The Chief Judge also recommended that the
 section 7116(a)(5) allegation be dismissed.  He noted that official time
 could become a condition of employment if it is consistently granted for
 an extended period with the knowledge and consent of responsible
 supervisors.  He concluded that the General Counsel had failed to
 demonstrate that the authorization of official time for such bargaining
 had become a condition of employment by virtue of an established past
 practice under this standard.
 
                       IV.  Positions of the Parties
 
    The General Counsel excepts to the Chief Judge's finding that
 negotiations at the Columbus Outpatient Clinic were not encompassed by
 section 7131(a) because they were limited to that facility and were
 conducted by local officials.  It also excepts to the finding there was
 no binding past practice for providing official time for
 Cincinnati-based representatives to negotiate with management of the
 Outpatient Clinic.
 
    The Respondent's Opposition to Exceptions supports the findings and
 conclusions of the Chief Judge.
 
                               V.  Analysis
 
    The issue raised by this case is whether a unit employee who is not
 stationed at the site of the local supplemental negotiations is entitled
 to official time to represent the union.  In our view, where the parties
 at the level of exclusive recognition have authorized local supplemental
 negotiations, section 7131(a) entitles any employee in the unit to
 official time to represent the union at local negotiations, unless the
 parties have agreed otherwise.  /1/
 
    The language of section 7131(a) requires that "(a)ny employee
 representing an exclusive representative in the negotiation of a
 collective bargaining agreement . . . shall be authorized official time
 . . . . " (emphasis added) so long as such employee is in the bargaining
 unit involved.  We have held that the official time provisions of
 section 7131(a) encompass the negotiation of local supplemental
 agreements, when authorized by the parties at the level of exclusive
 recognition.  See Department of the Air Force, Headquarters, Air Force
 Logistics Command, Wright-Patterson Air Force Base, Ohio, 19 FLRA No. 17
 (1985), decided subsequent to the issuance of the Chief Judge's Decision
 in this case.  Our holding that the official time provisions of section
 7131(a) encompass negotiation of local supplemental agreements followed
 the decision of the United States Court of Appeals for the District of
 Columbia circuit in AFGE v. FLRA, supra.  In that case, the court
 reversed the Authority's decision in Interpretation and Guidance, supra.
  The court also noted that the Supreme Court, in BATF v. FLRA, 464 U.S.
 89 (1983) "did not question the characterization of the negotiations of
 . . . local issues as 'collective bargaining,' and thus did not
 recognize the master-local distinction . . . " 750 F.2d at 147.
 
    Pursuant to the plain language of the Statute and consistent with
 Authority precedent, any unit employee representing the union at local
 supplemental negotiations is entitled to official time regardless of
 whether the employee is stationed at the location which is the subject
 of local negotiations.  /2/ In the circumstances of this case, it
 follows that the Respondent, located in Cincinnati, Ohio, denied a
 statutory entitlement to employees who requested official time to
 represent the Union at local supplemental negotiations on behalf of
 employees of the Outpatient Clinic in Columbus, Ohio, a part of the
 consolidated collective bargaining unit.  Accordingly, the Respondent
 violated section 7116(a)(1) and (8) of the Statute.
 
    The Authority finds it unnecessary to pass on the Chief Judge's
 conclusion that the Respondent did not violate section 7116(a)(1) and
 (5) of the Statute, as alleged, by unilaterally departing from a past
 practice of providing official time to its employees to serve as union
 representatives in bargaining with the Veterans Administration
 Outpatient Clinic.  Inasmuch as official time under the circumstances is
 a statutory right pursuant to section 7131(a), the existence or
 nonexistence of a past practice is irrelevant.
 
                              VI.  Conclusion
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the Authority has reviewed the rulings
 of the Chief Judge made at the hearing, finds that no prejudicial error
 was committed, and thus affirms those rulings.  The Authority has
 considered the Chief Judge's Decision and the entire record in these
 cases, and adopts his findings and conclusions only to the extent that
 they are consistent with our decision.
 
    We find that the Respondent violated section 7116(a)(1) and (8) of
 the Statute when it refused to provide official time to unit employees
 to represent the Union in local supplemental negotiations which was
 their right pursuant to section 7131(a) of the Statute.
 
    Accordingly, we shall issue the following order to remedy the conduct
 found to have violated the Statute.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Federal
 Service Labor-Management Relations Statute, the Authority hereby orders
 that the Veterans Administration Central Office, Washington, D.C., and
 Veterans Administration Medical Center, Cincinnati, Ohio, shall:
 
    1.  Cease and desist from:
 
    (a) Refusing to grant official time pursuant to section 7131(a) of
 the Federal Service Labor-Management Relations Statute to its employees
 who are representatives of American Federation of Government Employees,
 Local 2031, AFL-CIO, in negotiations for local supplemental agreements
 authorized by the parties' master agreement.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action:
 
    (a) Upon request of American Federation of Government Employees Local
 2031, AFL-CIO, grant official time pursuant to section 7131(a) of the
 Statute to its employees who are representatives of the Union in
 negotiations for local supplemental agreements authorized by the
 parties' master agreement.
 
    (b) Make whole unit employees who were denied official time to
 represent the Union in negotiations for a local supplemental agreement
 pursuant to the parties' master agreement and who were entitled to
 official time under the terms of section 7131(a) of the Statute.
 
    (c) Post at its facilities at Veterans Administration Medical Center,
 Cincinnati, Ohio, and Veterans Administration Outpatient Clinic,
 Columbus, Ohio, 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, Veterans Administration Medical
 Center, Cincinnati, Ohio, or a designee, and shall be posted and
 maintained for 60 consecutive days thereafter, in conspicuous places,
 including all bulletin boards and other places where notices to
 employees are customarily posted.  Reasonable steps shall be taken to
 ensure that such Notices are not altered, defaced, or covered by any
 other material.
 
    (d) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region V, 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.
 
    Issued, Washington, D.C. September 30, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT refuse to grant official time pursuant to section 7131(a)
 of the Federal Service Labor-Management Relations Statute to our
 employees who are representatives of American Federation of Government
 Employees Local 2031, AFL-CIO, in negotiations for local supplemental
 agreements authorized by our master agreement.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL upon request of American Federation of Government Employees
 Local 2031, AFL-CIO, grant official time pursuant to section 7131(a) of
 the Statute to our employees who are representatives of the Union in
 negotiations for local supplemental agreements authorized by our master
 agreement.
 
    WE WILL make whole unit employees who were denied official time to
 represent the Union in negotiations for a local supplemental agreement
 pursuant to our master agreement and who were entitled to official time
 under the terms of section 7131(a) of the Statute.
                                       (Activity)
 
    Dated:  . . .  By:  (Signature) (Title)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Region V, Federal Labor Relations Authority, whose address is:
  175 W. Jackson Blvd., Suite 1359-A, Chicago, IL 60604, and whose
 telephone number is:  (312) 353-6306.
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case Nos. 5-CA-40056, 5-CA-40059
 
    VETERANS ADMINISTRATION CENTRAL OFFICE, 
    WASHINGTON, D.C. AND VETERANS ADMINISTRATION MEDICAL 
    CENTER, CINCINNATI, OHIO 
         Respondent
 
                                    and
 
    AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, 
    LOCAL 2031, AFL-CIO
         Charging Party
 
 
    Russell C. Henry, Esquire
    For the Respondent
 
    John Gallagher, Esquire
    Arlander Keys, Esquire
    For the General Counsel Federal Labor Relations Authority
 
    Before:  JOHN H. FENTON
    Chief 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, U.S. Code, 5 U.S.C. Section
 7101 et seq.  It arose upon the filing of unfair labor practice charges
 by Local 2031, AFGE, on November 17 and 18 and amended charges filed on
 December 12, 1983.  The Complaint and Notice of Hearing was issued by
 the Regional Director of FLRA's Chicago Region in January 31, 1984.  At
 issue are whether Respondent unlawfully refused to grant official time
 to agents of Local 2031 who participated in negotiations, and whether it
 abandoned a past practice of granting such time without providing the
 Union with notice and an opportunity to bargain concerning such change.
 
    A hearing was held on April 9, 1984, in Cincinnati, Ohio.  The
 parties were afforded full opportunity to adduce evidence and to examine
 and cross-examine witnesses.  Upon the entire record I make the
 following findings.
 
                             Findings of Fact
 
    The Veterans Administration Medical Center in Cincinnati, Ohio (the
 Medical Center) and the Veterans Administration Outpatient Clinic in
 Columbus, Ohio (the Outpatient Clinic) are separate and distinct
 facilities within the Veterans Administration.  Each has its own
 Director, budget and mission, and functions independently of the other.
 They are about 100 miles apart.  On February 28, 1980, the American
 Federation of Government Employees, AFL-CIO, (AFGE) was certified as the
 exclusive bargaining representative of a unit of nonprofessional
 employees at various locations throughout the country, including the
 Medical Center.  On October 16, 1980, AFGE was certified as the
 exclusive representative of nonprofessional personnel at the Outpatient
 Clinic, and they became a part of the nationwide consolidated unit,
 which includes about 115,000 employees at over 225 facilities.
 
    On March 13, 1980, shortly after the consolidation occurred, AFGE's
 Director of its Contract and Appeals Division wrote VA's Director of
 Labor-Management Relations Service, informing him that the "National
 Office is the level of the exclusive recognition and as such is the
 appropriate party for the Agency to notify whenever any changes are
 proposed anywhere in the unit at any level." He also designated the
 officers of the National VA Council as AFGE's representatives for the
 purpose of negotiating any changes in personnel policies, practices and
 regulations.  In a companion letter of the same day, he acknowledged the
 inconvenience of negotiating all proposed changes at any level solely at
 the new level of national recognition, and expressed AFGE's willingness
 to discuss alternatives.  /3/
 
    On October 22, 1980, shortly after the Outpatient Clinic was added to
 the consolidated unit, AFGE National Vice President Kenneth Walsh wrote
 Personnel Officer James Doherty of the Outpatient Clinic, designating
 President Lonnie Carter of Local 2031 and Vice President Robert Barker
 of Local 2031 as representatives of the Outpatient Clinic employees in
 Columbus.  /4/ Both are employees of the Cincinnati Medical Center.  On
 February 12, 1982, Walsh again designated Carter as the representative
 for Outpatient Clinic employees and named Barker and Secretary-Treasurer
 Brenda Smith as alternate representatives.
 
    On June 24, 1981, Carter, Barker and Smith negotiated, in Cincinnati,
 with the Columbus Personnel Chief, regarding a merit promotion plan for
 Columbus Outpatient Clinic employees.  They were granted official time.
 However, a memorandum of understanding signed that day by the Union
 officials and the Personnel Chiefs for the Medical Center and the
 Outpatient Clinic recites that the grant of official time would set no
 precedent because the Columbus Chief came to Cincinnati, and that Local
 2031 "reserves the right for official time" for meetings with Outpatient
 Clinic management in Columbus.  These negotiations continued, in
 Columbus, on July 15, 16 and 17 and were broadened to include a safety
 program and EEO policy.  Official time was approved for this purpose by
 Sidney Stell, Acting Labor Relations Officer of the Medical Center, for
 President Carter and Secretary-Treasurer Smith.
 
    There were no other negotiations between AFGE and Columbus Outpatient
 Clinic management until August 31 and September 1, 1983.  They were
 initiated by Acting Personnel Officer Eleanor Farington and dealt with
 revisions in policies concerning safety, the Employee Attitude
 Committee, Employee Assistance and Official Time.  Farington's letter to
 Carter expressly stated that two Union negotiators would be afforded
 official time by stating that there would be two negotiators present for
 management, and that the two observers requested by the union would be
 limited to five hours each for the ten hours scheduled for negotiations.
  As was the custom because the two facilities are separate, Carter
 applied for official time for such purpose to Labor Relations Officer
 Francis J. Wyborski of the Medical Center.  On August 30, Wyborski
 denied Carter's request on the ground that the Outpatient Clinic is a
 separate facility under its own management, that the Medical Center has
 no employees at the Clinic, and that the "Master Agreement does not
 provide for official time for employees to travel between facilities to
 engage in union activities." /5/
 
    Farington initiated further negotiations for November 1, 1983, and
 Carter again sought official time for himself and Smith.  On October 27,
 Acting Labor Relations Officer Sidney Stell denied the request on the
 ground that neither "the Master Agreement nor the Local Supplemental
 Agreement authorizes official time for local union representatives to
 participate in negotiations at another facility which is not under the
 control of the VA Medical Center, Cincinnati, Director." On November 1,
 Carter and Smith negotiated the Outpatient Clinic's absence and leave
 policy.  The Medical Center placed them on leave without pay for the
 period of such absence.
 
    The Master Agreement contains a number of provisions relevant to the
 question whether Carter and Smith, as employees of the Cincinnati
 Medical Center, are entitled to official time for their participation in
 negotiations at the Columbus Outpatient Clinic.  Thus, the "parties" to
 the contract are defined in the Preamble as the Veterans Administration
 (Agency) and the American Federation of Government Employees/National
 Veterans Administration Council of Veterans Administration Locals
 (Union).  Article 2 defines Union as AFGE, as represented by the Council
 at the National level or by a single local at the individual field
 facility level, and defines Employer as VA Central Office at the
 national level or local management at the individual field facility
 level.  In addition "individual facility" is defined in Article 2,
 Section 3, as any establishment which is under the direction of local
 management officials, so as to make it clear that the Medical Center and
 the Outpatient Clinic are separate facilities.  Article 4, entitled
 Mid-term Bargaining, describes National Level Negotiations, Local
 Bargaining on National Changes and Local Level Changes.  It provides
 that all VA-initiated changes above the individual facility level will
 be forwarded to the designated Council Representative and that the
 parties will negotiate national level changes in Washington, D.C.  Four
 Council representatives are to receive official time and per diem for
 such negotiations and for preparing for them.
 
    Section 4, entitled Local Bargaining on National Changes, states
 that:
 
          On all policies and directives or other changes for which the
       VA meets its bargaining obligations at the national level, local
       bargaining at individual facilities will be restricted to local
       implementation unless there was agreement at the national level to
       provide for local bargaining on the national subject.  Local union
       representatives shall receive official time for all time spent in
       mid-term negotiations as provided under 5 U.S.C. Section 7131(a).
 
    Section 5, entitled Local Level Changes, states that:
 
          Proposed changes affecting personnel policies, practices or
       conditions of employment which are initiated by local management
       at a single facility will be forwarded to the designated local
       union official.  Upon request, the parties will negotiate as
       appropriate.  The Union representative shall receive official time
       for all time spent in negotiations as provided under 5 U.S.C.
       Section 7131(a).
 
    Article 5 concerns Local Supplemental Agreements.  It permits local
 bargaining on subjects which are not covered by the Master Agreement, or
 which will not bring about a conflict with that agreement's provisions
 or impair its implementation.  It provides for negotiation of one local
 supplement to the controlling Master Agreement at the request of either
 party and gives union negotiators limited amounts of official time for
 such purposes
 
    Article 8 provides specific amounts of official time for the National
 VA Council President, the two Vice Presidents and the 15 District
 Representatives for their representational activities.  In Section 5 it
 provides that:
 
          Official time for local union officers and/or stewards will be
       a proper subject for local supplemental bargaining.
 
    Section 1 thereof, in Note 2, requires that Union officials obtain
 prior clearance from the Personnel Officer before engaging in any
 representational activity at a facility other than where they are
 employed.
 
                           The Parties' Position
 
    The General Counsel contends that the failure to place Local 2031
 President Lonnie Carter and Secretary-Treasurer Smith on official time
 for the negotiations on August 31, September 1 and November 1, at the
 Outpatient Clinic constituted noncompliance with Section 7131(a) and
 therefore violated Section 7116(a)(1) and (8).  The General Counsel also
 contends that the same conduct constituted a unilateral change in an
 established practice of granting official time to employees of the
 Cincinnati Outpatient Clinic management, in violation of Section
 7116(a)(1) and (5).
 
    With respect to the first alleged violation, the General Counsel
 acknowledges that the right to official time set forth in Section
 7131(a) does not encompass negotiations which occur below the level of
 exclusive recognition and are designed to fashion local agreements
 supplementing a national, controlling agreement.  /6/ However, the
 General Counsel argues that the instant negotiations were mid-term
 negotiations "which took place at the level of recognition between
 management representatives of the Outpatient Clinic and AFGE's duly
 designated representatives." Thus, in essence, the General Counsel
 contends that these negotiations were conducted pursuant to Article 4,
 Section 5, which has to do with Mid-term Bargaining of Local Level
 Changes.  That Section directs local management to forward proposed
 changes to the designated local union official and provides that the
 "parties" will, upon request, negotiate as appropriate," with official
 time entitlement flowing to the union representatives.  As the term
 "parties" is defined in the preamble as VA and AFGE/National VA Council
 of VA Locals, the General Counsel asserts that the contract recognizes
 that these negotiations were conducted by local management officials, as
 agents of VA and local union officials as agents of AFGE/Council.  Thus
 their status as officers of Local 2031 is but a confusing irrelevancy,
 and they are by law entitled to official time for negotiations which
 took place at the national level of exclusive recognition.  As best I
 understand it, I take the General Counsel to be arguing that
 negotiations pursuant to Article 4, Section 5, fit within the rubric of
 negotiations at the level of exclusive recognition subject to official
 time as described by the Authority in Interpretation and Guidance (7
 FLRA 682):
 
          However, it should be emphasized that the official time
       provisions of Section 7131(a) do encompass negotiations at the
       level of exclusive recognition including negotiation of "local
       issues" as part of the national or controlling (master) agreement.
 
    With respect to the second alleged violation, the General Counsel
 contends that the granting of official time for the negotiations on June
 24 and July 15, 16 and 17, 1981, ripened into a condition of employment,
 i.e. it was a practice "consistently exercised for an extended period
 with the knowledge and consent of responsible supervisors." It therefore
 could not be changed, as it undeniably was, without first affording the
 Union an opportunity to engage in bargaining.  /7/
 
    Respondent's major defense is that the language of the Master
 Agreement, with its repeated references to "single facilities," to
 "local issues" and to "local representatives" was meant to permit
 bargaining below the level of recognition, only on issues confined to a
 single facility, i.e. that local bargaining takes place between the
 managers of a single facility and union representatives who are "local,"
 i.e. who are employed at that facility.  Pointing to its intention to
 end the work disruptions, and the travel and per diem costs which then
 attended movement of Union representatives from one facility to another
 under the Authority's construction of the Statute, Respondent asserts
 that the Master Agreement was designed to structure labor management
 relations so that national issues would be handled by officers of the VA
 Council and District Representatives, and local issues would be handled
 by local officials who were employed at the single and separate facility
 to be covered by the negotiations.  It points to no evidence of
 agreement on such a structure, except for the contract's language,
 asserting that "pure and simple logic dictates" that permitting local
 representatives to handle matters at more than one facility creates an
 "intermediate level of activity . . . (which) . . . was not part of the
 negotiated scheme and is contrary to the Master Agreement."
 
    Notwithstanding this argument, Respondent in fact did not refuse (and
 is not accused of refusing) to recognize Carter and Smith as the
 designated Union representatives for the Columbus negotiations (although
 it now argues they were not properly designated).  Rather, it argues
 that they were not entitled to official time for such negotiations (even
 though Columbus management had indicated it would be available) because
 the contract makes no provisions for bargaining away from the union
 representative's facility.  As an alternative much less vigorously
 pursued, it contends that Section 7131(a) does not grant official time
 for local bargaining, and that these negotiations, whether they arose
 pursuant to Article 4, Section 5 or to Article 5, Section 2, were local
 in nature and thus below the level of exclusive recognition necessary
 for official time entitlement.  In this respect it asserts that there is
 no meaningful distinction between the two sections of the national
 contract:  each would yield a supplemental agreement resolving local
 issues and each is therefore concerned with local bargaining.  It
 follows, says Respondent, that the issue of entitlement to official time
 is governed by Section 7131(d), which consigns the matter to
 negotiations, and thus converts this dispute to one of contract
 interpretation for resolution by an arbitrator rather than FLRA.
 
    On the issue of unilaterally ending a practice of granting official
 time for such negotiations, Respondent again contends that the Master
 Agreement eliminated any requirement to bargain concerning conditions of
 employment at the Outpatient Clinic.  Thus there can be no refusal to
 bargain over a practice which the Union has bargained away, and the
 question whether there was an established practice becomes irrelevant.
 
                        Discussion and Conclusions
 
    The alleged violation of Section 7116(a)(1) and (8) is based on
 Section 7131(a), which requires that "any employee representing an
 exclusive representative in the negotiation of a collective bargaining
 agreement . . . shall be authorized official time for such purposes . .
 . during the time the employee otherwise would be in a duty status."
 
    A literal reading of such language, standing alone, would strongly
 suggest that local union negotiators, bargaining pursuant to the
 agreement of the parties to collective bargaining at the national level
 of exclusive recognition, would be "representing an exclusive
 representative in the negotiation of a collective bargaining agreement"
 and therefore "shall be authorized official time for such purposes . . .
 . " The logistics of national bargaining and the presence of myriad
 local problems which are most sensibly and economically resolved at the
 local level by negotiators most familiar with them and their
 ramifications in that segment of the unit, virtually dictate that
 national agreements will provide for local negotiation of supplementary
 agreements.  As noted, nothing in Section 7131(a) suggests that Congress
 intended that such a practical accommodation to the realities of
 bargaining at many and disparate working locations would preclude
 entitlement to official time.  However, the Federal Labor Relations
 Authority has construed such language, in the light of other provisions
 of the Statute, as limiting entitlement to negotiating time spent at the
 level of exclusive recognition.
 
    In Interpretation and Guidance, 7 FLRA 682, the Authority was
 confronted with the question whether Section 7131(a) applies to
 negotiation of a local agreement which supplements a national or
 controlling (master) agreement.  Quoting from Section 7103(a)(12) of the
 Statute, and underscoring its most significant language the Authority
 said:
 
          Thus entitlement to official time under Section 7131(a) of the
       Statute flows to any employee representing an exclusive
       representative in the negotiation of a "collective bargaining
       agreement," which "is any agreement that is entered into as a
       result of the performance of the mutual obligation of the parties
       to bargain in a good-faith effort to reach agreement with respect
       to conditions of employment affecting employees in the appropriate
       unit." Hence, unless what is being negotiated meets this
       definition of "collective bargaining agreement," the official time
       provisions of section 7131(a) do not apply.
 
          Parties at the level of exclusive recognition, who are under
       the mutual obligation to bargain with respect to conditions of
       employment affecting employees in an appropriate unit, may agree
       to authorize representatives below the level of recognition to
       supplement provisions of the national controlling master
       agreement.  Thus, local supplemental agreements are negotiated
       voluntarily pursuant to the agreement of the parties at the level
       of exclusive recognition and not pursuant to a "mutual obligation"
       to bargain.
 
          Accordingly, the official time provisions of section 7131(a) .
       . . do not encompass negotiations below the level of exclusive
       recognition which are designed to create local agreements to
       supplement a national or controlling (master) agreement.  However,
       it should be emphasized that the official time provisions . . . do
       encompass negotiations at the level of exclusive recognition,
       including negotiation of "local issues" as part of the national or
       controlling (master) agreement.
 
    Thus, the Authority has clearly said that the mutual obligation to
 bargain exists here only at the national level, and that any arrangement
 there made for the resolution of local issues through local bargaining
 of supplemental agreements creates voluntary bargaining to which no
 official time entitlement attaches.  I take the emphasis placed on the
 phrase "in the appropriate unit" to mean that bargaining can only be
 deemed to occur at the national level if the agenda includes terms and
 conditions of employment which affect the entire unit, i.e. it is
 coextensive with the unit.  I base this inference on the fact that
 bargaining which concerns any segment of a unit obviously also arises in
 a unit, and affects terms in the unit.  The Authority must have meant
 more -- that only the negotiations at the national table discharge the
 mutual obligation to bargain and therefore carry the right to official
 time.  Put another way, the national negotiators cannot provide for
 their agents at a lower level to bargain about problems more limited in
 scope than the unit itself, for an agreement which would become a part
 of, or an amendment to, the controlling agreement, and thereby delegate
 downward the mutual obligation to bargain and the concomitant right to
 official time for the employees representing the union.
 
    I make this effort to deal with the semantic confusion engendered by
 the terms employed because it is my conclusion that such arrangements
 are precisely what this national agreement attempted to create.  The
 national agreement, in Article 5, explicitly provides for "negotiations
 below the level of exclusive recognition which are designed to create
 local agreements to supplement a national agreement." Were it clear that
 the Columbus negotiations were intended to result in a "local
 supplementary agreement," the inquiry would be over.  Such negotiations
 are quite literally covered by the Authority's above-quoted language,
 and they clearly would not be encompassed by Section 7131(a).
 
    It is not clear, however, that the Columbus bargaining was pursuant
 to Article 5, as opposed to the "local" bargaining provisions of Article
 4.  That Article addresses mid-term bargaining, and by its terms would
 appear to affect the national segment.  In addition, it provides for
 regular reopening whereas a local supplementary agreement can be
 negotiated only once.  It literally provides in Section 4 for "Local
 Bargaining on National Changes" where there was agreement at the
 national level for local bargaining on a national subject.  It also
 provides for official time "as provided under 5 U.S.C. Section 7131(a)."
 In Section 5 it deals with "Local Level Changes," and provides that
 proposed changes initiated by local management at a single facility are
 to be forwarded to the designated local union official and that, upon
 request, "the parties" will negotiate as appropriate.  Recall that the
 General Counsel hangs his hat on this last quote, contending that "the
 parties," as defined in the controlling agreement, are the VA and the
 AFGE/National VA Council, and that negotiators operating under Section 5
 not only represent those parties (as would always be the case), but are,
 by operation of law, "the parties" so as to elevate the negotiations
 which in fact are conducted at the local facility by local officials to
 the national level.  Note further that Section 5 also provides for union
 negotiators to receive official time "as provided under 5 U.S.C. Section
 7131(a)," indicating that the parties believed (or desired) that Section
 to apply.
 
    If Sections 4 and 5 of Article 4 were designed to create local
 supplemental agreements (and we do not know how such bargaining would be
 memorialized) then they would duplicate Article 5.  In order to avoid
 redundancy, and to recognize that both Section 4 and Section 5 are in an
 Article which describes the procedures for mid-term modification of the
 controlling agreement, I conclude that they contemplate negotiations
 which look to amendment of the controlling agreement.  I assume that
 Section 5 governs here if Article 5 does not, since those negotiations
 were initiated by local management and were limited to terms and
 conditions at a single facility.  Because Article 5 permits local
 bargaining only on matters not covered by the National Agreement, and
 Article 4, Section 4 permits "local" bargaining only on "a national
 subject" which the parties at the national level have agreed may be
 negotiated at the local level, I conclude that Article 4, Section 5 must
 have to do with the only subject left uncovered:  matters governed by
 the national agreement which management wishes to change at a single
 location.  If it is not designed to deal with such matters, I fail to
 see its purpose.  Perhaps, as the General Counsel's argument suggests,
 the intent was that the local union representative was merely to receive
 such proposals, and any bargaining was then to take place between the
 national negotiators named by the controlling agreement.  Perhaps, as
 General Counsel actually argues, local negotiators were then to
 substitute for their national level counterparts, so as to elevate what
 appears to be local bargaining conducted at a single facility to the
 national level of exclusive recognition.
 
    My reading of Interpretation and Guidance, supra, requires a finding
 that, even if the parties intended to raise bargaining of the kind
 contemplated by Article 4, Section 5, to the national level, so as to be
 encompassed by Section 7131(a), they are powerless to do so.  I feel
 constrained to come to this conclusion because of the analysis I have
 already made of the literal meaning and the sense of the Authority's
 decision.  To recapitulate, the Authority held that Section 7131(a)
 encompasses negotiations "at the level of exclusive recognition,
 including negotiation of 'local issues' as part of the . . . controlling
 agreement" (Emphasis mine).  The converse is that local issues which are
 not negotiated as part of the overall negotiations are excluded from
 such coverage.  Thus, national bargaining that does not resolve local
 issues, but instead provides for their later resolution at some lower
 level cannot operate to shift the level of recognition downward so as to
 create "local negotiations" which are conducted "in an appropriate unit"
 pursuant to the "mutual obligation to bargain." The Authority's holding
 that negotiations for local supplemental contracts are "voluntary" in
 nature must control the result here, unless a meaningful distinction can
 be drawn between local bargaining which "supplements" a master agreement
 and local bargaining which changes or "amends" a master agreement.  In
 the light of the Authority's guidance the difference appears to be more
 semantic than real.  In either instance local agents of the national
 parties are permitted to flesh out or change the controlling agreement
 as it applies to a particular locality.  Such negotiations thus run
 counter to, or offend, the very same notions of collective bargaining
 that led the Authority to reject the contention that local supplemental
 bargaining should be covered by official time.  Thus, they in fact also
 occur at a level below that of exclusive recognition and are concerned
 with employment conditions affecting only a part of the appropriate
 unit.  They are functionally the same.  By definition, the combination
 of low level of discussion and narrow focus of impact renders such
 negotiations "voluntary", and thus precludes the application of Section
 7131(a) because such "discussions" do not discharge the mutual
 obligation to bargain concerning terms affecting employees in an
 appropriate unit.
 
    It follows that the negotiations at the Columbus Outpatient Clinic
 were not encompassed by Section 7131(a), as they were limited to that
 facility and were conducted by local union officials.  For the same
 reasons the questions whether those officials were duly designated
 representatives of AFGE/VA National Council, and whether they could in
 any event represent employees at a facility where they do not work, are
 rendered irrelevant.  I therefore recommend that the allegations of
 violations of Section 7116(a)(1) and (8) be dismissed.  /8/
 
    Finally, I find no merit to the allegation that Respondent has
 unilaterally departed from a practice of granting official time to union
 negotiators for local bargaining, in violation of Section 7116(a)(1) and
 (5).
 
    Official time for such purposes can, of course, become a condition of
 employment.  But that only occurs if a practice of doing so is
 consistently exercised for an extended period with the knowledge and
 consent of responsible supervisors.  See Department of Defense,
 Department of the Navy, Polaris Missile Facility, Atlantic, Charleston,
 South Carolina, 6 FLRA 372.  The practice here in question involved
 high-ranking personnel and labor relations officials.  It consisted of:
 
          1.  Negotiations on June 24, 1981, for which official time was
       provided by the Personnel Chief, expressly on the ground that the
       bargaining took place in Cincinnati and would not set a precedent
       for future Columbus negotiations.
 
          2.  Negotiations on July 15, 16 and 17, 1981 for which official
       time was provided by the Acting Labor Relations Director.
 
          3.  Negotiations on August 31, September 1 and November 1,
       1983, for which official time was refused.
 
    Thus, official time was, in fact, granted for two sets of
 negotiations (involving four days) which occurred over the course of
 some 26 months prior to the refusal.  One day was nonprecedential, and
 the other three were covered by a grant from an official, in an acting
 capacity, who appears to have acted inconsistently with his absent
 superior's written reservations in the earlier instance.  At best, two
 sets of negotiations can be viewed as having been covered by official
 time.  This is hardly a consistent exercise over an extended period.
 Nor is the rather regular grant of official time for the other
 representational purposes relevant.  Respondent did so until the 1982
 execution of the Master Agreement.  It never drew the line, as it did on
 one of the two occasions here, at such travel for representational
 reasons.  I would therefore not find a practice of providing official
 time for Cincinnati-based representatives to handle grievances and like
 matters in Columbus to constitute a binding practice respecting
 negotiations.  Accordingly, I also recommend that the Section 7116(a)(1)
 and (5) allegation be dismissed.
 
    In view of these findings and conclusions, it is recommended that the
 Authority issue the following Order pursuant to 5 C.F.R. Section
 2423.29:
 
                                   ORDER
 
    IT IS HEREBY ORDERED that the consolidated complaint in Case Nos.
 5-CA-40056 and 5-CA-40059 be dismissed in its entirety.
 
                                       /s/ JOHN H. FENTON
                                       Chief Administrative Law Judge
 
    Dated:  December 6, 1984
    Washington, D.C.
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) In a case involving these same parties, the Authority dismissed
 section 7116(a)(1) and (8) allegations when V.A. Cincinnati denied
 official time, travel expenses and per diem allowances to three of its
 employees who represented the Union in negotiating a dues withholding
 agreement covering employees at the Outpatient Clinic in Columbus.  The
 Authority reached this conclusion because the parties at the level of
 exclusive recognition had not agreed to authorize the local negotiations
 for a dues withholding agreement.  Veterans Administration, Cincinnati,
 Ohio, 19 FLRA No. 19 (1985).  The Authority referred to American
 Federation of Government Employees v. FLRA, 750 F.2d 143 (D.C. Cir.
 1984), where the court held that a mutual obligation to bargain exists
 at the local level once the parties agree in the master agreement to
 such local negotiations, thus triggering the provisions of section
 7131(a).
 
    (2) This conclusion does not conflict with the Authority's decision
 in U.S. Naval Space Surveillance Systems, Dahlgren, Virginia, 12 FLRA
 731 (1983), aff'd sub nom. American Federation of Government Employees,
 Local 2096 v. FLRA, 738 F.2d 633 (4th Cir. 1984).  There it was held
 that an activity has no obligation under section 7131(a) to grant
 official time or under section 7131(d) to negotiate concerning the
 authorization of official time for any of its employees to represent the
 union in collective bargaining on behalf of employees of a separate and
 independent activity.  Similarly, in United States Department of
 Defense, Department of the Air Force, San Antonio Air Logistics Center,
 Kelly Air Force Base, Texas, 15 FLRA 998 (1984), it was determined that
 an activity has no obligation under section 7131(a) to grant official
 time to an employee who is not a me