26:0222(29)CA - Army, Fort Riley, Kans., and AFGE, Local 2324 -- 1987 FLRAdec CA



[ v26 p222 ]
26:0222(29)CA
The decision of the Authority follows:


 26 FLRA No. 29
 
 DEPARTMENT OF THE ARMY 
 FORT RILEY, KANSAS
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 2324
 Charging Party
 
                                            Case No. 7-CA-60202
 
                            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 as alleged in the complaint, and
 recommending that the Respondent be ordered to cease and desist from
 those practices and to take certain affirmative actions.  The Respondent
 filed exceptions to the Judge's decision and the General Counsel filed
 an opposition to the 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), we have reviewed the rulings of the Judge at the
 hearing and find that no prejudicial error was committed.  The rulings
 are hereby affirmed.  Upon consideration of the Judge's decision, the
 exceptions, opposition and the entire record, we adopt the Judge's
 findings, conclusions and recommended order.
 
                                   ORDER
 
    Pursuant to section 2423.29 Authority's Rules and Regulations and
 section 7118 of the Statute, we order that Department of the Army, Fort
 Riley, Kansas, shall:
 
    1.  Cease and desist from:
 
    (a) Discriminating against Marshall Heath, Chief Steward of the
 American Federation of Government Employees, Local 2324, by denying him
 official time under Equal Employment Opportunity (EEO) regulations to
 act as the personal representative of a non-bargaining unit employee in
 an EEO complaint, because of his representational duties on behalf of
 Local 2324.
 
    (b) In any like or related manner, interfering with, restraining, or
 coercing employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
    (a) Make Marshall Heath whole for any loss of hours incurred as a
 result of the denial of official time for him to act as the personal
 representative of non-bargaining unit employee Donald Shipley in an EEO
 complaint, including making him whole for any wages lost because of his
 use of leave without pay to represent Shipley and including restoring
 any annual leave he may have used to represent Shipley.
 
    (b) Post at its 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 Chief-Management and Employees
 Relations Division, 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.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region VII, Federal Labor
 Relations Authority, Denver, Colorado, in writing, within 30 days from
 the date of this Order, as to what steps have been taken to comply
 herewith.
 
    Issued, Washington, D.C., March 17, 1987.
 
                                       /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 discriminate against Marshall Heath, Chief Steward of
 American Federation of Government Employees, Local 2324, by denying him
 official time under Equal Employment Opportunity (EEO) regulations to
 act as the personal representative of a non-bargaining unit employee in
 an EEO complaint because of his representational duties on behalf of
 Local 2324.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce employees in exercise of their rights assured by the Federal
 Service Labor-Management Relations Statute.
 
    WE WILL make Marshall Heath whole for any loss of hours incurred as a
 result of the denial of official time for him to act as the personal
 representative of non-bargaining unit employee Donald Shipley in an EEO
 complaint, including making him whole for any wages lost because of his
 use of leave without pay to represent Shipley and including restoring
 any annual leave Heath used to represent Shipley.
                                       (Agency)
 
    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, of the Federal Labor Relations Authority, Region VII, whose
 address is:  535 16th Street, Suite 310, Denver, Colorado 80202, and
 whose telephone number is:  (303) 837-5224.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 7-CA-60202
 
 DEPARTMENT OF THE ARMY, FORT RILEY, KANSAS
    Respondent
 
                                    and
 
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, 
 AFL-CIO, LOCAL 2324
    Charging Party
 
    Captain Dennis A. Sommese, Esquire
       For the Respondent
 
    Mr. Gary Miles
       For the Charging Party
 
    Matthew Jarvinen, Esquire
       For the General Counsel
 
    Before:  GARVIN LEE OLIVER
       Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This decision concerns an unfair labor practice complaint issued by
 the Regional Director, Region Seven, Federal Labor Relations Authority,
 Denver, Colorado against the Department of the Army, Fort Riley, Kansas
 (Respondent), based on a charge filed by the American Federation of
 Government Employees, AFL-CIO, Local 2324 (Charging Party or Union).
 The complaint alleged, in substance, that Respondent violated section
 7116(a)(1) and (2) of the Federal Service Labor-Management Relations
 Statute, 5 U.S.C. Section 7101 et seq. (the Statute), by denying
 employee Marshall Heath the use of official time under the Respondents'
 Equal Employment Opportunity (EEO) regulations to act as the personal
 representative of a non-bargaining unit employee.  The complaint alleged
 that Heath was denied the official time because of his activities as a
 Union representative.
 
    Respondent's answer admitted the jurisdictional allegations as to
 Respondent, the Union, and the charge, but denied any violation of the
 Statute.  Respondent asserted that the collective bargaining agreement
 required Union representatives to represent non-bargaining unit
 employees in a non-duty status, and EEO regulations granted no official
 time to such a representative over and above that provided by the
 agreement.
 
    A hearing was held in Manhattan, Kansas at which time the Respondent,
 Charging Party, and the General Counsel were represented.  The parties
 were afforded full opportunity to be heard.  Respondent filed a formal
 motion to dismiss together with points and authorities.  Ruling on the
 motion was deferred.  Thereafter, the parties were permitted to adduce
 relevant evidence, examine and cross-examine witnesses, and file
 post-hearing briefs.  The Respondent and General Counsel filed helpful
 briefs, and the proposed findings have been adopted where found material
 and supported by the record as a whole.  Based on the entire record,
 including my observation of the witnesses and their demeanor, I make the
 following findings of fact, conclusions of law, and recommendations.
 
                             Findings of Fact
 
    1.  At all times material, the Union has been the exclusive
 representative of an appropriate unit of Respondents' employees paid
 from appropriated funds.  At all material times, the Union has also
 served as the exclusive representative of a number of other bargaining
 units, including a bargaining unit composed of all of Respondents'
 non-appropriated fund unit employees.
 
    2.  In early January 1986, a former employee of Respondent, Donald
 Shipley, appeared at the Union office seeking someone to represent him
 in an EEO complaint.  Shipley had been terminated from his employment
 with Respondent.  At the time of his termination, Shipley was not a
 member of any bargaining unit represented by the Union.  Union president
 Gary Miles informed Shipley that the Union could not represent him, but
 that he would discuss the matter of his representation with Marshall
 Heath, the Union's chief steward, and get back to Shipley with a
 response.
 
    3.  Subsequently, Marshall Heath took it upon himself to serve as
 Shipley's personal representative in connection with Shipley's EEO
 complaint. Shipley specifically designated Heath as his personal
 representative.  Marshall Heath has been employed by Respondent as a
 sheet metal mechanic in the Directorate of Engineering and Housing since
 September 1973 and is a member of the appropriated fund bargaining unit.
  Heath has served as the Union's chief steward for approximately three
 and one-half years, and previously served as the Union's president for
 four years.  As chief steward, Heath is entitled to reasonable time, not
 to exceed 35% of his on-duty time per pay period, for authorized Union
 representational duties as specified in the collective bargaining
 agreement.  Heath's decision to represent Shipley was strictly a
 personal decision. At no time did the Union authorize Heath to represent
 Shipley. Nor did Heath utilize any of the Union's supplies or facilities
 in representing Shipley.
 
    4.  During the period of January 8, 1986 to July 1, 1986 Heath spent
 24 hours representing Shipley in connection with Shipley's EEO
 complaint.  Murt Hanks, Respondent's EEO Officer, testified that 24
 hours was not an excessive or unreasonable amount of time, and I so
 find.
 
    5.  Respondent required Heath to take either annual leave or leave
 without pay for all times spent representing Shipley.  Heath took leave
 without pay, because he had a shortage of annual leave.  Heath's
 supervisor, Victor Jones, approved each of Heath's requests for leave
 without pay without expressing any reservation as to the amount of time
 Heath was absent, or concerning the effect of Heath's absences on the
 workload.
 
    6.  Commencing on January 10, 1986, and continuing to date,
 Respondent denied Heath's requests for the use of official time under
 Respondent's EEO regulations to act as the personal representative of
 Shipley, a non-bargaining unit employee, with respect to Shipley's EEO
 complaint.  Respondent took the position that inasmuch as Health was,
 and is, the Union chief steward, a designated Union representative, he
 is bound by Article 7, section 5a of the collective bargaining
 agreement, and if he chooses to represent Shipley, must do so in a
 non-duty status.  Respondent concluded that the agreement's provisions
 mandated what the Agency could tolerate for representational time before
 causing an unreasonable cost or hardship.
 
    7.  If Marshall Heath had not been a designated Union representative,
 Respondent would have granted him official time under EEO regulations to
 serve as the personal representative of the non-bargaining unit
 employee.
 
    8.  Respondent followed the recommendations of Allen D. Rue, Civilian
 Personnel Officer, and William C. Long, Chief, Management and Employee
 Relations Division, which were based on their interpretations of the
 collective bargaining agreement and the EEO regulations.  Respondent's
 EEO officer, Murt Hanks, had recommended that Heath be provided official
 time under the EEO regulations.  He had also previously advised Heath
 that he was entitled to official time. Hanks concluded that Heath was
 acting in the capacity of an employee as a personal representative in
 the EEO proceedings and not as a Union steward.  He also concluded that
 since management had agreed to grant Heath leave without pay or annual
 leave, this negated the argument that Heath's absence from the job
 created an undue hardship.
 
                       EEO Official Time Provisions
 
    9.  EEO regulations provide at 29 C.F.R. Section 1613.214(b) that an
 EEO complainant has the right to designate a representative of his own
 choosing.  Section 1613.214(b) further provides:
 
          If the complainant is an employee of the agency and he
       designates another employee of the agency as his representative,
       the representative shall have a reasonable amount of official
       time, if he is otherwise in an active duty status, to present the
       complaint.
 
    10.  EEO Management Directive (EEO MD) 403, dated September 27, 1983,
 provides guidance to federal agencies with regard to the entitlement of
 a complainant and his/her representative to a reasonable amount of
 official time for meetings, hearings, and preparation time.  Section d
 provides:
 
          d.  Exception.
 
          The only exception to the above guidance would be with respect
       to a representative who acts in a representational capacity in
       more than one complaint in a given time period.  The Commission
       considers it reasonable for agencies to expect their employees to
       spend most of their time doing the work for which they are
       employed.  Therefore, the Commission would consider it reasonable
       for an agency to restrict the overall hours of official time
       afforded to a representative, for both preparation purposes and
       for attendance at meetings and hearings, to a certain percentage
       of that representative's duty hours in any given month, quarter,
       or year.  Such overall restrictions would depend on the nature of
       the position occupied by the representative, the relationship of
       that position to the mission of the agency, and the degree of
       hardship imposed on the mission of the agency by the
       representative's absence from his/her normal duties.  The amount
       of official time to be afforded to an employee for
       representational activities in connection with more than one
       complaint will vary with the circumstances of the complaints
       involved.  Overall restrictions of this type apply only where more
       than one complaint is involved and only to official time other
       than annual leave.  Agency decisions to grant or withhold approval
       of annual leave requests remain subject to normal agency
       practices.
 
    11.  Fort Riley Regulations 690-12 of March 24, 1982 prescribes
 administrative policies and procedures for recording and reporting the
 use of official time for representational functions.  It provides, in
 part, as follows:
 
          4.  DEFINITIONS
 
          a.  Representational functions means those authorized
       activities undertaken by employees on behalf of other employees
       pursuant to such employee's right to representation under statute,
       regulation, executive order, or the terms of a collective
       bargaining agreement.  It includes activities undertaken by
       specific individual designation (such as the designation of a
       representative in a grievance action or an EEO complaint) as well
       as those activities authorized by a general, collective
       designation (such as designation of a labor organization
       recognized as exclusive representative under Chapter 71 of Title
       5, USC).
 
          (1) Representational functions include activities undertaken by
       specific individual designation.  Individuals performing this type
       of activity are normally referred to as personal representatives
       (such as the designation of a representative in a discrimination
       complaint, appeal of an adverse action or a classification
       complaint appeal).
 
          (2) Additionally, representation functions include those
       activities authorized by a general collective designation (as
       opposed to a specific individual).  The primary example is the
       designation of a labor organization recognized as exclusive
       representative under Chapter 71 of Title 5, USC.  The type of
       representational function may be commonly performed by the
       designated steward who represents specific areas or activities of
       the installation or other as provided in the applicable negotiated
       agreement (see 8b).
 
                Collective Bargaining Agreement Provisions
 
    12.  The collective bargaining agreement between Respondent and the
 Union provides in pertinent part as follows:
 
              Article 7.  OFFICIAL TIME/UNION REPRESENTATION
 
          Section 1.  Purpose.  To provide direction and guidance to
       managers, supervisors and employees concerning granting of
       official time to bargaining unit members performing Union
       representational duties pertaining to the bargaining units covered
       by this Agreement.  The parties agree that no overtime pay or
       compensatory time off will be authorized for the performance of
       representational duties.  No entitlement to travel pay or per diem
       will be incurred as the result of the performance of Union
       representational duties.
 
          Section 2.  Definitions.  For purposes described herein, the
       following definitions apply:
 
          a.  Union representatives are Department of Army Civilian
       employees who are duly elected or appointed officers or stewards
       of the Union.
 
                       . . .
 
 
          Section 3.  a.  The Employer agrees to allow bargaining unit
       members, who are properly appointed by the Union as official Union
       Representatives, to perform those duties authorized under this
       article without loss of pay or charge to leave subject to the
       limits on the use of official duty time provided in this section.
 
          b.  Time limits for representational duties are:
 
          (1) President:  Reasonable time not to exceed 50% of his/her
       on-duty time per pay period;
 
          (2) Chief steward:  Reasonable time not to exceed 35% of
       his/her on-duty time per pay period.
 
          (3) Four other designated union representatives:  Reasonable
       time each not-to-exceed 30% of their on-duty time per pay period.
 
          (4) Twenty-five stewards:  Reasonable time not to exceed 15% of
       their on-duty time per pay period.
 
                       . . .
 
 
          Section 5.  a.  The parties agree that no official time will be
       allowed Union representatives (as defined in Section 2a above) for
       representing employees or other individuals who are not in the
       bargaining units represented in this Agreement.  Union
       officials/representatives performing representational tasks on
       behalf of non-bargaining unit individuals will do so in a non-duty
       status.
 
          b.  The parties agree that official time spent in representing
       bargaining unit members in procedures outside the negotiated
       grievance procedures provided in Article 11 will be also included
       in the representational time provided for in this Article.  Time
       used by Union officials/representatives in excess of the amounts
       specified in Section 3b of this Article are considered
       unreasonable costs to the Employer.  Time used by Union
       officials/representatives in excess of that provided in Section 3b
       shall be in a non-duty status unless additional time is granted in
       accordance with the note following 3b.
 
          Section 6.  Labor-Management business authorized by this
       agreement is as follows:
 
          a.  Discussion of complaints or potential grievances with
       employee(s) concerned.
 
          b.  Representing employees in identifiable complaints,
       grievances, and adverse actions.
 
          c.  The representation of an employee in a properly established
       hearing or investigation.
 
          d.  Attendance as the Union representative at formal
       discussions . . . .
 
          e.  Attend meetings with management.
 
          f.  Performance of representational functions where time is
       authorized pursuant to, and consistent with, applicable statutes,
       regulations, executive orders, and provisions of this agreement,
       e.g., (but not limited to) discrimination complaints and appeals
       from adverse actions.
 
                            Bargaining History
 
    13.  Article 7 was negotiated, pursuant to section 7131(d) of the
 Statute.  Article 7, Section 5a, providing that no official time will be
 allowed Union representatives for representing non-bargaining unit
 individuals, was a management proposal.  It was agreed to by the Union
 in exchange for Respondent's agreement to permit Union representatives
 to use a portion of their on-duty time as official time to represent
 bargaining unit employees.  Management made the proposal in light of a
 controversy which had existed whereby Union representatives in the
 appropriated fund unit sought to cross-over and represent employees in
 the non-appropriated fund unit. Management's chief negotiator, William
 C. Long, explained that since management was giving Union stewards a
 considerable amount of duty time to represent bargaining unit members,
 it should be non-duty time for representation of non-bargaining unit
 members.  With the appropriated fund unit and non-appropriated fund unit
 representation controversy in mind, the Union agreed to the proposal
 with little discussion.  The chief negotiator for the Union remarked,
 "We don't have time enough to represent bargaining unit employees.  We
 haven't got time for non-bargaining unit employees." There was no
 discussion concerning the ability of a Union steward to step outside his
 Union role and act in an individual capacity as a personal
 representative of a non-bargaining unit employee.  There was also no
 specific discussion of the EEO regulations.
 
                Discussion, Conclusions and Recommendations
 
    The General Counsel contends that Respondent's denial of official
 time for Marshall Heath to act as the personal representative of Donald
 Shipley in connection with Shipley's EEO complaint constituted illegal
 discrimination against Heath because of his protected status as the
 Union's chief steward in violation of section 7116(a)(1) and (2) of the
 Statute.  /1/ The General Counsel asserts that the negotiated agreement
 has no applicability to Heath's representation as he was not acting as a
 Union representative, but was acting in his individual capacity as a
 Fort Riley employee.  Alternatively, the General Counsel argues that no
 waiver of Union officials' rights to receive official time to act as EEO
 representatives of non-bargaining unit complainants has been
 established.
 
    Respondent contends that the matter is beyond the jurisdiction of the
 Authority and can only be resolved through the parties' grievance and
 arbitration procedure. Respondent also claims that the EEO regulations
 create rights only in the EEO complainant.  Therefore, Respondent
 asserts, neither the Union nor the General Counsel has standing to
 assert rights under the EEO regulations in this forum, and the Authority
 has no jurisdiction to resolve such matters.  Respondent argues in the
 alternative that the actions of the agency were authorized by the
 agreement and the EEO regulations, and the Union explicitly or
 implicitly waived the rights of its shop stewards to receive official
 time when acting as EEO representatives for non-bargaining unit
 employees.  Respondent contends that the negotiated agreement
 encompasses the total representational time entitlements of a person
 designated as a Union steward.
 
                         Jurisdiction -- Standing
 
    Section 7102 of the Statute sets forth certain employee rights
 including the right to form, join, or assist any labor organization
 freely and without fear of penalty or reprisal and states that each
 employee shall be protected in the exercise of such right.  Such right
 includes the right to act for a labor organization in the capacity of a
 representative.  Section 7116(a)(1) of the Statute provides that it
 shall be an unfair labor practice for an agency to interfere with,
 restrain, or coerce any employee in the exercise of any right provided
 by the Statute.  Section 7116(a)(2) makes it an unfair labor practice
 for an agency "to encourage or discourage membership in any labor
 organization by discrimination in connection with hiring, tenure,
 promotion, or other conditions of employment." Under sections 7103(a)(1)
 and 7118(a)(1) of the Statute and section 2423.3 of the Authority's
 Rules and Regulations "any person," as defined to include a labor
 organization, may file a charge alleging a violation of the Statute.
 See National Army and Air Technicians Association, Local 371, 7 FLRA 154
 (1981);  National Treasury Employees Union, 6 FLRA 218 (1981).  Under
 section 7118(a)(1) of the Statute the General Counsel has authority to
 investigate the charge and issue a complaint.  Section 7105(a)(2)(G)
 empowers the Authority to conduct hearings and resolve complaints of
 unfair labor practices.
 
    As noted, section 7116(a)(2) prohibits "discrimination in connection
 with . . . conditions of employment" on the basis of Union membership or
 activities.  The Statute defines "conditions of employment" in section
 7103(a)(14) as "personnel policies, practices, and matters, whether
 established by rule, regulation, or otherwise, affecting working
 conditions" with certain exceptions.  /2/ Thus, the Authority has
 jurisdiction to examine the EEO regulations in issue to the extent
 necessary to determine whether they come within this definition and to
 resolve the discrimination complaint of whether Marshall Heath was
 denied a condition of employment because of his protected status as a
 Union representative.
 
    The issue raised by the complaint involves the alleged denial of
 basic employee rights under section 7102 of the Statute and is properly
 before the Authority in an unfair labor practice proceeding.  See, e.g.,
 Federal Aviation Administration, 15 FLRA 668 (1984).  Section 7116(d) of
 the Statute specifically provides that "(i)ssues which can be raised
 under a grievance procedure may, in the discretion of the aggrieved
 party, be raised under the grievance procedure or as an unfair labor
 practice under this section, but not under both procedures." In view of
 this provision of the Statute the Authority has declined to defer to the
 parties' negotiated grievance and arbitration procedure.  Federal
 Aviation Administration, 15 FLRA 668 (1984);  Department of the
 Treasury, United States Customs Service, 19 FLRA No. 58, 19 FLRA 421
 (1985).  However, no unfair labor practice may ultimately be found if
 the alleged violation is determined to be based on an arguable
 interpretation of the parties' agreement.  See, e.g., Department of
 Health and Human Services, Social Security Administration, 23 FLRA No.
 62, 23 FLRA 422 (1986).  On the other hand, if Respondent's
 interpretation of the agreement is untenable, an unfair labor practice
 may be found.  See, e.g., Department of the Air Force, Eielson Air Force
 Base, Alaska, 23 FLRA No. 83, 23 FLRA 605, 611 (1986).  Accordingly,
 Respondent's defense that the Charging Party and the General Counsel
 lack standing and the Authority lacks jurisdiction is without merit.
 
                            The EEO Regulation
 
    EEO regulations, at 29 CFR Section 1613.214(b), provides that where
 an EEO complainant's designated representative is an employee of the
 agency, that representative is entitled to a reasonable amount of
 official time to serve in that capacity if he is otherwise in an active
 duty status.  Respondent does not contend that this benefit, official
 time during regular duty hours for an employee to represent an EEO
 complainant, is not a condition of employment within the meaning of
 section 7103(a)(14) of the Statute.  Therefore, I conclude that it is.
 Cf. Portsmouth Naval Shipyard, 23 FLRA No. 68, 23 FLRA 475, 480 (1986).
 See also AFGE, 2 FLRA 604, 616-617 (1980).
 
    The EEO complainant in this case, Donald Shipley, designated Marshall
 Heath, a Fort Riley employee, to serve as his EEO representative.  Since
 it is undisputed that Heath's representation of Shipley was during
 regular duty hours, Heath would appear to be entitled to a reasonable
 amount of official time to represent Shipley as provided by the EEO
 regulation.  The only exception to this entitlement, according to EEO
 Management Directive 403, is that restrictions may be imposed to a
 certain percentage of the representative's duty hours where the
 representative acts in more than one complaint in a given month,
 quarter, or year and where the representative's absence from normal
 duties would pose a hardship on the mission of the agency.  The record
 does not reflect that this exception applies.  There was no showing that
 Heath acted in more than one EEO complaint during a given period, or
 that his absence posed a hardship.  In this connection, Heath was
 advised that he would be permitted to use annual leave or LWOP to
 represent Shipley.  Heath's requests for LWOP to represent Shipley were
 approved by his supervisor without the expression of any reservation
 concerning the workload or the amount of time Heath was absent from the
 worksite.
 
    The record establishes that but for Heath's designation as a Union
 steward, Heath's requests for official time under EEO regulations to
 serve as the personal representative of Shipley in connection with
 Shipley's EEO complaint would have been granted.  This designation, in
 Respondent's view, brought the official time provisions of the agreement
 into operation.
 
                               The Agreement
 
    Respondent maintains that Article 7, Section 2, which defines "Union
 representatives" as "employees who are duly elected or appointed
 officers or stewards of the Union" creates a status different from other
 employees in the agency.  Respondent claims that this definition,
 together with the time entitlements set forth in Section 3 of the
 agreement, limit Union representatives to the time and representational
 duties set forth in the agreement.  Respondent contends that Section 5a
 and 6f of the agreement constitute an explicit waiver of the rights of
 stewards to receive additional time, and there exists an implicit waiver
 as well.
 
    I agree with the General Counsel that the negotiated agreement is not
 controlling concerning Heath's personal representation of Shipley, a
 non-bargaining unit employee, in the EEO matter.  Article 7, by its
 terms, provides guidance concerning the "granting of official time to
 bargaining unit members performing union representational duties
 pertaining to the bargaining units covered by this agreement." Article 7
 was negotiated pursuant to section 7131(d) /3/ which specifically
 authorizes the negotiation of official time for an employee
 "representing an exclusive representative." See AFGE, Local 2094, 19
 FLRA No. 120, 19 FLRA 1027, 1029-1030 (1985).
 
    The collective bargaining agreement provides limited official time
 for Union representation of bargaining unit employees in various
 labor-management related representational matters including the
 negotiated grievance procedure, discrimination (EEO)) complaints, and
 appeals from adverse actions.  Article 7, Sections 3, 5, 6.  It provides
 no official time for Union representatives to represent individuals who
 are not in the bargaining units.  Article 7, Section 5a.  I conclude
 that this provision also refers to "union representational duties" or an
 individual "representing an exclusive representative" in view of the
 stated purpose of the Article and section 7131(d) under which it was
 negotiated.  This section, requiring that the Union's representation of
 non-bargaining unit employees be performed in a non-duty status, was
 included in the agreement in exchange for Respondent's agreement to
 permit Union representatives to use a portion of their on-duty time as
 official time.  This provision was proposed and agreed to in light of
 the experience of Union representatives of one bargaining unit providing
 Union representation to employees of another bargaining unit while on
 official time.  It was designed to prevent this practice.  With this
 understanding, it is not surprising that the Union agreed to section 5a
 with little discussion, stating only that it had no interest in
 representing non-bargaining unit employees.  As noted, under section
 7131(d) of the Statute a union representative is only entitled to
 official time to represent fellow bargaining unit employees in an amount
 the parties agree to be reasonable, necessary and in the public
 interest.  National Association of Government Employees, Local R14-77,
 23 FLRA No. 76, 23 FLRA 547 (1986).  There was no discussion concerning
 whether a Union representative could step outside of his Union
 representational role and act as a personal representative of a
 non-bargaining unit employee.
 
    It is concluded that Respondent's interpretation of the parties'
 agreement to deny Heath's requests for official time is untenable.  The
 "waiver" principles generally apply only to the waiver of a statutory
 right.  However, to the extent the parties deem them applicable here as
 involving the waiver of a condition of employment, neither the language
 of Article 7 of the negotiated agreement, the bargaining history behind
 Article 7, or the practice observed by the parties in implementing
 Article 7 (no similar situation encountered), establish a waiver of the
 right of employees who may be designated as Union representatives to
 receive official time pursuant to EEO regulations when acting
 individually as personally designated representatives of non-bargaining
 unit employees in EEO matters.
 
    Respondent asserts that by filing the charge in this case, the Union
 seeks to gain official time over and above that which was negotiated in
 Article 7 of the agreement.  As noted, Heath's entitlement to official
 time to represent Shipley is not based on the agreement, but
 independently on EEO regulations.  This decision merely ensures that,
 under the circumstances of this case, Union officials will not be denied
 official time to which they are otherwise entitled as employees under
 EEO regulations solely because of their status as Union officials.
 
    It is concluded that Respondent, by denying employee Marshall Heath
 the use of official time under EEO regulations to act as the personal
 representative of a non-bargaining unit employee because of his status
 as a Union representative violated section 7116(a)(1) and (2) of the
 Statute, as alleged.  Respondent's action discouraged membership and
 willingness to act in the capacity of a representative by discrimination
 in connection with a condition of employment.  Respondent's action also
 interfered with, restrained, or coerced Heath in the exercise of rights
 guaranteed in section 7102 of the Statute.  Cf. Portsmouth Naval
 Shipyard and Department of the Navy, 23 FLRA No. 68, 23 FLRA 475 (1986).
 
    Based on the foregoing findings and conclusions, it is recommended
 that the Authority deny Respondent's motion to dismiss and 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 Department of the Army, Fort Riley,
 Kansas, shall:
 
    1.  Cease and desist from:
 
          (a) Discriminating against Marshall Heath, Chief Steward of the
       American Federation of Government Employees, Local 2324, by
       denying him official time under Equal Employment Opportunity (EEO)
       regulations to act as the personal representative of a
       non-bargaining unit employee in an EEO complaint, because of his
       representational duties on behalf of Local 2324.
 
          (b) In any like or related manner, interfering with,
       restraining, or coercing employees in the exercise of their rights
       assured by the Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
          (a) Make Marshall Heath whole for any loss of hours incurred as
       a result of the denial of official time for Heath to act as the
       personal representative of non-bargaining unit employee Donald
       Shipley in an EEO complaint, including making Heath whole for any
       wages lost because of his use of leave without pay to represent
       Shipley and including restoring any annual leave Heath used to
       represent Shipley.
 
          (b) Post at its facilities copies of the attached Notice on
       forms to be furnished by the Authority.  Upon receipt of such
       forms, they shall be signed by the Chief, Management and Employee
       Relations Division, 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.
 
          (c) Pursuant to section 2423.30 of the Authority's Rules and
       Regulations notify the Regional Director, Region 7, Federal Labor
       Relations Authority, Denver, Colorado, in writing, within 30 days
       from the date of this order, as to what steps have been taken to
       comply herewith.
                                       /s/ GARVIN LEE OLIVER
                                       Administrative Law Judge
 
    Dated:  November 28, 1986
    Washington, D.C.
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) "Section 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(.)"
 
    (2) Section 7103 of the Statute defines conditions of employment as
 follows:
 
          Section 7103.  Definitions;  application
 
          (a) For the purpose of this chapter --
 
                       .  .  .  .  .  .  .
 
 
          (14) "conditions of employment" means personnel policies,
       practices, and matters, whether established by rule, regulations,
       or otherwise, affecting working conditions, except that such term
       does not include policies, practices, and matters --
 
          (A) relating to political activities prohibited under
       subchapter III of chapter 73 of this title;
 
          (B) relating to the classification of any position;  or
 
          (C) to the extent such matters are specifically provided for by
       Federal statute(.)
 
    (3) Section 7131(d) provides, in part, that:
 
          (d) Except as provided in the preceding subsections of this
       section --
 
          (1) any employee representing an exclusive representative, or
 
          (2) in connection with any other matter covered by this
       chapter, any employee in an appropriate unit represented by an
       exclusive representative,
 
          shall be granted official time in any amount the agency and the
       exclusive representative involved agree to be reasonable,
       necessary, and in the public interest.