47:0864(82)CA - - 7TH Infantry Division (Light), Fort Ord, CA and Harry W. Johnson, III - - 1993 FLRAdec CA - - v47 p864



[ v47 p864 ]
47:0864(82)CA
The decision of the Authority follows:


47 FLRA No. 82

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

7TH INFANTRY DIVISION (LIGHT)

FORT ORD, CALIFORNIA

(Respondent)

and

HARRY W. JOHNSON, III

(Charging Party)

SF-CA-20784

_____

DECISION AND ORDER

June 11, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Rules and Regulations based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The General Counsel and the Respondent filed briefs with the Authority.

The complaint alleges that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to comply with section 7131(c) of the Statute when it refused to grant the Charging Party official time to appear as a witness in an unfair labor practice hearing before an Administrative Law Judge of the Authority. For the following reasons, we find that the Respondent did not violate the Statute as alleged and we will dismiss the complaint.

II. Facts

The American Federation of Government Employees, Local 2082, AFL-CIO (the Union) is the exclusive representative of a bargaining unit of employees at the Respondent's facility. At all relevant times, Harry Johnson, the Charging Party, was a bargaining unit employee who was employed by the Respondent.

On January 14, 1992, Johnson filed an unfair labor practice charge in Case No. SF-CO-20199 alleging that the Union had interfered with his rights by confiscating "signed decertification petitions" that he and others had gathered. Stipulation at 2. At no time was any "declaration made by the [] Authority to the Respondent that a showing of interest had been submitted by [] Johnson." Id. On May 14, the Regional Director issued a complaint in Case No. SF-CO-20199 against the Union.(1) A hearing on the complaint was set for June 24 before an Administrative Law Judge in San Francisco.

By letter dated June 16, the Respondent notified the General Counsel that Johnson would not be granted official time in connection with his attendance at the unfair labor practice proceeding in Case No. SF-CO-20199, but that he would be granted leave upon request. On June 17, the Regional Director issued a subpoena directing Johnson to appear at the hearing in Case No. SF-CO-20199. A copy of the subpoena issued to Johnson was furnished to the Respondent by telefax.

By letter of June 18, the General Counsel notified the Respondent that Johnson had been issued a subpoena ordering his appearance at the unfair labor practice hearing on June 24 and that Johnson was entitled to official time in connection with his attendance at the hearing. On the same day, the Respondent informed the Union of its position that official time would not be granted to Johnson for the hearing in Case No. SF-CO-20199. The Union did not dispute the Respondent's position.

The Respondent refused to grant official time to Johnson to attend the hearing in Case No. SF-CO-20199. Johnson testified at that hearing. The Respondent granted Johnson's request for 8 hours of annual leave for the time period during which he participated in, and traveled to and from, the hearing in Case No. SF-CO-20199. The Respondent in the instant case was not a party to the proceeding in Case No. SF-CO-20199 and did not participate in the hearing.

On July 7, Johnson filed the charge that led to the issuance of the complaint in the instant case.

III. Positions of the Parties

A. Respondent

The Respondent asserts that section 7131(c) of the Statute "is clear on its face that official time for [Authority] hearings only accrues to those [employees] appearing for or on behalf of labor organizations."(2) Respondent's Brief at 5. The Respondent contends that section 7131(c) "provides, at once, an authorization and a limitation to the circumstance described." Id. at 5-6. Moreover, the Respondent argues that "by its attempt under 5 CFR 2429.13 to expand its authority to require official time for witnesses at [unfair labor practice] hearings beyond those appearing for or on behalf of a labor organization, as required by [the] Statute, the [Authority] has made an unauthorized assumption of a major policy decision properly made by Congress." Id. at 5 (emphasis in original).(3)

According to the Respondent, "[w]hatever interpretation the General Counsel gives to [section] 7131(c) and [section] 2429.13, based on its own theories about the role and authority of the FLRA, the overriding principle is that 'Congress did not write the Statute that way.'" Id. at 9-10 (quoting United States v. Monsanto, 109 S. Ct. 2657, 2664 (1989), cited in Member Talkin's dissent in U.S. Department of the Army, Army Finance and Accounting Center, Indianapolis, Indiana and American Federation of Government Employees, Local 1411, 38 FLRA 1345, 1357 (1991)), motion for reconsideration dismissed, 40 FLRA 233 (1991), petition for review denied, 960 F.2d 176 (D.C. Cir. 1992).

In support of its position, the Respondent relies on the court's decision in Department of the Air Force, Sacramento Air Force Logistics Center, McClellan Air Force Base, California v. FLRA, 877 F.2d 1036 (D.C. Cir. 1989) (McClellan AFB).(4) The Respondent also notes that in no case involving an unfair labor practice complaint against a union has the Authority held that an employee was entitled to official time under section 7131(c) of the Statute.

B. General Counsel

The General Counsel contends that section 7131(c) of the Statute empowers the Authority to make determinations as to whether employees participating before it shall be authorized official time. The General Counsel asserts that once the General Counsel determines that an employee's participation in Authority proceedings is necessary, that determination "triggers the [agency's] obligation to provide requested official time." General Counsel's Brief at 3. The General Counsel contends that inasmuch as the General Counsel determined that Johnson was a necessary witness to testify at the unfair labor practice proceeding in Case No. SF-CO-20199, Johnson was entitled, pursuant to section 7131(c) of the Statute and section 2429.13 of the Authority's Rules and Regulations, to receive official time. The General Counsel asserts, therefore, that the Respondent's refusal to grant Johnson official time for his participation in the proceeding constitutes a failure to comply with section 7131(c) of the Statute and, thereby, violates section 7116(a)(1) and (8) of the Statute.

The General Counsel further asserts that the Respondent's arguments were considered and rejected by the Authority in Sacramento and that this case is neither factually nor legally distinguishable from Sacramento. Additionally, the General Counsel contends that the Respondent's interpretation of section 7131(c) is "inappropriate" and would render the provisions of the Statute which address unfair labor practices by unions "meaningless" because the Authority's ability to enforce the provisions would be completely "disabled." Id. at 5.

Finally, the General Counsel contends that "an individual does not act against a union when he raises violations of the Statute committed by the union to the Authority." Id. at 6 (emphasis in original). Rather, according to the General Counsel, an "employee who seeks to purge his union of actions inconsistent with the Statute does, in fact, act on behalf of the union, notwithstanding what the leadership of the union might think." Id.

IV. Analysis and Conclusions

Section 7131(c) of the Statute states, in relevant part, that the Authority shall determine whether "any employee participating for, or on behalf of, a labor organization in any phase of proceedings before the Authority" shall be authorized official time for such purpose. For the following reasons, we conclude that Johnson was not participating for, or on behalf of, a labor organization in connection with his participation in the unfair labor practice hearing in Case No. SF-CO-20199, and, therefore, the Respondent did not violate section 7131(c) of the Statute by refusing to grant Johnson official time for that purpose.

Our finding in this regard is based on the unambiguous language of section 7131(c). The task of resolving a dispute over the meaning of a statutory provision "begins where all such inquiries must begin: with the language of the statute itself." United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241 (1989) (citation omitted). If the statute's language is plain, that is, if Congress' intent is apparent from the language, "it is also where the inquiry should end, for where . . . the statute's language is plain, the 'sole function of the courts is to enforce it according to its terms.'" Id. (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917)). See also Overseas Education Association v. FLRA, 876 F.2d 960, 974 (D.C. Cir. 1989) ("[u]nless exceptional circumstances dictate otherwise, '[w]hen we find the terms of a statute unambiguous, judicial inquiry is complete.'" (quoting Burlington Northern R.R. Co. v. Oklahoma Tax Commission, 481 U.S. 454, 461 (1987)).

As set forth above, section 7131(c) of the Statute empowers the Authority to make determinations as to "whether any employee participating for, or on behalf of, a labor organization" in proceedings before the Authority shall be authorized official time for such purpose. Thus, it is clear that Congress defined the class of individuals to whom section 7131(c) applies not as all employees, but rather as those employees participating for, or on behalf of, a labor organization.

We note that the only relevant legislative history is contained in the House Committee Report, which states that section 7131(c) "empowers the Authority to make determinations as to whether employees participating in proceedings before the Authority shall be authorized official time."(5) In light of the express language enacted by Congress in section 7131(c) of the Statute referring to employees participating for, or on behalf of, a labor organization, we do not view the statement in the Committee Report as signifying that, contrary to the express language of section 7131(c), section 7131(c) is intended to apply to all employees, including those who are not participating for, or on behalf of, a labor organization.

We find, therefore, that section 7131(c) of the Statute unambiguously expresses Congress' intent that the Authority is empowered to determine whether to authorize official time under section 7131(c) only for employees who are participating for, or on behalf of, a labor organization in an Authority proceeding.

We reject the General Counsel's argument that such an interpretation of section 7131(c) is "inappropriate" because, under this construction, the provisions of the Statute which address unfair labor practices by unions would be rendered "meaningless[.]" General Counsel's Brief at 5. While it is not clear why Congress chose not to grant the Authority the ability to determine whether employees such as Johnson are to be authorized official time, nothing in our conclusion that section 7131(c) means what it plainly says leads to the conclusion that the provisions of the Statute which address unfair labor practices by unions would be rendered meaningless. Indeed, we note that in the underlying case which gave rise to the instant complaint, Johnson testified at the hearing after having requested and been granted annual leave, and it was determined by the Administrative Law Judge that the Union in that case committed the unfair labor practices alleged. See American Federation of Government Employees, Local 2082, AFL-CIO, Case No. SF-CO-20199 (Order, November 13, 1992). Accordingly, in our view, the General Counsel's contention in this regard is unsupported.(6)

Finally, we reject the General Counsel's claim that Johnson, despite having filed an unfair labor practice charge against the Union, was in fact participating for, or on behalf of, a labor organization within the meaning of section 7131(c) of the Statute when he testified at the hearing before the Judge in Case No. SF-CO-20199. A determination as to whether an employee is participating for, or on behalf of, a labor organization within the meaning of section 7131(c) of the Statute requires an examination of the facts and circumstances of each case. In Case No. SF-CO-20199, Johnson filed a charge against the labor organization representing the bargaining unit at the facility where he was employed. The charge alleged that the Union had interfered with Johnson's rights by confiscating signed decertification petitions that Johnson and others had gathered.

Under section 7111 of the Statute, a decertification petition is a petition wherein an individual or individuals allege that the current certified exclusive representative no longer represents the majority of the employees in the unit and seek to remove the current union as the exclusive representative of the bargaining unit. Thus, the petitions that Johnson and others had gathered sought to remove the Union as the exclusive representative of the bargaining unit. Moreover, we note that Johnson testified against the Union in the unfair labor practice proceeding in Case No. SF-CO-20199. Accordingly, it is clear that Johnson was not participating for, or on behalf of, the Union in that proceeding because that proceeding concerned Johnson's efforts to remove the Union as the exclusive representative of the bargaining unit. Further, there is no evidence in the record that indicates that Johnson was acting for another labor organization in the decertification effort.

In these circumstances, we find that the Charging Party was not participating for, or on behalf of, a labor organization in the Authority unfair labor practice proceeding within the meaning of section 7131(c) of the Statute.(7)

Accordingly, to the extent that earlier Authority decisions such as AFLC and Sacramento hold or suggest that section 7131(c) of the Statute applies to employees who are not participating for, or on behalf of, a labor organization, we will no longer follow those decisions.(8)

Based on the above, we conclude that because the Charging Party was not participating for, or on behalf of a labor organization within the meaning of section 7131(c), the Respondent did not fail to comply with the requirements of section 7131(c) of the Statute and, therefore, did not violate section 7116(a)(1) and (8) of the Statute.(9)

V. Order

The complaint is dismissed.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Unless otherwise indicated, all dates refer to 1992.

2. Section 7131(c) of the Statute provides:

Except as provided in subsection (a) of this section, the Authority shall determine whether any employee participating for, or on behalf of, a labor organization in any phase of proceedings before the Authority shall be authorized official time for such purpose during the time the employee otherwise would be in a duty status.

3. Section 2429.13 of the Authority's Rules and Regulations provides:

§ 2429.13 Official time.

If the participation of any employee in any phase of any proceeding before the Authority, including the investigation of unfair labor practice charges and representation petitions and the participation in hearings and representation elections, is deemed necessary by the Authority, the General Counsel, any Administrative Law Judge, Regional Director, Hearing Officer, or other agent of the Authority designated by the Authority, such employee shall be granted official time for such participation, including necessary travel time, as occurs during the employee's regular work hours and when the employee would otherwise be in a work or paid leave status. In addition, necessary transportation and per diem expenses shall be paid by the employing activity or agency.

4. In McClellan AFB, the court reversed the Authority's decisions in Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 26 FLRA 674 (1987) (Sacramento); Air Force Logistics Command, McClellan Air Force Base, California, 24 FLRA 274 (1986) (AFLC); and Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 24 FLRA 187 (1986) (Wright-Patterson) insofar as those decisions directed the agencies involved to pay travel and per diem expenses under section 7131(c) and section 2429.13 of the Authority's Rules and Regulations to employees who were required to appear at FLRA proceedings.

5. H.R. Rep. No. 1403, 95th Cong., 2d Sess. 58 (1978), reprinted in Committee on Post Office and Civil Service, House of Representatives, 96th Cong., 1st Sess., Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978 (Comm. Print 1979), at 704-05.

6. As this case does not present the issue of whether an agency's denial of a leave request in such circumstances would constitute an unfair labor practice, we express no view on that issue.

7. We emphasize that our decision should not be construed as holding that if an employee participates in an unfair labor practice proceeding in which a complaint has been filed against a labor organization, that employee is necessarily excluded from the scope of section 7131(c) of the Statute. As we stated above, a determination as to whether an employee is participating for, or on behalf of, a labor organization within the meaning of section 7131(c) of the Statute requires an examination of the facts and circumstances of each case.

8. We note that in AFLC, the Authority noted the practice for granting official time under Executive Order 11491 and found that section 7131(c) was not intended to change that practice. However, as we found above, the plain language of section 7131(c) reflects Congress' intent to limit the authorization of official time to the class of employees defined in that section. Accordingly, reliance on the practice under the Executive Order in this circumstance is inappropriate because, as the court stated in McClellan AFB, "Executive Order practice [is] relevant only when we have been 'unable to determine congressional intent after applying traditional tools of statutory construction.'" McClellan AFB, 877 F.2d at 1041 (quoting National Labor Relations Board Union v. FLRA, 834 F.2d 191, 202 (D.C. Cir. 1987)).

9. Our decision does not mean that 5 C.F.R. § 2429.13 is necessarily invalid insofar as it provides for the granting of official time for employees other than those participating for, or on behalf of, a labor organization. The complaint alleged only a violation of section 7131(c) of the Statute and the General Counsel makes no contention that the Respondent was obligated to grant official time to Johnson pursuant to any other statutory provision. Accordingly, we have considered only section 7131(c) of the Statute. Insofar as 5 C.F.R. § 2429.13 provides for the granting of official time for employees other than those participating for, or on behalf of, a labor organization, we conclude that that portion of the regulation is not authorized by section 7131(c) of the Statute. In light of the limited allegation in the complaint, our decision does not address whether that portion of the regulation might be authorized by any