47:1118(105)NG - - NFFE, Local 122 and VA Regional Office, Atlanta, GA - - 1993 FLRAdec NG - - v47 p1118



[ v47 p1118 ]
47:1118(105)NG
The decision of the Authority follows:


47 FLRA No. 105

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 122

(Union)

and

U.S. DEPARTMENT OF VETERANS AFFAIRS

REGIONAL OFFICE

ATLANTA, GEORGIA

(Agency)

0-NG-2090

_____

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

July 12, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.(1)

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of one proposal.

The proposal provides that Union representatives will be permitted to conduct lobbying activities on official time concerning legislation related to bargaining unit employees' working conditions. We conclude that the Union's proposal is negotiable.

II. Preliminary Matters

A. Timely Service of Petition for Review

The Agency contends that we do not have jurisdiction to decide the Union's negotiability petition because the Union did not furnish the Agency head with a copy of the petition for review within the 15-day time limit prescribed by section 7117(c)(2)(B) of the Statute. The Agency notes that section 7117(c)(2)(A), which requires that a petition for review be filed with the Authority within 15 days of the date on which an Agency allegation is served on the Union, is jurisdictional. The Agency argues that section 7117(c)(2)(B) should also be considered jurisdictional. Because the Union did not serve the Agency head with a copy of the petition for review in this case within the 15-day time limit, the Agency claims that we do not have jurisdiction over the petition. We disagree.

Section 7117(c)(2)(A) of the Statute provides that an exclusive representative may institute a negotiability appeal by filing a petition for review with the Authority on or before the 15th day after the date on which the agency alleges that the duty to bargain in good faith does not extend to any matter. By its terms, section 7117(c)(2)(A) concerns the action by which a union invokes our authority under section 7105(a)(2)(D) and (E) to resolve negotiability disputes. Because this provision establishes the time limit governing the invocation of our power to decide a case, the Authority has consistently interpreted section 7117(c)(2)(A) as being jurisdictional and has held that that time limit may not be extended or waived. See American Federation of Government Employees, Local 3407 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic-Topographic Center, Washington, D.C., 41 FLRA 265 (1991). See also National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 890 (D.C. Cir. 1982) (section 7117(c) "sets rigid time limits for filing a union appeal, an agency explanatory statement and a union response" which "must be strictly observed").

Section 7117(c)(2)(B) of the Statute provides that an exclusive representative must also "furnish[] a copy of the petition to the head of the agency" on or before the 15th day after the date on which the agency alleges that the duty to bargain in good faith does not extend to any matter. In contrast to section 7117(c)(2)(A), this subsection does not concern the invocation of the Authority's statutory authority to resolve a negotiability dispute. Rather, it concerns notice to the agency which is a party to that dispute that the union has initiated a petition for review with the Authority. The Authority has consistently interpreted section 7117(c)(2)(B) as establishing a statutory procedural requirement which does not pertain to our jurisdiction to decide a negotiability dispute. See American Federation of Government Employees, AFL-CIO, Local 1501 and Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 24 FLRA 470, 471-72 (1986). The Authority has consistently held that a failure to comply with the statutory procedural requirement in section 7117(c)(2)(B) is a curable defect in the petition for review. Service Employees International Union, Local 200-B and U.S. Department of Veterans Affairs, Medical Center, Syracuse, New York, 44 FLRA 821, 822 (1992); National Association of Government Employees, Local R1-25 and Veterans Administration Medical Center, Brockton, Massachusetts, 23 FLRA 266 (1986); American Federation of Government Employees, Local 2578, AFL-CIO and General Services Administration, National Archives and Records Service, 12 FLRA 545 (1983). For these reasons, we conclude that section 7117(c)(2)(B) of the Statute does not establish a condition precedent to the Authority's jurisdiction over a petition for review of a negotiability dispute.

In the particular circumstances of this case, the Authority advised the Union on October 14, 1992, that its petition was procedurally deficient because, among other things, it did not include a signed statement of service showing service of the petition for review on the Agency head or a designee. In accordance with section 2424.4(c)(1) of our Rules and Regulations, the Union was given an opportunity to correct the deficiencies. On October 30, 1992, we issued an Order directing the Union to show cause why its petition for review should not be dismissed because it had failed to show, among other things, that the head of the Agency was served with either the Union's petition for review or the Union's response to the Authority's October 14 Order informing the Union of the deficiencies in its petition for review.

The record reveals that the Union complied with our Order to show cause on November 9, 1992, by filing a statement of service showing that the Agency head was served with the Union's petition for review and demonstrating that it had cured the other deficiencies. On November 17, 1992, we issued an Order stating that we would resume processing of the instant negotiability appeal because the Union had timely cured the deficiencies in its petition. Because we find that section 7117(c)(2)(B) of the Statute does not establish a condition governing our jurisdiction to resolve a negotiability dispute, and because we find that the Union timely cured the deficiencies in its petition, as ordered by the Authority, we conclude that the Union's petition is properly before us for review.

B. Duty to Bargain

The Agency contends that it has no duty to bargain with the Union over the proposal because the parties reached impasse on the same issue in negotiations over their national agreement and the Federal Service Impasses Panel ruled that the Union's proposal should not be included in the parties' national agreement. The Agency also asserts that a substantially similar provision in the parties' prior agreement was the subject of a grievance by the national union and that the arbitrator ruled in that grievance that the contract provision did not provide official time for lobbying activities. The Agency argues that the parties' national agreement bars negotiation of the Union's proposal and that the negotiability process "is not the proper forum for the [U]nion to challenge [the Agency's] contract bar assertion." Statement of Position (Statement) at 7. The Agency also argues that the doctrine of res judicata precludes further litigation of this issue because the Union "already has litigated this issue unsuccessfully before the [Federal Service] Impasses Panel and in grievance arbitration." Id.

The Agency's arguments concern the duty to bargain in the specific circumstances of this case. Under longstanding Authority precedent, where the conditions for review of negotiability issues have been met, a union is entitled to a decision by the Authority as to whether its proposals are negotiable under the Statute. National Federation of Federal Employees, Forest Service Council and U.S. Department of Agriculture, Forest Service, Region 6, Portland, Oregon, 45 FLRA 242, 246-47 (1992); National Federation of Federal Employees, Local 1900 and Department of Housing and Urban Development, 33 FLRA 192, 194-95 (1988); American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302, 306 n.6 (1984). To the extent that there are additional issues regarding the duty to bargain or the parties' national agreement in the specific circumstances of this case, those issues should be resolved in other appropriate proceedings. Nothing in the Agency's arguments warrants reversal of our longstanding precedent in this regard. See American Federation of Government Employees, National Border Patrol Council, Local 2544 and U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, Tucson, Arizona, 46 FLRA 930, 934-37 (1992), petition for review filed U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, Tucson, Arizona v. FLRA, No. 93-70137 (9th Cir. Feb. 8, 1993).

III. Proposal

Section 14. Union officials shall be permitted a reasonable amount of Official time to represent Federal Employees by visiting, phoning and writing to elected representatives in support or opposition to pending or desired legislation which would impact the working conditions of employees represented by NFFE.

A. Positions of the Parties

1. Agency

The Agency states that, in American Federation of Government Employees, Local 2094, AFL-CIO and Veterans Administration Medical Center, New York, New York, 19 FLRA 1027 (1985) (VAMC), the Authority held that representational activity for which official time under section 7131(d) of the Statute is authorized does not include individual employees lobbying Congress over work-related concerns. The Agency asserts that "[t]here is no material difference between individual employees lobbying elected representatives over job concerns, and union representatives doing such lobbying on behalf of the employees." Statement at 5. The Agency argues that, under VAMC, the Union's proposal for official time for union representatives to conduct lobbying activities is nonnegotiable. According to the Agency, the proposal does not concern a matter related to collective bargaining under the Statute for which official time is authorized.

2. Union

The Union states that the Union "has attempted to obtain this official time as representational duty" so that Agency employees "may use this time as do union officials" at two other Federal agencies. Petition for Review.

B. Analysis and Conclusions

The plain wording of the Union's proposal provides for the use of official time by Union representatives to represent Federal employees by visiting, phoning, and writing to elected representatives in support of or opposition to legislation which could affect the working conditions of the employees represented by the Union. The proposal does not require the approval of any specific amount of official time. The proposal merely provides that Union officials shall be permitted to use a reasonable amount of official time for the purpose of presenting the Union's views to Members of Congress on matters affecting the conditions of employment of unit employees. The issue is whether the proposal authorizing official time for that purpose is negotiable under the Statute. For the following reasons, we find that the proposal is negotiable.

Proposals requiring that employees be granted official time for representational activities are negotiable under section 7131(d) of the Statute. National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 45 FLRA 339, 346-55 (1992) (BATF) (Member Armendariz, dissenting in part as to other matters), petition for review filed No. 92-1370 (D.C. Cir. Aug. 17, 1992). In BATF, we stated that, in our view, "Congress intended by section 7131(d) of the Statute to authorize unions to negotiate over the use of official time for representational activity." Id. at 347. We concluded that Provisions 2 and 6 in BATF were negotiable. As relevant here, Provision 2 in BATF provided that employees' requests to meet with the union would normally be granted by their supervisors, if no substantial workload disruption would result. Provision 6 in BATF provided that the chapter president, chief steward, and individual stewards would be released to perform representational functions, after checking with their supervisors, absent a severe workload disruption. See also National Federation of Federal Employees, Local 466 and U.S. Department of Agriculture, Forest Service, Regional Office, Atlanta, Georgia, 45 FLRA 1063 (1992) (proposal authorizing official time for union representatives to conduct representational activities at fire camps was found to be negotiable); National Treasury Employees Union and U.S. Department of the Treasury, Financial Management Service, 45 FLRA 696 (1992) (provision concerning the use of official time by union representatives to contact or meet with an employee was found to be negotiable); American Federation of Government Employees, AFL-CIO, Local 2096 v. FLRA, 738 F.2d 633, 637 (4th Cir. 1984) ("Since subsections (a), (b), and (c) [of section 7131] deal with time spent on actual contract negotiations, impasse proceedings, and proceedings before [the] FLRA, subsection (d) is most logically read as enabling an employer and union to negotiate for other types of official time allowances.").

Additionally, in National Federation of Federal Employees, Local 2050 and Environmental Protection Agency, 45 FLRA 289 (1992) (EPA), we held that official time for representational activities involving the exercise of employee rights under section 7102 of the Statute was negotiable under section 7131(d) of the Statute. In that case, we found that employees, acting as union representatives, who publicize matters affecting unit employees' conditions of employment, are engaged in representational activity that is protected under section 7102 of the Statute. We also found that, because section 7131(d) authorizes official time for such representational activity, a proposal providing official time for employees serving as union representatives to respond to inquiries from the media or public concerning matters affecting unit employees' conditions of employment was negotiable under section 7131(d).

We have also held that official time for representational purposes negotiated under section 7131(d) of the Statute must relate to labor-management relations activities. See American Federation of Government Employees, National Immigration and Naturalization Service Counsel and U.S. Department of Justice, Immigration and Naturalization Service, Washington, D.C., 45 FLRA 391, 399 (1992) (INS), petition for review filed, No. 92-1995 (4th Cir. Aug. 19, 1992) (citing American Federation of Government Employees, National Council of Field Labor Locals and U.S. Department of Labor, Mine Safety and Health Administration, Denver, Colorado, 39 FLRA 546, 552-53 (1991) (Mine Safety)); VAMC, 19 FLRA at 1029. In INS, we further noted that although section 7131(d) "affirmatively permits the negotiation of official time for labor-management relations activities, 'it does not preclude parties from agreeing to provide for official (paid) time in other circumstances unrelated to labor-management relations activities, provided that the granting of official time in those other circumstances is otherwise consistent with the Statute and other applicable laws and regulations.'" INS, 45 FLRA at 399 (quoting Mine Safety, 39 FLRA at 553).

Consistent with EPA, we conclude that the proposal in this case concerns representational activity for which official time is authorized under section 7131(d) of the Statute. Section 7102 of the Statute contemplates that employees will express their views to Congress through their exclusive representative and specifically grants employees functioning as union representatives the right "to present the views of the labor organization to . . . the Congress[.]" A union representing Federal employees may have particular representational interests in lobbying Congress because Congress may determine directly many conditions of employment of Federal employees. See, for example, Fort Stewart Schools v. FLRA, 495 U.S. 641, 649 (1990) (the Court stated that the "wages and fringe benefits of the overwhelming majority of Executive Branch employees are fixed by law . . . and are, therefore . . ." nonnegotiable under the Statute).

We note that in Abood v. Detroit Board of Education, 431 U.S. 209 (1977) (Abood), the Supreme Court stated that the "process of establishing a written collective-bargaining agreement prescribing the terms and conditions of public employment may require not merely concord at the bargaining table, but subsequent approval by other public authorities; related budgetary and appropriations decisions might be seen as an integral part of the bargaining process." Abood, 431 U.S. at 236. Similarly, in Lehnert v. Ferris Faculty Association, 111 S. Ct. 1950 (1991) (Lehnert), the Court recognized that "[p]ublic-sector unions often expend considerable resources in securing ratification of negotiated agreements by the proper state or local legislative body." Lehnert, 111 S. Ct. at 1959. The Court noted that "union efforts to acquire appropriations for approved collective-bargaining agreements often serve as an indispenable prerequisite to their implementation." Id. The Court stated that "[t]he dual roles of government as employer and policymaker in such cases make the analogy between lobbying and collective bargaining in the public sector a close one." Id.

Although Abood and Lehnert are instructive as to the connection between lobbying activities and the collective bargaining functions of a public sector union, those cases are not controlling here. Abood and Lehnert concerned the constitutional limitations on the use by a union of agency fees paid by public sector employees who are not union members. The Court found that the use of non-member agency fees for activities that are pertinent to the duties of a public sector union as a bargaining representative did not violate the constitutional rights of non-member employees. In particular, the Court held in Lehnert that public sector unions may constitutionally subsidize lobbying activities with non-member agency fees so long as those activities are pertinent to the duties of the union as a bargaining representative. However, the Court found that because the lobbying activities at issue in that case related to the financial support of the employee's profession or public employees generally, and did not relate to the ratification or implementation of the non-member's collective bargaining agreement, "the connection to the Union's function as bargaining representative [was] too attenuated to justify compelled [financial] support by objecting employees." Id. at 1959-60. The issues addressed in Abood and Lehnert are not the issues involved in this case and, therefore, those cases are not dispositive in this case.

The proposal in this case authorizes official time, under section 7131(d) of the Statute, for unit employees who are serving as union representatives to contact Members of Congress with respect to matters pertaining to unit employees' conditions of employment. Consequently, the proposal authorizes official time for a matter that constitutes representational activity under section 7131(d) of the Statute. We emphasize, however, that to be consistent with the requirement in section 7131(d) that official time be granted for representational purposes, an employee's right to appear before Congress or conduct lobbying activities on official time is appropriate only if the employee is functioning as a union representative and only if the matters concerning which the employee is lobbying pertain to unit employees' conditions of employment.

We also find that the official time authorized by the proposal relates to labor-management relations activities. In our view, the phrase "labor-management relations activities" as used in Mine Safety and INS includes activities "in connection with any other matter covered by [the Statute]" within the meaning of section 7131(d) of the Statute. Specifically, the phrase includes the right of employees under section 7102 to represent the labor organization that is their exclusive representative by presenting the views of that organization to Congress concerning matters pertaining to their conditions of employment. See also 5 U.S.C. § 7211 (providing that the "right of employees, individually or collectively, to petition Congress or a Member of Congress, or to furnish information to either House of Congress, or to a committee or Member thereof, may not be interfered with or denied"). The proposal in this case authorizes official time for the purpose of allowing Union representatives to present the views of the Union to Congress concerning matters pertaining to the conditions of employment of unit employees. Accordingly, we find that the proposal in this case concerns labor-management relations activities for which official time is authorized under section 7131(d) of the Statute. Compare INS, 45 FLRA at 399-401 (the use of official time to represent employees or to serve as a personal representative in appeals procedures before the Merit Systems Protection Board does not relate to labor-management relations activities under section 7131(d) of the Statute); Mine Safety, 39 FLRA at 552-54 (official time for attending an Office of Workers' Compensation Programs hearing does not relate to labor-management relations activities under section 7131(d) of the Statute).

This case is distinguishable from Commander Naval Air Pacific, San Diego, California and Naval Air Station Whidbey Island, Oak Harbor, Washington, 41 FLRA 662 (1991) (Naval Air Pacific). In Naval Air Pacific, the issue, as relevant here, was whether information requested by the union for use in lobbying Congress was necessary for collective bargaining within the meaning of section 7114(b)(4) of the Statute. We dismissed the complaint in that case, holding that "any connection between the [u]nion's lobbying efforts and its broad representational responsibilities under the Statute was too attenuated to support a conclusion that the requested information was 'necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining[,]' under section 7114(b)(4)(B) of the Statute." Id. at 673. In this regard, we noted, among other things, that "nothing in the record show[ed] that the [union's information] request was related to any pending or contemplated Congressional action related to unit employees' conditions of employment or the [u]nion's representational responsibilities in connection with such matters." Id. at 672.

Unlike the proposal in Naval Air Pacific, the proposal in this case would provide a reasonable amount of official time for Union officials to represent bargaining unit employees for the sole purpose of lobbying elected representatives concerning "pending or desired legislation which would impact the working conditions of employees represented by [the Union]." Thus, the issue in this case is whether lobbying activities by Union officials on behalf of unit employees in connection with pending or desired legislation pertaining to unit employees' conditions of employment constitute representational activities for which official time may be authorized under section 7131(d) of the Statute.

We also note that this case is distinguishable from VAMC. Unlike the proposal in this case, the proposal in VAMC required the agency to grant official time to bargaining unit employees for visits to their Congressman for any job-related reason. The Authority found that the proposal in VAMC did "not specifically concern representational matters but would require the [a]gency to grant" official time under section 7131(d) of the Statute "broadly to any bargaining unit employee regardless of whether or not the employee is representing an exclusive representative." VAMC, 19 FLRA at 1029. The Authority determined that the proposal was nonnegotiable because it was "inconsistent with the requirement of section 7131(d) that such official time may be granted only for representational matters." Id. As we stated above, the proposal in this case provides official time only for unit employees serving as Union representatives to engage in representational activity pertaining to unit employees' conditions of employment. Therefore, it is distinguishable from the proposal in VAMC, which required official time for any bargaining unit employee to visit his or her Congressman without regard to whether the employee was serving as a union representative engaged in representational activity.

Because the Union's proposal provides for a grant of official time that is consistent with section 7131(d) of the Statute, we conclude that the proposal is negotiable under section 7131(d) of the Statute. See, for example, EPA, 45 FLRA at 289.

IV. Order

The Agency must negotiate on request, or as otherwise agreed to by the parties, concerning the Union's proposal.(2)

Concurring Opinion of Member Talkin

I concur with the result reached in this case. I write separately to address more precisely the distinction between this case and Abood and Lehnert.

Both Abood and Lehnert raised issues involving the constitutionality of expenditures made under union-shop arrangements for various activities. In Abood, the Court essentially found no constitutional impediment to the use of service fees, paid by non-union members, when applied to "collective-bargaining, contract administration, and grievance-adjustment purposes." 431 U.S. at 232. However, the Court found that the use of such fees for "political" purposes was an infringement on the non-union members' First Amendment rights, where the non-members opposed the positions that were being advanced. In this regard, the Court stated:

We do not hold that a union cannot constitutionally spend funds for the expression of political views, on behalf of political candidates, or toward the advancement of other ideological causes not germane to its duties as collective-bargaining representative. Rather, the Constitution requires only that such expenditures be financed from charges, dues, or assessments paid by employees who do not object to advancing those ideas and who are not coerced into doing so against their will by the threat of loss of governmental employment.

Id. at 235-36 (footnote omitted).

In Lehnert, the Court noted that although it had taken a case-by-case approach in determining those activities for which a union could constitutionally charge objecting employees, several guidelines had emerged from Abood and prior decisions. The Court noted that activities that could properly be charged had to

(1) be "germane" to collective-bargaining activity; (2) be justified by the government's vital policy interest in labor peace and avoiding "free riders"; and (3