Department of the Navy, Naval Weapons Station, Yorktown, Virginia and Department of the Navy, Atlantic Ordnance Command, Yorktown, Virginia and National Association of Government Employees, Local R4-1

[ v55 p1112 ]

55 FLRA No. 181

DEPARTMENT OF THE NAVY
NAVAL WEAPONS STATION
YORKTOWN, VIRGINIA

and

DEPARTMENT OF THE NAVY
ATLANTIC ORDNANCE COMMAND
YORKTOWN, VIRGINIA
(Respondents)

and

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R4-1
(Charging Party)

WA-CA-80545
WA-CA-80560

_____

DECISION AND ORDER

November 30, 1999

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

I.     Statement of the Case

      This consolidated unfair labor practice (ULP) case is before the Authority on exceptions filed by the General Counsel and the Charging Party to the decision of the Administrative Law Judge (Judge). The Respondents filed an opposition.

      The complaint alleges that the Respondents failed to comply with section 7131(a) of the Federal Service Labor-Management Relations Statute (the Statute) when they refused to grant official time to two Union representatives, thereby violating section 7116(a)(1) and (8) of the Statute. The Judge found that the General Counsel failed to establish a ULP.

      Upon consideration of the Judge's decision and the entire record, we find that the Respondents' refusals to authorize official time for the two Union representatives violated section 7116(a)(1) and (8) of the Statute. We adopt the Judge's findings and conclusions only to the extent consistent with this decision. [ v55 p1113 ]

II.     Background and Judge's Decision

      Pursuant to a reorganization, the Naval Weapons Station, Yorktown, Virginia (WSY), whose employees were represented by the Charging Party, was divided into three entities: (1) WSY; (2) the Atlantic Ordnance Command, Yorktown, Virginia (AOC); and (3) the Commander, Naval Base Norfolk, Virginia. [n1]  Subsequently, the Union and the Respondents filed representation petitions. The Respondents requested the establishment of two separate units: AOC employees and WSY employees. The Union contended that the existing single unit remained appropriate despite the reorganization.

      While the representation petitions were pending, the Union was notified that the Respondents intended to make changes affecting the conditions of employment of unit employees. The Union designated two officials to negotiate. The official who was designated by the Union to bargain on behalf of WSY employees (the Union Executive VP) worked for AOC. The official who was designated to bargain on behalf of AOC employees (the Union President) worked for WSY. The Respondents denied the Union's requests for official time for those two officials.

      The General Counsel filed a consolidated complaint, alleging that the Respondents "failed or refused to comply" with section 7131(a) of the Statute, and thereby violated section 7116(a)(1) and (8) of the Statute, by denying the requests for official time. Decision at 2.

      The Judge found that section 2422.34(a) [n2]  of the Authority's Regulations requires an activity to fulfill all of its bargaining responsibilities under the Statute -- including granting official time to employees representing their bargaining units -- while a representation proceeding is pending. The Judge also found that none of the exceptions set forth in section 2422.34(b) applied.

      The Judge held, nevertheless, that section 7131(a) of the Statute does not require an activity to either grant official time, or negotiate concerning the authorization of official time, for employees who would use that time to represent the union on behalf of employees of a "separate and independent activity." Decision at 7, citing Veterans Administration Central Office, Washington, D.C. and Veterans Administration Medical Center, Cincinnati, Ohio, 23 FLRA 512 (1986) (VAMC, Cincinnati). The Judge found that WSY and AOC are "at least as close" as the two organizations that the Authority found to constitute separate activities in U.S. Naval Space Surveillance Systems, Dahlgren, Virginia and U.S. Naval Surface Weapons Center, Dahlgren, Virginia, 12 FLRA 731, 733-34 (1983) (Dahlgren), aff'd sub nom. American Federation of Government Employees, Local 2096 v. FLRA, 738 F.2d 633 (4th Cir. 1984). Decision at 8. The Judge determined that "[a]t the time official time was requested for them," both the Union Executive VP and the Union President were "employed by an 'activity' other than the one in which the employees on whose behalf [they were] designated were employed." Decision at 6. The Judge found that, as a result, the two Union officials were not entitled to official time to bargain on behalf of the employees of those respective activities and that the Respondents did not violate section 7131(a) of the Statute by denying the two requests for official time.

III.     Positions of the Parties

A.     General Counsel's Exceptions

      Citing Morale, Welfare and Recreation Directorate, Marine Corps Air Station, Cherry Point, North Carolina, 48 FLRA 686 (1993) (Cherry Point), and section 2422.34(a) of the Authority's Regulations, the General Counsel maintains that the Judge erred by finding that the Respondents did not violate section 7131(a) of the Statute. The General Counsel argues that, while the representation petitions were pending, the Respondents were required to continue to recognize the Union's status as the exclusive representative of the employees in the previously certified unit. Therefore, according to the General Counsel, the Respondents were required to grant the two Union officials' requests for official time. [ v55 p1114 ]

      The General Counsel argues that the Judge's reliance on Dahlgren and VAMC, Cincinnati is misplaced. In this regard, the General Counsel asserts that Dahlgren involved a denial of official time for an employee who wished to represent the Union on behalf of employees in a bargaining unit different from that employee's unit. The General Counsel contends that the issue involved in VAMC, Cincinnati was whether a unit employee in a consolidated, nationwide unit is entitled to official time to represent the union in local supplemental contract negotiations, when that employee is not stationed at the local site where such negotiations take place.

      The General Counsel requests that the Authority issue a cease and desist order and require the Respondents to post a notice to all employees. Noting that AOC's denial of official time required the Union Executive VP to use three hours of annual leave to negotiate on the Union's behalf, the General Counsel also requests that the AOC should be required to increase her annual leave balance by three hours.

B.     Charging Party's Exceptions

      The Charging Party argues, for the same reasons set forth in the General Counsel's exceptions, that the Judge erred by declining to find a violation of the Statute. The Charging Party requests the same remedies as those requested by the General Counsel.

C.     Respondents' Opposition

      The Respondents maintain that the General Counsel and the Charging Party are requesting the Authority to use section 2422.34(a) of the Regulations to "carve out" an exception to section 7131(a) of the Statute. Opposition at 3. According to the Respondents, their denials of official time to the two employees were grounded in the Statute, as interpreted by the Authority and Federal courts. The Respondents assert, without elaboration, that granting the exceptions of the General Counsel and the Charging Party "would be tantamount to again adopting the 'status quo' concept once followed by the Authority." Id. (citing Immigration and Naturalization Service, 16 FLRA 80, 87 (1984) (INS)).

IV.     Analysis and Conclusions

      Pursuant to section 2422.34(a) of the Authority's Regulations, an agency is required to continue to recognize the existing exclusive representative, and to fulfill its obligations to that exclusive representative, until the issues raised by a representation petition are resolved. See Cherry Point, 48 FLRA at 687-88. Representational responsibilities under the Statute include granting official time to representatives of the certified bargaining unit. See U.S. Department of the Air Force, HQ Air Force Materiel Command and American Federation of Government Employees, Council 214, 49 FLRA 1111, 1119 (1994). Thus, the bargaining unit certified prior to the reorganization and the parties' filing of representation petitions continues to be the official, recognized unit, and the Respondents were obligated to grant official time to the two employees, unless there is a basis to deny it under section 7131(a). [n3] 

      A refusal to grant official time to which an employee is entitled under section 7131(a) of the Statute violates section 7116(a)(1) and (8). See VAMC, Cincinnati, 23 FLRA at 515-16. Although a number of requirements must be met before an employee may be entitled to official time, the only requirement relevant here is that the employee must be a member of the same bargaining unit as the employees on whose behalf he or she is bargaining. See United States Air Force, 2750th Air Base Wing Headquarters, Air Force Logistics Command, Wright-Patterson AFB, Ohio, 7 FLRA 738, 741-42 (1982). See also United States Department of Defense, Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas, 15 FLRA 998, 999-1000 (1984); Department of the Air Force, Air Force Logistics Command, Ogden Logistics Center, Hill AFB, Utah, 10 FLRA 245 (1982), aff'd sub nom. American Federation of Government Employees, AFL-CIO, Local 1592 v. FLRA, 744 F.2d 73 (10th Cir. 1984). There is no dispute that the two Union representatives whose requests for official time were denied were in the same unit as the employees they sought to represent, prior to the reorganization and subsequent representation petitions.

      The Judge held that it was proper for the Respondents to deny the two requests for official time because an agency is not required to grant official time to an employee who works for a "separate and independent activity[,]" without regard to whether the employee is a member of the same bargaining unit as the employees [ v55 p1115 ] he or she seeks to represent. Decision at 7. The Judge based this holding on VAMC, Cincinnati and Dahlgren. For the reasons that follow, we find that these Authority decisions do not support the Judge's conclusion.

      In VAMC, Cincinnati, the Authority held that the agency violated the Statute by refusing to grant official time for a unit employee to bargain on behalf of other unit employees stationed at a different location. 23 FLRA at 514-16. The Authority held that:

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" . . . so long as such employee is in the bargaining unit involved.

Id. at 513-15 (emphasis added). In so holding, the Authority stated, in a footnote, that its decision was consistent with Dahlgren, because Dahlgren involved official time for "employees to represent the union in collective bargaining on behalf of employees of a separate and independent activity." Id. at 515 n.2.

      In Dahlgren, the Authority held that the agency did not violate section 7131(d) of the Statute when it refused to bargain over a proposal that it provide official time for an employee to represent the union in negotiations involving "employees of another employer." 12 FLRA at 732. In holding that the agency did not violate the Statute, the Authority noted both that the agency was "a completely separate activity" from the negotiating employer, id. at 733, and that its employees were in "a different collective bargaining unit" from those of the other employer. Id. at 734 (emphasis added).

      Read together, we find no basis for the Judge's conclusion that Dahlgren and VAMC, Cincinnati permit the denial of official time under section 7131(a) to employees who are in the same bargaining unit but do not work at the same activity within that unit. Dahlgren clearly and expressly involved employees in different bargaining units, and the analysis in VAMC, Cincinnati plainly states that the obligation to provide official time under section 7131(a) applies to employees representing employees in the same bargaining unit.

      The description of Dahlgren in VAMC, Cincinnati is incomplete. It describes Dahlgren as involving different activities, without stating that it also involved different units. However, that description does not change either the facts in Dahlgren, or the law under section 7131(a). To the extent that the characterization of Dahlgren set forth in footnote 2 of VAMC, Cincinnati may cause confusion, we take this opportunity to clarify that a union representative seeking to negotiate on behalf of employees in his or her bargaining unit may not be denied official time because that representative is employed in a different location or by a different entity within the agency from the employees he or she wishes to represent. Under the Statute and Authority precedent, an employee is entitled to official time under section 7131(a) when negotiating on behalf of employees in the same bargaining unit.

      The Respondents do not explain their assertion that granting the exceptions of the General Counsel and the Charging Party "would be tantamount to again adopting the 'status quo' concept once followed by the Authority." Opposition at 2, citing INS, 16 FLRA 80. We note, however, that INS concerned official time for multi-unit bargaining arrangements. By contrast, this case involves a single bargaining unit (albeit one about which representation issues have been raised).

      Based on the foregoing, we hold, contrary to the Judge, that the Respondents failed to meet their obligation under section 7131(a) of the Statute to authorize official time for the two Union representatives, and that these failures violated section 7116(a)(1) and (8) of the Statute. To remedy these violations, we issue a cease and desist order and require the Respondents to post a notice to all employees. We also require AOC to increase the Union Executive VP's annual leave balance by three hours.

V.     Order

      Pursuant to section 2423.41(c) of the Authority's Regulations and section 7118 of the Statute, it is hereby ordered that the Respondents shall:

      1.     Cease and desist from:

           (a)     Denying official time to authorized Union representatives.

           (b)     In any like manner, interfering with, restraining, or coercing unit employees in the exercise of their rights under 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)     On request, authorize official time for the Union President and the Union Executive Vice-President for representational purposes. [ v55 p1116 ]

           (b)     Recognize and maintain existing recognitions, adhere to the terms and conditions of existing collective bargaining agreements, and fulfill all other representational and bargaining responsibilities under the Statute.

           (c)     Increase the Union Executive Vice President's annual leave balance by three hours.

           (d)     Post at their facilities at Yorktown copies of the attached notice on forms to be furnished by the Federal Labor Relations Authority. On receipt of such forms, they shall be signed by the Commanding Officers 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.

           (e)     Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director of the Washington Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this order, as to what steps have been taken to comply.


NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Department of the Navy, Naval Weapons Station, Yorktown, Virginia, and the Department of the Navy, Atlantic Ordnance Command, Yorktown, Virginia, violated the Federal Service Labor-Management Relations Statute (the Statute) and has ordered us to post and abide by this Notice.

We notify bargaining unit employees that:

WE WILL NOT deny official time to authorized Union representatives.

WE WILL NOT, in any like manner, interfere with, restrain, or coerce unit employees in th