National Federation of Federal Employees, Local 951 (Union) and Department of the Interior, Bureau of Reclamation, Mid-Pacific Regional Office, Sacramento, CA (Agency)  

 3 FLRa No. 128
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 951
 Union
 
 and
 
 DEPARTMENT OF THE INTERIOR
 BUREAU OF RECLAMATION
 MID-PACIFIC REGIONAL OFFICE
 SACRAMENTO, CALIFORNIA
 Agency
 
                                            Case No. 0-NG-146
 
                      DECISION ON NEGOTIABILITY ISSUE
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. SECS. 7101=7135).
 
                            UNION PROPOSAL /1/
 
                   ARTICLE II-- UNION-SPONSORED TRAINING
 
    SECTION 8.  THE BUREAU WILL ALLOW THE FOLLOWING DUTY TIME, WITH THE
 CONSENT OF THE
 
    SUPERVISOR.
 
    A.  FOR EACH EMPLOYEE, 8 HOURS PER YEAR FOR EDUCATION.
 
    B.  FOR EACH UNION MEMBER, AN ADDITIONAL 8 HOURS PER YEAR FOR
 GRIEVANCE AND OTHER TRAINING.
 
    C.  FOR EACH UNION OFFICER, AN ADDITIONAL 16 HOURS PER YEAR FOR
 ADVANCED GRIEVANCE
 
    TRAINING.
 
    D.  OFFICERS AND STEWARDS RECOGNIZED BY MANAGEMENT WILL BE GRANTED
 EXCUSED LEAVE TO ATTEND
 
    OFF PREMISE UNION SPONSORED TRAINING. REQUESTS FOR SUCH EXCUSED LEAVE
 MUST BE PROVIDED TO THE
 
    REGIONAL PERSONNEL AND MANAGEMENT OFFICER AS FAR IN ADVANCE AS
 PRACTICAL BUT IN ANY EVENT NOT
 
    LATER THAN 5 WORKING DAYS IN ADVANCE OF THE TRAINING SESSION.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTIONS ARE WHETHER THE UNION'S PROPOSAL IS INCONSISTENT WITH
 ANY APPLICABLE GOVERNMENT-WISE RULE OR REGULATION AND WHETHER SECTION
 8(B) OF THE PROPOSAL VIOLATES SECTIONS 7114(A)(1) OF THE STATUTE, /2/ AS
 ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION:  SECTION 8(A), (C) AND (D) OF THE SUBJECT PROPOSAL DOES
 NOT VIOLATE ANY GOVERNMENT-WISE RULE OR REGULATION.  SECTION 8(B) OF THE
 SUBJECT PROPOSAL, ON THE OTHER HAND, CONFLICTS WITH SECTION 7114(A)(1)
 OF THE STATUTE.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
 AUTHORITY'S RULES AND REGULATIONS, (5 C.F.R. SEC. 2424.10 (1980), THE
 AGENCY'S ALLEGATION THAT THE DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO
 BARGAIN IS SET ASIDE IN PART AND SUSTAINED IN PART.  /3/
 
    REASONS:  THE AGENCY ASSERTS THAT THE UNION'S PROPOSAL VIOLATES THE
 COMPTROLLER GENERAL'S RULINGS REGARDING THE USE OF OFFICIAL TIME FOR
 UNION-SPONSORED TRAINING.  /4/ MORE SPECIFICALLY, THE AGENCY CONTENDS
 THAT THE COMPTROLLER GENERAL DECISIONS "CONFINE THE USE OF OFFICIAL TIME
 TO EMPLOYEE REPRESENTATIVES AND (DO) NOT AUTHORIZE SUCH TIME FOR
 BARGAINING UNIT MEMBERS UNLESS JOINTLY SPONSORED BY BOTH MANAGEMENT AND
 UNION." FURTHER, IT MAINTAINS THAT THE "PROPOSAL WHICH PROVIDES FOR 32
 HOURS OF UNION-SPONSORED TRAINING IS IN CLEAR CONFLICT WITH THE
 COMPTROLLER GENERAL'S DECISION," AND "SECTION 8(D) WHICH HAS NO LIMITS
 FOR OFFICERS AND STEWARDS USE OF OFFICIAL TIME FOR UNION-SPONSORED
 TRAINING WOULD BE SIMILARLY IN CONFLICT WITH THE COMPTROLLER GENERAL'S
 DECISION." THE AGENCY'S CONTENTIONS CANNOT BE SUSTAINED.
 
    COMPTROLLER GENERAL DECISIONS DO NOT PLACE AN ABSOLUTE LIMIT ON THE
 AMOUNT OF OFFICIAL TIME AUTHORIZED FOR UNION-SPONSORED TRAINING.
 RATHER, THEY ESTABLISH BROAD GUIDELINES FOR AGENCIES TO USE IN GRANTING
 SUCH LEAVE TO AFFORD REASONABLE FLEXIBILITY TO ACCOMMODATE THEIR
 PARTICULAR CIRCUMSTANCES, AS FOLLOWS:
 
    "WE HAVE FURTHER AGREED THAT IF IT ADMINISTRATIVELY DETERMINED THAT A
 SESSION CONDUCTED BY
 
    AN EMPLOYEE ORGANIZATION IS DESIGNED PRIMARILY TO ADVISE, ORIENT, AND
 BRIEF EMPLOYEE
 
    REPRESENTATIVES REGARDING SUCH MATTERS, (STATUTORY OR REGULATORY
 PROVISIONS RELATING TO PAY,
 
    WORKING CONDITIONS, WORK SCHEDULES, EMPLOYEE GRIEVANCE PROCEDURE,
 PERFORMANCE RATING, ADVERSE
 
    ACTION APPEALS, AS WELL AS AGENCY POLICY AND NEGOTIATED AGREEMENTS
 PERTAINING THERETO) NEITHER
 
    OUR OFFICE NOR THE CIVIL SERVICE COMMISSION WOULD INTERPOSE ANY
 OBJECTION TO THE AGENCY,
 
    WITHIN ITS DISCRETION, GRANTING ADMINISTRATIVE LEAVE WHILE SO
 ATTENDING.
 
    ALSO, IT HAS BEEN AGREED THAT AN AGENCY PROPERLY MAY GRANT
 ADMINISTRATIVE LEAVE ONLY FOR
 
    SUCH SHORT PERIODS OF TIME-- ORDINARILY NOT TO EXCEED EIGHT HOURS--
 THAT ARE REASONABLE UNDER
 
    THE CIRCUMSTANCES." (COMP. GEN. B-156287, JULY 12, 1966)
 
    IN 1977, THE COMPTROLLER GENERAL WAS ASKED TO RECONSIDER THIS EARLIER
 RULING, IN VIEW OF THE BURGEONING LABOR RELATIONS FIELD.  IT RULED,
 HOWEVER, THAT:
 
    "(T)HE GUIDANCE IN OUR 1966 DECISION WAS DELIBERATELY STATED IN
 NONFINITE TERMS SO AS TO
 
    PROVIDE AGENCIES WITH FLEXIBILITY TO ACCOMMODATE THE MYRIAD
 SITUATIONS THEY FACE AS A RESULT
 
    OF THEIR INDIVIDUAL CIRCUMSTANCES AND PARTICULAR REQUIREMENTS.  WHILE
 THE MAJORITY OF AGENCIES
 
    WOULD NOT BE JUSTIFIED IN GRANTING MORE THAN 8 HOURS OF
 ADMINISTRATIVE LEAVE PER YEAR FOR
 
    EMPLOYEE REPRESENTATIVES TO ATTEND UNION-SPONSORED TRAINING, WE
 RECOGNIZE THAT SOME AGENCIES
 
    MUST HAVE LIMITED AUTHORITY TO EXCEED THIS GUIDELINE BY REASONABLE
 AMOUNTS OF
 
    TIME." (COMP. GEN. B-156287, FEBRUARY 28, 1977)
 
    IN VIEW OF THE DISCRETION WHICH AGENCIES MAY EXERCISE UNDER THE
 COMPTROLLER GENERAL'S RULINGS, AND NOTING THAT THE RULINGS CONTAIN NO
 SPECIFIC PROHIBITION WITH RESPECT TO OFFICIAL TIME FOR UNION-SPONSORED
 TRAINING FOR INDIVIDUAL EMPLOYEES, IT IS CONCLUDED THAT THE DISPUTED
 PROPOSAL DOES NOT VIOLATE ANY APPLICABLE GOVERNMENT-WIDE RULE OR
 REGULATION.
 
    AS TO SECTION 8(B) OF THE PROPOSAL, IT WOULD PROVIDE BENEFITS TO
 MEMBERS NOT PROVIDED TO NON-MEMBERS, I.E., AN ADDITIONAL AMOUNT OF
 OFFICIAL TIME TO BE AUTHORIZED ON THE BASIS OF UNION MEMBERSHIP ALONE.
 SECTION 7114(A)(1) OF THE STATUTE MANDATES THAT AN EXCLUSIVE
 REPRESENTATIVE IS RESPONSIBLE FOR REPRESENTING THE INTERESTS OF ALL
 EMPLOYEES IN THE UNIT IT REPRESENTS WITHOUT DISCRIMINATION AND WITHOUT
 REGARD TO LABOR ORGANIZATION MEMBERSHIP.  THE PROPOSAL IS, THEREFORE,
 NOT WITHIN THE DUTY TO BARGAIN.
 
    ACCORDINGLY, THE AGENCY'S ALLEGATION THAT SECTION 8(B) OF THE
 PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS SUSTAINED.
 
    ISSUED, WASHINGTON, D.C., JULY 31, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ THE PROPOSAL IS AS SET FORTH BY THE AGENCY IN ITS RESPONSE TO THE
 NEGOTIABILITY APPEAL.
 
    /2/ SECTION 7114(A)(1) OF THE STATUTE PROVIDES AS FOLLOWS:
 
    (A)(1) A LABOR ORGANIZATION WHICH HAS BEEN ACCORDED EXCLUSIVE
 RECOGNITION IS THE EXCLUSIVE
 
    REPRESENTATIVE OF THE EMPLOYEES IN THE UNIT IT REPRESENTS AND IS
 ENTITLED TO ACT FOR, AND
 
    NEGOTIATE COLLECTIVE BARGAINING AGREEMENTS COVERING, ALL EMPLOYEES IN
 THE UNIT.  AN EXCLUSIVE
 
    REPRESENTATIVE IS RESPONSIBLE FOR REPRESENTING THE INTERESTS OF ALL
 EMPLOYEES IN THE UNIT IT
 
    REPRESENTS WITHOUT DISCRIMINATION AND WITHOUT REGARD TO LABOR
 ORGANIZATION MEMBERSHIP.
 
    /3/ IN SO DECIDING THAT SECTIONS OF THE SUBJECT PROPOSAL ARE WITHIN
 THE DUTY TO BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF
 THE PROPOSAL.
 
    /4/ COMP. GEN. B-156287, JULY 12, 1966;
 
    COMP. GEN. B-156287, SEPTEMBER 15, 1976;
 
    COMP. GEN. B-156287, FEBRUARY 28, 1977;  AND
 
    COMP. GEN.B-156287, MARCH 23, 1977.