10:0245(46)CA - Air Force, Air Force Logistics Command, Ogden Logistics Center, Hill AFB, UT and AFGE Local 1592 and OPM -- 1982 FLRAdec CA

 10 FLRA No. 46
 
 DEPARTMENT OF THE AIR FORCE
 AIR FORCE LOGISTICS COMMAND
 OGDEN LOGISTICS CENTER
 HILL AFB, UTAH
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1592
 Charging Party
 
 and
 
 OFFICE OF PERSONNEL MANAGEMENT
 Intervenor
 
                                            Case No. 7-CA-426
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION IN THE
 ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN
 THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING
 THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.  THEREAFTER, THE
 GENERAL COUNSEL FILED EXCEPTIONS TO THE JUDGE'S DECISION AND A BRIEF IN
 SUPPORT THEREOF.  /1/
 
    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), THE AUTHORITY HAS REVIEWED THE RULINGS OF THE
 JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
 COMMITTED.  THE RULINGS ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE
 JUDGE'S DECISION AND THE ENTIRE RECORD IN THIS CASE, THE AUTHORITY
 HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION.  /2/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 7-CA-426 BE, AND
 IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 30, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
   
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    S. REED MURDOCK, ESQ.
                   FOR THE RESPONDENT
 
    JAMES R. ROSA, ESQ.
                   FOR THE CHARGING PARTY
 
    JAMES J. GONZALES, ESQ.
                   FOR THE GENERAL COUNSEL
 
    BEFORE:  JOHN H. FENTON
    CHIEF ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           PRELIMINARY STATEMENT
 
    THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101, ET SEQ.
 
    ON JULY 31, 1980, THE REGIONAL DIRECTOR FOR REGION VII, PURSUANT TO
 AN UNFAIR LABOR PRACTICE CHARGE FILED ON FEBRUARY 14, 1980, AND AN
 AMENDED CHARGE FILED FEBRUARY 14, 1980, BY THE CHARGING PARTY, ISSUED A
 COMPLAINT AND NOTICE OF HEARING ALLEGING THAT THE RESPONDENT HAS ENGAGED
 IN, AND IS ENGAGING IN, UNFAIR LABOR PRACTICES WITHIN THE MEANING OF
 SECTION 7116(A)(1), (5) AND (8) OF THE STATUTE.  SPECIFICALLY, THE
 COMPLAINT ALLEGED THAT ON OR ABOUT FEBRUARY 4, 1980, AND CONTINUING TO
 DATE, RESPONDENT AND ITS CONSTITUENT ORGANIZATION, 2849TH AIR BASE GROUP
 (AFLC), HILL AIR FORCE BASE, UTAH, REFUSED TO AUTHORIZE OFFICIAL TIME
 FOR JOSEPH WALLY AND LOIS HOWELL, MEMBERS OF A UNIT OF EMPLOYEES PAID
 FROM APPROPRIATED FUNDS, WHO WERE REPRESENTING THE UNION IN THE
 NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT WITH HEADQUARTERS
 2849TH AIR BASE GROUP ON BEHALF OF NON-APPROPRIATED FUND EMPLOYEES
 REPRESENTED BY THE UNION, CONTRARY TO THE REQUIREMENTS OF SECTION
 7131(A) OF THE STATUTE.  /3/
 
    RESPONDENT FILED AN ANSWER TO THE COMPLAINT, DATED AUGUST 21, 1980,
 IN WHICH IT ADMITTED DENYING THE REQUEST OF THE UNION FOR OFFICIAL TIME
 BUT DENIED THE COMMISSION OF ANY UNFAIR LABOR PRACTICE.
 
    THE COMPLAINT WAS SCHEDULED FOR HEARING ON OCTOBER 21, 1980, IN
 OGDEN, UTAH.  BY ORDER DATED OCTOBER 10, 1980, THE ACTING REGIONAL
 DIRECTOR GRANTED A MOTION BY THE OFFICE OF PERSONNEL MANAGEMENT (OPM) TO
 INTERVENE IN THIS CASE.
 
    ON OCTOBER 20, 1980, RESPONDENT AND GENERAL COUNSEL ENTERED INTO
 CERTAIN STIPULATIONS OF FACT (G.C. EXH. 1).  AT HEARING ON OCTOBER 21,
 1980, THE UNION AGREED TO THE STIPULATED FACTS CONTAINED IN G.C. EXHIBIT
 1 WITH CERTAIN EXCEPTIONS.  /3/
 
    BY STIPULATION, THE PARTIES WAIVED A HEARING AND THE ISSUANCE OF A
 DECISION BY AN ADMINISTRATIVE LAW JUDGE AND REQUESTED THE CASE BE
 FORWARDED DIRECTLY TO THE FEDERAL LABOR RELATIONS AUTHORITY (HEREIN THE
 AUTHORITY) FOR DISPOSITION.  IT WAS FURTHER STIPULATED THAT THE
 STIPULATION, WHICH INCORPORATED THE AGREED UPON ACTS, TOGETHER WITH THE
 SPECIFIED EXHIBITS WOULD CONSTITUTE THE ENTIRE RECORD IN THIS MATTER.  I
 REMANDED THE CASE TO THE REGIONAL DIRECTOR FOR SUBMISSION TO THE
 AUTHORITY.  THEREAFTER, ON SEPTEMBER 25, 1981, THE AUTHORITY, PURSUANT
 TO SECTION 2429.1 OF THE AUTHORITY'S RULES AND REGULATIONS, ISSUED AN
 ORDER REMANDING THE MATTER TO ME FOR PREPARATION OF A DECISION ON THE
 MERITS.
 
    ON THE BASIS OF THE STIPULATION HEREIN, TOGETHER WITH THE EXHIBITS
 AGREED UPON BY THE PARTIES, I HEREBY MAKE THE FOLLOWING FINDINGS OF FACT
 AND CONCLUSIONS:
 
                             FINDINGS OF FACT
 
    1.  THE UNION REPRESENTS EMPLOYEES IN A UNIT COVERING CERTAIN
 NON-APPROPRIATED FUND ACTIVITIES WITHIN THE 2849TH AIR BASE WING, A
 CONSTITUENT ORGANIZATION OF OGDEN AIR LOGISTICS CENTER, HILL AIR FORCE
 BASE.  THE NATIONAL OFFICE OF THE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, REPRESENTS A CONSOLIDATED UNIT (UNDER A MASTER
 AGREEMENT WITH HEADQUARTERS, AIR FORCE LOGISTICS COMMAND) WHICH
 INCLUDES, AMONG OTHERS, EMPLOYEES OF THE AIR FORCE LOGISTICS COMMAND AT
 HILL AIR FORCE BASE WHO ARE PAID FROM APPROPRIATED FUNDS, AND WHICH
 SPECIFICALLY EXCLUDES EMPLOYEES PAID FROM NON-APPROPRIATED FUNDS.  THE
 UNION HAS AT ALL MATERIAL TIMES BEEN AN AGENT OF THE AFGE NATIONAL
 OFFICE.
 
    2.  SINCE FEBRUARY 14, 1980, RESPONDENT HAS REFUSED TO AUTHORIZE
 OFFICIAL TIME FOR JOSEPH WALLY AND LOIS HOWELL, EMPLOYEES OF THE OGDEN
 AIR LOGISTICS CENTER AND MEMBERS OF THE APPROPRIATED FUND UNIT, FOR
 THEIR TIME SPENT AS UNION REPRESENTATIVES IN THE NEGOTIATION OF A
 COLLECTIVE BARGAINING AGREEMENT COVERING THE EMPLOYEES IN THE 2849TH AIR
 BASE GROUP WHO ARE PAID FROM NONAPPROPRIATED FUNDS.  SUCH NEGOTIATIONS
 OCCURRED WHEN THESE EMPLOYEES WOULD OTHERWISE HAVE BEEN IN DUTY STATUS.
 VARIOUS MANAGEMENT NEGOTIATORS WERE PAID FOR THEIR TIME, WITHOUT RESPECT
 TO WHETHER THEY WERE PAID FROM APPROPRIATED FUNDS OR FROM
 NONAPPROPRIATED FUNDS.
 
                                CONCLUSIONS
 
    WE ARE PRESENTED WITH THE QUESTION OF ENTITLEMENT TO OFFICIAL TIME
 FOR EMPLOYEES OF ONE UNIT WHO ARE DESIGNATED AS UNION REPRESENTATIVES IN
 CONTRACT NEGOTIATIONS COVERING EMPLOYEES IN ANOTHER UNIT.
 
    THE FEDERAL LABOR RELATIONS AUTHORITY RECENTLY ADDRESSED THIS
 QUESTION IN UNITED STATES AIR FORCE, 2750TH AIR BASE WING HEADQUARTERS,
 AIR LOGISTICS COMMAND, WRIGHT-PATTERSON AFB, OHIO, 7 FLRA NO. 118.  IT
 HELD THAT "OFFICIAL TIME ENTITLEMENT ACCRUES ONLY TO AN EMPLOYEE,
 SERVING AS A REPRESENTATIVE OF AN EXCLUSIVE REPRESENTATIVE, WHO IS A
 MEMBER OF THE BARGAINING UNIT TO WHICH THE RIGHT TO NEGOTIATE THE
 BARGAINING AGREEMENT APPLIES." THAT CASE APPEARS TO BE INDISTINGUISHABLE
 FROM THIS ONE, AND IS THEREFORE BINDING UPON ME.  /5/ ACCORDINGLY, I
 RECOMMEND THAT THE FEDERAL LABOR RELATIONS AUTHORITY ENTER THE FOLLOWING
 ORDER:
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT HEREIN BE, AND IT IS HEREBY
 IS DISMISSED.
 
                      JOHN H. FENTON
                      CHIEF ADMINISTRATIVE LAW JUDGE
 
    DATED:  MARCH 5, 1982
    WASHINGTON, D.C.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE RESPONDENT'S UNTIMELY FILED OPPOSITION WAS NOT CONSIDERED
 HEREIN.
 
    /2/ WITH RESPECT TO THE GENERAL COUNSEL'S CONTENTION THAT THE FACTS
 OF THE INSTANT CASE ARE DISTINGUISHABLE FROM UNITED STATES AIR FORCE,
 2750TH AIR BASE WING HEADQUARTERS, AIR FORCE LOGISTICS COMMAND,
 WRIGHT-PATTERSON AFB, OHIO, 7 FLRA NO. 118 (1982), CITED BY THE JUDGE AS
 PRECEDENT, SEE, MARINE CORPS DEVELOPMENT AND EDUCATION CENTER, 9 FLRA
 NO. 35 (1982) AND UNITED STATES DEPARTMENT OF DEFENSE, DEPARTMENT OF THE
 AIR FORCE, 93RD COMBAT SUPPORT GROUP, CASTLE AIR FORCE BASE, CALIFORNIA,
 9 FLRA NO. 71 (1982).
 
    /3/ SECTION 7131(A) PROVIDES, IN RELEVANT PART, THAT:
 
    (A) ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE
 NEGOTIATION OF A
 
    COLLECTIVE BARGAINING AGREEMENT UNDER THIS CHAPTER SHALL BE
 AUTHORIZED OFFICIAL TIME FOR SUCH
 
    PURPOSES, INCLUDING ATTENDANCE AT IMPASSE PROCEEDING, DURING THE TIME
 THE EMPLOYEE OTHERWISE
 
    WOULD BE IN A DUTY STATUS.
 
    /4/ THE UNION OBJECTED TO PARAGRAPH 15 OF THE STIPULATIONS AND JOINT
 EXHIBITS 5, 6, 7, 8 REFERENCED THEREIN.  THIS STIPULATION WITH
 ACCOMPANYING EXHIBITS, CONTAINED INFORMATION REGARDING AIRLINE FARES,
 PER DIEM TRAVEL ALLOWANCES, AND EMPLOYEE PAY SCHEDULES.  I RULED THESE
 MATTERS IRRELEVANT TO THE ISSUE BEFORE ME AND PLACED THEM IN A REJECTED
 EXHIBIT FILE.
 
    /5/ THAT CASE, IN ITS FIRST FOOTNOTE, INDICATES THAT WHILE THE TWO
 UNITS WERE LOCATED WITHIN COMPONENTS OF DOD, SUCH COMPONENTS WERE
 SEPARATE ORGANIZATIONS IN TERMS OF FUNCTION AND MISSION, AND THAT THEY
 HAD SEPARATE "PERSONNEL MANNING, BUDGETS, MISSIONS, ORGANIZATIONS,
 REGULATIONS AND CHAINS OF COMMAND." THERE IS THUS A NEGATIVE IMPLICATION
 THAT THE ABSENCE OF SUCH DISCRETE ENTITIES MIGHT HAVE WARRANTED A
 DIFFERENT RESULT.  ASIDE FROM A CLEAR BUDGETARY DISTINCTION BASED ON
 APPROPRIATED AS OPPOSED TO NONAPPROPRIATED FUNDS, WHAT WOULD APPEAR TO
 BE OBVIOUS DISTINCTIONS IN MISSION, AND A SUGGESTION THAT THE TWO UNITS
 ARE SERVICED BY DIFFERENT PERSONNEL SYSTEMS, THIS RECORD DOES NOT
 CLEARLY ADDRESS THE MATTERS RAISED IN THIS FOOTNOTE.  IT IS POSSIBLE
 THAT THESE TWO UNITS ARE MORE CLOSELY ALLIED, IN THE SENSE OF THE
 FOOTNOTE, THAN WERE THOSE AT ISSUE IN WRIGHT-PATTERSON.  IN SO FAR AS
 THIS STIPULATION FAILS TO ESTABLISH A BASIS FOR AVOIDING APPLICATION OF
 THAT PRECEDENT THE GENERAL COUNSEL HAS FAILED TO MEET THE BURDEN OF
 PROOF.