15:0998(186)CA - DOD, Air Force, San Antonio Air Logistics Center, Kelly AFB, TX and International Association of Firefighters Local F-89 -- 1984 FLRAdec CA
[ v15 p998 ]
15:0998(186)CA
The decision of the Authority follows:
15 FLRA No. 186
UNITED STATES DEPARTMENT OF DEFENSE
DEPARTMENT OF THE AIR FORCE
SAN ANTONIO AIR LOGISTICS CENTER
KELLY AIR FORCE BASE, TEXAS
Respondent
and
INTERNATIONAL ASSOCIATION OF
FIREFIGHTERS, LOCAL F-89, AFL-CIO
Charging Party
Case No. 6-CA-973
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had engaged in
certain unfair labor practices alleged in the complaint, and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. Thereafter, the Respondent filed exceptions
to the Judge's Decision and an accompanying brief. /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, the Authority hereby adopts the
Judge's findings, conclusions and recommendations only to the extent
consistent herewith.
The Judge found that the Respondent failed to comply with the
provisions of section 7131(a) of the Statute /2/ in violation of section
7116(a)(1) and (8) of the Statute by its refusal to grant official time
to an employee for the purpose of representing the Charging Party in
negotiations with the Respondent involving a bargaining unit other than
his own. The Judge did not consider that portion of the complaint which
alleged that the Respondent, by such conduct, also violated section
7116(a)(1) and (5) of the Statute since the denial of official time to
the employee was contrary to a past practice. /3/ Subsequent to the
Judge's Decision, the Authority, in United States Air Force, 2750th Air
Base Wing, Headquarters Air Force Logistics Command, Wright-Patterson
AFB, Ohio, 7 FLRA 738, at 741-42 (1982), concluded that " . . .
consistent with the overall scheme of the Statute . . . , the official
time entitlement under section 7131(a) 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." /4/ Accordingly, the Respondent herein
had no obligation under section 7131(a) to grant official time to the
employee involved because that employee was not a member of the
bargaining unit involved in the negotiations. Thus, the Respondent's
refusal to grant him official time did not violate section 7116(a)(1)
and (8) of the Statute, and therefore such allegation of the complaint
must be dismissed.
The Authority further concludes that the Respondent did not violate
section 7116(a)(1) and (5) of the Statute, as alleged in the complaint,
by unilaterally changing an established past practice of granting
official time to the employee for the purpose of representing the
Charging Party during negotiations for a collective bargaining agreement
covering employees in a bargaining unit other than the one in which the
employee is included. /5/
The clear language of the Statute indicates an intention that
employees have the right to bargain collectively with their agency only
through the exclusive representative chosen by the employees in an
appropriate bargaining unit. In this regard, section 7103(a)(12)
defines "collective bargaining" as "the performance of the mutual
obligation of the representative of the agency and the exclusive
representative of employees in an appropriate unit in the agency to meet
. . . and to consult and bargain in a good-faith effort to reach
agreement with respect to the conditions of employment affecting such
employees . . . " Further, section 7111(a) of the Statute provides that
"(a)n agency shall accord exclusive recognition to a labor organization
if the organization has been selected as the representative . . . by a
majority of the employees in an appropriate unit . . . . " Finally,
section 7114(a)(1) provides that, "(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." Thus, the obligation of an agency to bargain in good-faith
concerning the conditions of employment of its employees extends only to
the conditions of employment of those employees in an appropriate
bargaining unit represented by the exclusive representative. In this
regard, see, U.S. Naval Space Surveillance Systems, Dahlgren, Virginia
and U.S. Naval Surface Weapons Center, Dahlgren, Virginia, 12 FLRA No.
140 (1983), aff'd sub nom., American Federation of Government Employees,
AFL-CIO, Local 2096 v. Federal Labor Relations Authority, No. 82-1897(L)
and 83-1894 slip op. at 6 (4th Cir., July 12, 1984); Department of the
Navy, Naval Construction Battalion Center, Port Hueneme, California, 14
FLRA No. 60 (1984). Although the foregoing cases involved situations in
which the employee for whom official time was being sought was not only
not employed in the unit in which the representational duties were
performed, but was an employee of a different activity, the same
considerations addressed by the Authority in those cases would apply
herein.
In the instant case, it is clear that the employee for whom official
time was being sought is not included in the bargaining unit for which
the Charging Party is the exclusive representative. Accordingly, the
Respondent was not obligated to bargain with the Charging Party
concerning conditions of employment affecting that employee, i.e.,
whether official time would be granted to such non-unit employee for the
purpose of representing the Charging Party in negotiations with the
Respondent, and Respondent therefore was free to alter or abrogate any
past practice with respect to this matter without first notifying and
bargaining in good faith with the Charging Party. In these
circumstances, that portion of the complaint alleging a violation of
section 7116(a)(1) and (5) of the Statute must also be dismissed. /6/
ORDER
IT IS ORDERED that the complaint in Case No. 6-CA-973 be, and it
hereby is, dismissed.
Issued, Washington, D.C., August 31, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Major Lewis G. Brewer
For the Respondent
Elizabeth Martinez, Esquire
For the General Counsel
Before: LOUIS SCALZO
Administrative Law Judge
DECISION
Statement of the Case
This case arose as an unfair labor practice proceeding under the
provisions of the Federal Service Labor-Management Relations Statute, 92
Stat. 1191, 5 U.S.C. 7101, et seq., (hereinafter called "the Statute")
and the Rules and Regulations issued thereunder.
It was alleged in the complaint that since on or about February 4,
1981, the Respondent failed and refused to comply with the provisions of
Section 7131(a) of the Statute by failing and refusing to grant official
time to Joe L. Hoffman, an employee not in the bargaining unit, for the
purpose of representing the Charging Party in collective bargaining
negotiations on behalf of employees assigned to the Respondent's Fire
Protection Branch. This pattern of conduct was alleged to be violative
of Sections 7116(a)(1) and (8) of the Statute. As a separate alternate
theory, counsel for the General Counsel also alleged that the conduct
described violated Sections 7116(a)(1) and (5) of the Statute because it
involved a unilateral change in the terms and conditions of employment.
Counsel representing the General Counsel advised during the hearing,
and noted in a post-hearing brief, that no remedial order was being
sought in connection with alleged violations other than those associated
with Section 7131(a) of the Statute (Tr. 85-86). /7/ Accordingly, only
alleged violations of Sections 7116(a)(1) and (8) based upon the alleged
failure to comply with Section 7131(a) will be considered.
Counsel representing the Respondent argues that Section 7131(a) does
not obligate an agency to grant official time for collective bargaining
purposes to an employee unless the employee is a member of the
bargaining unit being represented, and further that the complaint should
be dismissed in this case because Mr. Hoffman was not a member of the
bargaining unit.
The Respondent and the General Counsel were represented by counsel
during the hearing, and all parties were afforded full opportunity to be
heard, adduce relevant evidence, and examine and cross-examine
witnesses. Post-hearing briefs were filed by counsel representing the
General Counsel and counsel representing the Respondent. Based upon the
entire record herein, including my observations of the witnesses and
their demeanor, the exhibits and other relevant evidence adduced at the
hearing, and the briefs filed, I make the following findings of fact,
conclusions and recommendations.
Findings of Fact
The record disclosed that approximately 6,000 civilian employees are
employed at the San Antonio Air Logistics Center, kelly Air Force Base,
The record disclosed that approximately 16,000 civilian employees are
Texas. /8/ Approximately 75 of these are included in a small bargaining
unit comprised of covered employees in the Fire Protection Branch at
Kelly Air Force Base. The Charging Party is the exclusive
representative of covered employees in the Fire Protection Branch.
Another small bargaining unit composed of about 50 non-appropriated fund
employees is represented by the International Association of Machinists
and Aerospace Workers. Approximately 14,000 covered employees are
included in a third bargaining unit represented by the American
Federation of Government Employees.
Mr. Hoffman was employed as a firefighter by the Respondent from July
24, 1972 to March 1, 1980. He was a member of Local F-89, and served on
the Local's grievance committee for a number of years. He became
president of Local F-89 in July of 1979. On March 1, 1980 he
transferred to the Maintenance Directorate, Engine Division, Kelly Air
Force Base. The transfer operated to remove him from the bargaining
unit represented by Local F-89, as employees in the Maintenance
Directorate were represented by the American Federation of Government
Employees. However, he continued to serve as the president of Local
F-89 until February 19, 1981. As of October 6, 1981, the date of the
hearing, Mr. Hoffman was a member of Local F-89, but held no office.
Nevertheless, he was eligible to hold office in the Local although he
was not a member of the bargaining unit represented by the Local.
The record disclosed a series of meetings wherein Mr. Hoffman was
granted official time to participate in representational activity after
he left the bargaining unit. In May of 1980, /3/ Mr. Hoffman received
official time to represent the Charging Party during a meeting where
Respondent's representatives discussed with bargaining unit employees,
issues relating to the subject of attire to be worn by firefighters when
on duty. Mr. Hoffman's presence at the meeting was requested by his
supervisor in the Maintenance Directorate.
On September 22, 1980, and November 12, 1980, he received official
time to attend meetings for the purpose of discussing issues relating to
the firefighters alarm room work schedule. The meetings were also
attended by other officials of Local F-89, and responsible
representatives of the Respondent. Local F-89, requested the Respondent
to permit Mr. Hoffman to attend on official time, and the request was
granted. On December 5, 1980, he represented Local F-89 at a meeting
with Respondent's representatives where the Respondent's policy
regarding mandatory training was discussed. A request by the Charging
Party for him to attend on official time was granted. Again, on January
9, 1981, under similar circumstances, he again represented the
firefighters bargaining unit with regard to issues pertaining to
mandatory training, and a seniority issue relating to personnel changes.
By memorandum dated January 26, 1981, Mr. Dorvis G. Hensley, Chief of
the Fire Protection Branch, wrote to Mr. James Gobar, Vice President of
Local F-89 to request a February 4, 1981 meeting for the purpose of
discussing the impact and implementation of a policy involving mandatory
training for firefighter personnel. On January 26, 1981, Mr. Gobar
agreed to the meeting date, and requested that Mr. Hoffman be allowed to
attend the meeting on official time. He was informed by Chief Hensley,
and a representative of the Kelly Air Force Base Labor Relations Office,
that Mr. Hoffman would not be allowed to attend the meeting on official
time. He did subsequently represent the firefighters at the February 4,
1981 meeting, but did so by taking annual leave /10/ (Tr. 30).
The Respondent's answer admitted that since on or about February 4,
1981, the Respondent failed and refused to grant official time to Joe L.
Hoffman, an employee of the Respondent as defined in Section
7103(a)(2)(A) of the Statute, but not an employee in the bargaining unit
represented by the Charging Party, to represent employees of the
firefighters bargaining unit for collective bargaining purposes. At the
hearing the Chief of the Respondent's Labor Relations Office, Civilian
Personnel Office testified that, based on Office of Personnel Management
policy, the Respondent has refused to grant official time to
nonbargaining unit employees for the purpose of representing employees
in bargaining units (Tr. 69).
Discussion and Conclusions
The record discloses that following Mr. Hoffman's transfer out of the
bargaining unit, the Respondent recognized the Charging Party's right to
receive official time for Mr. Hoffman to engage in collective bargaining
activity. In fact, he received official time to participate in
collective bargaining sessions on September 22, 1980, November 12, 1980,
December 5, 1980, and January 9, 1981. However, the Respondent's
position on this issue was reversed by representatives of the Respondent
on January 26, 1981 (Tr. 45-47), and on February 4, 1981 (Tr. 62-63).
In this regard the Respondent admitted factual allegations set out in
paragraph eight of the complaint to the effect that since on or about
February 4, 1981, Respondent failed and refused, and continues to fail
and refuse, to grant official time to Joe L. Hoffman, an employee as
defined in 5 U.S.C. 7103(a)(2)(A) and an employee outside the bargaining
unit, to represent employees of the bargaining unit for collective
bargaining purposes.
Section 7131(a) of the Statute provides:
(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. The number of
employees for whom official time is authorized under this
subsection shall not exceed the number of individuals designated
as representing the agency for such purposes.
The word "employee" is defined in pertinent part in Section
7103(a)(2)(A) of the Statute as follows:
(2) 'employee' means an individual, - . . . .
(A) employed in an agency . . . .
The word "agency" is defined in pertinent part in Section 7103(a)(3)
of the Statute in the following terms:
(3) 'agency' means an Executive agency . . . , the Library of
Congress, and the Government Printing Office . . . .
The Respondent argues that the term "employee" as used in Section
7131(a) should be construed so as to preclude grants of official time to
non-bargaining unit employees employed by the Respondent. A number of
reasons exist for not adopting the Respondent's position. It is
well-settled that, "where the language of an enactment is clear, and
construction according to its terms does not lead to absurd or
impractical consequences, the words employed are to be taken as the
final expression of the meaning intended." Browder v. United States, 312
U.S. 335, 338 (1941). It is also well-established that words used in a
statute are to , be given their ordinary meaning on the absence of
persuasive reasons to the contrary. Burns v. Alcala, 420 U.S. 575,
580-581 (1975). In this case it can hardly be argued that the results
of a literal interpretation would be absurd or impractical. Moreover,
the language of Section 7131(a), as amplified by Sections 7103(a)(2)(A)
and 7103(a)(3), indicates, without ambiguity, that the Congress
contemplated grants of official time to "any employee" representing an
exclusive representative in the negotiation of a collective bargaining
agreement, during the time the employee otherwise would be in a duty
status. /11/ The legislative history of Section 7131(a) disclosed
nothing to the contrary. The language of Section 7131(a) does
specifically restrict the number of employees for whom official time is
authorized, by limiting the number of union representatives to the
number designated by the agency; however, no persuasive rationale was
advanced for interpreting Section 7131(a) so as to have the effect of
imposing an additional significant limitation on a union's right to
select collective bargaining representatives.
The Authority's Interpretation and Guidance relating to Section
7131(a), authorizes travel and per diem expenses for union
representatives covered by Section 7131(a). The Authority noted that,
as stated in Section 7101(a) of the statute, "labor organizations and
collective bargaining are in the public interest." It was also held that
although neither the Statute nor its legislative history adverted to the
payment of travel expenses or per diem during participation in
negotiation activities, union representatives so involved were engaged
in "official business for the Government," and further that management
representatives were uniformly paid travel expenses and per diem. The
Authority pointed out that travel and per diem should be paid because
Congress had indicated an intent that similar prerogatives be accorded
employees serving as union representatives likewise engaged in
collective bargaining negotiations. The following statement of
Representative Clay, in discussing the prescription of official time for
employees engaged in internal union business under Section 7132(b) of
the House Bill (which was enacted as Section 7131(b) of the Statute),
was quoted:
Section 7132(b) of the Udall compromise bars the use of
official time for conducting the internal business of a labor
organization . . . . Activities that involve labor-management
contacts are not included in this section . . . . Title VII
imposes heavy responsibilities on labor organizations and on
agency management. These organizations should be allowed official
time to carry out their statutory representational activities just
as management uses official time to carry out its
responsibilities.
It follows that if the Charging Party herein were compelled to select
employee collective bargaining representatives solely from those agency
employees within the bargaining unit in order to be entitled to official
time, the choice of representatives would, in many cases, be extremely
limited. However, the Respondent's power to select its own employee
representatives would not be limited in any way. This being the case,
it would, to say the least, be grossly unfair to impose such stringent
limitations upon the Charging Party. This inequity is even more
pronounced in the light of statutory language, which clearly indicates
that "any employee" may be selected to represent a bargaining unit in
collective bargaining, and receive official time under Section 7131(a).
At a minimum this must mean non-bargaining unit employees of the
Respondent at Kelly Air Force Base, Texas. /12/
In American Federation of Government Employees, AFL-CIO, 4 FLRA No.
39 (September 26, 1980), a labor organization was charged with
violations of Section 7116(b)(5) and (1) based upon a refusal to
negotiate certain agency proposals. In essence the proposals prescribed
the organizational level and segment from which the union would have to
designate its representatives when dealing with agency management. The
Authority ordered dismissal of the complaint and noted the following:
In our view, it is within the discretion of both agency
management and labor organizations holding exclusive recognition
to designate their respective representatives when fulfilling
their responsibilities under the Statute . . . .
The proposals in the instant case, as noted above, would
generally require the Respondent to designate its representatives
from prescribed organizational levels and segments when dealing
with agency management in the performance of certain
representational functions.
As such, the proposals would infringe upon the Respondent's
prerogative to designate its own representatives for such
purposes. The proposals, therefore, are outside the required
scope of bargaining and the Respondent's refusal to bargain cannot
be held to constitute a violation of the Statute.
It is noted that in American Federation of Government Employees,
AFL-CIO, the proposals would have (among other things) limited the
union's right to select employee representatives engaged in collective
bargaining falling within the purview of Section 7131(a).
In a similar case involving a non-bargaining unit agency employee
engaged in collective bargaining negotiations, Administrative Law Judge
Garvin Lee Oliver reached the conclusion that a non-bargaining unit
employee would have been entitled to official time for representational
activity involving the negotiation of a collective bargaining agreement,
but for the fact that the representative in question was not entitled to
official time because the number of union representatives exceeded the
number designated as agency representatives. Little Creek Amphibious
Base, Case Nos. 3-CA-382 and 3-CA-383 (June 3, 1981).
Based on the foregoing, it is concluded that Mr. Hoffman was an
"employee" within the meaning of Section 7103(a)(2)(A); that he was
employed by an "agency" as defined in Section 7103(a)(3); that on
February 4, 1981, he was an employee representing an exclusive
representative in the negotiation of a "collective bargaining agreement"
within the meaning of Section 7131(a); that he was designated under the
provisions of Section 7131(a) to represent the Charging Party in
collective bargaining negotiations on February 4, 1981, during a period
when he would otherwise have been on duty; and that the Respondent
refused to grant official time to Mr. Hoffman in connection with the
February 4, 1981 meeting because he was not a member of the bargaining
unit which the Charging Party represented. This constituted a violation
of Section 7131(a). It is also determined that Respondent's failure to
comply with the provisions of Section 7131(a) of the Statute was
violative of Sections 7116(a)(8) and (1) of the Statute.
Having found that the Respondent violated Sections 7116(a)(8) and
(1), it is recommended that the Authority issue the following Order:
ORDER
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations, and Section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the Department of the Air Force, San Antonio Air Logistics Center,
Kelly Air Force Base, Texas, shall:
1. Cease and desist from:
(a) Failing and refusing to authorize official time for Joe L.
Hoffman in accordance with the provisions of 5 U.S.C. 7131(a), for
duty time spent in representing the International Association of
Firefighters Local F-89, AFL-CIO, during collective bargaining
negotiations with the Department of the Air Force, San Antonio Air
Logistics Center, Kelly Air Force Base, Texas.
(b) In any like or related manner interfering with, restraining
or coercing employees in the exercise of rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purpose and policies of the Statute:
(a) Upon request grant to Joe L. Hoffman, official time for the
period of annual leave utilized by him on February 4, 1981, to
represent the International Association of Firefighters Local
F-89, AFL-CIO, in collective bargaining negotiations with the
Department of the Air Force, San Antonio Air Logistics Center,
Kelly Air Force Base, Texas, and restore to him any annual leave
utilized on February 4, 1981, for such collective bargaining
negotiations.
(b) Post at its facilities at the Department of the Air Force,
San Antonio Air Logistics Center, Kelly Air Force Base, Texas,
copies of the attached notice marked "Appendix" on forms to be
furnished by the Federal Labor Relations Authority. Upon receipt
of such forms they shall be signed by the Commander, San Antonio
Air Logistics Center, Kelly Air Force Base, Texas, and shall be
posted and maintained for 60 consecutive are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that
such notices are not altered, defaced, or covered by other
material.
(c) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region 6, Federal Labor
Relations Authority, in writing, within 30 days from the date of
this Order, as to what steps have been taken to comply herewith.
LOUIS SCALZO
Administrative Law Judge
Dated: December 23, 1981
Washington, D.C.
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to authorize official time to Joe L.
Hoffman in accordance with the provisions of 5 U.S.C. 7131(a), for duty
time spent in representing the International Association of Firefighters
Local F-89, AFL-CIO, during collective bargaining negotiations with the
Department of the Air Force, San Antonio Air Logistics Center, Kelly Air
Force Base, Texas.
WE WILL NOT, in any like or related manner, interfere with, restrain
or coerce our employees in the exercise of rights assured by the Federal
Service Labor-Management Relations Statute.
WE WILL upon request grant to Joe L. Hoffman, official time for the
period of annual leave utilized by him on February 4, 1981, to represent
the International Association of Firefighters Local F-89, AFL-CIO, in
collective bargaining negotiations with the Department of the Air Force,
San Antonio Air Logistics Center, Kelly Air Force Base, Texas, and
restore to him any annual leave utilized on February 4, 1981, for such
collective bargaining negotiations.
(Agency or Activity)
By: (Signature)
Dated: . . .
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region 6,
whose address is: P.O. Box 2640, Dallas, TX 75221, and whose telephone
number is: (214) 767-4996.
--------------- FOOTNOTES$ ---------------
/1/ The exceptions and brief filed by the General Counsel were
untimely and therefore have not been considered by the Authority.
/2/ Section 7131(a) provides in pertinent part:
Sec. 7131. Official time
(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. . . .
/3/ Section 7116(a)(1), (5) and (8) provides:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
. . . .
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter;
. . . .
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
/4/ See also U.S. Department of the Army, 94th U.S. Army Reserve
Command, Hanscom Air Force Base, Massachusetts, 8 FLRA 83 (1982).
/5/ In so concluding, the Authority does not adopt the Judge's
rationale at page 2 of his Decision for deciding not to consider this
issue.
/6/ Of course, this decision does not address the Charging Party's
right to designate the employee as its bargaining representative even
though such representative is neither in the bargaining unit nor
exclusively represented by the Charging Party, and should not be
construed as precluding the employee from participating in such
negotiations other than on official time. As the Fourth Circuit
observed in affirming the Authority's decision in U.S. Naval Space
Surveillance Systems, Dahlgren, Virginia, supra, " . . . while
management and labor are both free to establish and employ their own
cadres of professional negotiators at their own expense, the Union in
this case may not use the official time provisions of 5 U.S.C. 7131(a)
or (d) to compel employer subsidization of non-unit negotiators." AFGE
Local 2096 v. FLRA, supra, slip op. at 10.
/7/ The complaint raises the issue of whether, under the provisions
of Section 7131(a), Mr. Hoffman should have been granted official time
to participate in a collective bargaining session scheduled for February
4, 1981. If, as alleged, Mr. Hoffman was entitled to official time,
then there would be no statutory or other basis for permitting the
Charging Party to lose Section 7131(a) rights through the collective
bargaining process. That is, although the conduct of the Respondent in
such a case would involve a failure to comply with Section 7131(a),
action in this regard carries no obligation pursuant to Section
7116(a)(5), to bargain over the change. American Federation of
Government Employees, AFL-CIO, Local 2904, 7 FLRA No. 28 (November 12,
1981); U.S. Army Materiel Development and Readiness Command, Warren,
Michigan, 7 FLRA No. 30 (November 12, 1981).
Since bargaining was not contemplated, counsel for the General
Counsel clearly indicated that no remedial order was sought based upon
alleged violations of Section 7116(a)(1) and (5). The alternative
theory based upon alleged violations of Sections 7116(a)(1) and (5)
would have validity only within the context of a case involving a prior
past practice of granting official time falling within the purview of
Section 7131(d) of the Statute. Here the complaint filed relies only
upon the language of Section 7131(a) as the basis for the alleged unfair
labor practice. (General Counsel's post-hearing brief at 3).
/8/ The Department of the Air Force employs approximately 239,000
civilian employees at over 1000 geographical locations (Tr. 68).
/9/ It is also noted that on April 14, 1980, he was granted and
received official time in connection with an appearance as a witness at
an Authority consolidation hearing pertaining to a proposed
consolidation of five Air Force Logistical Command fire prevention units
represented by the Charging Party, as distinct from two represented by
the American Federation of Government Employees. He testified on behalf
of the Charging Party. On November 19, 1981, the Authority determined
that the petition for consolidation of unit, encompassing all Air Force
Logistical Command fire prevention units, other than those represented
by the American Federation of Government Employees, was appropriate.
Air Force Logistics Command, United States Air Force, Wright-Patterson
Air Force Base, Ohio, 7 FLRA No. 33 (November 19, 1981). An election
was directed to determine whether the employees wished to be represented
in the consolidated unit found appropriate. The new unit would consist
of all five of the Air Force Logistical Command fire prevention units
represented by the Charging Party, and would include the Kelly Air Force
Base, Texas unit, together with units located at Wright-Patterson, Air
Force Base, Ohio; Tinker Air Force Base, Oklahoma; McClellan Air Force
Base, California; and Robins Air Force Base, Georgia.
/10/ The record reflects no evidence that the Respondent questioned
Mr. Hoffman's right to be present at the meeting, nor does it indicate
that official time was denied by the Respondent because the number of
Local F-89 representatives exceeded the number designated by the
Respondent.
/11/ The Authority has held that the phrase "negotiation of a
collective bargaining agreement" in Section 7131(a) refers to any
agreement that is entered into as a result of the performance of the
mutual obligation of the parties to bargain in a good faith effort to
reach agreement with respect to conditions of employment affecting
employees in the appropriate unit, and that the language used reflects
the intent of the Congress to encompass under Section 7131(a), all
negotiations between an exclusive representative and an agency,
regardless of whether such negotiations pertain to the negotiation or
renegotiation of a basic collective bargaining agreement.
Interpretation and Guidance, 2 FLRA No. 31 (December 19, 1979).
The Authority position would tend to indicate that the restrictive
interpretation urged by the Respondent is not entirely without merit;
however, the Authority has also held that there would be no basis for
granting official time under Section 7131(a) for periods of time spent
in preparing to engage in collective bargaining negotiations. That is,
Section 7131(a) would be applicable only to periods of time spent at the
bargaining table in "actual" negotiations, as distinct from periods
spent in preparation for, or periods intervening between collective
bargaining sessions. American Federation of Government Employees,
AFL-CIO, Local 1692 and Headquarters, 323rd Flying Training Wing (ATC)
Mather Air Force Base, California, 3 FLRA No. 47 (May 30, 1980);
Federal Uniformed Fire-Fighters, Local F-169, and U.S. Army Armament
Research & Development Command, Dover, New Jersey, 3 FLRA No. 49 (May
30, 1980); International Association of Machinists and Aerospace
Workers, Lodge 2424, 5 FLRA No. 54 (March 30, 1981); Association of
Civilian Technicians, Granite State Chapter, 7 FLRA No. 36 (November 19,
1981).
/12/ Since Mr. Hoffman, was in fact an employee of Respondent's at
Kelly Air Force Base, it is unnecessary to decide within the context of
this case, whether or not the phrase "any employee," in Section 7131(a)
as expanded by Sections 7103(a)(2)(A) and 7103(a)(3), includes
non-bargaining unit government employees who are not employed by the
"Executive agency" engaged in collective bargaining negotiations.