[ v19 p169 ]
The decision of the Authority follows:
19 FLRA No. 17 DEPARTMENT OF THE AIR FORCE, HEADQUARTERS, AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, COUNCIL 214 AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1626, AFL-CIO Charging Party Case Nos. 5-CA-30027 5-CA-30055 DECISION AND ORDER This matter is before the Authority pursuant to the Regional Director's "Order Transferring Case to the Federal Labor Relations Authority" in accordance with section 2429.1(a) of the Authority's Rules and Regulations. Upon consideration of the entire record in these cases, including the parties' stipulation of facts, accompanying exhibits, and briefs submitted by the General Counsel, the Charging Party /1/ and the Respondent, the Authority finds: At all times material herein, the American Federation of Government Employees, AFL-CIO, has been the exclusive representative and the American Federation of Government Employees, Council 214, AFL-CIO, has been an agent of the exclusive representative, with respect to the employees of a consolidated unit of all non-supervisory non-professional employees paid from appropriated funds and serviced by AFLC Civilian Personnel Offices at the following AFLC facilities and units: Hill Air Force Base (AFB), Ogden, Utah Kelly AFB, San Antonio, Texas McClellan AFB, Sacramento, California Robins AFB, Warner Robins, Georgia Tinker AFB, Oklahoma City, Oklahoma Wright-Patterson AFB, Dayton, Ohio Newark Air Station, Newark, Ohio Detachment 21, Air Force Contract Maintenance Center, Wichita, Kansas Cataloguing and Standardization Office, Battle Creek, Michigan Security Police or Guards, Tinker AFB, Oklahoma City, Oklahoma Professional Nurses at Kelly AFB and Robins AFB The bargaining unit employees at each of the above facilities are represented by separate local unions affiliated with American Federation of Government Employees, Council 214, AFL-CIO, as the designated agent of the exclusive representative for the consolidated unit herein. On May 3, 1979, the parties executed a Master Labor Agreement (MLA). Following reopener negotiations, the May 1979 MLA was superseded by the MLA which became effective on June 28, 1982. Each local facility has a local agreement which supplements the MLA, except the facility in Wichita, Kansas. The Respondent had authorized official time for local Union representatives negotiating local supplements to the MLA prior to October 1982, when it informed the exclusive representative that official time for such local negotiations no longer would be authorized. The exclusive representative requested bargaining over this change. The Respondent denied the request and advised that all official time functions are included in Article 4 of the MLA and that no agreement on official time to negotiate local supplements had been reached by the parties in the 1982 MLA. The negotiation of local supplements under the 1982 MLA began about September 1982 at some of the subordinate installations of the Respondent. Preliminarily, the Respondent contends that section 7116(d) of the Statute bars the processing of this case because AFGE Local 916 at Tinker Air Force Base filed a grievance raising the same issues as those involved in the unfair labor practice complaints herein. /2/ The Authority concludes that section 7116(d) does not bar this proceeding, noting that the initial charge was filed on October 25, 1982, prior to the filing of the grievance, which occurred on November 29, 1982. See Department of Justice, Bureau of Prisons, Federal Correctional Institution, Butner, North Carolina, 18 FLRA No. 100 (1985), and cases cited therein. Moreover, it is concluded that the Respondent has failed to establish that the issues raised herein and under the grievance procedure are the same. The issues as stipulated by the parties include, inter alia, whether the Respondent, by unilaterally discontinuing its practice of granting official time to local Union negotiators for time spent negotiating local supplemental agreements to the MLA at the facilities throughout the bargaining unit, without giving the exclusive representative notice of or an opportunity to bargain over the change, violated section 7116(a)(1) and (5) of the Statute. /3/ The General Counsel and the Charging Party contend that, until October 1982, the Respondent authorized official time for local Union representatives to negotiate local supplemental agreements, at which time the Respondent unilaterally discontinued its past practice. The Respondent contends that the provisions of the MLA and the Authority's decision in Interpretation and Guidance, 7 FLRA 682 (1982), in which the Authority determined that the official time provisions of section 7131(a) of the Statute /4/ do not encompass negotiations below the level of exclusive recognition which are designed to create local agreements to supplement a master agreement, preclude finding a statutory violation herein and have superseded any past practice which might be found. /5/ Subsequent to the issuance of the consolidated complaint herein, the United States Court of Appeals for the District of Columbia Circuit reversed the Authority's determination in Interpretation and Guidance, 7 FLRA 582 (1982), concluding that the official time provisions of section 7131(a) of the Statute encompass the negotiation of local agreements supplementing master agreements where such local negotiations are authorized by the parties at the level of exclusive recognition. American Federation of Government Employees, AFL-CIO v FLRA, 750 F.2d 143 (D.C. Cir., 1984). The Authority is constrained to follow the court's legal interpretation of the language of section 7131(a) of the Statute, for the reasons set forth therein. As applied herein, the record indicates that the MLA between the parties at the level of exclusive recognition provides for the negotiation of local agreements to supplement the MLA. /6/ Accordingly, the Authority concludes that, in the circumstances of this case, the Respondent's refusal to grant official time to local Union representatives for the negotiation of local supplements authorized by the MLA improperly denied those employees an entitlement thereto under section 7131(a) of the Statute. Therefore, it follows that the Respondent interfered with, restrained or coerced unit employees in their exercise of a right assured by the Statute, and thereby violated section 7116(a)(1) of the Statute. /7/ The alleged violation of section 7116(a)(5) of the Statute must be dismissed. That allegation is based upon the assertion that the Respondent's refusal to grant local Union representatives official time for the negotiation of local supplementary agreements constituted a unilateral change in an established past practice which should have been bargained with the Union. As it has been determined that the local Union representatives had a right to official time under section 7131(a) of the Statute in the circumstances described above, the parties had neither a right nor a duty to bargain over such matter. The Authority concludes, in view of the resolution herein, that it is unnecessary to reach the additional issues raised by the parties. Accordingly, those additional portions of the consolidated complaint in Case Nos. 5-CA-30027 and 5-CA-30055 shall be dismissed. ORDER Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Federal Service Labor-Management Relations Statute, the Authority hereby orders that the Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, shall: 1. Cease and desist from: (a) Refusing to grant official time, pursuant to section 7131(a) of the Statute, to its employees who are the designated local representatives of the American Federation of Government Employees, Council 214, AFL-CIO, its employees' exclusive representative for negotiating agreements to supplement the Master Labor Agreement at local facilities in the bargaining unit. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute: (a) Rescind the announced change of policy in granting official time to local Union representatives for time spent in negotiations of local supplemental agreements to the Master Labor Agreement. (b) Grant official time to its employees who are the designated local representatives of the American Federation of Government Employees, Council 214, AFL-CIO, its employees' exclusive representative, for their time spent in negotiating local supplemental agreements to the Master Labor Agreement, and make them whole for any loss of annual leave, or other benefits, caused by its refusal to grant them such official time. (c) Post at its facilities where bargaining unit employees are located copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by an authorized representative of the Respondent and posted in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted, and shall be maintained for 60 consecutive days thereafter. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material. (d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of Region V, in writing within 30 days from the date of this Order, as to what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the remaining allegations of the consolidated complaint in Case Nos. 5-CA-30027 and 5-CA-30055 be, and they hereby are, dismissed. Issued, Washington, D.C., July 18, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY 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 refuse to grant official time, pursuant to section 7131(a) of the Statute, to employees who are the designated local representatives of the American Federation of Government Employees, Council 214, AFL-CIO, the exclusive representative of our employees, for negotiating agreements to supplement the Master Labor Agreement at local facilities in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. WE WILL rescind the announced change of policy in granting official time to local Union representatives for time spent in negotiations of local supplemental agreements to the Master Labor Agreement. WE WILL grant official time to employees who are the designated local representatives of the American Federation of Government Employees, Council 214, AFL-CIO, the exclusive representative of our employees, for their time spent in negotiating local supplemental agreements to the Master Labor Agreement, and make them whole for any loss of annual leave, or other benefits, caused by our refusal to grant them such official time. (Activity) Dated: . . . By: (Signature) (Title) 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 its provisions, they may communicate directly with the Regional Director, Region V, Federal Labor Relations Authority, whose address is: 175 West Jackson Blvd., Suite 1359-A, Chicago, Illinois 60604, and whose telephone number is: (312) 353-6306. --------------- FOOTNOTES$ --------------- /1/ The Charging Party's brief was timely filed. Accordingly, the Respondent's "Motion to Strike the Charging Party's Memorandum" is denied. /2/ Section 7116(d) provides: (d) Issues which can properly be raised under an appeals procedure may not be raised as unfair labor practices prohibited under this section. Except for matters wherein, under section 7121(d) and (f) of this title, an employee has an option of using the negotiated grievance procedure or an appeals procedure, issues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under this section, but not under both procedures(.) /3/ Section 7116(a)(1) and (5) 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(.) /4/ Section 7131(a) provides: 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. 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(.) /5/ The Respondent alternatively contends that the complaint should be dismissed because the issue herein involves contract interpretation best resolved in an arbitration proceeding and that the General Counsel has failed to establish that a past practice existed. In view of the disposition herein, it is unnecessary to pass on these contentions. /6/ Article 34 of the parties' Master Labor Agreement provides, in pertinent part: Section 34.01: Definition and Scope of Local Supplements The Employer and the Union agree that . . . the Articles of this Master Labor Agreement . . . may be supplemented in local agreements . . . (.) /7/ As the consolidated complaint did not allege that the Respondent violated section 7116(a)(8) of the Statute by failing to comply with section 7131(a), no such violation is found herein.