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The decision of the Authority follows:
19 FLRA No. 19 VETERANS ADMINISTRATION CINCINNATI, OHIO Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2031, AFL-CIO Charging Party Case No. 5-CA-795 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 and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. Thereafter, untimely exceptions to the Judge's Decision were filed by the Respondent, which have not been considered. Although no timely exceptions were filed, as the Judge's Decision was issued prior to the effective date of the amendment to section 2423.29(a) of the Authority's Rules and Regulations, /1/ the Authority shall consider the merits of this case. 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 Veterans Administration, Cincinnati, Ohio (the Respondent), by denying official time, travel and per diem to three of its employees who represented the Charging Party, American Federation of Government Employees, Local 2031, AFL-CIO (the Union), in negotiating a dues withholding agreement covering employees of the Columbus Veterans Administration Outpatient Clinic located in Columbus, Ohio, failed and refused to comply with the provisions of section 7131(a) of the Statute, thereby violating section 7116(a)(1) and (8) of the Statute. The Authority disagrees. The record indicates, and the Judge found, that the employees of the Outpatient Clinic, Columbus, Ohio, for whom the Union here was negotiating a dues withholding agreement, had been made a part of a consolidated nationwide unit of employees within the Veterans Administration (VA), exclusively represented by the American Federation of Government Employees, AFL-CIO (AFGE), prior to the events that are the subject of this case. The level of exclusive recognition, therefore, was at the national level, and the mutual obligation to negotiate existed only between the VA and AFGE, the parties at that level. /2/ In Interpretation and Guidance, 7 FLRA 682 (1982), issued subsequent to the Judge's Decision, the Authority held that, where exclusive recognition is at the national level, local supplemental negotiations may be authorized by the parties at that level, but such negotiations are not part of the "mutual obligation" to bargain. The Authority further found that, as "the official time provisions of section 7131(a) of the Statute do not encompass negotiations below the level of exclusive recognition," such official time may be granted only when it is negotiated pursuant to section 7131(d) of the Statute. /3/ Thereafter, in American Federation of Government Employees, AFL-CIO v. FLRA, 750 F.2d 143 (D.C. Cir., 1984), the United States Court of Appeals for the District of Columbia Circuit reversed the Authority's determination in Interpretation and Guidance, supra, and held that "once local negotiations are agreed upon (at the master level), 'a mutual obligation' to bargain exists at that (local) level, thus triggering the provisions of section 7131(a)." 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. Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 19 FLRA No. 17 (1985). Underlying the court's decision is the requirement that local negotiations must be agreed upon by the parties at the national level in order for the local negotiators to be entitled to official time under section 7131(a). In this case, it is neither alleged nor established that the parties at the national level had agreed to authorize the local negotiations that took place herein. /4/ Therefore, there was no entitlement to official time in these circumstances. In all these circumstances, the Authority finds that the Respondent by its action did not fail and refuse to comply with section 7131 of the Statute in violation of section 7116(a)(1) and (8) of the Statute. /5/ Accordingly, the Authority shall dismiss the complaint. /6/ ORDER IT IS ORDERED that the complaint in Case No. 5-CA-795 be, and it hereby is, dismissed. Issued, Washington, D.C., July 18, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY Case No. 5-CA-795 -------------------- ALJ$ DECISION FOLLOWS -------------------- Arthur L. Kraut, Esq. Russell C. Henry, Esq., on brief For the Respondent Sharon A. Bauer, Esq. For the General Counsel Before: ALAN W. HEIFETZ Administrative Law Judge DECISION Statement of the Case This proceeding arose pursuant to the Federal Service Labor-Management Relations Statute, 5 U.S.C. 7101 et seq., as a result of an unfair labor practice charge filed on November 7, 1980, with the Federal Labor Relations Authority. Consequently, on January 21, 1981, the Acting Regional Director, Region V, of the Authority issued a Complaint and Notice of Hearing alleging that Respondent violated Sections 7116(a)(1) and (8) by refusing to grant official time, travel and per diem expenses to three Union representatives who were engaged in contract negotiations. A hearing was held on March 18, 1981, in Cincinnati, Ohio. All parties were afforded full opportunity to examine witnesses and to introduce evidence. Post hearing briefs have been filed and considered. Upon the entire record, including my observation of the witnesses and their demeanor, I make the following findings, conclusions and recommendations: Findings of Fact The Veterans Administration maintains and operates, as separate component organizations, a Medical Center in Cincinnati, Ohio, and the Columbus Veterans Administration Outpatient Clinic, in Columbus, Ohio. The American Federation of Government Employees represents a consolidated nationwide unit within the Veterans Administration, including the Medical Center in Cincinnati. The Outpatient Clinic was added to this consolidated unit on October 16, 1980, when AFGE was certified as the exclusive representative for bargaining unit employees. On October 22, 1980, AFGE designated Lonnie Carter, President of the Union, to be its representative with respect to the Outpatient Clinic. This designation and the results of the election at the Outpatient Clinic were known to Sidney Stell, Respondent's Assistant Chief, Personnel Service when Mr. Carter went to Mr. Stell's office on October 23, 1980. On that date, Mr. Carter requested that Mr. Stell place a call over FTS lines to James Doherty, Chief, Personnel Service, at the Outpatient Clinic, in order to set up a meeting to discuss dues deductions. Mr. Stell remained in the office while Mr. Carter and Mr. Doherty agreed over the phone to meet on November 5, 1980, in Columbus to negotiate a dues deduction agreement. Based on past practice at Cincinnati, Mr. Carter informed Mr. Doherty that three union representatives would attend the meeting, namely, Bob Barker, Brenda Smith and himself. Mr. Doherty saw no problem with this and said that he would have two other representatives with him at the meeting. Mr. Doherty also asked for a proposed agenda and a proposed dues withholding agreement, both of which Mr. Carter later sent. Mr. Doherty also informed Mr. Carter that official time would have to come from Cincinnati and not from the Outpatient Clinic. /7/ Following this telephone conversation, Mr. Carter told Mr. Stell that he was upset because Mr. Doherty would not agree to negotiate anything but dues withholding. Mr. Stell said that official time for the November 5 meeting would not be a problem but that Mr. Carter should put his request in writing, designating who would be present. Mr. Stell also said that it was not Cincinnati's business why the Union was attending the meeting and that Mr. Carter did not have to put in his written request what the Union was going to negotiate at the November 5 meeting. /8/ On October 27, 1980, the Union sent Mr. Stell a letter requesting official time and per diem for Mr. Carter, Mr. Robert Barker, and Ms. Brenda Smith (all Union officers and all employed by Respondent at Cincinnati) for the November 5 meeting in Columbus. On October 31, 1980, the Union received a letter from Francis J. Wyborski, Chief, Personnel Service, at Cincinnati, denying the official time and per diem requested by the Union for the November 5 meeting. Mr. Wyborski had never discussed with Mr. Carter the purpose of that meeting or the reasons for the request for official time. In pertinent part, the letter stated: The negotiated agreement between the VA Medical Center Cincinnati/Fort Thomas and Local 2031, AFGE is specific in its coverage of eligible non-supervisory employees at the Cincinnati Division, this Medical Center and the Fort Thomas Nursing Home Care Unit, Fort Thomas, Kentucky. There is no provision in current governing directives or statutes for granting official time or per diem for the purpose of participating in organizational activities involving another VA activity not so covered. Therefore, your request must be denied. . . . On November 5, 1980, Mr. Carter, Mr. Barker and Ms. Smith met with three management officials of the Outpatient Clinic in Columbus, Ohio. They negotiated and signed a dues deduction agreement covering the employees at the Outpatient Clinic. The time spent in negotiations was less than one hour. Travel time from Cincinnati to Columbus was approximately two hours. The three Union representatives were in leave without pay status during the time spent in travel and negotiations. Respondent continues to refuse to grant official time and per diem expenses to those representatives for that activity. Discussion and Conclusions Official time is provided by Section 7131 of the Federal Service Labor Management Relations Statute as follows: (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 proceedings, 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. Although not pressed on brief by Respondent, the evidence adduced shows that the reason official time was denied was because the Outpatient Clinic in Columbus was not covered by the negotiated agreement between the Union and the Medical Center in Cincinnati. However, Respondent has not cited any authority, nor do I find any, for the proposition that the words "any employee representing an exclusive representative" are more restrictive than their plain meaning. There is no question that the three individuals seeking official time are "employees" for purposes of the Statute; /9/ that they work for, and that the Veterans Administration is, an "agency" within the meaning of the Statute; /10/ and that the Union is an "exclusive representative" as that term is defined in the Statute. /11/ The fact that these three employees are covered by a negotiated agreement which does not encompass another subcomponent of the agency is of no moment. Likewise, the fact that these employees are representing an exclusive representative of employees in that other subcomponent is of no legal consequence. Official time shall be authorized for "any" employee representing "an" exclusive representative and therefore, unless other provisions of the Statute become operative, these three employees are entitled to official time, travel and per diem /12/ while they are engaged in negotiations with the Outpatient Clinic, a subcomponent of the Veterans Administration. Nothing in the Statute or the legislative history points to any intent to limit an employee to representing only the exclusive representative in that employee's subcomponent of the employing agency. That all three employees should be granted official time, travel and per diem is also clear. The number of employees granted official time is limited only by the number designated as representing the agency. Therefore, it is the agency's prerogative to limit the number of employees with whom it wishes to meet. Here, representatives of the Outpatient Clinic acquiesced in the Union's suggestion of three representatives each, as had been the Union's past practice at other negotiations. It is too late in the day to argue that only one negotiator would have been enough. It is obvious that Respondent's left hand did not fully communicate and coordinate with its right. But that failure should not redound to the detriment of the three Union negotiators who had no reason to believe that when they arrived in Cincinnati, they would not be facing three of their opposites. On brief, Respondent raises for the first time the defense that since the November 5 meeting concerned a matter relating solely to the internal business of the Union, to wit, dues deduction, official time may not be granted. Respondent argues that official time shall be granted for "collective bargaining," a term limited by 5 U.S.C. 7103(a)(12) to "conditions of employment." Respondent further posits that "conditions of employment" is a term defined by 5 U.S.C. 7103(a)(14)(C) to exclude matters, "specifically provided for by Federal Statute" and that a Federal Statute, namely 5 U.S.C. 7115, obligates the agency to deduct union dues. Since the agency is obligated to deduct dues, Respondent argues that it has no duty to negotiate and therefore, no obligation to provide official time for such negotiations. That argument must be rejected for several reasons. First of all, the legislative history of the Statute clearly reveals that the agency's obligation to withhold dues runs directly to the individual employee and not to the Union. In its discussion of dues withholding, the Conference Report states: Both Senate section 5231 and House section 7115(a) authorize an agency to deduct dues from the pay of members of a labor organization. The Senate makes the obligations of the agency to deduct dues from members of an exclusively recognized labor organization dependent upon its agreement to do so as part of a negotiated agreement. House section 7115(a) states that the agency shall make such deduction whenever it receives from an employee in the appropriate unit a written assignment authorizing it. Further, the House specifies that the allotment shall be made at no cost to the exclusively recognized labor organization or the employee. The Senate recedes. /13/ Since the obligation runs to the employee and not to the Union, that particular section does not affect a "condition of employment" which is within the meaning of "collective bargaining" and with respect to which Respondent has a duty to negotiate. However, that is not to say that Respondent had absolutely no duty to negotiate with the Union over dues withholding. Section 7115(a) merely obligates Respondent to honor the employee's written assignment which authorizes dues deduction from the employee's pay. It does not speak to such matters as forms to be signed; responsibility for obtaining, completing and transmitting forms; countersignatures to be obtained; notification of participation and withdrawal of participation in a dues withholding program; the amount to be withheld and notification of any change in that amount; remittance to the Union; or any other matter affecting a dues withholding agreement over which Respondent or the Union may wish to negotiate. In short, to withhold or not to withhold is not the only question. The foregoing list of possible subjects for negotiations regarding dues withholding is not meant to be exhaustive. Its purpose is merely to note that there do exist personnel practices and policies which are conditions of employment within the meaning of the Statute and over which Respondent is bound to negotiate. Since these conditions of employment are not specifically provided for by Federal Statute, Respondent's argument must be rejected on that ground as well. Finally, Respondent's argument fails because the matter of dues withholding is not solely a matter of internal labor organization business. While it cannot be gainsaid that an employee who is a union official must be in nonduty status to go from desk to desk "collecting dues," that is a far cry from concluding that such person must be in nonduty status to bargain over a procedure which involves not only the employee and the Union, but also the personnel and fiscal offices of the agency. Respondent's own witness, Mr. Doherty, realized this because he expected to negotiate dues withholding at the November 5 meeting. And, as a matter of fact, such an agreement was negotiated on November 5, 1980. I conclude that by denying official time, travel and per diem to Lonnie Carter, Robert Barker and Brenda Smith, Respondent failed and refused to comply with the provisions of 5 U.S.C. 7131(a), thereby violating 5 U.S.C. 7116(a)(1) and (8) and I recommend that the Federal Labor Relations Authority issue the following order pursuant to 5 C.F.R. 2423.29(c): ORDER ORDERED, that the Veterans Administration, Cincinnati, Ohio shall: 1. Cease and desist from: (a) Failing and refusing to authorize and provide official time, travel and per diem to employees Lonnie Carter, Robert Barker and Brenda Smith, pursuant to the provisions of 5 U.S.C. 7131(a), while they are engaged in representing the American Federation of Government Employees, AFL-CIO, Local 2031, an exclusive representative, at the Columbus Veterans Administration Outpatient Clinic at Columbus, Ohio. (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 purposes and policies of the Statute: (a) Provide Union representatives Lonnie Carter, Robert Barker and Brenda Smith official time while they are engaged in representing the American Federation of Government Employees, AFL-CIO, Local 2031, an exclusive representative, during Union-Agency negotiations in Cincinnati, Ohio, on November 5, 1980, including four hours travel time as occurred during the employees' regular work hours and when the employees would otherwise have been in a work or paid leave status, and make them whole for any annual leave utilized, and upon submission of appropriate vouchers, pay to them whatever travel and per diem expenses employees engaged in official Agency business would be entitled. (b) Post at its facilities 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 an authorized representative and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices are customarily posted. Reasonable steps shall be taken to ensure that the notices are not altered, defaced or covered by any other materials. (c) Notify the Federal Labor Relations Authority in writing within 30 days from the date of this Order as to what steps have been taken to comply with the Order. ALAN W. HEIFETZ Administrative Law Judge Dated: May 20, 1981 Washington, D.C. APPENDIX 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 and provide official time, travel and per diem to employees Lonnie Carter, Robert Barker and Brenda Smith, pursuant to provisions of 5 U.S.C. 7131(a), while they are engaged in representing the American Federation of Government Employees, AFL-CIO, Local 2031, an exclusive representative, at the Columbus Veterans Administration Outpatient Clinic in Columbus, Ohio. 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 Statute. WE WILL provide Union representatives Lonnie Carter, Robert Barker and Brenda Smith official time while they were engaged in representing the American Federation of Government Employees, AFL-CIO, Local 2031, an exclusive representative, during Union-Agency negotiations in Cincinnati, Ohio, on November 5, 1980, including four hours travel time as occurred during the employees' regular work hours and when the employees would otherwise have been in a work or paid leave status, and make them whole for any annual leave utilized, and upon submission of appropriate vouchers, pay to them whatever travel and per diem expenses employees engaged in official Agency business would be entitled. (Agency or Activity) Dated: . . . BY: . . . (Signature) 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 5, Suite A-1359, 175 West Jackson Boulevard, Chicago, Illinois 60604. --------------- FOOTNOTES$ --------------- /1/ Section 2423.29(a) now provides, in pertinent part, that "in the absence of exceptions filed timely . . . , the findings, conclusions, and recommendations in the decision of the . . . Judge shall, without precedential significance, become the findings, conclusions, decision and order of the Authority, and all objections and exceptions thereto shall be deemed waived for all purposes." /2/ See Department of Health and Human Services, Social Security Administration, 6 FLRA 202 (1981). See also Social Security Administration, Mid-America Program Service Center, Kansas City, Missouri, 10 FLRA 15 (1982). /3/ Section 7131 provides, in pertinent part, as follows: Sec. 7131. Official time. (a) Any employee representing an exclusive representative in the negotiation of a collective bargaining agreement under this (Statute) shall be authorized official time for such purposes, including attendance at impasse proceedings, 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. . . . . (d) Except as provided in the preceding subsections of this section-- (1) any employee representing an exclusive representative, or (2) in connection with any other matter covered by this (Statute), any employee in an appropriate unit represented by an exclusive representative, shall be granted official time in any amount the agency and the exclusive representative involved agree to be reasonable, necessary, and in the public interest. /4/ It is noted that the parties at the national level were still in the process of negotiating for a master agreement when the facts in this case arose. It is noted further that management's Columbus representative had questioned whether "negotiations" were necessary at all, and directly challenged the necessity of the employees' travel to Columbus. /5/ Moreover, the Authority notes that the employees in question would not have been entitled to travel and per diem under section 7131(a) of the Statute in any event. Bureau of Alcohol, Tobacco and Firearms v. FLRA, 104 S.Ct. 439 (1983). /6/ In view of this disposition, the Authority finds it unnecessary to rule on any of the Judge's other related findings. /7/ These findings are based on Mr. Carter's testimony which I fully credit on the basis for his demeanor and his memory. Although there were some discrepancies between this testimony and that of Messrs. Stell and Doherty, I credit his version because their memories of these events were not as certain and nothing in their testimony impeached Mr. Carter's. /8/ These events are, again, constructed from Mr. Carter's testimony. Mr. Stell's testimony was internally contradictory, his memory was not clear, and he was nervous on the stand. /9/ 5 U.S.C. 7103(a)(2). /10/ 5 U.S.C. 7103(a)(3). /11/ 5 U.S.C. 7103(a)(16). /12/ Official time includes travel and per diem. See e.g., Florida National Guard, 5 FLRA No. 49 (1981). /13/ Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, Committee Print No. 96-7, Committee on Post Office and Civil Service, House of Representatives, 96th Cong. 1st Sess., Nov. 19, 1979, p. 823.