[ v61 p176 ]
61 FLRA No. 35
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
NATIONAL AIR TRAFFIC
August 29, 2005
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Robert W. Landau filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exception.
The Arbitrator determined that the Agency violated the parties' memorandum of agreement by denying official time to an employee who is a member of a bargaining unit to perform representational activities for employees of a different bargaining unit. For the reasons discussed below, we find that official time negotiated under § 7131(d) was intended by Congress for the use of bargaining unit employees on behalf of their own units, not other bargaining units of which they are not members. Accordingly, we conclude that the award is contrary to the Statute and must be set aside.
II. Background and Arbitrator's Award
The National Air Traffic Controllers Association (NATCA or the Union) is the exclusive representative of a nationwide bargaining unit of air traffic controllers (the ATC bargaining unit) employed by the Agency. In January 2002, NATCA also was certified as the exclusive representative for a separate nationwide bargaining unit of support staff specialists (the SSS bargaining unit) employed by the Agency. [n2] In April 2002, the Agency and NATCA negotiated a memorandum of agreement (MOA) that established interim procedures for the SSS bargaining unit. [n3]
In May 2003, NATCA's Alaskan Regional Vice President designated an employee in the ATC bargaining unit to serve as a regional representative for the Union's Alaskan regional office of the SSS bargaining unit. Between May 2003 and September 2003, the employee requested and was granted approximately 30 hours of official time pursuant to Article 2 of the MOA to perform representational activities for the SSS bargaining unit. In September 2003, an Agency manager questioned whether the employee was entitled to official time because he was not employed in the SSS regional office and was not a member of the SSS bargaining unit. The Union responded that it had the right to designate its own representatives and that the employee was entitled to official time for representational duties under the MOA.
In November 2003, in response to the employee's request for 8 hours of official time to perform representational activities for the SSS bargaining unit, the Agency denied the employee's request on the basis that he was not employed in the SSS regional office and was not a member of the SSS bargaining unit.
The Union filed a grievance alleging that the denial of official time violated the MOA, the Statute, and Agency rules and regulations. The grievance was not resolved and was submitted to arbitration on the following stipulated issue:
Has the Agency violated the [MOA] by not allowing [the ATC employee] official time to perform his representational duties?
If so, what should be the remedy?
Award at 2. [ v61 p177 ]
Before the Arbitrator, the Agency acknowledged that the Union has the right to designate the employee as its regional office representative. [n4] However, the Agency argued that only a representative from the SSS bargaining unit may be granted official time to represent employees in that unit. The Arbitrator disagreed, finding that a regional representative did not need to be a member of the SSS bargaining unit in order to receive official time to represent employees of that unit under Article 2 of the MOA. The Arbitrator also found that the cases and authorities submitted by the parties regarding official time under the Statute "are not especially relevant in this case" because they "primarily address official time for collective bargaining negotiations and meetings as described in 5 U.S.C. § 7131." Id. at 11. According to the Arbitrator, "the use of official time for statutory labor-management purposes is addressed in Section 4 of the [MOA, and] [r]egardless [of] whether [the employee] qualifies for statutory official time, this would not affect the Arbitrator's conclusion that [the employee] is entitled to official time under Section 2, Article 2 of the [MOA]." Id. at 11-12.
Consequently, the Arbitrator determined that the Agency violated the MOA by denying the employee official time. As a remedy, the Arbitrator ordered the Agency to restore 100 hours of official time to the employee in a manner to be discussed by the parties.
III. Positions of the Parties
A. Agency's Exception
The Agency contends that the award is contrary to § 7131 of the Statute because the award entitles a union representative to official time to perform representational activities for a bargaining unit of which he is not a member. The Agency maintains that the Authority has ruled in a number of cases that § 7131 of the Statute prohibits the grant of official time for representational duties to a union official who is not a member of the bargaining unit being represented. Accordingly, the Agency asserts that Article 2 of the MOA is unenforceable and that, consequently, the award is deficient.
B. Union's Opposition
The Union contends that Article 2 of the MOA is consistent with § 7131(d) of the Statute and was enforceable by the Arbitrator. The Union maintains that the Agency has misinterpreted Authority precedent. Relying on AFGE, Nat'l Council of Field Labor Locals, 39 FLRA 546 (1991) (AFGE Nat'l Council), the Union asserts that official time under § 7131(d) for non-unit representatives pertains to a permissive subject of bargaining. The Union argues that because such official time pertains to a permissive matter, a contract provision for such official time is enforceable in arbitration once it has been negotiated by the parties.
IV. Analysis and Conclusions
The Agency contends that the award is contrary to § 7131(d) of the Statute because the award entitles a union representative to official time to perform representational activities for a bargaining unit of which he is not a member. We review questions of law raised in exceptions de novo. See, e.g., NTEU, Chapter 24, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, we assess whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998).
Section 7131(d) states, as relevant here, that "any employee representing 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. It is undisputed that the matter for which official time was sought in this case--the performance of representational activities--is a matter that can be negotiated under § 7131(d) of the Statute. [n5] Rather, the only issue presented in this case is who can receive official time under § 7131(d).
The issue of who can receive official time as an "employee representing an exclusive representative" under § 7131(a) and § 7131(d) has been the subject of numerous Authority and court decisions. As the following discussion demonstrates, these decisions establish that employees who are not members of the bargaining units for which they seek to perform representational functions may not receive official time for the performance of those functions under either § 7131(a) or § 7131(d). [n6]
In United States Air Force, 2750th Air Base Wing Headquarters, Air Force Logistics Command, Wright-Patterson [ v61 p178 ] AFB, Ohio, 7 FLRA 738 (1982) (Wright-Patterson AFB), the Authority held that "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." 7 FLRA at 741-42 (footnote omitted). In so holding, the Authority considered "the overall scheme of the Statute" (including specifically §§ 7101, 7103(a)(12), 7111 and 7112) and concluded that "[i]t is apparent . . . that the official time provision of section 7131(a) is intended to apply in the context of collective bargaining in an appropriate unit in an agency between the agency and employees representing the exclusive representative over conditions of employment which affect employees in that unit." Id. at 741 (emphasis added).
Subsequently, in United States Naval Space Surveillance Sys., Dahlgren, Va., 12 FLRA 731 (1983) (Naval Space Surveillance Sys.), the Authority found that an agency has no obligation under § 7131(d) of the Statute to negotiate concerning official time for an employee to represent a union in a different collective bargaining unit in a different employer. The Authority's decision was affirmed in AFGE, Local 2096 v. FLRA, 738 F.2d 633 (4th Cir. 1984). In finding that the Authority's decision "was wholly correct[,]" the court reviewed §§ 7101(a)(1), 7103(a)(12), 7111(a), and 7131(a) and stated:
It is apparent that the plain language and overarching statutory intent of the [Statute] are designed to emphasize the rights of employees within a given bargaining unit. Thus, the entitlement to official time under section 7131(a) properly applies only to employee-negotiators who are themselves members of the unit, and who are working to negotiate reasonable solutions to conditions of employment that directly affect the unit.
738 F.2d at 635-36.
In addition, the court rejected the union's claim that the agency had a duty to bargain on the issue of official time for non-unit negotiators under § 7131(d). In this regard, the court reiterated that "a commonsense reading of the [Statute] reveals the congressional focus upon the employee unit/employer nexus as setting the stage for productive collective bargaining." Id. at 636. Further, the court stated that § 7131(d) "appears on its face to expand the types of activities for which official time may be granted, not the classes of employee-negotiators who may receive reimbursement." Id. [n7] In sum, the court found that "while management and labor are both free to establish and employ their own cadres of professional negotiators at their own expense, the [u]nion 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." Id. at 637. [n8]
Similarly, in AFGE, Local 1592 v. FLRA, 744 F.2d 73 (10th Cir. 1984), aff'g Dep't of the Air Force, Air Force Logistics Command, Ogden Logistics Ctr., Hill AFB, Utah, 10 FLRA 245 (1982), the court agreed with both the Authority and the court's decision in AFGE, Local 2096 v. FLRA that § 7131(a), when read in conjunction with other provisions of the Statute, "adopts a unit approach to collective bargaining" and that it "precludes granting official time to non-unit negotiators." 744 F.2d at 75, 76. The court emphasized that "employees are entitled to have a voice in their own working conditions at government expense, not the working conditions of every federal employee. . . . [W]hile union negotiators need not be barred from participating in collective bargaining on behalf of units other than their own, we do not believe that the [agency] must absorb the cost." Id. at 76 (emphasis in original). [ v61 p179 ]
The Authority subsequently applied these decisions and their reasoning in finding that employees who are not members of the bargaining units for which they seek to perform representational functions may not receive official time under § 7131(d) of the Statute. See, e.g., NFFE, Local 405, 20 FLRA 354, 356 (1985) ("section 7131(d) does not authorize bargaining" on a proposal to grant official time for union representatives employed in one bargaining unit to represent employees employed in a different bargaining unit); AFGE, Local 1698, 17 FLRA 557, 559 (1985) ("section 7131(d) does not authorize bargaining"on a proposal that would grant official time for a bargaining unit employee to conduct representational functions in other bargaining units); NAGE, Local R7-23, 16 FLRA 650, 652 (1984) (a bargaining proposal to grant an agency employee who is a member of one bargaining unit to represent employees who are included in another unit in the agency "does not pertain to conditions of employment of unit employees and . . . section 7131(d) does not operate to otherwise permit bargaining over official time for non-unit employees"); see also United States Dep't of Defense, Dep't of the Air Force, San Antonio Air Logistics Ctr., Kelly Air Force Base, Tex., 15 FLRA 998 (1984) (agency was not obligated to bargain over granting official time to an employee who was not a member of the unit for which the representational functions were to be performed); Dep't of the Navy, Naval Constr. Battalion Ctr., Port Hueneme, Cal., 14 FLRA 360 (1984) (same). [n9]
Thus, Authority and judicial precedent applying § 7131 confirms that Congress adopted a unit approach to official time for representational activities, and in so doing prohibited the granting of official time under § 7131(d) for union representatives employed in one bargaining unit to represent employees employed in a different bargaining unit. Consequently, the Statute precludes enforcement of a contractual provision which would authorize official time under § 7131(d) for an employee to perform union representational activities, when the employee is not a member of the bargaining unit to be represented.
Because the official time provided by Article 2 pertains to union representational activities performed by a union representative, the interpretation and enforcement of Article 2 to entitle a nonunit union representative to § 7131(d) official time for representational activities is inconsistent with § 7131 of the Statute.
For these reasons, the award is deficient as contrary to the Statute and will be set aside. [n10]
The award is set aside.
File 1: Authority's Decision in 61
File 2: Opinion of Member Pope
Footnote # 1 for 61 FLRA No. 35 - Authority's Decision
Footnote # 2 for 61 FLRA No. 35 - Authority's Decision
Footnote # 3 for 61 FLRA No. 35 - Authority's Decision
Article 1, Section 3 of the MOA provides that the normal points of contact for dealing with issues at the regional office level are as follows: "The NATCA Regional Vice President from the affected region and/or his/her designee(s) . . . . The Union may also designate a NATCA representative(s) in each Regional Office where [bargaining unit employees] are located. These representatives will be known as Regional Representatives." Article 2 of the MOA addresses official time and provides that NATCA regional representatives may use up to 12 hours per pay period of official time for specified representational activities.
Footnote # 4 for 61 FLRA No. 35 - Authority's Decision
In this regard, the Arbitrator ordered the Agency to recognize the employee as the NATCA regional office representative for the SSS bargaining unit. The Agency did not except to this part of the award.
Footnote # 5 for 61 FLRA No. 35 - Authority's Decision
Accordingly, the Authority's decision in AFGE Nat'l Council, 39 FLRA 546, which addressed whether § 7131(d) barred parties from negotiating over official time for matters other than labor-management relations activities, but did not address who could receive official time under § 7131(d), is not relevant to the issue in this case. As such, the Union's reliance on AFGE Nat'l Council is misplaced.
Footnote # 6 for 61 FLRA No. 35 - Authority's Decision
Section 7131(a) of the Statute authorizes official time for "[a]ny employee representing an exclusive representative" in the negotiation of a collective bargaining agreement. Similarly, § 7131(d) applies to "any employee representing an exclusive representative[.]" The Authority has recognized that, under general rules of statutory construction, there is a presumption that the same words used twice in the same statute have the same meaning. See NLRB, 38 FLRA 506, 520 (1990) (citing 2A Sutherland Statutory Construction § 46.06, at 104 (Norman J. Singer ed., 4th ed. 1984); accord Ruggiano v. Reish, 307 F.3d 121, 130 (3d Cir. 2002) (citing 2A Sutherland Statutory Construction § 46.06, at 193 (Norman J. Singer ed., 6th ed. 2000)). Applying that principle here, where the same words are in related subsections of the same statutory provision, it is appropriate to consider relevant Authority and judicial precedent addressing both § 7131(a) as well as that addressing § 7131(d).
Footnote # 7 for 61 FLRA No. 35 - Authority's Decision
The court reiterated this point about types of activities in its subsequent decision in United States Immigration & Naturalization Serv. v. FLRA, 4 F.3d 268 (4th Cir. 1993). There, in rejecting an agency's argument that § 7131(d) specifies the only two situations for which an agency and a union may agree to provide for official time, and no other activities are subject to negotiation, the court stated that § 7131(d) "is not exclusive" as to the activities that it covers. 4 F.3d at 272 n.6.
Footnote # 8 for 61 FLRA No. 35 - Authority's Decision
In addition, the court noted that "one can imagine a scenario in which there would develop a group of federal employees who did nothing but negotiate contracts, moving from unit negotiation to unit negotiation while being reimbursed for official time all along. While this result may be desirable from a policy standpoint, there is no indication that Congress ever intended such a result." 738 F.2d at 637 n.8 (citation omitted).
Footnote # 9 for 61 FLRA No. 35 - Authority's Decision
In some of these cases, the different bargaining units were in different agencies; in other cases, the different bargaining units were in the same agency. This distinction is not dispositive for purposes of analysis because the focus under § 7131 of the Statute is on the relationship of the employee representative to the bargaining unit.
Footnote # 10 for 61 FLRA No. 35 - Authority's Decision
Finally, as stated above, the Agency acknowledged that the Union has the right to designate the employee as its regional office representative. We emphasize that nothing in this decision should be read as affecting the Union's right to so designate the employee. Moreover, nothing in this decision precludes the employee from using non-duty time to represent the SSS bargaining unit.