19:0169(17)CA - Air Force HQ, Air Force Logistics Command, Wright-Patterson AFB, OH and AFGE Council 214 Local 1626 -- 1985 FLRAdec CA
[ v19 p169 ]
19:0169(17)CA
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Following reopener negotiations, the May 1979 MLA was superseded by the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.