[ v19 p179 ]
19:0179(19)CA
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.