American Federation of Government Employees, AFL-CIO, Local 2823 (Union) and Veterans Administration, Regional Office, Cleveland, Ohio (Activity) 

 



[ v02 p4 ]
02:0004(1)NG
The decision of the Authority follows:


 2 FLRA No. 1
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 2823
 (Union)
 
 and
 
 VETERANS ADMINISTRATION
 REGIONAL OFFICE, CLEVELAND,
 OHIO
 (Activity)
 
                                            Case No. 0-NG-8
 
                      DECISION ON NEGOTIABILITY ISSUE
 
                              UNION PROPOSAL
 
    BASED ON THE RECORD IN THE CASE, THE UNDERLINED PORTION OF THE
 STATEMENT WHICH FOLLOWS REFLECTS THE MUTUAL UNDERSTANDING OF THE PARTIES
 WITH RESPECT TO THE MATTER IN DISPUTE:  THE UNION PRESIDENT OR HER/HIS
 DESIGNEE WILL BE GRANTED TWO HOURS EACH DAY, NOT CHARGED TO LEAVE FOR
 PREPARATION OF FINANCIAL AND OTHER REPORTS AS REQUIRED UNDER SECTION
 7120(C) OF THE STATUTE AND TO CARRY OUT THE PROVISIONS OF THIS
 AGREEMENT.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL PROVIDING FOR OFFICIAL
 TIME TO PREPARE THE REPORTS REQUIRED UNDER SECTION 7120 OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) /1/ VIOLATES
 SECTION 7131 OF THE STATUTE, AS ALLEGED BY THE AGENCY.  /2/
 
                                  OPINION
 
    CONCLUSION:  THE SUBJECT PROPOSAL DOES NOT VIOLATE SECTION 7131 OF
 THE STATUTE.  ACCORDINGLY, PURSUANT TO SECTION 2424.8 OF THE AUTHORITY'S
 RULES AND REGULATIONS (44 FED.REG. 44740 ET SEQ. (1979)), THE AGENCY'S
 ALLEGATION THAT THE DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN
 IS SET ASIDE.  /3/
 
    REASONS:  SECTION 7131(B) OF THE STATUTE REQUIRES THAT ACTIVITIES
 RELATING TO THE INTERNAL BUSINESS OF A LABOR ORGANIZATION BE PERFORMED
 BY AN EMPLOYEE WHILE THAT EMPLOYEE IS IN A NON-DUTY STATUS, I.E., NOT ON
 DUTY TIME.  THEREFORE, THE UNION'S PROPOSAL, WHICH PROVIDES THAT THE
 UNION PRESIDENT ON HER/HIS DESIGNEE BE GRANTED TIME EACH DAY NOT CHARGED
 TO LEAVE, I.E., DUTY TIME, FOR PREPARATION OF THE FINANCIAL AND OTHER
 REPORTS REQUIRED UNDER SECTION 7120(C) OF THE STATUTE, RAISES THE ISSUE
 AS TO WHETHER THE PREPARATION OF SUCH REPORTS CONSTITUTES AN ACTIVITY
 RELATING TO THE INTERNAL BUSINESS OF A LABOR ORGANIZATION, WITHIN THE
 MEANING OF SECTION 7131(B), WHICH MUST BE PERFORMED DURING THE TIME THE
 EMPLOYEE INVOLVED IS IN A NON-DUTY STATUS.
 
    THE STATUTE DOES NOT EXPRESSLY DEFINE THE PHRASE "INTERNAL BUSINESS
 OF A LABOR ORGANIZATION." SECTION 7131(B) MERELY LISTS EXAMPLES OF SOME
 ACTIVITIES WHICH ARE RELATED TO THE "INTERNAL BUSINESS OF A LABOR
 ORGANIZATION." I.E., SOLICITATION OF MEMBERSHIP, ELECTION OF LABOR
 ORGANIZATION OFFICIALS, AND COLLECTION OF DUES.  NONE OF THESE SPECIFIC
 EXAMPLES HAVE ANY RELATIONSHIP TO THE PREPARATION OF THE STATUTORILY
 PRESCRIBED REPORTS WHICH ARE THE SUBJECT OF THE DISPUTED PROPOSAL.
 
    THE PROVISION REGARDING OFFICIAL TIME IN THE VERSION OF THE BILL
 REPORTED OUT OF THE SENATE-HOUSE CONFERENCE COMMITTEE, WHICH WAS
 ENACTED
 AND SIGNED INTO LAW (SEC.  7131), WAS IDENTICAL TO THAT IN THE BILL
 (H.R. 11280) REPORTED OUT OF THE HOUSE COMMITTEE (SEC. 7132) /4/ AND IN
 THE FINAL VERSION OF THE BILL PASSED BY THE HOUSE (THE "UDALL
 SUBSTITUTE").  /5/ THE REPORT WHICH ACCOMPANIED THE HOUSE COMMITTEE BILL
 INDICATED THAT SUBSECTION (B) OF THE PROVISION ON OFFICIAL TIME WAS
 INTENDED TO REQUIRE THAT MATTERS SOLELY RELATING TO THE INTERNAL
 BUSINESS OF A LABOR ORGANIZATION BE PERFORMED WHEN AN EMPLOYEE IS IN A
 NON-DUTY STATUS.  /6/
 
    PROPONENTS OF THE FINAL VERSION OF THE HOUSE BILL, IN STATEMENTS ON
 THE HOUSE FLOOR, INDICATED THAT SUBSECTION (B) WAS INTENDED TO BE
 STRICTLY CONSTRUED TO APPLY ONLY TO THOSE ACTIVITIES REGARDING THE
 "STRUCTURE AND INSTITUTION" OF THE LABOR ORGANIZATION.  /7/ THE
 SENATE-HOUSE CONFERENCE REPORT DID NOT ADDRESS THE MATTER OF OFFICIAL
 TIME OR SPECIFICALLY, THE INTENDED APPLICATION OF SECTION 7131(B) /8/
 
    THE ISSUE BEFORE THE AUTHORITY IN THIS CASE, THEREFORE, MORE
 PRECISELY STATED, IS WHETHER THE PREPARATION OF THE FINANCIAL AND OTHER
 REPORTS REQUIRED UNDER SECTION 7120(C) OF THE STATUTE IS AN ACTIVITY
 RELATED TO THE INTERNAL BUSINESS OF A LABOR ORGANIZATION BECAUSE IT IS
 SOLELY RELATED TO THE STRUCTURE AND INSTITUTION OF SUCH LABOR
 ORGANIZATION.  THAT IS, IN ACCORDANCE WITH THE MEANING OF SECTION
 7131(B) OF THE STATUTE AS REFLECTED IN THE LEGISLATIVE HISTORY OF THAT
 PROVISION, IF THE FILING OF FINANCIAL AND OTHER REPORTS UNDER SECTION
 7120(C) IS NOT SOLELY RELATED TO THE INSTITUTIONAL STRUCTURE OF THE
 LABOR ORGANIZATION, IT MUST BE FOUND, LIKEWISE, NOT TO BE A MATTER
 RELATED TO INTERNAL UNION BUSINESS.  IN THIS REGARD, CONGRESS INTENDED
 TO PROSCRIBE THE USE OF DUTY TIME FOR ONLY THOSE ACTIVITIES RELATING TO
 THE UNION AS AN ORGANIZATION AND PERTAINING TO THE OPERATION OF THAT
 ORGANIZATION, SUCH AS UNION BUSINESS MEETINGS, COMMUNICATION WITH
 MEMBERS, CONTRACTING FOR GOODS AND SERVICES, PAYMENT OF BILLS, AND OTHER
 SIMILAR AND ASSOCIATED ACTIVITIES.  THUS, IT IS CLEAR THAT THE
 ACTIVITIES CITED IN THE STATUTE, I.E., SOLICITATION OF MEMBERSHIP,
 COLLECTION OF DUES, AND ELECTION OF UNION OFFICIALS, WERE INCLUDED AS
 EXAMPLES BECAUSE THE ONLY FUNCTION OF SUCH ACTIVITIES IS THE MAINTENANCE
 OF THE UNION AS AN ORGANIZATION, I.E., THEY ARE RELATED SOLELY TO THE
 INSTITUTIONAL STRUCTURE OF THE UNION.
 
    IN CONTRAST, THE REPORTS WHICH ARE THE SUBJECT OF THE DISPUTED
 PROPOSAL DO NOT SOLELY RELATE TO THE STRUCTURE AND INSTITUTION OF THE
 LABOR ORGANIZATION.  RATHER, THE PREPARATION OF THESE REPORTS IS A
 REQUIREMENT IMPOSED UPON LABOR ORGANIZATIONS BY THE STATUTE AND THEREBY
 MAKES AVAILABLE TO THE PUBLIC INFORMATION REGARDING THE CONDUCT OF UNION
 AFFAIRS.  /9/ IN THIS REGARD, SECTION 7120(C) OF THE STATUTE AND PART
 204 OF THE REGULATIONS OF THE ASSISTANT SECRETARY OF LABOR /10/ REQUIRE
 THAT EVERY LABOR ORGANIZATION TO WHICH THOSE PROVISIONS APPLY MUST FILE
 WITH THE DEPARTMENT OF LABOR CERTAIN INFORMATION REPORTS, /11/ FINANCIAL
 REPORTS, /12/ AND TRUSTEESHIP REPORTS.  /13/ THE INITIAL INFORMATION
 REPORT (FORM LM-1) REQUIRES, AMONG OTHER THINGS, A LIST OF THE PRESENT
 OFFICERS OF THE LABOR ORGANIZATION, COPIES OF THE ORGANIZATION'S
 CONSTITUTION AND BY-LAWS, A STATEMENT REGARDING THE DUES AND FEES
 REQUIRED OF MEMBERS, AN ESTIMATE OF EXPECTED ANNUAL RECEIPTS, AND A
 STATEMENT OF THE LABOR ORGANIZATION'S FISCAL YEAR.  ANY CHANGES IN THE
 INFORMATION CONTAINED IN THIS INITIAL REPORT MUST BE FILED IN ANNUAL
 SUPPLEMENTARY REPORTS (FORM LM-1A).  THE ANNUAL FINANCIAL REPORT (FORM
 LM-2 OR FORM LM-3) REQUIRES DETAILED INFORMATION REGARDING THE ASSETS
 AND LIABILITIES OF THE LABOR ORGANIZATION, INCLUDING STATEMENTS AS TO
 AMOUNTS AND SOURCES OF RECEIPTS AND AMOUNTS AND RECIPIENTS OF
 DISBURSEMENTS.  THE CONTENT OF THESE REPORTS WILL BE MADE AVAILABLE TO
 ANY PERSON COMPLYING WITH THE CONDITIONS ESTABLISHED BY DEPARTMENT OF
 LABOR REGULATIONS.  /14/
 
    AS THIS BRIEF DESCRIPTION OF THE REQUIRED REPORTS, AND OF THEIR
 INTENDED PURPOSE, MAKES CLEAR, THEY FUNCTION AS AN EXTERNALLY IMPOSED
 DISCLOSURE MECHANISM OPENING TO VIEW FACETS OF THE OPERATIONS OF THE
 LABOR ORGANIZATION, AS A MEANS OF IMPLEMENTING THE POLICY OF THE
 STATUTE.  IT MUST BE CONCLUDED, THEREFORE, THAT THE PREPARATION OF THE
 REPORTS IS NOT SOLELY RELATED TO THE INSTITUTIONAL STRUCTURE OF A LABOR
 ORGANIZATION AND, THUS, IS NOT AN ACTIVITY RELATED TO THE INTERNAL
 BUSINESS OF A LABOR ORGANIZATION WITHIN THE MEANING OF SECTION 7131(B)
 OF THE STATUTE.  /15/
 
    ACCORDINGLY, SECTION 7131(B) WOULD NOT BAR NEGOTIATIONS ON THE
 PROPOSAL AT ISSUE AND THE AGENCY ALLEGATION THAT THE PROPOSAL IS NOT
 WITHIN THE DUTY TO BARGAIN MUST BE SET ASIDE.
 
    ISSUED, WASHINGTON, D.C., OCTOBER 9, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                  FEDERAL LABOR RELATIONS AUTHORITY /16/
 
    /1/ THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, SEC.
 7120 (92 STAT. 1210) PROVIDES, IN RELEVANT PART, AS FOLLOWS:
 
    SEC. 7120.  STANDARDS OF CONDUCT FOR LABOR ORGANIZATIONS
 
   .          .          .          .
 
 
    (C) A LABOR ORGANIZATION WHICH HAS OR SEEKS RECOGNITION AS A
 REPRESENTATIVE OF EMPLOYEES
 
    UNDER THIS CHAPTER SHALL FILE FINANCIAL AND OTHER REPORTS WITH THE
 ASSISTANT SECRETARY OF
 
    LABOR FOR LABOR MANAGEMENT RELATIONS, PROVIDE FOR BONDING OF
 OFFICIALS AND EMPLOYEES OF THE
 
    ORGANIZATION, AND COMPLY WITH TRUSTEESHIP AND ELECTION STANDARDS.
 
    /2/ SECTION 7131 OF THE STATUTE PROVIDES, IN PART, AS FOLLOWS:
 
    SEC. 7131.  OFFICIAL TIME
 
   .          .          .          .
 
 
    (B) ANY ACTIVITIES PERFORMED BY ANY EMPLOYEE RELATING TO THE INTERNAL
 BUSINESS OF A LABOR
 
    ORGANIZATION (INCLUDING THE SOLICITATION OF MEMBERSHIP, ELECTIONS OF
 LABOR ORGANIZATION
 
    OFFICIALS, AND COLLECTION OF DUES) SHALL BE PERFORMED DURING THE TIME
 THE EMPLOYEE IS IN A
 
    NON-DUTY STATUS.
 
   .          .          .          .
 
 
    (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 CHAPTER, 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.
 
    /3/ IN SO DECIDING THAT THE SUBJECT PROPOSAL IS WITHIN THE DUTY TO
 BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
 PROPOSAL.
 
    /4/ H.R. 11280, 95TH CONG.,2D SESS. 7132(1978).  SEE H.R. REP. NO.
 95-1403, 95TH CONG.,2D SESS. 288=289(1978).
 
    /5/ SEE 124 CONG.REC.H 9631 (DAILY ED. SEPT. 13, 1978).
 
    /6/ THE COMMITTEE REPORT STATED, IN RELEVANT PART, AS FOLLOWS:
 
    SECTION 7132 PROVIDES STANDARDS FOR DETERMINING WHEN AN INDIVIDUAL
 MAY OR MAY NOT BE
 
    AUTHORIZED OFFICIAL TIME (PAID TIME) TO ENGAGE IN ACTIVITIES
 CONCERNING LABOR-MANAGEMENT
 
    RELATIONS.
 
   .          .          .          .
 
 
    SECTION 7132(B) PROVIDES THAT MATTERS SOLELY RELATING TO THE INTERNAL
 BUSINESS OF A LABOR
 
    ORGANIZATION MUST BE PERFORMED WHEN THE SUBJECT EMPLOYEE IS IN A
 NON-DUTY STATUS.
 
   .          .          .          .
 
 
    SECTION 7132(D) MAKES ALL OTHER MATTERS CONCERNING OFFICIAL TIME FOR
 UNIT EMPLOYEES ENGAGED
 
    IN LABOR-MANAGEMENT RELATIONS ACTIVITY SUBJECT TO NEGOTIATION BETWEEN
 THE AGENCY AND THE
 
    EXCLUSIVELY RECOGNIZED LABOR ORGANIZATION INVOLVED.
 
    H.R. REP. NO. 95-1403, 95TH CONG.,2D SESS. 58-59(1978).
 
    /7/ THE FOLLOWING STATEMENTS CONCERNING THE OFFICIAL TIME PROVISION
 IN THE FINAL VERSION OF THE HOUSE BILL WERE MADE DURING THE FLOOR DEBATE
 ON TITLE VII OF THAT BILL:
 
    MR. CLAY.
 
   .          .          .          .
 
 
    SECTION 7132(B) OF THE UDALL COMPROMISE BARS THE USE OF OFFICIAL TIME
 FOR CONDUCTING THE
 
    INTERNAL BUSINESS OF A LABOR ORGANIZATION.  THE SECTION ALSO LISTS
 THREE SUCH ACTIVITIES
 
    REFLECTING OUR INTENTION THAT "INTERNAL BUSINESS" BE STRICTLY
 CONSTRUED TO APPLY ONLY TO THOSE
 
    ACTIVITIES REGARDING THE STRUCTURE AND INSTITUTION OF THE LABOR
 ORGANIZATION.  ACTIVITIES THAT
 
    INVOLVE LABOR-MANAGEMENT CONTACTS ARE NOT INCLUDED IN THIS SECTION.
 NOR IS PREPARATION FOR
 
    SUCH ACTIVITIES, SUCH AS GRIEVANCES, BARGAINING, UNFAIR LABOR
 PRACTICE PROCEEDINGS, INCLUDED
 
    WITHIN THIS SECTION.  TITLE VII IMPOSES HEAVY RESPONSIBILITIES ON
 LABOR ORGANIZATIONS AND ON
 
    AGENCY MANAGEMENT.  THESE ORGANIZATIONS SHOULD BE ALLOWED OFFICIAL
 TIME TO CARRY OUT THEIR
 
    STATUTORY REPRESENTATIONAL ACTIVITIES JUST AS MANAGEMENT USES
 
    OFFICIAL TIME TO CARRY OUT ITS RESPONSIBILITIES.
 
    124 CONG.REC.H 9638 (DAILY ED. SEPT. 13, 1978)
 
    MR. FORD OF MICHIGAN.
 
   .          .          .          .
 
 
    SECTION 7132(B) OF THE COMPROMISE PRECLUDES THE USE OF OFFICIAL TIME
 BY EMPLOYEES FOR
 
    CONDUCTING THE INTERNAL BUSINESS OF A LABOR ORGANIZATION.  THIS
 SUBSECTION SPECIFICALLY
 
    PROVIDES THAT EMPLOYEES SHALL NOT SOLICIT MEMBERSHIP, ENGAGE IN
 ELECTIONEERING, OR COLLECT
 
    DUES ON OFFICIAL TIME.  THE INCLUSION OF THESE THREE CATEGORIES
 REFLECTS THE GENERAL INTENTION
 
    THAT "THE INTERNAL BUSINESS OF A LABOR ORGANIZATION" ENCOMPASSES
 THOSE ACTIVITIES DIRECTED TO
 
    THE INSTITUTIONAL STRUCTURE OF SUCH ORGANIZATIONS.  THIS SECTION DOES
 NOT, THEREFORE, APPLY TO
 
    ACTIVITIES OF LABOR ORGANIZATIONS THAT INVOLVE AN "INTERFACE" WITH
 AGENCY MANAGEMENT, SUCH AS
 
    NEGOTIATIONS, GRIEVANCES, NEGOTIABILITY DISPUTES, AND UNFAIR LABOR
 PRACTICES.  NOR DOES THIS
 
    SECTION APPLY TO PREPARATION FOR SUCH "INTERFACE" ACTIVITIES.
 MANAGEMENT, OF COURSE, ENGAGES
 
    IN ALL THESE ACTIVITIES, INCLUDING PREPARATION, ON OFFICIAL TIME, AND
 SUBSECTION 7132(D)(2)
 
    MAKES THE USE OF OFFICIAL TIME BY EMPLOYEES FOR THESE ACTIVITIES A
 SUBJECT OF NEGOTIATED
 
    AGREEMENT BETWEEN THE AGENCY AND THE EXCLUSIVE REPRESENTATIVE.
 
    124 CONG.REC.H. 9650 (DAILY ED. SEPT. 13, 1978).  SEE ALSO STATEMENT
 OF CONGRESSMAN FORD OF MICHIGAN SUBSEQUENT TO ENACTMENT OF CIVIL SERVICE
 REFORM ACT OF 1978, 124 CONG.REC.H 13610 (DAILY ED. OCT. 14, 1978).
 
    /8/ THUS, IN ENACTING THE LANGUAGE OF THE BILL AS PASSED BY THE HOUSE
 (THE "UDALL SUBSTITUTE"), WITH ITS ATTENDANT LEGISLATIVE HISTORY, AS
 QUOTED ABOVE, THE CONGRESS DID NOT ADOPT THE CORRESPONDING PROVISION IN
 THE SENATE BILL, WHICH THE ACCOMPANYING SENATE COMMITTEE REPORT
 DESCRIBED, IN PART, AS FOLLOWS:
 
    THE LIMITATIONS CONTAINED IN THE FIRST PART OF THIS PROVISION CONCERN
 THE USE OF OFFICIAL
 
    TI