[ v10 p245 ]
10:0245(46)CA
The decision of the Authority follows:
10 FLRA No. 46
DEPARTMENT OF THE AIR FORCE
AIR FORCE LOGISTICS COMMAND
OGDEN LOGISTICS CENTER
HILL AFB, UTAH
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1592
Charging Party
and
OFFICE OF PERSONNEL MANAGEMENT
Intervenor
Case No. 7-CA-426
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION IN THE
ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN
THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING
THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY. THEREAFTER, THE
GENERAL COUNSEL FILED EXCEPTIONS TO THE JUDGE'S DECISION AND A BRIEF IN
SUPPORT THEREOF. /1/
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 IN THIS CASE, THE AUTHORITY
HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION. /2/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 7-CA-426 BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., SEPTEMBER 30, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
S. REED MURDOCK, ESQ.
FOR THE RESPONDENT
JAMES R. ROSA, ESQ.
FOR THE CHARGING PARTY
JAMES J. GONZALES, ESQ.
FOR THE GENERAL COUNSEL
BEFORE: JOHN H. FENTON
CHIEF ADMINISTRATIVE LAW JUDGE
DECISION
PRELIMINARY STATEMENT
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101, ET SEQ.
ON JULY 31, 1980, THE REGIONAL DIRECTOR FOR REGION VII, PURSUANT TO
AN UNFAIR LABOR PRACTICE CHARGE FILED ON FEBRUARY 14, 1980, AND AN
AMENDED CHARGE FILED FEBRUARY 14, 1980, BY THE CHARGING PARTY, ISSUED A
COMPLAINT AND NOTICE OF HEARING ALLEGING THAT THE RESPONDENT HAS ENGAGED
IN, AND IS ENGAGING IN, UNFAIR LABOR PRACTICES WITHIN THE MEANING OF
SECTION 7116(A)(1), (5) AND (8) OF THE STATUTE. SPECIFICALLY, THE
COMPLAINT ALLEGED THAT ON OR ABOUT FEBRUARY 4, 1980, AND CONTINUING TO
DATE, RESPONDENT AND ITS CONSTITUENT ORGANIZATION, 2849TH AIR BASE GROUP
(AFLC), HILL AIR FORCE BASE, UTAH, REFUSED TO AUTHORIZE OFFICIAL TIME
FOR JOSEPH WALLY AND LOIS HOWELL, MEMBERS OF A UNIT OF EMPLOYEES PAID
FROM APPROPRIATED FUNDS, WHO WERE REPRESENTING THE UNION IN THE
NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT WITH HEADQUARTERS
2849TH AIR BASE GROUP ON BEHALF OF NON-APPROPRIATED FUND EMPLOYEES
REPRESENTED BY THE UNION, CONTRARY TO THE REQUIREMENTS OF SECTION
7131(A) OF THE STATUTE. /3/
RESPONDENT FILED AN ANSWER TO THE COMPLAINT, DATED AUGUST 21, 1980,
IN WHICH IT ADMITTED DENYING THE REQUEST OF THE UNION FOR OFFICIAL TIME
BUT DENIED THE COMMISSION OF ANY UNFAIR LABOR PRACTICE.
THE COMPLAINT WAS SCHEDULED FOR HEARING ON OCTOBER 21, 1980, IN
OGDEN, UTAH. BY ORDER DATED OCTOBER 10, 1980, THE ACTING REGIONAL
DIRECTOR GRANTED A MOTION BY THE OFFICE OF PERSONNEL MANAGEMENT (OPM) TO
INTERVENE IN THIS CASE.
ON OCTOBER 20, 1980, RESPONDENT AND GENERAL COUNSEL ENTERED INTO
CERTAIN STIPULATIONS OF FACT (G.C. EXH. 1). AT HEARING ON OCTOBER 21,
1980, THE UNION AGREED TO THE STIPULATED FACTS CONTAINED IN G.C. EXHIBIT
1 WITH CERTAIN EXCEPTIONS. /3/
BY STIPULATION, THE PARTIES WAIVED A HEARING AND THE ISSUANCE OF A
DECISION BY AN ADMINISTRATIVE LAW JUDGE AND REQUESTED THE CASE BE
FORWARDED DIRECTLY TO THE FEDERAL LABOR RELATIONS AUTHORITY (HEREIN THE
AUTHORITY) FOR DISPOSITION. IT WAS FURTHER STIPULATED THAT THE
STIPULATION, WHICH INCORPORATED THE AGREED UPON ACTS, TOGETHER WITH THE
SPECIFIED EXHIBITS WOULD CONSTITUTE THE ENTIRE RECORD IN THIS MATTER. I
REMANDED THE CASE TO THE REGIONAL DIRECTOR FOR SUBMISSION TO THE
AUTHORITY. THEREAFTER, ON SEPTEMBER 25, 1981, THE AUTHORITY, PURSUANT
TO SECTION 2429.1 OF THE AUTHORITY'S RULES AND REGULATIONS, ISSUED AN
ORDER REMANDING THE MATTER TO ME FOR PREPARATION OF A DECISION ON THE
MERITS.
ON THE BASIS OF THE STIPULATION HEREIN, TOGETHER WITH THE EXHIBITS
AGREED UPON BY THE PARTIES, I HEREBY MAKE THE FOLLOWING FINDINGS OF FACT
AND CONCLUSIONS:
FINDINGS OF FACT
1. THE UNION REPRESENTS EMPLOYEES IN A UNIT COVERING CERTAIN
NON-APPROPRIATED FUND ACTIVITIES WITHIN THE 2849TH AIR BASE WING, A
CONSTITUENT ORGANIZATION OF OGDEN AIR LOGISTICS CENTER, HILL AIR FORCE
BASE. THE NATIONAL OFFICE OF THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, REPRESENTS A CONSOLIDATED UNIT (UNDER A MASTER
AGREEMENT WITH HEADQUARTERS, AIR FORCE LOGISTICS COMMAND) WHICH
INCLUDES, AMONG OTHERS, EMPLOYEES OF THE AIR FORCE LOGISTICS COMMAND AT
HILL AIR FORCE BASE WHO ARE PAID FROM APPROPRIATED FUNDS, AND WHICH
SPECIFICALLY EXCLUDES EMPLOYEES PAID FROM NON-APPROPRIATED FUNDS. THE
UNION HAS AT ALL MATERIAL TIMES BEEN AN AGENT OF THE AFGE NATIONAL
OFFICE.
2. SINCE FEBRUARY 14, 1980, RESPONDENT HAS REFUSED TO AUTHORIZE
OFFICIAL TIME FOR JOSEPH WALLY AND LOIS HOWELL, EMPLOYEES OF THE OGDEN
AIR LOGISTICS CENTER AND MEMBERS OF THE APPROPRIATED FUND UNIT, FOR
THEIR TIME SPENT AS UNION REPRESENTATIVES IN THE NEGOTIATION OF A
COLLECTIVE BARGAINING AGREEMENT COVERING THE EMPLOYEES IN THE 2849TH AIR
BASE GROUP WHO ARE PAID FROM NONAPPROPRIATED FUNDS. SUCH NEGOTIATIONS
OCCURRED WHEN THESE EMPLOYEES WOULD OTHERWISE HAVE BEEN IN DUTY STATUS.
VARIOUS MANAGEMENT NEGOTIATORS WERE PAID FOR THEIR TIME, WITHOUT RESPECT
TO WHETHER THEY WERE PAID FROM APPROPRIATED FUNDS OR FROM
NONAPPROPRIATED FUNDS.
CONCLUSIONS
WE ARE PRESENTED WITH THE QUESTION OF ENTITLEMENT TO OFFICIAL TIME
FOR EMPLOYEES OF ONE UNIT WHO ARE DESIGNATED AS UNION REPRESENTATIVES IN
CONTRACT NEGOTIATIONS COVERING EMPLOYEES IN ANOTHER UNIT.
THE FEDERAL LABOR RELATIONS AUTHORITY RECENTLY ADDRESSED THIS
QUESTION IN UNITED STATES AIR FORCE, 2750TH AIR BASE WING HEADQUARTERS,
AIR LOGISTICS COMMAND, WRIGHT-PATTERSON AFB, OHIO, 7 FLRA NO. 118. IT
HELD THAT "OFFICIAL TIME ENTITLEMENT 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." THAT CASE APPEARS TO BE INDISTINGUISHABLE
FROM THIS ONE, AND IS THEREFORE BINDING UPON ME. /5/ ACCORDINGLY, I
RECOMMEND THAT THE FEDERAL LABOR RELATIONS AUTHORITY ENTER THE FOLLOWING
ORDER:
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT HEREIN BE, AND IT IS HEREBY
IS DISMISSED.
JOHN H. FENTON
CHIEF ADMINISTRATIVE LAW JUDGE
DATED: MARCH 5, 1982
WASHINGTON, D.C.
--------------- FOOTNOTES$ ---------------
/1/ THE RESPONDENT'S UNTIMELY FILED OPPOSITION WAS NOT CONSIDERED
HEREIN.
/2/ WITH RESPECT TO THE GENERAL COUNSEL'S CONTENTION THAT THE FACTS
OF THE INSTANT CASE ARE DISTINGUISHABLE FROM UNITED STATES AIR FORCE,
2750TH AIR BASE WING HEADQUARTERS, AIR FORCE LOGISTICS COMMAND,
WRIGHT-PATTERSON AFB, OHIO, 7 FLRA NO. 118 (1982), CITED BY THE JUDGE AS
PRECEDENT, SEE, MARINE CORPS DEVELOPMENT AND EDUCATION CENTER, 9 FLRA
NO. 35 (1982) AND UNITED STATES DEPARTMENT OF DEFENSE, DEPARTMENT OF THE
AIR FORCE, 93RD COMBAT SUPPORT GROUP, CASTLE AIR FORCE BASE, CALIFORNIA,
9 FLRA NO. 71 (1982).
/3/ SECTION 7131(A) PROVIDES, IN RELEVANT PART, THAT:
(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.
/4/ THE UNION OBJECTED TO PARAGRAPH 15 OF THE STIPULATIONS AND JOINT
EXHIBITS 5, 6, 7, 8 REFERENCED THEREIN. THIS STIPULATION WITH
ACCOMPANYING EXHIBITS, CONTAINED INFORMATION REGARDING AIRLINE FARES,
PER DIEM TRAVEL ALLOWANCES, AND EMPLOYEE PAY SCHEDULES. I RULED THESE
MATTERS IRRELEVANT TO THE ISSUE BEFORE ME AND PLACED THEM IN A REJECTED
EXHIBIT FILE.
/5/ THAT CASE, IN ITS FIRST FOOTNOTE, INDICATES THAT WHILE THE TWO
UNITS WERE LOCATED WITHIN COMPONENTS OF DOD, SUCH COMPONENTS WERE
SEPARATE ORGANIZATIONS IN TERMS OF FUNCTION AND MISSION, AND THAT THEY
HAD SEPARATE "PERSONNEL MANNING, BUDGETS, MISSIONS, ORGANIZATIONS,
REGULATIONS AND CHAINS OF COMMAND." THERE IS THUS A NEGATIVE IMPLICATION
THAT THE ABSENCE OF SUCH DISCRETE ENTITIES MIGHT HAVE WARRANTED A
DIFFERENT RESULT. ASIDE FROM A CLEAR BUDGETARY DISTINCTION BASED ON
APPROPRIATED AS OPPOSED TO NONAPPROPRIATED FUNDS, WHAT WOULD APPEAR TO
BE OBVIOUS DISTINCTIONS IN MISSION, AND A SUGGESTION THAT THE TWO UNITS
ARE SERVICED BY DIFFERENT PERSONNEL SYSTEMS, THIS RECORD DOES NOT
CLEARLY ADDRESS THE MATTERS RAISED IN THIS FOOTNOTE. IT IS POSSIBLE
THAT THESE TWO UNITS ARE MORE CLOSELY ALLIED, IN THE SENSE OF THE
FOOTNOTE, THAN WERE THOSE AT ISSUE IN WRIGHT-PATTERSON. IN SO FAR AS
THIS STIPULATION FAILS TO ESTABLISH A BASIS FOR AVOIDING APPLICATION OF
THAT PRECEDENT THE GENERAL COUNSEL HAS FAILED TO MEET THE BURDEN OF
PROOF.