15:0998(186)CA - DOD, Air Force, San Antonio Air Logistics Center, Kelly AFB, TX and International Association of Firefighters Local F-89 -- 1984 FLRAdec CA
[ v15 p998 ]
15:0998(186)CA
The decision of the Authority follows:
15 FLRA No. 186 UNITED STATES DEPARTMENT OF DEFENSE DEPARTMENT OF THE AIR FORCE SAN ANTONIO AIR LOGISTICS CENTER KELLY AIR FORCE BASE, TEXAS Respondent and INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL F-89, AFL-CIO Charging Party Case No. 6-CA-973 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 alleged in the complaint, and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. Thereafter, the Respondent filed exceptions to the Judge's Decision and an accompanying brief. /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, the Authority hereby adopts the Judge's findings, conclusions and recommendations only to the extent consistent herewith. The Judge found that the Respondent failed to comply with the provisions of section 7131(a) of the Statute /2/ in violation of section 7116(a)(1) and (8) of the Statute by its refusal to grant official time to an employee for the purpose of representing the Charging Party in negotiations with the Respondent involving a bargaining unit other than his own. The Judge did not consider that portion of the complaint which alleged that the Respondent, by such conduct, also violated section 7116(a)(1) and (5) of the Statute since the denial of official time to the employee was contrary to a past practice. /3/ Subsequent to the Judge's Decision, the Authority, in United States Air Force, 2750th Air Base Wing, Headquarters Air Force Logistics Command, Wright-Patterson AFB, Ohio, 7 FLRA 738, at 741-42 (1982), concluded that " . . . consistent with the overall scheme of the Statute . . . , the 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." /4/ Accordingly, the Respondent herein had no obligation under section 7131(a) to grant official time to the employee involved because that employee was not a member of the bargaining unit involved in the negotiations. Thus, the Respondent's refusal to grant him official time did not violate section 7116(a)(1) and (8) of the Statute, and therefore such allegation of the complaint must be dismissed. The Authority further concludes that the Respondent did not violate section 7116(a)(1) and (5) of the Statute, as alleged in the complaint, by unilaterally changing an established past practice of granting official time to the employee for the purpose of representing the Charging Party during negotiations for a collective bargaining agreement covering employees in a bargaining unit other than the one in which the employee is included. /5/ The clear language of the Statute indicates an intention that employees have the right to bargain collectively with their agency only through the exclusive representative chosen by the employees in an appropriate bargaining unit. In this regard, section 7103(a)(12) defines "collective bargaining" as "the performance of the mutual obligation of the representative of the agency and the exclusive representative of employees in an appropriate unit in the agency to meet . . . and to consult and bargain in a good-faith effort to reach agreement with respect to the conditions of employment affecting such employees . . . " Further, section 7111(a) of the Statute provides that "(a)n agency shall accord exclusive recognition to a labor organization if the organization has been selected as the representative . . . by a majority of the employees in an appropriate unit . . . . " Finally, section 7114(a)(1) provides that, "(a) labor organization which has been accorded exclusive recognition is the exclusive representative of the employees in the unit it represents and is entitled to act for, and negotiate collective bargaining agreements covering, all employees in the unit." Thus, the obligation of an agency to bargain in good-faith concerning the conditions of employment of its employees extends only to the conditions of employment of those employees in an appropriate bargaining unit represented by the exclusive representative. In this regard, see, U.S. Naval Space Surveillance Systems, Dahlgren, Virginia and U.S. Naval Surface Weapons Center, Dahlgren, Virginia, 12 FLRA No. 140 (1983), aff'd sub nom., American Federation of Government Employees, AFL-CIO, Local 2096 v. Federal Labor Relations Authority, No. 82-1897(L) and 83-1894 slip op. at 6 (4th Cir., July 12, 1984); Department of the Navy, Naval Construction Battalion Center, Port Hueneme, California, 14 FLRA No. 60 (1984). Although the foregoing cases involved situations in which the employee for whom official time was being sought was not only not employed in the unit in which the representational duties were performed, but was an employee of a different activity, the same considerations addressed by the Authority in those cases would apply herein. In the instant case, it is clear that the employee for whom official time was being sought is not included in the bargaining unit for which the Charging Party is the exclusive representative. Accordingly, the Respondent was not obligated to bargain with the Charging Party concerning conditions of employment affecting that employee, i.e., whether official time would be granted to such non-unit employee for the purpose of representing the Charging Party in negotiations with the Respondent, and Respondent therefore was free to alter or abrogate any past practice with respect to this matter without first notifying and bargaining in good faith with the Charging Party. In these circumstances, that portion of the complaint alleging a violation of section 7116(a)(1) and (5) of the Statute must also be dismissed. /6/ ORDER IT IS ORDERED that the complaint in Case No. 6-CA-973 be, and it hereby is, dismissed. Issued, Washington, D.C., August 31, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Major Lewis G. Brewer For the Respondent Elizabeth Martinez, Esquire For the General Counsel Before: LOUIS SCALZO Administrative Law Judge DECISION Statement of the Case This case arose as an unfair labor practice proceeding under the provisions of the Federal Service Labor-Management Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101, et seq., (hereinafter called "the Statute") and the Rules and Regulations issued thereunder. It was alleged in the complaint that since on or about February 4, 1981, the Respondent failed and refused to comply with the provisions of Section 7131(a) of the Statute by failing and refusing to grant official time to Joe L. Hoffman, an employee not in the bargaining unit, for the purpose of representing the Charging Party in collective bargaining negotiations on behalf of employees assigned to the Respondent's Fire Protection Branch. This pattern of conduct was alleged to be violative of Sections 7116(a)(1) and (8) of the Statute. As a separate alternate theory, counsel for the General Counsel also alleged that the conduct described violated Sections 7116(a)(1) and (5) of the Statute because it involved a unilateral change in the terms and conditions of employment. Counsel representing the General Counsel advised during the hearing, and noted in a post-hearing brief, that no remedial order was being sought in connection with alleged violations other than those associated with Section 7131(a) of the Statute (Tr. 85-86). /7/ Accordingly, only alleged violations of Sections 7116(a)(1) and (8) based upon the alleged failure to comply with Section 7131(a) will be considered. Counsel representing the Respondent argues that Section 7131(a) does not obligate an agency to grant official time for collective bargaining purposes to an employee unless the employee is a member of the bargaining unit being represented, and further that the complaint should be dismissed in this case because Mr. Hoffman was not a member of the bargaining unit. The Respondent and the General Counsel were represented by counsel during the hearing, and all parties were afforded full opportunity to be heard, adduce relevant evidence, and examine and cross-examine witnesses. Post-hearing briefs were filed by counsel representing the General Counsel and counsel representing the Respondent. Based upon the entire record herein, including my observations of the witnesses and their demeanor, the exhibits and other relevant evidence adduced at the hearing, and the briefs filed, I make the following findings of fact, conclusions and recommendations. Findings of Fact The record disclosed that approximately 6,000 civilian employees are employed at the San Antonio Air Logistics Center, kelly Air Force Base, The record disclosed that approximately 16,000 civilian employees are Texas. /8/ Approximately 75 of these are included in a small bargaining unit comprised of covered employees in the Fire Protection Branch at Kelly Air Force Base. The Charging Party is the exclusive representative of covered employees in the Fire Protection Branch. Another small bargaining unit composed of about 50 non-appropriated fund employees is represented by the International Association of Machinists and Aerospace Workers. Approximately 14,000 covered employees are included in a third bargaining unit represented by the American Federation of Government Employees. Mr. Hoffman was employed as a firefighter by the Respondent from July 24, 1972 to March 1, 1980. He was a member of Local F-89, and served on the Local's grievance committee for a number of years. He became president of Local F-89 in July of 1979. On March 1, 1980 he transferred to the Maintenance Directorate, Engine Division, Kelly Air Force Base. The transfer operated to remove him from the bargaining unit represented by Local F-89, as employees in the Maintenance Directorate were represented by the American Federation of Government Employees. However, he continued to serve as the president of Local F-89 until February 19, 1981. As of October 6, 1981, the date of the hearing, Mr. Hoffman was a member of Local F-89, but held no office. Nevertheless, he was eligible to hold office in the Local although he was not a member of the bargaining unit represented by the Local. The record disclosed a series of meetings wherein Mr. Hoffman was granted official time to participate in representational activity after he left the bargaining unit. In May of 1980, /3/ Mr. Hoffman received official time to represent the Charging Party during a meeting where Respondent's representatives discussed with bargaining unit employees, issues relating to the subject of attire to be worn by firefighters when on duty. Mr. Hoffman's presence at the meeting was requested by his supervisor in the Maintenance Directorate. On September 22, 1980, and November 12, 1980, he received official time to attend meetings for the purpose of discussing issues relating to the firefighters alarm room work schedule. The meetings were also attended by other officials of Local F-89, and responsible representatives of the Respondent. Local F-89, requested the Respondent to permit Mr. Hoffman to attend on official time, and the request was granted. On December 5, 1980, he represented Local F-89 at a meeting with Respondent's representatives where the Respondent's policy regarding mandatory training was discussed. A request by the Charging Party for him to attend on official time was granted. Again, on January 9, 1981, under similar circumstances, he again represented the firefighters bargaining unit with regard to issues pertaining to mandatory training, and a seniority issue relating to personnel changes. By memorandum dated January 26, 1981, Mr. Dorvis G. Hensley, Chief of the Fire Protection Branch, wrote to Mr. James Gobar, Vice President of Local F-89 to request a February 4, 1981 meeting for the purpose of discussing the impact and implementation of a policy involving mandatory training for firefighter personnel. On January 26, 1981, Mr. Gobar agreed to the meeting date, and requested that Mr. Hoffman be allowed to attend the meeting on official time. He was informed by Chief Hensley, and a representative of the Kelly Air Force Base Labor Relations Office, that Mr. Hoffman would not be allowed to attend the meeting on official time. He did subsequently represent the firefighters at the February 4, 1981 meeting, but did so by taking annual leave /10/ (Tr. 30). The Respondent's answer admitted that since on or about February 4, 1981, the Respondent failed and refused to grant official time to Joe L. Hoffman, an employee of the Respondent as defined in Section 7103(a)(2)(A) of the Statute, but not an employee in the bargaining unit represented by the Charging Party, to represent employees of the firefighters bargaining unit for collective bargaining purposes. At the hearing the Chief of the Respondent's Labor Relations Office, Civilian Personnel Office testified that, based on Office of Personnel Management policy, the Respondent has refused to grant official time to nonbargaining unit employees for the purpose of representing employees in bargaining units (Tr. 69). Discussion and Conclusions The record discloses that following Mr. Hoffman's transfer out of the bargaining unit, the Respondent recognized the Charging Party's right to receive official time for Mr. Hoffman to engage in collective bargaining activity. In fact, he received official time to participate in collective bargaining sessions on September 22, 1980, November 12, 1980, December 5, 1980, and January 9, 1981. However, the Respondent's position on this issue was reversed by representatives of the Respondent on January 26, 1981 (Tr. 45-47), and on February 4, 1981 (Tr. 62-63). In this regard the Respondent admitted factual allegations set out in paragraph eight of the complaint to the effect that since on or about February 4, 1981, Respondent failed and refused, and continues to fail and refuse, to grant official time to Joe L. Hoffman, an employee as defined in 5 U.S.C. 7103(a)(2)(A) and an employee outside the bargaining unit, to represent employees of the bargaining unit for collective bargaining purposes. Section 7131(a) of the Statute provides: (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. The word "employee" is defined in pertinent part in Section 7103(a)(2)(A) of the Statute as follows: (2) 'employee' means an individual, - . . . . (A) employed in an agency . . . . The word "agency" is defined in pertinent part in Section 7103(a)(3) of the Statute in the following terms: (3) 'agency' means an Executive agency . . . , the Library of Congress, and the Government Printing Office . . . . The Respondent argues that the term "employee" as used in Section 7131(a) should be construed so as to preclude grants of official time to non-bargaining unit employees employed by the Respondent. A number of reasons exist for not adopting the Respondent's position. It is well-settled that, "where the language of an enactment is clear, and construction according to its terms does not lead to absurd or impractical consequences, the words employed are to be taken as the final expression of the meaning intended." Browder v. United States, 312 U.S. 335, 338 (1941). It is also well-established that words used in a statute are to , be given their ordinary meaning on the absence of persuasive reasons to the contrary. Burns v. Alcala, 420 U.S. 575, 580-581 (1975). In this case it can hardly be argued that the results of a literal interpretation would be absurd or impractical. Moreover, the language of Section 7131(a), as amplified by Sections 7103(a)(2)(A) and 7103(a)(3), indicates, without ambiguity, that the Congress contemplated grants of official time to "any employee" representing an exclusive representative in the negotiation of a collective bargaining agreement, during the time the employee otherwise would be in a duty status. /11/ The legislative history of Section 7131(a) disclosed nothing to the contrary. The language of Section 7131(a) does specifically restrict the number of employees for whom official time is authorized, by limiting the number of union representatives to the number designated by the agency; however, no persuasive rationale was advanced for interpreting Section 7131(a) so as to have the effect of imposing an additional significant limitation on a union's right to select collective bargaining representatives. The Authority's Interpretation and Guidance relating to Section 7131(a), authorizes travel and per diem expenses for union representatives covered by Section 7131(a). The Authority noted that, as stated in Section 7101(a) of the statute, "labor organizations and collective bargaining are in the public interest." It was also held that although neither the Statute nor its legislative history adverted to the payment of travel expenses or per diem during participation in negotiation activities, union representatives so involved were engaged in "official business for the Government," and further that management representatives were uniformly paid travel expenses and per diem. The Authority pointed out that travel and per diem should be paid because Congress had indicated an intent that similar prerogatives be accorded employees serving as union representatives likewise engaged in collective bargaining negotiations. The following statement of Representative Clay, in discussing the prescription of official time for employees engaged in internal union business under Section 7132(b) of the House Bill (which was enacted as Section 7131(b) of the Statute), was quoted: Section 7132(b) of the Udall compromise bars the use of official time for conducting the internal business of a labor organization . . . . Activities that involve labor-management contacts are not included in 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. It follows that if the Charging Party herein were compelled to select employee collective bargaining representatives solely from those agency employees within the bargaining unit in order to be entitled to official time, the choice of representatives would, in many cases, be extremely limited. However, the Respondent's power to select its own employee representatives would not be limited in any way. This being the case, it would, to say the least, be grossly unfair to impose such stringent limitations upon the Charging Party. This inequity is even more pronounced in the light of statutory language, which clearly indicates that "any employee" may be selected to represent a bargaining unit in collective bargaining, and receive official time under Section 7131(a). At a minimum this must mean non-bargaining unit employees of the Respondent at Kelly Air Force Base, Texas. /12/ In American Federation of Government Employees, AFL-CIO, 4 FLRA No. 39 (September 26, 1980), a labor organization was charged with violations of Section 7116(b)(5) and (1) based upon a refusal to negotiate certain agency proposals. In essence the proposals prescribed the organizational level and segment from which the union would have to designate its representatives when dealing with agency management. The Authority ordered dismissal of the complaint and noted the following: In our view, it is within the discretion of both agency management and labor organizations holding exclusive recognition to designate their respective representatives when fulfilling their responsibilities under the Statute . . . . The proposals in the instant case, as noted above, would generally require the Respondent to designate its representatives from prescribed organizational levels and segments when dealing with agency management in the performance of certain representational functions. As such, the proposals would infringe upon the Respondent's prerogative to designate its own representatives for such purposes. The proposals, therefore, are outside the required scope of bargaining and the Respondent's refusal to bargain cannot be held to constitute a violation of the Statute. It is noted that in American Federation of Government Employees, AFL-CIO, the proposals would have (among other things) limited the union's right to select employee representatives engaged in collective bargaining falling within the purview of Section 7131(a). In a similar case involving a non-bargaining unit agency employee engaged in collective bargaining negotiations, Administrative Law Judge Garvin Lee Oliver reached the conclusion that a non-bargaining unit employee would have been entitled to official time for representational activity involving the negotiation of a collective bargaining agreement, but for the fact that the representative in question was not entitled to official time because the number of union representatives exceeded the number designated as agency representatives. Little Creek Amphibious Base, Case Nos. 3-CA-382 and 3-CA-383 (June 3, 1981). Based on the foregoing, it is concluded that Mr. Hoffman was an "employee" within the meaning of Section 7103(a)(2)(A); that he was employed by an "agency" as defined in Section 7103(a)(3); that on February 4, 1981, he was an employee representing an exclusive representative in the negotiation of a "collective bargaining agreement" within the meaning of Section 7131(a); that he was designated under the provisions of Section 7131(a) to represent the Charging Party in collective bargaining negotiations on February 4, 1981, during a period when he would otherwise have been on duty; and that the Respondent refused to grant official time to Mr. Hoffman in connection with the February 4, 1981 meeting because he was not a member of the bargaining unit which the Charging Party represented. This constituted a violation of Section 7131(a). It is also determined that Respondent's failure to comply with the provisions of Section 7131(a) of the Statute was violative of Sections 7116(a)(8) and (1) of the Statute. Having found that the Respondent violated Sections 7116(a)(8) and (1), it is recommended that the Authority issue the following Order: ORDER Pursuant to Section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations, and Section 7118 of the Federal Service Labor-Management Relations Statute, the Authority hereby orders that the Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas, shall: 1. Cease and desist from: (a) Failing and refusing to authorize official time for Joe L. Hoffman in accordance with the provisions of 5 U.S.C. 7131(a), for duty time spent in representing the International Association of Firefighters Local F-89, AFL-CIO, during collective bargaining negotiations with the Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas. (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 purpose and policies of the Statute: (a) Upon request grant to Joe L. Hoffman, official time for the period of annual leave utilized by him on February 4, 1981, to represent the International Association of Firefighters Local F-89, AFL-CIO, in collective bargaining negotiations with the Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas, and restore to him any annual leave utilized on February 4, 1981, for such collective bargaining negotiations. (b) Post at its facilities at the Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas, 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 the Commander, San Antonio Air Logistics Center, Kelly Air Force Base, Texas, and shall be posted and maintained for 60 consecutive are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by other material. (c) Pursuant to Section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region 6, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. LOUIS SCALZO Administrative Law Judge Dated: December 23, 1981 Washington, D.C. 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 official time to Joe L. Hoffman in accordance with the provisions of 5 U.S.C. 7131(a), for duty time spent in representing the International Association of Firefighters Local F-89, AFL-CIO, during collective bargaining negotiations with the Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas. WE WILL NOT, in any like or related manner, interfere with, restrain or coerce our employees in the exercise of rights assured by the Federal Service Labor-Management Relations Statute. WE WILL upon request grant to Joe L. Hoffman, official time for the period of annual leave utilized by him on February 4, 1981, to represent the International Association of Firefighters Local F-89, AFL-CIO, in collective bargaining negotiations with the Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas, and restore to him any annual leave utilized on February 4, 1981, for such collective bargaining negotiations. (Agency or Activity) By: (Signature) Dated: . . . 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 6, whose address is: P.O. Box 2640, Dallas, TX 75221, and whose telephone number is: (214) 767-4996. --------------- FOOTNOTES$ --------------- /1/ The exceptions and brief filed by the General Counsel were untimely and therefore have not been considered by the Authority. /2/ Section 7131(a) provides in pertinent part: 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. . . . /3/ Section 7116(a)(1), (5) and (8) 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; . . . . (8) to otherwise fail or refuse to comply with any provision of this chapter. /4/ See also U.S. Department of the Army, 94th U.S. Army Reserve Command, Hanscom Air Force Base, Massachusetts, 8 FLRA 83 (1982). /5/ In so concluding, the Authority does not adopt the Judge's rationale at page 2 of his Decision for deciding not to consider this issue. /6/ Of course, this decision does not address the Charging Party's right to designate the employee as its bargaining representative even though such representative is neither in the bargaining unit nor exclusively represented by the Charging Party, and should not be construed as precluding the employee from participating in such negotiations other than on official time. As the Fourth Circuit observed in affirming the Authority's decision in U.S. Naval Space Surveillance Systems, Dahlgren, Virginia, supra, " . . . while management and labor are both free to establish and employ their own cadres of professional negotiators at their own expense, the Union 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." AFGE Local 2096 v. FLRA, supra, slip op. at 10. /7/ The complaint raises the issue of whether, under the provisions of Section 7131(a), Mr. Hoffman should have been granted official time to participate in a collective bargaining session scheduled for February 4, 1981. If, as alleged, Mr. Hoffman was entitled to official time, then there would be no statutory or other basis for permitting the Charging Party to lose Section 7131(a) rights through the collective bargaining process. That is, although the conduct of the Respondent in such a case would involve a failure to comply with Section 7131(a), action in this regard carries no obligation pursuant to Section 7116(a)(5), to bargain over the change. American Federation of Government Employees, AFL-CIO, Local 2904, 7 FLRA No. 28 (November 12, 1981); U.S. Army Materiel Development and Readiness Command, Warren, Michigan, 7 FLRA No. 30 (November 12, 1981). Since bargaining was not contemplated, counsel for the General Counsel clearly indicated that no remedial order was sought based upon alleged violations of Section 7116(a)(1) and (5). The alternative theory based upon alleged violations of Sections 7116(a)(1) and (5) would have validity only within the context of a case involving a prior past practice of granting official time falling within the purview of Section 7131(d) of the Statute. Here the complaint filed relies only upon the language of Section 7131(a) as the basis for the alleged unfair labor practice. (General Counsel's post-hearing brief at 3). /8/ The Department of the Air Force employs approximately 239,000 civilian employees at over 1000 geographical locations (Tr. 68). /9/ It is also noted that on April 14, 1980, he was granted and received official time in connection with an appearance as a witness at an Authority consolidation hearing pertaining to a proposed consolidation of five Air Force Logistical Command fire prevention units represented by the Charging Party, as distinct from two represented by the American Federation of Government Employees. He testified on behalf of the Charging Party. On November 19, 1981, the Authority determined that the petition for consolidation of unit, encompassing all Air Force Logistical Command fire prevention units, other than those represented by the American Federation of Government Employees, was appropriate. Air Force Logistics Command, United States Air Force, Wright-Patterson Air Force Base, Ohio, 7 FLRA No. 33 (November 19, 1981). An election was directed to determine whether the employees wished to be represented in the consolidated unit found appropriate. The new unit would consist of all five of the Air Force Logistical Command fire prevention units represented by the Charging Party, and would include the Kelly Air Force Base, Texas unit, together with units located at Wright-Patterson, Air Force Base, Ohio; Tinker Air Force Base, Oklahoma; McClellan Air Force Base, California; and Robins Air Force Base, Georgia. /10/ The record reflects no evidence that the Respondent questioned Mr. Hoffman's right to be present at the meeting, nor does it indicate that official time was denied by the Respondent because the number of Local F-89 representatives exceeded the number designated by the Respondent. /11/ The Authority has held that the phrase "negotiation of a collective bargaining agreement" in Section 7131(a) refers to any agreement that is entered into as a result of the performance of the mutual obligation of the parties to bargain in a good faith effort to reach agreement with respect to conditions of employment affecting employees in the appropriate unit, and that the language used reflects the intent of the Congress to encompass under Section 7131(a), all negotiations between an exclusive representative and an agency, regardless of whether such negotiations pertain to the negotiation or renegotiation of a basic collective bargaining agreement. Interpretation and Guidance, 2 FLRA No. 31 (December 19, 1979). The Authority position would tend to indicate that the restrictive interpretation urged by the Respondent is not entirely without merit; however, the Authority has also held that there would be no basis for granting official time under Section 7131(a) for periods of time spent in preparing to engage in collective bargaining negotiations. That is, Section 7131(a) would be applicable only to periods of time spent at the bargaining table in "actual" negotiations, as distinct from periods spent in preparation for, or periods intervening between collective bargaining sessions. American Federation of Government Employees, AFL-CIO, Local 1692 and Headquarters, 323rd Flying Training Wing (ATC) Mather Air Force Base, California, 3 FLRA No. 47 (May 30, 1980); Federal Uniformed Fire-Fighters, Local F-169, and U.S. Army Armament Research & Development Command, Dover, New Jersey, 3 FLRA No. 49 (May 30, 1980); International Association of Machinists and Aerospace Workers, Lodge 2424, 5 FLRA No. 54 (March 30, 1981); Association of Civilian Technicians, Granite State Chapter, 7 FLRA No. 36 (November 19, 1981). /12/ Since Mr. Hoffman, was in fact an employee of Respondent's at Kelly Air Force Base, it is unnecessary to decide within the context of this case, whether or not the phrase "any employee," in Section 7131(a) as expanded by Sections 7103(a)(2)(A) and 7103(a)(3), includes non-bargaining unit government employees who are not employed by the "Executive agency" engaged in collective bargaining negotiations.