18:0855(101)CA - HHS, SSA, Baltimore, MD and AFGE Local 1501 -- 1985 FLRAdec CA
[ v18 p855 ]
18:0855(101)CA
The decision of the Authority follows:
18 FLRA No. 101
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, SOCIAL SECURITY ADMINISTRATION
BALTIMORE, MARYLAND
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1501
Charging Party
Case No. 79-CA-30198
DECISION AND ORDER
The Administrative Law Judge issued the attached 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. The General Counsel
filed exceptions to the Judge's Decision.
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 recommended Order, as modified herein.
In adopting the Judge's conclusion that the complaint should be
dismissed, the Authority finds it unnecessary to pass upon whether the
Respondent's denial of official time to off-site assistant local
representatives of the Union constituted a rejection of the terms of the
collective bargaining agreement, /1/ because it is concluded, in
agreement with the Respondent's contention, that this proceeding is
barred by section 7116(d) of the Statute.
As found by the Judge, on July 13, 1982, the American Federation of
Government Employees, AFL-CIO (AFGE) filed a "national" grievance which
alleged violations of Article 30, Appendix F, and related provisions, of
the National Agreement between AFGE and the Respondent covering all
employees in a consolidated nationwide bargaining unit. Subsequently,
AFGE set forth 31 issues it believed were presented by the grievance.
Issue No. 11, as set forth by the Arbitrator in his interim Opinion and
Award, issued February 22, 1984, stated:
Issue 11: Whether Management has violated the Master agreement
by interfering with the Union's discretion in its choice of
representatives, specifically by:
* * * *
(5) refusing to grant official time to present grievances,
unless the person requesting happens to be the on-site
representative in the office where Management alleges the
grievance occurred. /2/
On February 10, 1983, after AFGE's national grievance had been filed,
the Charging Party, AFGE Local 1501, filed the original unfair labor
practice charge in this proceeding.
Section 7116(d) of the Statute provides in pertinent part:
(I)ssues 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.
In the Authority's view, the issue which is the subject matter of both
the instant complaint and the national grievance covering the entire
consolidated unit is the refusal of the Social Security Administration
to give official time to local representatives and assistant local
representatives of AFGE who are not employed at the same sites wherein
the labor relations matters arise. See Department of the Treasury, U.S.
Customs Service, Region VIII, San Francisco, California, 13 FLRA 631
(1984). Thus, the Authority finds that the prior invocation of the
grievance procedure under the parties' negotiated agreement by AFGE, the
exclusive bargaining representative of the consolidated nationwide
bargaining unit herein, constituted an election of that procedure under
section 7116(d) of the Statute, thereby precluding the Charging Party
from raising the same issue subsequently as an unfair labor practice.
In this regard, since the issue between the Agency and AFGE involved the
terms of the collective bargaining agreement applicable nationwide, the
AFGE, as the exclusive bargaining representative, is the "aggrieved
party" having the discretion to choose under which procedure the issue
was to be raised. See Department of Defense Dependents Schools, Pacific
Region, 17 FLRA No. 135 (1985). Accordingly, the Authority shall
dismiss the instant complaint.
ORDER
IT IS ORDERED that the complaint in Case No. 79-CA-30198 be, and it
hereby is, dismissed in its entirety.
Issued, Washington, D.C., June 28, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Mr. Wilson G. Schuerholz
For the Respondent
Mr. Michael Teefy
For the Charging Party
Daniel Minahan, Esquire
For the General Counsel
Before: GARVIN LEE OLIVER, Administrative Law Judge
DECISION
Statement of the Case
This decision concerns an unfair labor pr8ctice complaint issued by
the Regional Director, Region VII, Federal Labor Relations Authority,
Denver, Colorado against the Social Security Administration, Baltimore,
Maryland (Respondent), based on a charge filed by the American
Federation of Government Employees, AFL-CIO (Charging Party or Union).
The complaint alleged, in substance, that Respondent violated sections
7116(a)(1) and (5) of the Federal Service Labor-Management Relations
Statute, 5 U.S.C. 7101 et seq. (the Statute), by refusing on two
occasions to recognize the Union's properly designated assistant local
representative for its downtown Seattle district office, for purposes of
official time, within the meaning of Article 30, Appendix F, Section F
of the collective bargaining agreement. The complaint alleged that
Respondent thereby clearly, patently, and flagrantly breached the terms
of such provision and unilaterally rejected its terms, and thus has
refused to bargain in good faith and interfered with rights guaranteed
by the Statute.
Respondent's answer admitted the jurisdictional allegations relating
to the Respondent, Charging Party, and the charge, but denied any
violation of the Statute.
A hearing was held in Seattle, Washington. The Respondent, Charging
Party, and the General Counsel were represented and afforded full
opportunity to be heard, adduce relevant evidence, examine and
cross-examine witnesses, and file post-hearing briefs. Based on the
entire record, including my observation of the witnesses and their
demeanor, I make the following findings of fact, conclusions of law, and
recommendations.
II. Findings of Fact
The Union is the exclusive representative of employees of the
Respondent in a consolidated, nationwide bargaining unit. At all times
material herein, a collective bargaining agreement has existed between
the Union and Respondent covering such employees. Article 30, Official
Time, of such agreement provides, in part, as follows:
Article 30-- Official Time
. . . .
Section 2-- Designation
A. In accordance with Appendices A through F the employer will
recognize union officials designated by the president of each
local union or council, or designee, as appropriate users of
official duty hours for union representational activities and
labor-management relations functions.
B. The Union will provide the Administration with lists of
designated union officials at the respective levels after the
effective date of this agreement and notify the Administration of
subsequent changes. These lists will include each official's
name, location and telephone number.
. . . .
Appendix F-- Official Time and Labor Relations in Field Offices
. . . .
E. Normally, the Local President shall designate one (1) Local
Representative and one (1) Assistant Local Representative for each
field office installation to coordinate and conduct
labor-management relations within that installation. Such Local
Representatives and Assistants shall be recognized as primary or
alternate representatives of the Union within that installation.
The responsibilities of Local Representatives should include but
are not limited to:
meetings and discussions concerning labor-management relations
issues initiated locally;
employee grievances within the installation;
management notice of proposals to change conditions of
employment initiated locally.
Additional assistant representatives may be designated for
field installations in excess of 75 employees but there will be no
more than one (1) primary Local Representative.
To the extent practicable, local bargaining issues will be
negotiated locally by the Local President and/or Local
Representatives. The parties will endeavor to minimize travel
expenses for such negotiations. In the event that there is no
Local Representative or Assistant Local Representative available,
labor-management relations will be conducted with the Local
President (or designee) directly.
F. Consistent with 5 USC 71 and the terms of this agreement,
Council officers and representatives and Local Officers and
Representatives will be granted reasonable official time which is
necessary for the performance of labor-management relations.
Such activities include time needed for:
meetings with management representatives on conditions of
employment;
grievances, complaints and appeals (formal and informal);
other matters which may involve a labor-management relationship
or interface.
Time for negotiations is granted in accordance with 5 USC 71.
Official time will not be granted for internal union business in
accordance with 5 USC 7131(b).
The amount and occasion of official time is generally governed by
Section J and this Section of this Appendix. For the purposes of
Section J2 (union initiated activities), the following provisions apply:
Assistant Local Representatives: No official time is granted,
except when approved in advance by local management or when
replacing the Primary Local Representative. When replacing the
Local Representative, time used by the assistant representative
under J2 will be charged against the total hours available to the
local representative.
Local Representative: Up to 4 hours per week for offices under
70 employees, up to 10 hours per week for offices with 70 or more
employees. Time in excess of 6-month cumulative averages based on
a fixed 6-month calendar period may be approved as necessary on a
case-by-case basis. Local Representatives and local management
may choose to schedule usage of official time on some regular
basis, provided that the terms of this agreement are not
compromised by such scheduling.
. . . .
J. Official time for union representatives falls generally into two
categories:
1. Time for union representational activities initiated
. by the Administrator.
2. Time for representational activities initiated by union
representatives-- the total amount of official time which may be
used for the purpose of handling grievances and other complaints,
meetings and consulting with management at the request of the
Union and handling other such representational functions shall be
governed by provisions and allowances in Section F of this
Appendix.
K. The Union will make every reasonable effort to use the Local
Representative of the office in which the grievance arises for the first
and second step of the grievance.
The Local President shall designate the individual who will be the
representative for those grievances which proceed to the third step.
Articles 24 and 25 contain the grievance and arbitration procedures.
As indicated in the agreement, the local representative is a
first-line union contract in a field office. The local representative
attends meetings and discussions about local conditions of employment,
normally handles grievances within the installation of the first and
second step, and receives notices from local management of changes in
conditions of employment initiated locally. The local representative is
expected to deal with management on a day-to-day basis. An assistant
local representative acts in the absence of the local representative and
also may function concurrently with the primary local representative
where the matter calls for his or her special expertise. (Tr. 18-19,
31, 42, 127, 153).
On December 14, 1982, the Union, by Jeffrey Saul, vice-president,
Local 1501, notified Gene Barnes, district manger of the Seattle
district, that Mary O'Malley, an employee of the South Seattle branch
office, had been designated by the Union as the assistant local
representative for the Seattle district office (G.C. Exh. 3). The
Seattle district office is one of the largest field offices in the
state, having from 70-100 employees. (Tr. 19, 48). It is six to eight
miles and a 15-20 minute drive from the South Seattle branch office (Tr.
20).
In order to reply to the letter, district management conferred with
Respondent's regional la0or relations personnel who, in turn, conferred
with the Central Office about a consistent application of the official
time provisions of the agreement in this situation. Based on this
advice, Respondent, by Barnes, advised Saul, by memorandum dated
December 23, 1982, that O'Malley would not be granted official time to
serve as assistant local representative. Respondent stated that this
determination was based on Article 30, Appendix F, Sections E and K of
the national agreement, and that, "It was clearly the intent of the
parties involved in the national contract negotiations that local issues
would be handled by local representatives and local management." (G.C.
Exh. 4). A few days earlier, on December 14, 16, 17 and 22, 1982,
O'Malley's supervisor denied her official time to prepare an unfair
labor practice charge as the assistant local representative of the
Seattle district office. The denial was based on the same grounds
subsequently asserted in Barnes' letter (Tr. 51, 56, 69, 80, 158,
166-171, G.C. Exh. 9).
On January 24, 1983, Saul wrote to Ruth Ruby, Respondent's assistant
regional commissioner for management and budget, informing her that Bob
Gray, another employee in the Seattle South branch office, would replace
O'Malley as the assistant local representative for the Seattle district
office (G.C. Exh. 6). By letter dated February 24, 1983, Ruby replied
to Saul refusing to recognize Gray as the alternate local representative
for the purpose of official time. Ruby also claimed that this action
was pursuant to Article 30, Appendix F, Sections E and K of the
agreement, and stated, "Because of the union commitment to name and use
on-site representatives, Mr. Gray will not be granted official time"
(G.C. Exh. 7).
The parties stipulated that Mary O'Malley and Robert Gray were
recognized pursuant to Mr. Saul's designation as assistant local
representatives of the downtown Seattle district office (Tr. 61). The
issue is strictly whether, as such designees, they were entitled to
official time pursuant to the agreement to serve in such capacities.
The parties also agreed that Ms. O'Malley received official time during
the relevant period in order to serve in other Union capacities and
functions (Tr. 67-68).
In April 1983, Saul designated James Bolin, a Seattle district office
employee, as the assistant local representative for the District Office.
Bolin, however, accepted the appointment only on the condition that he
not be empowered to bind the union in negotiations (Tr. 24).
Negotiations Regarding National Agreement
Negotiations for the national agreement took from June 1980 to
December 21, 1981. The official time article referenced above was an
article of major importance. It was the last article of which agreement
was reached. (Tr. 130).
During the course of the negotiations Respondent and the Union
offered various proposals concerning official time (G.C. Exh. 11, 12).
Nancy Ann Williams, one of Respondent's negotiators, and Witold
Skwierczynski, one of the Union's negotiators, were called by Respondent
and testified in detail regarding the various proposals and the
developments during the course of the negotiations.
The fundamental disagreement between these negotiators concerned the
account of the final bargaining session which produced agreement on the
official time appendix in issue. Williams testified that during these
negotiations management made it quite clear that it was concerned about
who local management would be dealing with in the day-to-day labor
relations communications and grievance processing, and that the
representative, whether called a local representative or on-site
representative or steward, needed to be someone employed in the
installation where they were actually providing the services. Williams
testified that the Union said they fully understood and endorsed this
position. Williams acknowledged that management attempted to insert the
term "on-site" in what became Appendix F, paragraph E. She stated that
John Harris, chief negotiator for the Union for field operations,
indicated that there were political reasons within the Union why he
could not have that kind of language in the agreement, but that he fully
understood and had no quarrel with the management position that the
local representative should be somebody on site. Williams testified
that management came away from the negotiations with the understanding
that local representatives and assistant representatives would be people
employed in the installations where they were providing the services.
Off-site designees would have no right to official time unless,
consistent with past practice, a good showing of need was made.
Witold Skwierczynski testified that management attempted to insert
the term "on-site" into the appendix. He denied that John Harris had
endorsed the concept during the negotiations. He testified that Harris
flatly rejected it, as the Union had done in the past, on the basis that
it would create an impossible situation. He testified that management
then withdrew the proposal and also agreed to delete the term "on-site"
from a later counter-proposal dealing with the representatives who would
handle grievances at the first and second step. Again, simply the term
"local representative" was agreed upon.
Practices Under the Agreement
Pam Smith, a management official in the Seattle region, testified
that as soon as the new contract went into effect in 1982, she dealt
with the two local presidents that covered the installations in the
region. These dealings concerned, in part, obtaining the Union
designations of local representatives and discussing the official time
such representatives would receive. She stated that the conversations
with the local presidents always concerned the designation of someone in
the particular offices to be the local representative, and the amount of
time it was necessarily taking them to obtain the on-site persons. She
testified that the initial list provided her by Jeff Saul of the Seattle
local only included on-site representatives, or his designation was left
blank (Tr. 160-161, 166). Saul recalled that he designated himself as
alternative representative for Bellevue, but acknowledged that he was
subsequently once denied official time to serve at that branch office
(Tr. 29, 45).
Smith testified that the Oregon local president, Randy Randall,
initially designated some off-site persons as alternate representatives.
According to Smith, she then advised Randall that off-site
representatives could not receive official time, and Randall replied
that he did not expect the off-site designees to receive official time
and was working towards getting on-site representatives as the
alternates. (Tr. 165). Smith testified that sometime later she did
grant an exception which Randall had requested and, as a result, gave
official time to an off-site representative where a special showing of
need was made (Tr. 172-173; 175-178).
Saul once designated himself local representative at Respondent's
Yakima, Washington field office with Respondent's agreement and was
granted official time in this connection. However, management was aware
of the special need, and Saul had explained that he hoped in the future
to appoint a permanent on-site representative. (Tr. 36-38; Resp. Exh.
1).
The National Official Time Grievance
On July 13, 1982, the Union filed an institutional grievance under
Article 24, Section 10 of the national agreement. The grievance alleged
"repeated and continuing violations of Article 30, Appendix F and
related provisions of the National Agreement, past practice and
understandings concerning official time and union representation." The
grievance alleged that the violations were, among other things,
"evidence of bad faith in the negotiation of the National Agreement."
(Resp. Exh. 5(a)). On October 26, 1982, the Union set forth 31 issues
it believed were involved in the grievance. Issue 11 was stated to be:
Management in many locations is not recognizing the Union's
structure and its list of designees. Management is frequently
interfering with the internal business of the Union by attempting
to regulate what its lines of communication and structure should
be, including attempting to veto our choices of representative,
our internal organization, etc. (Resp. Exh. 5(b)).
At about the same time, the Union delivered to the Respondent in a
shopping cart documents showing more than 1,000 individual instances
where official time had been denied to Union representatives. The
Respondent and the Union agreed that additional denials of official time
touching on the issues raised in the grievance would be, figuratively,
added to the "shopping cart." The Union's mechanism for accomplishing
this was to have the documentary evidence of a denial of official time,
usually a grievance or an SSA Form 75, sent to the Union's
representative on the grievance, Gayla Reiter. Unless the evidence of a
particular denial of official time is forwarded in this manner, the
denial is not considered part of the grievance by the Union. There is
no evidence that any of the documentation giving rise to the present
dispute has been forwarded to Gayla Reiter. No grievance was ever filed
over the denial of official time to O'Malley or Gray to act as assistant
local representatives for the Seattle district office.
The national grievance was elevated to arbitration, and a hearing was
held on August 2, 1983. The arbitrator's interim opinion and award was
rendered February 22, 1984. (ALJ Exh. 1). /3/ The arbitrator reserved
jurisdiction for purposes of interpretation or enforcement. As to issue
11, noted above, the arbitrator found that denials of official time to
designated Union officials for the performance of labor/management
activities constituted a violation of the contract. He noted, in part,
as follows:
The master agreement, Article 30, Appendix F: Official Time
and Labor Relations in Field Offices, is quite clear and needs
little or no construction here. The Union alone has the authority
to designate its representatives . . . .
The language of Appendix F would not seem to limit the Union's
use of representatives to those posted in the immediate area, but
common sense dictates that they should do so whenever possible in
order to avoid additional expense to management . . . .
However, the Union should be allowed to designate alternative
representatives in an office for the use of official time where
the primary representatives cannot handle a particular matter.
Additionally, management, under the letter and spirit of the
agreement, is obligated to grant official time to Union officers
to present Section 10 grievances and cannot limit representation
to on-site representatives.
. . . .
Position of the Parties
The General Counsel contends that Respondent, by refusing to
recognize the Union's properly designated assistant local
representatives for purposes of official time, clearly and patently
breached or repudiated Article 30, Appendix F of the collective
bargaining agreement. The General Counsel argues that the contract
allows some official time for assistant local representatives: that
O'Malley and Gray were properly designated as assistant local
representatives; and for Respondent to state that no official time
would be approved amounted to a clear, patent, and persistent breaches
of the contract and, in effect, repudiated the official time provisions.
The General Counsel claims that a union retains the prerogative to
designate representatives of its choice, and that this imposes on the
agency a duty to provide official time to such designated
representative. The General Counsel claims there is no clear and
unmistakable evidence that the Union waived its right to designate any
employee as an assistant local representative for official time
purposes.
The General Counsel also insists that no language in the contract
limits official time to those assistant local representatives employed
at the facility they represent. The General Counsel states that Section
E of Appendix F, providing for the designation of assistant local
representatives "for each field office installation to coordinate and
conduct labor-management relations within that installation" merely
describes where the assistant representative will conduct their duties,
not where they must be employed. The General Counsel also asserts that
Section K, which obligates the Union to "make every reasonable effort to
use to the local representative of the office in which the grievance
arises . . . " does not cover all purposes and simply describes which
representative the Union must select for grievance processing, not the
office where the representative must be employed. The General Counsel
insists that the rest of the official time article demonstrates that the
parties knew how to draft and agree to restrictions on the physical
location if they had intended to embody such a restriction in this
situation. The General Counsel claims that the arbitrator's award also
thoroughly shatters Respondent's argument that the contract can be read
to require the designation of on-site assistant local representatives.
The General Counsel also maintains that the practices of the parties
in implementing the agreement do not support Respondent's position.
Finally, the General Counsel urges that the testimony of Witold
Skwierczynski should be credited, and contends that nothing in the
bargaining history leading to the national agreement indicates that only
on-site assistant local representatives are entitled to official time.
The General Counsel also maintains that the national official time
grievance does not bar consideration of the merits of the case under
section 7116(d). The General Counsel claims that the national official
time grievance did not clearly raise the same issue raised in the
Union's unfair labor practice charge. The General Counsel states that
the state of the grievance at the time the charge is filed is
controlling, and evidence bearing on the processing of the grievance
after February 9, 1983 should have been excluded from the record.
Respondent defends on the basis that its determination that an
off-site representative was not entitled to official time was not a
clear, patent, flagrant breach of the contract, but was instead
management's legitimate and reasonable interpretation of the language of
the applicable provision. Respondent relies on Nancy Ann Williams'
testimony concerning the bargaining history particularly the Union's
alleged endorsement of management's position that assistant
representatives would be employed in the installation where they were
rendering the services. Respondent also claims that the language of
Article 30, Appendix F, paragraph E and F reflect this concept.
Respondent points out that paragraph E speaks of assistant local
representatives "for each field office installation" and indicates that
the duties of such representatives are all centered on being "initiated
locally," or concern matters "within the installation." Respondent also
relies on the other actions of the parties in implementing the
agreement, claiming that this demonstrates that off-site representatives
were not normally designated or afforded official time in the absence of
a showing of need. Respondent also asserts that the national grievance
illustrates that there was much in the official time area which was in
dispute, thus lending further weight to its position that the instant
matter is indeed an arguable interpretation question and not bad faith.
Respondent also makes the affirmative defense that the case is barred
under section 7116(d) by the national official time grievance.
Respondent claims that the issues were covered by the grievance filed in
July 1982, as further elaborated on by the Union's letter of October 6,
1982, and discussed as issue 11 in the arbitrator's award.
Discussion, Conclusion, and Recommendations
The complaint alleges that Respondent refused on two occasions to
recognize the Union's properly designated assistant local
representatives for its downtown Seattle district office, for purposes
of official time, within the meaning of the contractual provision
contained in Article 30, Appendix F, section F, thereby clearly,
patently and flagrantly breaching such provision and unilaterally
rejecting its terms.
Two basic criteria must be met for a breach of contract to rise to
the level of an unfair labor practice: (1) the conduct must constitute
a clear, patent, and flagrant breach of the contract, as opposed to an
arguable interpretation of the contract /4/ and (2) the conduct must
involve persistent breaches of the contract so as to constitute a
rejection of the collective bargaining agreement, /5/ or otherwise
demonstrate a complete repudiation of the collective bargaining
agreement. /6/
Section 2423.18 of the Rules and Regulations, 5 C.F.R. 2423.18, based
on section 7118(a)(7) and (8) of the Statute, provides that the General
Counsel "shall have the burden of proving the allegations of the
complaint by a preponderance of the evidence." It is concluded that a
preponderance of the evidence does not establish that Respondent
violated sections 7116(a)(1) and (5), as alleged.
The record does not demonstrate that Respondent's action in denying
official time to off-site assistant local representatives was a clear,
patent, and flagrant breach of Article 30, Appendix F, section F of the
contract. In other words, the breach is not easily seen, obvious, and
outrageously noticeable. The contract, when read as a whole, is not
clear on its face in this regard. Cf. Harry S. Truman Memorial Veterans
Hospital, Columbia, Missouri, 11 FLRA No. 90 (1983). The alleged breach
is not so patent that Respondent could not have reasonable thought
otherwise. Cf. Food Service and Quality Service, U.S. Department of
Agriculture, Washington, D.C., supra, 7 FLRA at 673. Nor does
Respondent's action demonstrate a flagrant breach such as to suggest a
lack of good faith. Ibid. Respondent's action was based on its
interpretation of the language of the negotiated agreement and the
account of its negotiator concerning the negotiations leading to that
agreement. In this proceeding, Respondent also defended on the basis of
the practice of the parties in implementing that agreement.
Respondent's interpretation is arguably within the terms of the
negotiated agreement.
With regard to the second criterion, the record does show two
instances of refusal to recognize off-site assistant local
representatives for purposes of official time. However, this does not
constitute a rejection of the terms of the collective bargaining
agreement or of the principles of collective bargaining. Rather, it was
part of the good faith disagreement over contract terms. Respondent has
taken a consistent position in good faith and had no obligation to
acquiesce in the Union's position. The record demonstrates that the
parties have previously had other similar disputes over the official
time provisions of the contract. Their past conduct demonstrates full
acceptance of the grievance and arbitration route to the resolution of
their differences over official time.
The Union's right to designate its own representatives when dealing
with agency management in fulfilling its responsibilities under the
Statute is well settled. Department of the Air Force, 915th Tactical
Fighter Group, Homestead Air Force Base, 13 FLRA 135, 13 FLRA No. 33
(1983). However, here the parties have provided in their collective
bargaining agreement for a formalized bargaining relationship. See,
American Federation of Government Employees, AFL-CIO and U.S. Air Force,
Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 4
FLRA 272 (1980). The essence of this unfair labor practice complaint
involves differing and arguable interpretations of Article 30, Appendix
F, the official time provisions of their collective bargaining agreement
negotiated pursuant to section 7131(d) of the Statute. The language of
the agreement is susceptible to an interpretation, as set forth in the
positions of the parties, above, which might, or might not, authorize
Respondent's actions. Thus, the appropriate avenue for resolution of
the dispute is through the grievance and arbitration procedures
contained in the parties agreement pursuant to section 7121 of the
Statute. See fn. 4.
In these circumstances, the denial of official time, a contractual
right, did not rise to the level of interference with rights guaranteed
by the Statute, e.g. the right to form, join, or assist a labor
organization, and constitute a separate violation of section 7116(a)(1)
of the Statute. Cf. Department of the Air Force, Base Procurement
Office, Vandenburg Air Force Base, California, A/SLMR No. 485, 5 A/SLMR
112, FLRC No. 75A-25, 4 FLRC 587 (1976); Iowa National Guard and
National Guard Bureau, 8 FLRA No. 101, 8 FLRA 500, 512-513 (1982).
Based on the foregoing, it is unnecessary to consider other issues
raised by the parties. It is recommended that the Authority issue the
following Order:
ORDER
IT IS HEREBY ORDERED that the complaint in Case No. 79-CA-30198 be,
and it hereby is, DISMISSED.
GARVIN LEE OLIVER
Administrative Law Judge
Dated: August 8, 1984
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ In so concluding the Authority rejects the Judge's comments
concerning the criteria which must be met in order for a breach of
contract to rise to the level of an unfair labor practice. In this
regard, see U.S. Customs Service, Region VII, Los Angeles, California,
10 FLRA 251 (1982); Harry S. Truman Memorial Veterans Hospital,
Columbia, Missouri, 11 FLRA 516 (1983); Internal Revenue Service, and
Internal Revenue Service, Detroit District, 12 FLRA 445 (1983).
/2/ Although not a factor involved in the disposition of the case
herein, the Authority notes that the Arbitrator sustained the Union's
position on this issue.
/3/ Over the General Counsel's objection, the February 10, 1984
hearing record was held to allow for the receipt of the arbitrator's
award. The award was provided by Respondent and was received as ALJ
Exhibit No. 1. Thereafter, the parties filed their briefs in the case.
/4/ Oklahoma City Air Logistics Center, Tinker Air Force Base,
Oklahoma, 3 FLRA 512 (1980); Internal Revenue Service and Brookhaven
Service Center, 6 FLRA 713 at 725 (1981); Food Safety and Quality
Service, U.S. Department of Agriculture, Washington, D.C., 7 FLRA 665
(1982); Division of Military and Naval Affairs, State of New York,
Albany, New York, 8 FLRA 307 (1982).
/5/ Internal Revenue Service and Internal Revenue Service, Detroit
District, 12 FLRA No. 87 (1983); Kaiserslautern American High School,
Department of Defense Dependents Schools, Germany North Region, 9 FLRA
184 (1982).
/6/ Great Lakes Program Service Center, Social Security
Administration, Department of Health and Human Services, Chicago,
Illinois, 9 FLRA 499 (1982); Veterans Administration Hospital,
Danville, Illinois, 4 FLRA 80 (1980).