[ v23 p512 ]
23:0512(71)CA
The decision of the Authority follows:
23 FLRA No. 71
VETERANS ADMINISTRATION CENTRAL
OFFICE, WASHINGTON, D.C. AND VETERANS
ADMINISTRATION MEDICAL CENTER,
CINCINNATI, OHIO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2031, AFL-CIO
Charging Party
Case Nos. 5-CA-40056
5-CA-40059
DECISION AND ORDER
I. Statement of the Case
This consolidated unfair labor practice case is before the Authority
on exceptions to the attached Chief Administrative Law Judge's Decision
filed by the General Counsel. The Respondent filed an opposition to the
General Counsel's exceptions. The consolidated complaint alleged that
the Respondent, Veterans Administration Central Office, Washington, D.C.
and Veterans Administration Medical Center, Cincinnati, Ohio, violated
section 7116(a)(1), (5) and (8) of the Statute by refusing to grant
official time for certain negotiations to agents of the Charging Party,
American Federation of Government Employees, Local 2031, AFL-CIO (Local
2031), and by changing a past practice of granting such official time
without providing Local 2031 with notice and an opportunity to bargain
concerning such change.
II. Background
The Charging Party, Local 2031, is an agent of the American
Federation of Government Employees, AFL-CIO which is the certified
exclusive representative at the national level for a consolidated unit
of nonprofessional employees at various Veterans Administration
facilities throughout the country. Local 2031 functions as the local
representative of some of the employees in the nationwide consolidated
unit. As found by the Chief Judge, the charges in this case arose when
a supervisory official of the Respondent, located in Cincinnati, Ohio,
refused to grant requests for official time on two separate occasions to
representatives of Local 2031 employed at his facility. The official
time was requested to negotiate a local supplementary agreement on
behalf of employees in the nationwide consolidated unit located at a
separate facility, the Veterans Administration Outpatient Clinic, in
Columbus, Ohio. The local supplemental agreement was provided for by
the terms of the parties' master agreement.
The section 7116(a)(1) and (5) portion of the complaint alleged that
the Respondent unilaterally changed a past practice of granting official
time to Union negotiators for local bargaining. The Chief Judge noted
that official time was granted for two sets of negotiations involving
four days over a period of 26 months. One day was unprecedential, and
the other three were granted by an official under unusual circumstances
detailed more fully in the Chief Judge's Decision.
III. Chief Administrative Law Judge's Decision
The Chief Judge concluded that the Authority's decision in
Interpretation and Guidance, 7 FLRA 682 (1982), which determined that
the official time provisions of section 7131(a) of the Statute do not
encompass negotiations below the level of exclusive recognition which
are designed to create local agreements to supplement a master
agreement, is controlling in this case. The Chief Judge determined that
the negotiations in this case were not encompassed by section 7131(a)
and recommended that the alleged violations of section 7116(a)(1) and
(8) of the Statute be dismissed.
The Chief Judge also concluded that application of the Authority's
decision in Interpretation and Guidance, supra, rendered irrelevant the
Respondent's contention that local Union representatives employed at one
facility were not entitled to official time either statutorily or by the
terms of the parties' Master Agreement to represent employees at a
separate and independent facility where the Union representatives are
themselves not employed. The Chief Judge also recommended that the
section 7116(a)(5) allegation be dismissed. He noted that official time
could become a condition of employment if it is consistently granted for
an extended period with the knowledge and consent of responsible
supervisors. He concluded that the General Counsel had failed to
demonstrate that the authorization of official time for such bargaining
had become a condition of employment by virtue of an established past
practice under this standard.
IV. Positions of the Parties
The General Counsel excepts to the Chief Judge's finding that
negotiations at the Columbus Outpatient Clinic were not encompassed by
section 7131(a) because they were limited to that facility and were
conducted by local officials. It also excepts to the finding there was
no binding past practice for providing official time for
Cincinnati-based representatives to negotiate with management of the
Outpatient Clinic.
The Respondent's Opposition to Exceptions supports the findings and
conclusions of the Chief Judge.
V. Analysis
The issue raised by this case is whether a unit employee who is not
stationed at the site of the local supplemental negotiations is entitled
to official time to represent the union. In our view, where the parties
at the level of exclusive recognition have authorized local supplemental
negotiations, section 7131(a) entitles any employee in the unit to
official time to represent the union at local negotiations, unless the
parties have agreed otherwise. /1/
The language of section 7131(a) requires that "(a)ny employee
representing an exclusive representative in the negotiation of a
collective bargaining agreement . . . shall be authorized official time
. . . . " (emphasis added) so long as such employee is in the bargaining
unit involved. We have held that the official time provisions of
section 7131(a) encompass the negotiation of local supplemental
agreements, when authorized by the parties at the level of exclusive
recognition. See Department of the Air Force, Headquarters, Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, 19 FLRA No. 17
(1985), decided subsequent to the issuance of the Chief Judge's Decision
in this case. Our holding that the official time provisions of section
7131(a) encompass negotiation of local supplemental agreements followed
the decision of the United States Court of Appeals for the District of
Columbia circuit in AFGE v. FLRA, supra. In that case, the court
reversed the Authority's decision in Interpretation and Guidance, supra.
The court also noted that the Supreme Court, in BATF v. FLRA, 464 U.S.
89 (1983) "did not question the characterization of the negotiations of
. . . local issues as 'collective bargaining,' and thus did not
recognize the master-local distinction . . . " 750 F.2d at 147.
Pursuant to the plain language of the Statute and consistent with
Authority precedent, any unit employee representing the union at local
supplemental negotiations is entitled to official time regardless of
whether the employee is stationed at the location which is the subject
of local negotiations. /2/ In the circumstances of this case, it
follows that the Respondent, located in Cincinnati, Ohio, denied a
statutory entitlement to employees who requested official time to
represent the Union at local supplemental negotiations on behalf of
employees of the Outpatient Clinic in Columbus, Ohio, a part of the
consolidated collective bargaining unit. Accordingly, the Respondent
violated section 7116(a)(1) and (8) of the Statute.
The Authority finds it unnecessary to pass on the Chief Judge's
conclusion that the Respondent did not violate section 7116(a)(1) and
(5) of the Statute, as alleged, by unilaterally departing from a past
practice of providing official time to its employees to serve as union
representatives in bargaining with the Veterans Administration
Outpatient Clinic. Inasmuch as official time under the circumstances is
a statutory right pursuant to section 7131(a), the existence or
nonexistence of a past practice is irrelevant.
VI. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
of the Chief Judge made at the hearing, finds that no prejudicial error
was committed, and thus affirms those rulings. The Authority has
considered the Chief Judge's Decision and the entire record in these
cases, and adopts his findings and conclusions only to the extent that
they are consistent with our decision.
We find that the Respondent violated section 7116(a)(1) and (8) of
the Statute when it refused to provide official time to unit employees
to represent the Union in local supplemental negotiations which was
their right pursuant to section 7131(a) of the Statute.
Accordingly, we shall issue the following order to remedy the conduct
found to have violated the Statute.
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 Veterans Administration Central Office, Washington, D.C., and
Veterans Administration Medical Center, Cincinnati, Ohio, shall:
1. Cease and desist from:
(a) Refusing to grant official time pursuant to section 7131(a) of
the Federal Service Labor-Management Relations Statute to its employees
who are representatives of American Federation of Government Employees,
Local 2031, AFL-CIO, in negotiations for local supplemental agreements
authorized by the parties' master agreement.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action:
(a) Upon request of American Federation of Government Employees Local
2031, AFL-CIO, grant official time pursuant to section 7131(a) of the
Statute to its employees who are representatives of the Union in
negotiations for local supplemental agreements authorized by the
parties' master agreement.
(b) Make whole unit employees who were denied official time to
represent the Union in negotiations for a local supplemental agreement
pursuant to the parties' master agreement and who were entitled to
official time under the terms of section 7131(a) of the Statute.
(c) Post at its facilities at Veterans Administration Medical Center,
Cincinnati, Ohio, and Veterans Administration Outpatient Clinic,
Columbus, Ohio, copies of the attached Notice on forms to be furnished
by the Federal Labor Relations Authority. Upon receipt of such forms
they shall be signed by the Director, Veterans Administration Medical
Center, Cincinnati, Ohio, or a designee, and shall be posted and
maintained for 60 consecutive days thereafter, in conspicuous places,
including all bulletin boards and other places where notices to
employees are customarily posted. Reasonable steps shall be taken to
ensure that such Notices are not altered, defaced, or covered by any
other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region V, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply with the Order.
Issued, Washington, D.C. September 30, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
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 refuse to grant official time pursuant to section 7131(a)
of the Federal Service Labor-Management Relations Statute to our
employees who are representatives of American Federation of Government
Employees Local 2031, AFL-CIO, in negotiations for local supplemental
agreements authorized by our master agreement.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL upon request of American Federation of Government Employees
Local 2031, AFL-CIO, grant official time pursuant to section 7131(a) of
the Statute to our employees who are representatives of the Union in
negotiations for local supplemental agreements authorized by our master
agreement.
WE WILL make whole unit employees who were denied official time to
represent the Union in negotiations for a local supplemental agreement
pursuant to our master agreement and who were entitled to official time
under the terms of section 7131(a) of the Statute.
(Activity)
Dated: . . . By: (Signature) (Title)
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 its provisions, they may communicate directly with the Regional
Director, Region V, Federal Labor Relations Authority, whose address is:
175 W. Jackson Blvd., Suite 1359-A, Chicago, IL 60604, and whose
telephone number is: (312) 353-6306.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case Nos. 5-CA-40056, 5-CA-40059
VETERANS ADMINISTRATION CENTRAL OFFICE,
WASHINGTON, D.C. AND VETERANS ADMINISTRATION MEDICAL
CENTER, CINCINNATI, OHIO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 2031, AFL-CIO
Charging Party
Russell C. Henry, Esquire
For the Respondent
John Gallagher, Esquire
Arlander Keys, Esquire
For the General Counsel Federal Labor Relations Authority
Before: JOHN H. FENTON
Chief Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5, U.S. Code, 5 U.S.C. Section
7101 et seq. It arose upon the filing of unfair labor practice charges
by Local 2031, AFGE, on November 17 and 18 and amended charges filed on
December 12, 1983. The Complaint and Notice of Hearing was issued by
the Regional Director of FLRA's Chicago Region in January 31, 1984. At
issue are whether Respondent unlawfully refused to grant official time
to agents of Local 2031 who participated in negotiations, and whether it
abandoned a past practice of granting such time without providing the
Union with notice and an opportunity to bargain concerning such change.
A hearing was held on April 9, 1984, in Cincinnati, Ohio. The
parties were afforded full opportunity to adduce evidence and to examine
and cross-examine witnesses. Upon the entire record I make the
following findings.
Findings of Fact
The Veterans Administration Medical Center in Cincinnati, Ohio (the
Medical Center) and the Veterans Administration Outpatient Clinic in
Columbus, Ohio (the Outpatient Clinic) are separate and distinct
facilities within the Veterans Administration. Each has its own
Director, budget and mission, and functions independently of the other.
They are about 100 miles apart. On February 28, 1980, the American
Federation of Government Employees, AFL-CIO, (AFGE) was certified as the
exclusive bargaining representative of a unit of nonprofessional
employees at various locations throughout the country, including the
Medical Center. On October 16, 1980, AFGE was certified as the
exclusive representative of nonprofessional personnel at the Outpatient
Clinic, and they became a part of the nationwide consolidated unit,
which includes about 115,000 employees at over 225 facilities.
On March 13, 1980, shortly after the consolidation occurred, AFGE's
Director of its Contract and Appeals Division wrote VA's Director of
Labor-Management Relations Service, informing him that the "National
Office is the level of the exclusive recognition and as such is the
appropriate party for the Agency to notify whenever any changes are
proposed anywhere in the unit at any level." He also designated the
officers of the National VA Council as AFGE's representatives for the
purpose of negotiating any changes in personnel policies, practices and
regulations. In a companion letter of the same day, he acknowledged the
inconvenience of negotiating all proposed changes at any level solely at
the new level of national recognition, and expressed AFGE's willingness
to discuss alternatives. /3/
On October 22, 1980, shortly after the Outpatient Clinic was added to
the consolidated unit, AFGE National Vice President Kenneth Walsh wrote
Personnel Officer James Doherty of the Outpatient Clinic, designating
President Lonnie Carter of Local 2031 and Vice President Robert Barker
of Local 2031 as representatives of the Outpatient Clinic employees in
Columbus. /4/ Both are employees of the Cincinnati Medical Center. On
February 12, 1982, Walsh again designated Carter as the representative
for Outpatient Clinic employees and named Barker and Secretary-Treasurer
Brenda Smith as alternate representatives.
On June 24, 1981, Carter, Barker and Smith negotiated, in Cincinnati,
with the Columbus Personnel Chief, regarding a merit promotion plan for
Columbus Outpatient Clinic employees. They were granted official time.
However, a memorandum of understanding signed that day by the Union
officials and the Personnel Chiefs for the Medical Center and the
Outpatient Clinic recites that the grant of official time would set no
precedent because the Columbus Chief came to Cincinnati, and that Local
2031 "reserves the right for official time" for meetings with Outpatient
Clinic management in Columbus. These negotiations continued, in
Columbus, on July 15, 16 and 17 and were broadened to include a safety
program and EEO policy. Official time was approved for this purpose by
Sidney Stell, Acting Labor Relations Officer of the Medical Center, for
President Carter and Secretary-Treasurer Smith.
There were no other negotiations between AFGE and Columbus Outpatient
Clinic management until August 31 and September 1, 1983. They were
initiated by Acting Personnel Officer Eleanor Farington and dealt with
revisions in policies concerning safety, the Employee Attitude
Committee, Employee Assistance and Official Time. Farington's letter to
Carter expressly stated that two Union negotiators would be afforded
official time by stating that there would be two negotiators present for
management, and that the two observers requested by the union would be
limited to five hours each for the ten hours scheduled for negotiations.
As was the custom because the two facilities are separate, Carter
applied for official time for such purpose to Labor Relations Officer
Francis J. Wyborski of the Medical Center. On August 30, Wyborski
denied Carter's request on the ground that the Outpatient Clinic is a
separate facility under its own management, that the Medical Center has
no employees at the Clinic, and that the "Master Agreement does not
provide for official time for employees to travel between facilities to
engage in union activities." /5/
Farington initiated further negotiations for November 1, 1983, and
Carter again sought official time for himself and Smith. On October 27,
Acting Labor Relations Officer Sidney Stell denied the request on the
ground that neither "the Master Agreement nor the Local Supplemental
Agreement authorizes official time for local union representatives to
participate in negotiations at another facility which is not under the
control of the VA Medical Center, Cincinnati, Director." On November 1,
Carter and Smith negotiated the Outpatient Clinic's absence and leave
policy. The Medical Center placed them on leave without pay for the
period of such absence.
The Master Agreement contains a number of provisions relevant to the
question whether Carter and Smith, as employees of the Cincinnati
Medical Center, are entitled to official time for their participation in
negotiations at the Columbus Outpatient Clinic. Thus, the "parties" to
the contract are defined in the Preamble as the Veterans Administration
(Agency) and the American Federation of Government Employees/National
Veterans Administration Council of Veterans Administration Locals
(Union). Article 2 defines Union as AFGE, as represented by the Council
at the National level or by a single local at the individual field
facility level, and defines Employer as VA Central Office at the
national level or local management at the individual field facility
level. In addition "individual facility" is defined in Article 2,
Section 3, as any establishment which is under the direction of local
management officials, so as to make it clear that the Medical Center and
the Outpatient Clinic are separate facilities. Article 4, entitled
Mid-term Bargaining, describes National Level Negotiations, Local
Bargaining on National Changes and Local Level Changes. It provides
that all VA-initiated changes above the individual facility level will
be forwarded to the designated Council Representative and that the
parties will negotiate national level changes in Washington, D.C. Four
Council representatives are to receive official time and per diem for
such negotiations and for preparing for them.
Section 4, entitled Local Bargaining on National Changes, states
that:
On all policies and directives or other changes for which the
VA meets its bargaining obligations at the national level, local
bargaining at individual facilities will be restricted to local
implementation unless there was agreement at the national level to
provide for local bargaining on the national subject. Local union
representatives shall receive official time for all time spent in
mid-term negotiations as provided under 5 U.S.C. Section 7131(a).
Section 5, entitled Local Level Changes, states that:
Proposed changes affecting personnel policies, practices or
conditions of employment which are initiated by local management
at a single facility will be forwarded to the designated local
union official. Upon request, the parties will negotiate as
appropriate. The Union representative shall receive official time
for all time spent in negotiations as provided under 5 U.S.C.
Section 7131(a).
Article 5 concerns Local Supplemental Agreements. It permits local
bargaining on subjects which are not covered by the Master Agreement, or
which will not bring about a conflict with that agreement's provisions
or impair its implementation. It provides for negotiation of one local
supplement to the controlling Master Agreement at the request of either
party and gives union negotiators limited amounts of official time for
such purposes
Article 8 provides specific amounts of official time for the National
VA Council President, the two Vice Presidents and the 15 District
Representatives for their representational activities. In Section 5 it
provides that:
Official time for local union officers and/or stewards will be
a proper subject for local supplemental bargaining.
Section 1 thereof, in Note 2, requires that Union officials obtain
prior clearance from the Personnel Officer before engaging in any
representational activity at a facility other than where they are
employed.
The Parties' Position
The General Counsel contends that the failure to place Local 2031
President Lonnie Carter and Secretary-Treasurer Smith on official time
for the negotiations on August 31, September 1 and November 1, at the
Outpatient Clinic constituted noncompliance with Section 7131(a) and
therefore violated Section 7116(a)(1) and (8). The General Counsel also
contends that the same conduct constituted a unilateral change in an
established practice of granting official time to employees of the
Cincinnati Outpatient Clinic management, in violation of Section
7116(a)(1) and (5).
With respect to the first alleged violation, the General Counsel
acknowledges that the right to official time set forth in Section
7131(a) does not encompass negotiations which occur below the level of
exclusive recognition and are designed to fashion local agreements
supplementing a national, controlling agreement. /6/ However, the
General Counsel argues that the instant negotiations were mid-term
negotiations "which took place at the level of recognition between
management representatives of the Outpatient Clinic and AFGE's duly
designated representatives." Thus, in essence, the General Counsel
contends that these negotiations were conducted pursuant to Article 4,
Section 5, which has to do with Mid-term Bargaining of Local Level
Changes. That Section directs local management to forward proposed
changes to the designated local union official and provides that the
"parties" will, upon request, negotiate as appropriate," with official
time entitlement flowing to the union representatives. As the term
"parties" is defined in the preamble as VA and AFGE/National VA Council
of VA Locals, the General Counsel asserts that the contract recognizes
that these negotiations were conducted by local management officials, as
agents of VA and local union officials as agents of AFGE/Council. Thus
their status as officers of Local 2031 is but a confusing irrelevancy,
and they are by law entitled to official time for negotiations which
took place at the national level of exclusive recognition. As best I
understand it, I take the General Counsel to be arguing that
negotiations pursuant to Article 4, Section 5, fit within the rubric of
negotiations at the level of exclusive recognition subject to official
time as described by the Authority in Interpretation and Guidance (7
FLRA 682):
However, it should be emphasized that the official time
provisions of Section 7131(a) do encompass negotiations at the
level of exclusive recognition including negotiation of "local
issues" as part of the national or controlling (master) agreement.
With respect to the second alleged violation, the General Counsel
contends that the granting of official time for the negotiations on June
24 and July 15, 16 and 17, 1981, ripened into a condition of employment,
i.e. it was a practice "consistently exercised for an extended period
with the knowledge and consent of responsible supervisors." It therefore
could not be changed, as it undeniably was, without first affording the
Union an opportunity to engage in bargaining. /7/
Respondent's major defense is that the language of the Master
Agreement, with its repeated references to "single facilities," to
"local issues" and to "local representatives" was meant to permit
bargaining below the level of recognition, only on issues confined to a
single facility, i.e. that local bargaining takes place between the
managers of a single facility and union representatives who are "local,"
i.e. who are employed at that facility. Pointing to its intention to
end the work disruptions, and the travel and per diem costs which then
attended movement of Union representatives from one facility to another
under the Authority's construction of the Statute, Respondent asserts
that the Master Agreement was designed to structure labor management
relations so that national issues would be handled by officers of the VA
Council and District Representatives, and local issues would be handled
by local officials who were employed at the single and separate facility
to be covered by the negotiations. It points to no evidence of
agreement on such a structure, except for the contract's language,
asserting that "pure and simple logic dictates" that permitting local
representatives to handle matters at more than one facility creates an
"intermediate level of activity . . . (which) . . . was not part of the
negotiated scheme and is contrary to the Master Agreement."
Notwithstanding this argument, Respondent in fact did not refuse (and
is not accused of refusing) to recognize Carter and Smith as the
designated Union representatives for the Columbus negotiations (although
it now argues they were not properly designated). Rather, it argues
that they were not entitled to official time for such negotiations (even
though Columbus management had indicated it would be available) because
the contract makes no provisions for bargaining away from the union
representative's facility. As an alternative much less vigorously
pursued, it contends that Section 7131(a) does not grant official time
for local bargaining, and that these negotiations, whether they arose
pursuant to Article 4, Section 5 or to Article 5, Section 2, were local
in nature and thus below the level of exclusive recognition necessary
for official time entitlement. In this respect it asserts that there is
no meaningful distinction between the two sections of the national
contract: each would yield a supplemental agreement resolving local
issues and each is therefore concerned with local bargaining. It
follows, says Respondent, that the issue of entitlement to official time
is governed by Section 7131(d), which consigns the matter to
negotiations, and thus converts this dispute to one of contract
interpretation for resolution by an arbitrator rather than FLRA.
On the issue of unilaterally ending a practice of granting official
time for such negotiations, Respondent again contends that the Master
Agreement eliminated any requirement to bargain concerning conditions of
employment at the Outpatient Clinic. Thus there can be no refusal to
bargain over a practice which the Union has bargained away, and the
question whether there was an established practice becomes irrelevant.
Discussion and Conclusions
The alleged violation of Section 7116(a)(1) and (8) is based on
Section 7131(a), which requires that "any employee representing an
exclusive representative in the negotiation of a collective bargaining
agreement . . . shall be authorized official time for such purposes . .
. during the time the employee otherwise would be in a duty status."
A literal reading of such language, standing alone, would strongly
suggest that local union negotiators, bargaining pursuant to the
agreement of the parties to collective bargaining at the national level
of exclusive recognition, would be "representing an exclusive
representative in the negotiation of a collective bargaining agreement"
and therefore "shall be authorized official time for such purposes . . .
. " The logistics of national bargaining and the presence of myriad
local problems which are most sensibly and economically resolved at the
local level by negotiators most familiar with them and their
ramifications in that segment of the unit, virtually dictate that
national agreements will provide for local negotiation of supplementary
agreements. As noted, nothing in Section 7131(a) suggests that Congress
intended that such a practical accommodation to the realities of
bargaining at many and disparate working locations would preclude
entitlement to official time. However, the Federal Labor Relations
Authority has construed such language, in the light of other provisions
of the Statute, as limiting entitlement to negotiating time spent at the
level of exclusive recognition.
In Interpretation and Guidance, 7 FLRA 682, the Authority was
confronted with the question whether Section 7131(a) applies to
negotiation of a local agreement which supplements a national or
controlling (master) agreement. Quoting from Section 7103(a)(12) of the
Statute, and underscoring its most significant language the Authority
said:
Thus entitlement to official time under Section 7131(a) of the
Statute flows to any employee representing an exclusive
representative in the negotiation of a "collective bargaining
agreement," which "is 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." Hence, unless what is being negotiated meets this
definition of "collective bargaining agreement," the official time
provisions of section 7131(a) do not apply.
Parties at the level of exclusive recognition, who are under
the mutual obligation to bargain with respect to conditions of
employment affecting employees in an appropriate unit, may agree
to authorize representatives below the level of recognition to
supplement provisions of the national controlling master
agreement. Thus, local supplemental agreements are negotiated
voluntarily pursuant to the agreement of the parties at the level
of exclusive recognition and not pursuant to a "mutual obligation"
to bargain.
Accordingly, the official time provisions of section 7131(a) .
. . do not encompass negotiations below the level of exclusive
recognition which are designed to create local agreements to
supplement a national or controlling (master) agreement. However,
it should be emphasized that the official time provisions . . . do
encompass negotiations at the level of exclusive recognition,
including negotiation of "local issues" as part of the national or
controlling (master) agreement.
Thus, the Authority has clearly said that the mutual obligation to
bargain exists here only at the national level, and that any arrangement
there made for the resolution of local issues through local bargaining
of supplemental agreements creates voluntary bargaining to which no
official time entitlement attaches. I take the emphasis placed on the
phrase "in the appropriate unit" to mean that bargaining can only be
deemed to occur at the national level if the agenda includes terms and
conditions of employment which affect the entire unit, i.e. it is
coextensive with the unit. I base this inference on the fact that
bargaining which concerns any segment of a unit obviously also arises in
a unit, and affects terms in the unit. The Authority must have meant
more -- that only the negotiations at the national table discharge the
mutual obligation to bargain and therefore carry the right to official
time. Put another way, the national negotiators cannot provide for
their agents at a lower level to bargain about problems more limited in
scope than the unit itself, for an agreement which would become a part
of, or an amendment to, the controlling agreement, and thereby delegate
downward the mutual obligation to bargain and the concomitant right to
official time for the employees representing the union.
I make this effort to deal with the semantic confusion engendered by
the terms employed because it is my conclusion that such arrangements
are precisely what this national agreement attempted to create. The
national agreement, in Article 5, explicitly provides for "negotiations
below the level of exclusive recognition which are designed to create
local agreements to supplement a national agreement." Were it clear that
the Columbus negotiations were intended to result in a "local
supplementary agreement," the inquiry would be over. Such negotiations
are quite literally covered by the Authority's above-quoted language,
and they clearly would not be encompassed by Section 7131(a).
It is not clear, however, that the Columbus bargaining was pursuant
to Article 5, as opposed to the "local" bargaining provisions of Article
4. That Article addresses mid-term bargaining, and by its terms would
appear to affect the national segment. In addition, it provides for
regular reopening whereas a local supplementary agreement can be
negotiated only once. It literally provides in Section 4 for "Local
Bargaining on National Changes" where there was agreement at the
national level for local bargaining on a national subject. It also
provides for official time "as provided under 5 U.S.C. Section 7131(a)."
In Section 5 it deals with "Local Level Changes," and provides that
proposed changes initiated by local management at a single facility are
to be forwarded to the designated local union official and that, upon
request, "the parties" will negotiate as appropriate. Recall that the
General Counsel hangs his hat on this last quote, contending that "the
parties," as defined in the controlling agreement, are the VA and the
AFGE/National VA Council, and that negotiators operating under Section 5
not only represent those parties (as would always be the case), but are,
by operation of law, "the parties" so as to elevate the negotiations
which in fact are conducted at the local facility by local officials to
the national level. Note further that Section 5 also provides for union
negotiators to receive official time "as provided under 5 U.S.C. Section
7131(a)," indicating that the parties believed (or desired) that Section
to apply.
If Sections 4 and 5 of Article 4 were designed to create local
supplemental agreements (and we do not know how such bargaining would be
memorialized) then they would duplicate Article 5. In order to avoid
redundancy, and to recognize that both Section 4 and Section 5 are in an
Article which describes the procedures for mid-term modification of the
controlling agreement, I conclude that they contemplate negotiations
which look to amendment of the controlling agreement. I assume that
Section 5 governs here if Article 5 does not, since those negotiations
were initiated by local management and were limited to terms and
conditions at a single facility. Because Article 5 permits local
bargaining only on matters not covered by the National Agreement, and
Article 4, Section 4 permits "local" bargaining only on "a national
subject" which the parties at the national level have agreed may be
negotiated at the local level, I conclude that Article 4, Section 5 must
have to do with the only subject left uncovered: matters governed by
the national agreement which management wishes to change at a single
location. If it is not designed to deal with such matters, I fail to
see its purpose. Perhaps, as the General Counsel's argument suggests,
the intent was that the local union representative was merely to receive
such proposals, and any bargaining was then to take place between the
national negotiators named by the controlling agreement. Perhaps, as
General Counsel actually argues, local negotiators were then to
substitute for their national level counterparts, so as to elevate what
appears to be local bargaining conducted at a single facility to the
national level of exclusive recognition.
My reading of Interpretation and Guidance, supra, requires a finding
that, even if the parties intended to raise bargaining of the kind
contemplated by Article 4, Section 5, to the national level, so as to be
encompassed by Section 7131(a), they are powerless to do so. I feel
constrained to come to this conclusion because of the analysis I have
already made of the literal meaning and the sense of the Authority's
decision. To recapitulate, the Authority held that Section 7131(a)
encompasses negotiations "at the level of exclusive recognition,
including negotiation of 'local issues' as part of the . . . controlling
agreement" (Emphasis mine). The converse is that local issues which are
not negotiated as part of the overall negotiations are excluded from
such coverage. Thus, national bargaining that does not resolve local
issues, but instead provides for their later resolution at some lower
level cannot operate to shift the level of recognition downward so as to
create "local negotiations" which are conducted "in an appropriate unit"
pursuant to the "mutual obligation to bargain." The Authority's holding
that negotiations for local supplemental contracts are "voluntary" in
nature must control the result here, unless a meaningful distinction can
be drawn between local bargaining which "supplements" a master agreement
and local bargaining which changes or "amends" a master agreement. In
the light of the Authority's guidance the difference appears to be more
semantic than real. In either instance local agents of the national
parties are permitted to flesh out or change the controlling agreement
as it applies to a particular locality. Such negotiations thus run
counter to, or offend, the very same notions of collective bargaining
that led the Authority to reject the contention that local supplemental
bargaining should be covered by official time. Thus, they in fact also
occur at a level below that of exclusive recognition and are concerned
with employment conditions affecting only a part of the appropriate
unit. They are functionally the same. By definition, the combination
of low level of discussion and narrow focus of impact renders such
negotiations "voluntary", and thus precludes the application of Section
7131(a) because such "discussions" do not discharge the mutual
obligation to bargain concerning terms affecting employees in an
appropriate unit.
It follows that the negotiations at the Columbus Outpatient Clinic
were not encompassed by Section 7131(a), as they were limited to that
facility and were conducted by local union officials. For the same
reasons the questions whether those officials were duly designated
representatives of AFGE/VA National Council, and whether they could in
any event represent employees at a facility where they do not work, are
rendered irrelevant. I therefore recommend that the allegations of
violations of Section 7116(a)(1) and (8) be dismissed. /8/
Finally, I find no merit to the allegation that Respondent has
unilaterally departed from a practice of granting official time to union
negotiators for local bargaining, in violation of Section 7116(a)(1) and
(5).
Official time for such purposes can, of course, become a condition of
employment. But that only occurs if a practice of doing so is
consistently exercised for an extended period with the knowledge and
consent of responsible supervisors. See Department of Defense,
Department of the Navy, Polaris Missile Facility, Atlantic, Charleston,
South Carolina, 6 FLRA 372. The practice here in question involved
high-ranking personnel and labor relations officials. It consisted of:
1. Negotiations on June 24, 1981, for which official time was
provided by the Personnel Chief, expressly on the ground that the
bargaining took place in Cincinnati and would not set a precedent
for future Columbus negotiations.
2. Negotiations on July 15, 16 and 17, 1981 for which official
time was provided by the Acting Labor Relations Director.
3. Negotiations on August 31, September 1 and November 1,
1983, for which official time was refused.
Thus, official time was, in fact, granted for two sets of
negotiations (involving four days) which occurred over the course of
some 26 months prior to the refusal. One day was nonprecedential, and
the other three were covered by a grant from an official, in an acting
capacity, who appears to have acted inconsistently with his absent
superior's written reservations in the earlier instance. At best, two
sets of negotiations can be viewed as having been covered by official
time. This is hardly a consistent exercise over an extended period.
Nor is the rather regular grant of official time for the other
representational purposes relevant. Respondent did so until the 1982
execution of the Master Agreement. It never drew the line, as it did on
one of the two occasions here, at such travel for representational
reasons. I would therefore not find a practice of providing official
time for Cincinnati-based representatives to handle grievances and like
matters in Columbus to constitute a binding practice respecting
negotiations. Accordingly, I also recommend that the Section 7116(a)(1)
and (5) allegation be dismissed.
In view of these findings and conclusions, it is recommended that the
Authority issue the following Order pursuant to 5 C.F.R. Section
2423.29:
ORDER
IT IS HEREBY ORDERED that the consolidated complaint in Case Nos.
5-CA-40056 and 5-CA-40059 be dismissed in its entirety.
/s/ JOHN H. FENTON
Chief Administrative Law Judge
Dated: December 6, 1984
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) In a case involving these same parties, the Authority dismissed
section 7116(a)(1) and (8) allegations when V.A. Cincinnati denied
official time, travel expenses and per diem allowances to three of its
employees who represented the Union in negotiating a dues withholding
agreement covering employees at the Outpatient Clinic in Columbus. The
Authority reached this conclusion because the parties at the level of
exclusive recognition had not agreed to authorize the local negotiations
for a dues withholding agreement. Veterans Administration, Cincinnati,
Ohio, 19 FLRA No. 19 (1985). The Authority referred to American
Federation of Government Employees v. FLRA, 750 F.2d 143 (D.C. Cir.
1984), where the court held that a mutual obligation to bargain exists
at the local level once the parties agree in the master agreement to
such local negotiations, thus triggering the provisions of section
7131(a).
(2) This conclusion does not conflict with the Authority's decision
in U.S. Naval Space Surveillance Systems, Dahlgren, Virginia, 12 FLRA
731 (1983), aff'd sub nom. American Federation of Government Employees,
Local 2096 v. FLRA, 738 F.2d 633 (4th Cir. 1984). There it was held
that an activity has no obligation under section 7131(a) to grant
official time or under section 7131(d) to negotiate concerning the
authorization of official time for any of its employees to represent the
union in collective bargaining on behalf of employees of a separate and
independent activity. Similarly, in United States Department of
Defense, Department of the Air Force, San Antonio Air Logistics Center,
Kelly Air Force Base, Texas, 15 FLRA 998 (1984), it was determined that
an activity has no obligation under section 7131(a) to grant official
time to an employee who is not a member of the bargaining unit involved
in the negotiations. See also United States Air Force, 2750th Air Base
Wing Headquarters, Air Force Logistics Command, Wright-Patterson Air
Force Base, Ohio, 7 FLRA 738 (1982).
(3) I reserved ruling on the admissibility of these two documents.
They are hereby admitted as Respondents Exhibits 1 and 2.
(4) Walsh said that, "(i)n the very near future, Local 2031 will be
nominating and electing stewards to represent employees in Columbus,
Ohio, on day to day problems."
(5) The Master Agreement relied upon by management in denying
official time became effective on August 13, 1982, one year after the
negotiations for which official time was authorized and a year before
the negotiations for which it was denied.
(6) Interpretation and Guidance, 7 FLRA 682.
(7) Again, I take it that this is an alternative theory of violation
which would apply only in the event that Section 7131(a) is found
inapplicable to these negotiations. If the union representatives were
entitled to official time as a statutory grant, then it is difficult to
understand what bargaining obligation Respondent would have to
discharge. There would, of course, be a clear unilateral change, i.e. a
change without any notice or discussion, but there could be no
obligation to bargain in good faith about the Respondent's willingness
to comply with Congress' mandate.
(8) None of this addresses the question whether Respondent breached a
clear contractual commitment to make "local bargaining on national
subjects" subject to official time. The General Counsel did not allege
an unfair labor practice founded in breach of contract, rather he
alleged a statutory violation based on a contract provision which
allegedly elevated the instant bargaining to the level of exclusive
recognition.