[ v17 p557 ]
17:0557(84)NG
The decision of the Authority follows:
17 FLRA No. 84
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1698
Union
and
DEPARTMENT OF THE NAVY,
AVIATION SUPPLY OFFICE,
CONSOLIDATED CIVILIAN PERSONNEL DIVISION
Agency
Case No. 0-NG-693
DECISION AND ORDER ON NEGOTIABILITY ISSUE
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute), and presents an issue
concerning the negotiability of the following Union proposal.
Union Proposal
ARTICLE IX
OFFICIAL TIME
Section 6.b: The grant of official time to Union Officers,
other than the President of AFGE, Local 1698, and Stewards shall
be limited to representational efforts on behalf of employees
within the bargaining unit described in Article I, Section 2 of
this agreement. With the exception of the AFGE, Local 1698
President, no official time will be granted to permit any
representation, labor management relations, or collective
bargaining efforts undertaken on behalf of any other bargaining
unit or bargaining unit employees. Official time shall not be
granted to permit attention to any internal Union business.
Section 6.c: The grant of official time set forth in Section
6.a. above shall also apply to the AFGE, Local 1698 President with
respect to labor management and representation activities at other
Activities on the ASO Compound for which AFGE Local 1698 is the
exclusive bargaining representative.
Upon careful consideration of the entire record, including the
parties' contentions, the Authority makes the following determination.
The record indicates that the Union herein is the exclusive
representative of four separate bargaining units located on the
Philadelphia Aviation Supply Office (ASO) compound. In addition to the
ASO, the other bargaining units are: the Naval Publications and Forms
Center, the Navy International Logistics Control Office and the Naval
Air Technical Services Facility. The Union's president is employed in
the ASO bargaining unit. The proposal seeks to authorize official time
for the Union president to conduct collective bargaining and
representational functions within the ASO bargaining unit and also in
the three other bargaining units represented by the Union on the
compound.
The Union asserts that bargaining on its proposal is authorized under
section 7131(a) of the Statute /1/ because that section "also entitles
the exclusive representative of the bargaining unit to official time for
negotiations, whether or not that 'employee' is a 'unit employee'." /2/
A position similar to the Union's herein was put forward by the General
Counsel in United States Air Force, 2750th Air Base Wing Headquarters,
Air Force Logistics Command, Wright-Patterson AFB, Ohio and
Wright-Patterson AFB Fire Fighters Local F-88, International Association
of Fire Fighters, AFL-CIO, 7 FLRA 738 (1982). The Authority found,
however, that no obligation to bargain pursuant to section 7131(a) of
the Statute arises when a proposal seeks official time for persons
outside the bargaining unit for which a new collective bargaining
agreement is to be negotiated. Hence, based on 2750th Air Base Wing
Headquarters and the reasons stated therein, the disputed proposal
herein is not within the duty to bargain under section 7131(a) of the
Statute. See also National Weather Service Employees Organization and
National Oceanic and Atmospheric Administration, 15 FLRA No. 8 (1984).
The Union also contends that its proposal is negotiable because, in
its view, section 7131(d)(1) of the Statute /3/ "was intended to
authorize negotiations over official time for the employee designated by
the union as its official representative, whether or not he or she was a
'unit employee'." /4/ However, in Department of the Navy, Naval
Construction Battalion Center, Port Hueneme, California and National
Association of Government Employees, Local R12-29, 14 FLRA No. 60
(1984), the Authority determined that no bargaining obligation arose
pursuant to section 7131(d) of the Statute in circumstances identical to
those herein. Hence, based on Port Hueneme, and the reasons and cases
cited therein, section 7131(d) does not authorize bargaining on the
disputed proposal. /5/
Finally, the Union contends that section 7135(a)(1) /6/ of the
Statute permits the "grandfathering" of the prior contractual official
time agreement, authorizing official time for Union officials to conduct
negotiations on behalf of other bargaining units, into any new
collective bargaining agreement, or at least obligates management to
negotiate over its continuance. Assuming, without deciding that such a
provision was lawful prior to the effective date of the Statute, section
7135(a)(1), nevertheless, does not obligate the Agency either to
negotiate over, or continue the prior provision in any new agreement.
The operative effect of section 7135(a)(1) was examined by the Authority
in Interpretation and Guidance, 2 FLRA 265, 271 (1979). The Authority
concluded that the section permitted the parties to mutually agree to
renew or to continue lawful provisions negotiated prior to the effective
date of the Statute, even if in conflict with Statutory requirements.
However, an objection by either party to the continuance or renewal of
such provisions prevents the continuance or renewal of the provisions
pursuant to section 7135(a)(1). Turning to the instant dispute, the
proposal, as set forth above, has been found to conflict with section
7131(a) and (d)(1) of the Statute and the ASO has refused to bargain on
it. Consequently, the proposal is outside the ASO's duty to bargain,
even in circumstances where agreement on the same or similar proposal
had been reached prior to the Statute's effective date.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the petition for review be, and it
hereby is, dismissed. Issued, Washington, D.C., April 17, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Section 7131(a) provides:
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. 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.
/2/ Union Reply Brief at 4-5.
/3/ Section 7131(d)(1) provides, in pertinent part:
(d) Except as provided in the preceding subsections of this
section--
(1) any employee representing an exclusive representative,
. . . .
shall be granted official time in any amount the agency and the
exclusive representative involved agree to be reasonable,
necessary, and in the public interest.
/4/ Union Reply Brief at 4.
/5/ American Federation of Government Employees, AFL-CIO and U.S.
Environmental Protection Agency, 15 FLRA No. 96 (1984) (Union Proposal
2) contains a discussion of the meaning and purpose of section 7131(d)
of the Statute.
/6/ Section 7135(a)(1) provides:
Sec. 7135. Continuation of existing laws, recognitions,
agreements, and procedures
(a) Nothing contained in this chapter shall preclude--
(1) the renewal or continuation of an exclusive recognition,
certification of an exclusive representative, or a lawful
agreement between an agency and an exclusive representative of its
employees, which is entered into before the effective date of this
chapter.