09:0193(30)CA - Naval Space Surveillance Systems, Dahlgren, Virginia and AFGE Local 2096; Naval Surface Weapons Center, Dahlgren, Virginia and AFGE Local 2096 -- 1982 FLRAdec CA (Authority decision, June 23, 1982)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority resolving an unfair labor practice complaint under 5 U.S.C. § 7116. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

Two Dahlgren naval activities faced complaints over official time for a union negotiator. The Authority dismissed the complaint against the Naval Space Surveillance Systems activity and found a violation by the Naval Surface Weapons Center in refusing to bargain over official time. It ordered the Weapons Center to bargain and post a notice.

Decision snapshot

• Authority: 5 U.S.C. § 7131.
• Outcome: One complaint dismissed; Weapons Center violation found.
• Key point: Official time obligations differed for the two activities on the stipulated facts.

Full text (FLRA public release)

[ v09 p193 ]

09:0193(30)CA

The decision of the Authority follows:

9 FLRA No. 30

U.S. NAVAL SPACE SURVEILLANCE
SYSTEMS, DAHLGREN, VIRGINIA
RespondenT

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2096
Charging Party

Case No. 3-CA-1603

U.S. NAVAL SURFACE WEAPONS CENTER,
DAHLGREN, VIRGINIA
Respondent

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2096
Charging Party

Case No. 3-CA-1778

DECISION AND ORDER

THESE CASES ARE BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
DIRECTOR'S "ORDER TRANSFERRING CASE TO THE AUTHORITY" IN ACCORDANCE WITH
SECTION 2429.1(A) OF THE AUTHORITY'S RULES AND REGULATIONS.

UPON CONSIDERING OF THE ENTIRE RECORD IN THESE CASES, INCLUDING THE
PARTIES' STIPULATION OF FACTS, THE AUTHORITY FINDS:

THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2096
(THE UNION) IS THE EXCLUSIVE REPRESENTATIVE OF THREE BARGAINING UNITS OF
EMPLOYEES OF THE U.S. NAVAL SURFACE WEAPONS CENTER, DAHLGREN, VIRGINIA
(WEAPONS CENTER), AND IS ALSO THE EXCLUSIVE REPRESENTATIVE OF A
BARGAINING UNIT OF EMPLOYEES AT THE U.S. NAVAL SPACE SURVEILLANCE
SYSTEMS, DAHLGREN, VIRGINIA (USNSSS). /1/

EZRA GREEN, THE UNION'S EXECUTIVE VICE-PRESIDENT AND AN EMPLOYEE OF
THE WEAPONS CENTER, WAS DESIGNATED BY THE UNION TO REPRESENT IT IN
NEGOTIATIONS WITH USNSSS. ON OR ABOUT OCTOBER 1, 1980, THE UNION,
THROUGH GREEN, DELIVERED ITS GROUND RULES PROPOSALS TO USNSSS THROUGH
THE LABOR AND EMPLOYEE RELATIONS DIVISION AT THE WEAPONS CENTER. A
MEETING WAS HELD ON OR ABOUT OCTOBER 14, 1980 BETWEEN USNSSS AND THE
UNION FOR THE PURPOSE OF NEGOTIATING GROUND RULES FOR CONTRACT
NEGOTIATIONS FOR THE UNIT AT USNSSS. REPRESENTING USNSSS WAS ITS CHIEF
NEGOTIATOR, EDWARD N. RESIO. (RESIO ALSO IS HEAD OF THE WEAPONS
CENTER'S LABOR AND EMPLOYEE RELATIONS DEPARTMENT AND ITS MANAGEMENT
SPOKESMAN.) RESIO SUBMITTED USNSSS' GROUND RULES PROPOSALS TO THE UNION
AT THE MEETING, AND THE PARTIES DISCUSSED THEIR RESPECTIVE PROPOSALS
DEALING WITH AUTHORIZED OFFICIAL TIME FOR UNION NEGOTIATORS. DURING THE
MEETING, THE UNION REVISED ITS PROPOSAL TO READ AS FOLLOWS:

(A) THE NEGOTIATING TEAM FOR EACH PARTY SHALL CONSIST OF NO MORE THAN
FIVE (5) MEMBERS AND

TWO (2) ALTERNATES. ALL UNION NEGOTIATORS WHO ARE EMPLOYED IN THE
AGENCY SHALL BE AUTHORIZED

OFFICIAL TIME FOR NEGOTIATIONS AND MEDIATION AND IMPASSE PROCEDURES
(EMPHASIS ADDED.)

RESIO STATED THAT NAVY DEPARTMENT POLICY PROHIBITED THE GRANTING OF
OFFICIAL TIME TO A UNION NEGOTIATOR TO NEGOTIATE A COLLECTIVE BARGAINING
AGREEMENT OUTSIDE HIS OWN UNIT. THE UNION REJECTED THAT POSITION.

ON OR ABOUT OCTOBER 17, 1980, RESIO INFORMED GREEN THAT USNSSS
REFUSED TO NEGOTIATE ABOUT THE UNION'S REVISED PROPOSALS. SINCE ON OR
ABOUT OCTOBER 14, 1980, GREEN HAS BEEN DENIED OFFICIAL TIME TO NEGOTIATE
THE COLLECTIVE BARGAINING AGREEMENT WITH USNSSS ON THE GROUNDS THAT
GREEN IS NOT WITHIN THE UNIT FOR WHICH THE CONTRACT IS BEING NEGOTIATED.
THE COMPLAINT IN CASE NO. 3-CA-1778 /2/ ALLEGED THAT THE WEAPONS CENTER
VIOLATED SECTION 7116(A)(1), (5) AND (8) OF THE STATUTE /3/ BY REFUSING
TO GRANT OFFICIAL TIME TO GREEN, THEREBY FAILING AND REFUSING TO
NEGOTIATE IN GOOD FAITH WITH THE UNION.

THE RESPONDENT WEAPONS CENTER CONTENDS THAT SECTION 7131(A) OF THE
STATUTE /4/ DOES NOT REQUIRE IT TO AUTHORIZE OFFICIAL TIME FOR ITS
EMPLOYEES TO NEGOTIATE A COLLECTIVE BARGAINING AGREEMENT WITH ANOTHER
EMPLOYER (USNSSS), WHILE THE GENERAL COUNSEL ASSERTS THAT SECTION
7131(A) REQUIRES THE WEAPONS CENTER TO AUTHORIZE OFFICIAL TIME FOR THAT
PURPOSE.

THE AUTHORITY HAS HELD THAT THE OFFICIAL TIME ENTITLEMENT UNDER
SECTION 7131(A) ACCRUES ONLY TO AN EMPLOYEE WHO IS WITHIN THE BARGAINING
UNIT INVOLVED IN THE NEGOTIATIONS. UNITED STATES AIR FORCE, 2750TH AIR
BASE WING HEADQUARTERS, AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON
AFB, OHIO, 7 FLRA NO. 118(1982); U.S. DEPARTMENT OF THE ARMY, 94TH U.S.
ARMY RESERVE COMMAND, HANSCOM AIR FORCE BASE, MASSACHUSETTS, 8 FLRA NO.
13(1982). THEREFORE, IN THE FOREGOING REGARD, THE AUTHORITY FINDS THAT
THE RESPONDENT WEAPONS CENTER HAS NOT VIOLATED THE STATUTE. HOWEVER,
THE AUTHORITY FURTHER FINDS THAT THE RESPONDENT WEAPONS CENTER VIOLATED
THE STATUTE WHEN ITS AGENT, RESIO, /5/ REFUSED TO BARGAIN IN GOOD FAITH
WITH THE UNION UNDER SECTION 7131(D) OF THE STATUTE /6/ OVER A PROPOSAL
WHICH WOULD GRANT SUCH OFFICIAL TIME TO UNION REPRESENTATIVE GREEN. SEE
DEPARTMENT OF DEFENSE, DEPARTMENT OF THE NAVY, POLARIS MISSILE FACILITY
ATLANTIC, CHARLESTON, SOUTH CAROLINA, 6 FLRA NO. 67(1981). SEE ALSO
INTERPRETATION AND GUIDANCE, 7 FLRA NO. 105(1982).

ORDER

PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, IT IS
HEREBY ORDERED THAT THE U.S. NAVAL SURFACE WEAPONS CENTER, DAHLGREN,
VIRGINIA, SHALL:

1. CEASE AND DESIST FROM:

(A) FAILING AND REFUSING TO NEGOTIATE IN GOOD FAITH WITH THE AMERICAN
FEDERATION OF

GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2096,.THE EXCLUSIVE
REPRESENTATIVE OF ITS EMPLOYEES, OVER

THE GRANTING OF OFFICIAL TIME FOR EZRA GREEN OR ANY OTHER EMPLOYEE
SERVING AS A REPRESENTATIVE

OF SUCH EXCLUSIVE REPRESENTATIVE IN COLLECTIVE BARGAINING
NEGOTIATIONS INVOLVING A BARGAINING

UNIT OTHER THAN THE ONE IN WHICH THE EMPLOYEE IS INCLUDED.

(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN

THE EXERCISE OF THEIR RIGHTS ASSURED BY THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS

STATUTE.

2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
   PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
   STATUTE:

(A) UPON REQUEST, MEET AND NEGOTIATE IN GOOD FAITH WITH THE AMERICAN
FEDERATION OF

GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2096, THE EXCLUSIVE
REPRESENTATIVE OF ITS EMPLOYEES, OVER

THE GRANTING OF OFFICIAL TIME FOR EZRA GREEN OR ANY OTHER EMPLOYEE
SERVING AS A REPRESENTATIVE

OF SUCH EXCLUSIVE REPRESENTATIVE IN COLLECTIVE BARGAINING
NEGOTIATIONS INVOLVING A BARGAINING

UNIT OTHER THAN THE ONE IN WHICH THE EMPLOYEE IS INCLUDED.

(B) POST AT ITS FACILITIES AT THE U.S. NAVAL SURFACE WEAPONS CENTER,
DAHLGREN, VIRGINIA,

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
COMMANDER OF THE

U.S. NAVAL SURFACE WEAPONS CENTER, DAHLGREN, VIRGINIA, AND SHALL BE
POSTED AND MAINTAINED BY

HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES,
INCLUDING ALL BULLETIN BOARDS

AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.
THE COMMANDER SHALL TAKE

REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY ANY OTHER

MATERIAL.

(C) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE

REGIONAL DIRECTOR, REGION III, 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.

IT IS FURTHER ORDERED THAT THE COMPLAINT IN CASE NO. 3-CA-1603 BE,
AND IT HEREBY IS, DISMISSED.

ISSUED, WASHINGTON, D.C., JUNE 23, 1982

RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, 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 FAIL OR REFUSE TO NEGOTIATE IN GOOD FAITH WITH THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2096, THE
EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, OVER THE GRANTING OF OFFICIAL
TIME FOR EZRA GREEN OR ANY OTHER EMPLOYEE SERVING AS A REPRESENTATIVE OF
SUCH EXCLUSIVE REPRESENTATIVE IN COLLECTIVE BARGAINING NEGOTIATIONS
INVOLVING A BARGAINING UNIT OTHER THAN THE ONE IN WHICH THE EMPLOYEE IS
INCLUDED.

WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.

WE WILL, UPON REQUEST, MEET AND NEGOTIATE IN GOOD FAITH WITH THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2096, THE
EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, OVER THE GRANTING OF OFFICIAL
TIME FOR EZRA GREEN OR ANY OTHER EMPLOYEE SERVING AS A REPRESENTATIVE OF
SUCH EXCLUSIVE REPRESENTATIVE IN COLLECTIVE BARGAINING NEGOTIATIONS
INVOLVING A BARGAINING UNIT OTHER THAN THE ONE IN WHICH THE EMPLOYEE IS
INCLUDED.

(AGENCY OR ACTIVITY)

DATED: BY: (SIGNATURE)

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, REGION III, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: 1111 18TH STREET, NW., WASHINGTON, D.C. 20036 AND WHOSE
TELEPHONE NUMBER IS: (202) 653-8452.

--------------- FOOTNOTES$ ---------------

/1/ USNSSS AND THE WEAPONS CENTER ARE SEPARATE ACTIVITIES WITHIN THE
DEPARTMENT OF THE NAVY WHICH REPORT THROUGH SEPARATE CHAINS OF COMMAND
TO THE CHIEF OF NAVAL OPERATIONS. BOTH ACTIVITIES ARE SUBORDINATE
ELEMENTS OF THE DEPARTMENT OF NAVY. USNSSS IS A TENANT ACTIVITY OF, AND
RECEIVES PERSONNEL AND OTHER SUPPORT SERVICES FROM, THE WEAPONS CENTER
AS SET FORTH IN A SUPPORT AGREEMENT.

/2/ IDENTICAL COMPLAINTS WERE ISSUED AGAINST USNSSS AND THE WEAPONS
CENTER. AS USNSSS IS NOT THE EMPLOYER OF EZRA GREEN, THE EMPLOYEE FOR
WHOM OFFICIAL TIME IS SOUGHT, IT CANNOT BE REQUIRED TO GRANT OFFICIAL
TIME TO HIM UNDER THE STATUTE OR THROUGH NEGOTIATIONS. THEREFORE, THE
COMPLAINT AGAINST USNSSS IN CASE NO. 3-CA-1603 MUST BE DISMISSED.

/3/ 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/ 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.

/5/ AS NOTED ABOVE, RESIO IS NOT ONLY THE CHIEF NEGOTIATOR FOR USNSSS
BUT THE MANAGEMENT SPOKESMAN FOR THE WEAPONS CENTER. THUS, WHEN HE
REFUSED TO BARGAIN WITH THE UNION OVER THE GROUND RULE PROPOSAL GRANTING
SUCH OFFICIAL TIME, CITING NAVY POLICY, HE WAS STATING THE POSITION OF
BOTH RESPONDENTS.

/6/ SECTION 7131(D) PROVIDES:

(D) EXCEPT AS PROVIDED IN THE PRECEDING SUBSECTIONS OF THIS SECTION--

(1) ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE, OR

(2) IN CONNECTION WITH ANY OTHER MATTER COVERED BY THIS CHAPTER, ANY
EMPLOYEE IN AN

APPROPRIATE UNIT REPRESENTED BY 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.