Department of the Navy, Naval Weapons Station, Yorktown, Virginia and Department of the Navy, Atlantic Ordnance Command, Yorktown, Virginia and National Association of Government Employees, Local R4-1 (Authority decision, November 30, 1999)

Read the official release (flra.gov)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in an unfair-labor-practice proceeding. 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 Yorktown Navy activities denied official time to union negotiators after a reorganization placed each negotiator in a different activity from the employees she would represent. Competing representation petitions remained pending, so the previously certified single bargaining unit continued to govern. The Authority reversed the judge and found that both denials violated the statutory official-time requirement. A negotiator in the same bargaining unit cannot be denied official time merely because she works at another location or entity within the agency. The Authority ordered the activities to maintain existing representation and bargaining obligations, authorize official time on request, and post notices for 60 days. It also ordered restoration of three hours of annual leave used by the union executive vice president.

Decision snapshot

• Authority: 5 U.S.C. §§ 7131(a) and 7116(a)(1), (8); 5 C.F.R. § 2422.34.
• Outcome: Dismissal reversed; official time, three hours of restored leave, and 60-day notices ordered.
• Key point: Pending unit proceedings preserve obligations to the existing certified unit.

Full text (FLRA public release)

[ v55 p1112 ]

55 FLRA No. 181

DEPARTMENT OF THE NAVY

NAVAL WEAPONS STATION

YORKTOWN, VIRGINIA

and

DEPARTMENT OF THE NAVY

ATLANTIC ORDNANCE COMMAND

YORKTOWN, VIRGINIA

(Respondents)

and

NATIONAL ASSOCIATION OF GOVERNMENT

EMPLOYEES, LOCAL R4-1

(Charging Party)

WA-CA-80545

WA-CA-80560

_____

DECISION AND ORDER

November 30, 1999

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

I. Statement of the Case

This consolidated unfair labor practice (ULP) case is before the Authority on exceptions filed by the General Counsel and the Charging Party to the decision of the Administrative Law Judge (Judge). The Respondents filed an opposition.

The complaint alleges that the Respondents failed to comply with section 7131(a) of the Federal Service Labor-Management Relations Statute (the Statute) when they refused to grant official time to two Union representatives, thereby violating section 7116(a)(1) and (8) of the Statute. The Judge found that the General Counsel failed to establish a ULP.

Upon consideration of the Judge's decision and the entire record, we find that the Respondents' refusals to authorize official time for the two Union representatives violated section 7116(a)(1) and (8) of the Statute. We adopt the Judge's findings and conclusions only to the extent consistent with this decision. [ v55 p1113 ]

II. Background and Judge's Decision

Pursuant to a reorganization, the Naval Weapons Station, Yorktown, Virginia (WSY), whose employees were represented by the Charging Party, was divided into three entities: (1) WSY; (2) the Atlantic Ordnance Command, Yorktown, Virginia (AOC); and (3) the Commander, Naval Base Norfolk, Virginia. [n1] Subsequently, the Union and the Respondents filed representation petitions. The Respondents requested the establishment of two separate units: AOC employees and WSY employees. The Union contended that the existing single unit remained appropriate despite the reorganization.

While the representation petitions were pending, the Union was notified that the Respondents intended to make changes affecting the conditions of employment of unit employees. The Union designated two officials to negotiate. The official who was designated by the Union to bargain on behalf of WSY employees (the Union Executive VP) worked for AOC. The official who was designated to bargain on behalf of AOC employees (the Union President) worked for WSY. The Respondents denied the Union's requests for official time for those two officials.

The General Counsel filed a consolidated complaint, alleging that the Respondents "failed or refused to comply" with section 7131(a) of the Statute, and thereby violated section 7116(a)(1) and (8) of the Statute, by denying the requests for official time. Decision at 2.

The Judge found that section 2422.34(a) [n2] of the Authority's Regulations requires an activity to fulfill all of its bargaining responsibilities under the Statute -- including granting official time to employees representing their bargaining units -- while a representation proceeding is pending. The Judge also found that none of the exceptions set forth in section 2422.34(b) applied.

The Judge held, nevertheless, that section 7131(a) of the Statute does not require an activity to either grant official time, or negotiate concerning the authorization of official time, for employees who would use that time to represent the union on behalf of employees of a "separate and independent activity." Decision at 7, citing Veterans Administration Central Office, Washington, D.C. and Veterans Administration Medical Center, Cincinnati, Ohio, 23 FLRA 512 (1986) (VAMC, Cincinnati). The Judge found that WSY and AOC are "at least as close" as the two organizations that the Authority found to constitute separate activities in U.S. Naval Space Surveillance Systems, Dahlgren, Virginia and U.S. Naval Surface Weapons Center, Dahlgren, Virginia, 12 FLRA 731, 733-34 (1983) (Dahlgren), aff'd sub nom. American Federation of Government Employees, Local 2096 v. FLRA, 738 F.2d 633 (4th Cir. 1984). Decision at 8. The Judge determined that "[a]t the time official time was requested for them," both the Union Executive VP and the Union President were "employed by an 'activity' other than the one in which the employees on whose behalf [they were] designated were employed." Decision at 6. The Judge found that, as a result, the two Union officials were not entitled to official time to bargain on behalf of the employees of those respective activities and that the Respondents did not violate section 7131(a) of the Statute by denying the two requests for official time.

III. Positions of the Parties

A. General Counsel's Exceptions

Citing Morale, Welfare and Recreation Directorate, Marine Corps Air Station, Cherry Point, North Carolina, 48 FLRA 686 (1993) (Cherry Point), and section 2422.34(a) of the Authority's Regulations, the General Counsel maintains that the Judge erred by finding that the Respondents did not violate section 7131(a) of the Statute. The General Counsel argues that, while the representation petitions were pending, the Respondents were required to continue to recognize the Union's status as the exclusive representative of the employees in the previously certified unit. Therefore, according to the General Counsel, the Respondents were required to grant the two Union officials' requests for official time. [ v55 p1114 ]

The General Counsel argues that the Judge's reliance on Dahlgren and VAMC, Cincinnati is misplaced. In this regard, the General Counsel asserts that Dahlgren involved a denial of official time for an employee who wished to represent the Union on behalf of employees in a bargaining unit different from that employee's unit. The General Counsel contends that the issue involved in VAMC, Cincinnati was whether a unit employee in a consolidated, nationwide unit is entitled to official time to represent the union in local supplemental contract negotiations, when that employee is not stationed at the local site where such negotiations take place.

The General Counsel requests that the Authority issue a cease and desist order and require the Respondents to post a notice to all employees. Noting that AOC's denial of official time required the Union Executive VP to use three hours of annual leave to negotiate on the Union's behalf, the General Counsel also requests that the AOC should be required to increase her annual leave balance by three hours.

B. Charging Party's Exceptions

The Charging Party argues, for the same reasons set forth in the General Counsel's exceptions, that the Judge erred by declining to find a violation of the Statute. The Charging Party requests the same remedies as those requested by the General Counsel.

C. Respondents' Opposition

The Respondents maintain that the General Counsel and the Charging Party are requesting the Authority to use section 2422.34(a) of the Regulations to "carve out" an exception to section 7131(a) of the Statute. Opposition at 3. According to the Respondents, their denials of official time to the two employees were grounded in the Statute, as interpreted by the Authority and Federal courts. The Respondents assert, without elaboration, that granting the exceptions of the General Counsel and the Charging Party "would be tantamount to again adopting the 'status quo' concept once followed by the Authority." Id. (citing Immigration and Naturalization Service, 16 FLRA 80, 87 (1984) (INS)).

IV. Analysis and Conclusions

Pursuant to section 2422.34(a) of the Authority's Regulations, an agency is required to continue to recognize the existing exclusive representative, and to fulfill its obligations to that exclusive representative, until the issues raised by a representation petition are resolved. See Cherry Point, 48 FLRA at 687-88. Representational responsibilities under the Statute include granting official time to representatives of the certified bargaining unit. See U.S. Department of the Air Force, HQ Air Force Materiel Command and American Federation of Government Employees, Council 214, 49 FLRA 1111, 1119 (1994). Thus, the bargaining unit certified prior to the reorganization and the parties' filing of representation petitions continues to be the official, recognized unit, and the Respondents were obligated to grant official time to the two employees, unless there is a basis to deny it under section 7131(a). [n3]

A refusal to grant official time to which an employee is entitled under section 7131(a) of the Statute violates section 7116(a)(1) and (8). See VAMC, Cincinnati, 23 FLRA at 515-16. Although a number of requirements must be met before an employee may be entitled to official time, the only requirement relevant here is that the employee must be a member of the same bargaining unit as the employees on whose behalf he or she is bargaining. See United States Air Force, 2750th Air Base Wing Headquarters, Air Force Logistics Command, Wright-Patterson AFB, Ohio, 7 FLRA 738, 741-42 (1982). See also United States Department of Defense, Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas, 15 FLRA 998, 999-1000 (1984); Department of the Air Force, Air Force Logistics Command, Ogden Logistics Center, Hill AFB, Utah, 10 FLRA 245 (1982), aff'd sub nom. American Federation of Government Employees, AFL-CIO, Local 1592 v. FLRA, 744 F.2d 73 (10th Cir. 1984). There is no dispute that the two Union representatives whose requests for official time were denied were in the same unit as the employees they sought to represent, prior to the reorganization and subsequent representation petitions.

The Judge held that it was proper for the Respondents to deny the two requests for official time because an agency is not required to grant official time to an employee who works for a "separate and independent activity[,]" without regard to whether the employee is a member of the same bargaining unit as the employees [ v55 p1115 ] he or she seeks to represent. Decision at 7. The Judge based this holding on VAMC, Cincinnati and Dahlgren. For the reasons that follow, we find that these Authority decisions do not support the Judge's conclusion.

In VAMC, Cincinnati, the Authority held that the agency violated the Statute by refusing to grant official time for a unit employee to bargain on behalf of other unit employees stationed at a different location. 23 FLRA at 514-16. The Authority held that:

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" . . . so long as such employee is in the bargaining unit involved.

Id. at 513-15 (emphasis added). In so holding, the Authority stated, in a footnote, that its decision was consistent with Dahlgren, because Dahlgren involved official time for "employees to represent the union in collective bargaining on behalf of employees of a separate and independent activity." Id. at 515 n.2.

In Dahlgren, the Authority held that the agency did not violate section 7131(d) of the Statute when it refused to bargain over a proposal that it provide official time for an employee to represent the union in negotiations involving "employees of another employer." 12 FLRA at 732. In holding that the agency did not violate the Statute, the Authority noted both that the agency was "a completely separate activity" from the negotiating employer, id. at 733, and that its employees were in "a different collective bargaining unit" from those of the other employer. Id. at 734 (emphasis added).

Read together, we find no basis for the Judge's conclusion that Dahlgren and VAMC, Cincinnati permit the denial of official time under section 7131(a) to employees who are in the same bargaining unit but do not work at the same activity within that unit. Dahlgren clearly and expressly involved employees in different bargaining units, and the analysis in VAMC, Cincinnati plainly states that the obligation to provide official time under section 7131(a) applies to employees representing employees in the same bargaining unit.

The description of Dahlgren in VAMC, Cincinnati is incomplete. It describes Dahlgren as involving different activities, without stating that it also involved different units. However, that description does not change either the facts in Dahlgren, or the law under section 7131(a). To the extent that the characterization of Dahlgren set forth in footnote 2 of VAMC, Cincinnati may cause confusion, we take this opportunity to clarify that a union representative seeking to negotiate on behalf of employees in his or her bargaining unit may not be denied official time because that representative is employed in a different location or by a different entity within the agency from the employees he or she wishes to represent. Under the Statute and Authority precedent, an employee is entitled to official time under section 7131(a) when negotiating on behalf of employees in the same bargaining unit.

The Respondents do not explain their assertion that granting the exceptions of the General Counsel and the Charging Party "would be tantamount to again adopting the 'status quo' concept once followed by the Authority." Opposition at 2, citing INS, 16 FLRA 80. We note, however, that INS concerned official time for multi-unit bargaining arrangements. By contrast, this case involves a single bargaining unit (albeit one about which representation issues have been raised).

Based on the foregoing, we hold, contrary to the Judge, that the Respondents failed to meet their obligation under section 7131(a) of the Statute to authorize official time for the two Union representatives, and that these failures violated section 7116(a)(1) and (8) of the Statute. To remedy these violations, we issue a cease and desist order and require the Respondents to post a notice to all employees. We also require AOC to increase the Union Executive VP's annual leave balance by three hours.

V. Order

Pursuant to section 2423.41(c) of the Authority's Regulations and section 7118 of the Statute, it is hereby ordered that the Respondents shall:

1. Cease and desist from:

(a) Denying official time to authorized Union representatives.

(b) In any like manner, interfering with, restraining, or coercing unit employees in the exercise of their rights under the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) On request, authorize official time for the Union President and the Union Executive Vice-President for representational purposes. [ v55 p1116 ]

(b) Recognize and maintain existing recognitions, adhere to the terms and conditions of existing collective bargaining agreements, and fulfill all other representational and bargaining responsibilities under the Statute.

(c) Increase the Union Executive Vice President's annual leave balance by three hours.

(d) Post at their facilities at Yorktown copies of the attached notice on forms to be furnished by the Federal Labor Relations Authority. On receipt of such forms, they shall be signed by the Commanding Officers 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.

(e) Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director of the Washington Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Department of the Navy, Naval Weapons Station, Yorktown, Virginia, and the Department of the Navy, Atlantic Ordnance Command, Yorktown, Virginia, violated the Federal Service Labor-Management Relations Statute (the Statute) and has ordered us to post and abide by this Notice.

We notify bargaining unit employees that:

WE WILL NOT deny official time to authorized Union representatives.

WE WILL NOT, in any like manner, interfere with, restrain, or coerce unit employees in the exercise of their rights under the Statute.

WE WILL, on request, authorize official time for the Union President and the Union Executive Vice-President for representational purposes.

WE WILL recognize and maintain existing recognitions, adhere to the terms and conditions of existing collective bargaining agreements, and fulfill all other representational and bargaining responsibilities under the Statute.

WE WILL increase the Union Executive Vice President's annual leave balance by three hours.

_____

(Activity)

Dated:__ By: ________

(Signature) (Title)

______

(Activity)

Dated:__ By: ___

(Signature) (Title)

This Notice must be 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, Washington Regional Office, Federal Labor Relations Authority, whose address is: Tech World Plaza, 800 K Street, NW., Suite 910N, Washington, D.C., 20001, and whose telephone number is: (202) 482-6700.

File 1: Authority's Decision in 55 FLRA No.
181

File 2: ALJ Decision

Footnote # 1 for
55 FLRA No. 181

• Authority's Decision

The reorganization at issue here is described in detail in U.S. Department of the Navy, Commander, Naval Base Norfolk, Virginia
, 55 FLRA 514 (1999) (COMNAVBASE) (Order Granting Application for Review). Although the Judge refers to AOC by the acronym "WSF," for the sake of consistency with the Authority's discussion in COMNAVBASE, in this decision we refer to this entity as "AOC."

Footnote # 2 for
55 FLRA No. 181

• Authority's Decision

Section 2422.34 of the Authority's Regulations provides:

(a) Existing recognitions, agreements, and obligations under the Statute. During the pendency of any representation proceeding, parties are obligated to maintain existing recognitions, adhere to the terms and conditions of existing collective bargaining agreements, and fulfill all other representational and bargaining responsibilities under the Statute.

(b) Unit status of individual employees. Notwithstanding paragraph (a) of this section and except as otherwise prohibited by law, a party may take action based on its position regarding the bargaining unit status of individual employees, pursuant to 3 U.S.C. 431(d)(2), 5 U.S.C. 7103(a)(2), and 7112(b) and (c): Provided, however, that its actions may be challenged, reviewed, and remedied where appropriate.

Footnote # 3 for
55 FLRA No. 181

• Authority's Decision

The Judge found, and there is no dispute, that the exceptions enumerated in section 2422.34(b) of the Authority's Regulations are inapplicable here.

[ v55 p1117 ]

Office of Administrative Law Judges

DEPARTMENT OF THE NAVY, NAVAL

WEAPONS STATION, YORKTOWN, VIRGINIA

AND DEPARTMENT OF THE NAVY

ATLANTIC ORDNANCE COMMAND

YORKTOWN, VIRGINIA

Respondents [n1]

and

NATIONAL ASSOCIATION OF GOVERNMENT

EMPLOYEES, LOCAL R4-1

Charging Party

Case Nos. WA-CA-80545

WA-CA-8056

Thomas F. Bianco, Esq.

For the General Counsel

Joseph R. Barco, Agency Representative

For the Respondents

George L. Reaves, Jr., National Representative

For the Charging Party

Before: JESSE ETELSON

Administrative Law Judge

DECISION

Statement of the Case

The consolidated complaint alleges that the Respondents failed or refused to comply with section 7131(a) of the Federal Service Labor-Management Relations Statute (the Statute), and thereby violated sections 7116(a)(1) and (8) of the Statute, by denying requests by the Charging Party (the Union) for official time for two employees. These employees, Judith Burton and Sharon Green, were designated as agents of the Union. The requests for official time were for the purpose of their participating in bargaining over proposed changes that would affect the conditions of employment of employees represented by the Union. [n2]

Respondents' answer admits most of the jurisdictional and factual allegations of the complaint. It denies the allegation describing the Union as the exclusive representative of a single unit of employees appropriate for collective bargaining. The answer asserts that, as a result of a reorganization, the Union represented two separate appropriate units, and that a petition to establish a separate appropriate unit, reflecting the reorganization, was pending before the Authority.

The answer denies that the Union requested, and that the Respondent denied, official time for Sharon Green. The answer admits that both Sharon Green and Judith Burton, the Union's designated agents, are employees under section 7103(a)(2) of the Statute, but asserts that both are not in the certified bargaining unit as a result of the reorganization and its effect on the unit. The answer also admits that the proposed changes over which the Union requested bargaining affected the conditions of employment of the employees in the certified bargaining unit. However, the official time having been requested to conduct bargaining pertaining to the conditions of employment of employees of activities by which the designated employee-representatives were not employed, the Respondents' answer denies that the designees were entitled to official time under section 7131(a).

A hearing on the complaint was held in Yorktown, Virginia, on February 9, 1999. The General Counsel presented evidence establishing the evidentiary basis for the complaint. The Respondents participated in certain stipulations placed in the record but otherwise presented no evidence. One of the stipulations established the truth of the previously disputed allegation that the Union requested official time for Sharon Green. It was stipulated that such request was denied "during the pendency of [representation proceedings concerning the effect of the reorganization on the bargaining unit]" (Tr. 21). Counsel for the General Counsel and for the Respondents filed posthearing briefs. [ v55 p1118 ]

Findings of Fact

Prior to October 1997, Respondent Department of the Navy, Naval Weapons Station, Yorktown, Virginia (Weapons Station) was an "activity" solely under the direction of the Department of the Navy, Naval Ordnance Center, Atlantic Division, located on the Yorktown, Virginia base. [n3] Weapon Station's mission was the receipt, segregation, storage and issuance of ordnance, but also included base support functions such as housing and safety. The Union is the certified exclusive representative of a unit of employees of Weapons Station.

Naval Ordnance Center, Atlantic Division, was disestablished in October 1997. Weapons Station, although it continued to exist, was reorganized. The ordnance functions listed above, and the bargaining unit employees who performed those functions, were transferred to an organization called, briefly, Department of the Navy, Weapons Support Facility, Yorktown, Virginia (WSF), the original Co-respondent in this case. WSF ultimately became Respondent Department of the Navy, Atlantic Ordnance Command, Yorktown, Virginia (AOC). The commanding officers of both Weapons Station and AOC report to the commanding officer of the Naval Base, Norfolk, Virginia. So, presumably, did the commanding officer of WSF.

The bargaining unit employees who remained with Weapons Station continued to perform the same base support functions they had previously performed, at their previous locations and under their previous first-level supervisors. Similarly, the employees who were transferred to WSF/AOC remained at their existing locations, under their existing first-level supervisors.

The Union and the Department of the Navy, Human Resources Center East, on behalf of the Department of the Navy, filed a series of competing petitions with the Washington Regional Office of the Authority concerning the effect of the reorganization on the existing bargaining unit. The Union and the Department agreed that what was then WSF (and later became AOC) was a successor employer of the former Weapons Station employees who had been transferred to WSF and that the Union should continue to represent them. The Department, in its petitions, asserted that the employees of WSF who were properly included in a bargaining unit constituted an appropriate unit that was separate from the Weapons Station bargaining unit. The Department requested the establishment of such a separate appropriate unit. The Union asserted that the existing unit survived the reorganization and remained a single appropriate unit.

These petitions were pending when the Union, having been duly notified by Weapons Station and WSF, respectively, that each of these activities proposed to implement an "instruction" that (as has been admitted) would affect the conditions of employment of their respective bargaining unit employees, requested bargaining over the "instruction's" proposed changes. The Union designated Sharon Green, its executive vice president, to negotiate with Weapons Station over that activity's proposed changes, and requested official time for her for that purpose. Green was one of the former Weapons Station employees who had been transferred to WSF/AOC and was no longer an employee of Weapons Station. [n4] The request for official time was denied. Green did negotiate for the Union, but used three hours of annual leave to do so.

The Union designated Judith Burton, its president, to negotiate with WSF/AOC over that activity's proposed changes, and requested official time for her. Burton had been, and remained, an employee of Weapons Station. [n5] The request for official time was denied. [n6]

After these events, the representation proceeding initiated by the petitions mentioned above was transferred to the Regional Director for the Authority's San Francisco Region. On February 23, 1999, the Regional Director issued a Decision and Order granting the Department of the Navy's petition and recognizing the establishment of an appropriate unit of employees of WSF/AOC separate from the existing unit of Weapons Station employees. That decision is subject to review by the Authority pursuant to § 2422.31 of the Authority's Rules and Regulations. [ v55 p1119 ]

Discussion and Conclusions

The issue here is whether the Respondents were obligated to authorize official time for Burton and Green as requested. Section 7131(a) of the Statute provides, in pertinent part:

(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
[sic], during the time the employee otherwise would be in a duty status.

The Respondents do not dispute Burton's or Green's status as employees representing the exclusive representative, or that the request for official time was for the purpose of their acting in that capacity in the negotiation of a collective bargaining agreement. [n7] Therefore, the Respondents were obligated to authorize official time for these employees absent some reason that is not apparent from section 7131(a) on its face.

The Authority supplied such a reason early in its history, in United States Air Force, 2750th Air Base Wing Headquarters, Air Force Logistics Command, Wright-Patterson AFB, Ohio, 7 FLRA 738 (1982) (2750th Air Base Wing). It held that, although neither the language of section 7131(a) nor its legislative history indicates that Congress definitively addressed the matter, it would be inconsistent with the overall scheme of the Statute to mandate official time for employees to engage in collective bargaining negotiations involving a bargaining unit other than that in which the employee-negotiators are employed. Therefore, the Authority concluded, even if the employee-negotiators are employed by a "subordinate element" of the same agency to which the employing entity of the bargaining unit for which the employee-negotiators intend to negotiate is also a "subordinate element," official time under section 7131(a) "accrues only to an employee . . . who is a member of the bargaining unit to which the right to negotiate the bargaining agreement applies." Id. at 741-42. [n8]

Here, the Union designated Burton and Green, respectively, to negotiate on behalf of the employees in whose bargaining units they had undisputedly been employed before the reorganization. At the time official time was requested for them, however, each was employed by an "activity" other than the one in which the employees on whose behalf she was designated were employed. The Respondents had petitioned the Authority, asserting that a separate bargaining unit at WSF was now appropriate.

Under the Respondents' view of the appropriate bargaining units, a view later adopted by the San Francisco Regional Director, neither Burton nor Green was a member of the bargaining units the Union designated her to represent. Therefore, the Respondents argue, the requests for official time did not meet the requirements of section 7131(a). [n9]

Counsel for the General Counsel, noting the absence of a final unit determination in favor of the Respondents' unit position, relies on § 2422.34(a) of the Authority's Rules and Regulations, subtitled, "Existing recognitions, agreements, and obligations under the Statute." It provides that:

During the pendency of any representation proceeding, parties are obligated to maintain existing recognitions, adhere to the terms and conditions of existing collective bargaining agreements, and fulfill all other representational and bargaining responsibilities under the Statute.

The General Counsel argues, and I agree, that among the Statutory obligations encompassed by § 2422.34(a) is an agency's (or activity's) obligation to authorize official time pursuant to section 7131(a) of the Statute. The Respondents argue that § 2422.34(a), so applied, is inconsistent with section 7131(a) and should not be followed. Questioning the regulation's consistency with the Statute is, of course, beyond my purview.

The Respondents also argue that their challenge to Burton's and Green's bargaining unit status falls within the exception to § 2422.34(a) that is found in § 2422.34(b), (as that subsection existed at the time the requests were denied): [ v55 p1120 ]

Notwithstanding paragraph (a) of this section and except as otherwise prohibited by law, a party may take action based on its position regarding the bargaining unit status of individual employees, pursuant to 5 U.S.C. 7103(a)(2), 7112(b) and (c): Provided, however, that its actions may be challenged, reviewed, and remedied where appropriate.

Thus, the Respondents argue, they properly based their actions on their position that Burton and Green were not members of the bargaining units that they were designated to represent. Such actions, the Respondents assert, were taken at the Respondents' peril, but must stand unless and until their bargaining unit position is rejected at the conclusion of the representation proceeding.

This argument is not without its appeal. However, the devil is in the details. The Respondents' position regarding Burton's and Green's bargaining unit status is not based on 5 U.S.C. 7103(a)(2), 7112(b) or (c) (these provisions corresponding to the numbered sections of the Statute). Section 7103(a)(2) determines whether an individual is an "employee." The Respondents have admitted that Burton and Green are employees within the meaning of that section. Section 7103(a)(2) does not deal with the question of whether an individual employee, although qualifying as such, may be included in an appropriate bargaining unit. Such questions are left to sections 7112(b) and (c).

Section 7112(b) provides that certain types of employees may not be included in a bargaining unit because of the nature of their work. Section 7112(c) provides that certain employees may not be represented by certain unions because the employees are "engaged in administering any provision of law relating to labor-management relations." The Respondents have made no claim that either Burton or Green must be excluded from a bargaining unit for either 7112(b) or 7112(c) reasons. Thus, the § 2422.34(b) exception to § 2422.34(a) does not save the Respondents here.

However, another of the Respondents' defenses is more difficult to dispel. The Authority has stated that an employer "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." Veterans Administration Central Office, Washington, D.C. and Veterans Administration Medical Center, Cincinnati, Ohio, 23 FLRA 512, 515 n.2 (1986) (Veterans Administration). [n10] Lest there be any mistake, the Authority recognized this principle as one that, while similar to the principle concerning official time for an employee to negotiate for a different bargaining unit, was separate and distinct from that principle and based on different precedent. Id. It is also clear that a "separate and independent activity" may be an activity that is a component of the same parent agency as the "activity" that had been requested to grant official time.

What, then, is a "separate and independent activity"? In Dahlgren (see n.10), the Authority rationalized its denial of an obligation to negotiate over official time for its employee(s) to negotiate with another activity by referring to the fact that such negotiations concerned only conditions of employment of the other activity's employees. 12 FLRA at 733-35. The Dahlgren decision cited above was the Authority's decision on reconsideration of its decision reported at 9 FLRA 193. The only description of the separateness or independence of the two activities involved in Dahlgren is found in a footnote to the earlier decision:

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 [the] 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.

As so described, the relationship between those two activities appears to be at least as close as the relationship between Weapons Station and WSF/AOC in the instant case. [n11] Therefore it is significant that the Authority applied to the Dahlgren parties a principle designed for situations where official time was requested to negotiate with a "separate and independent" activity. [ v55 p1121 ]

I am led to conclude that the Authority intended its Dahlgren holding (as restated in Veterans Administration) to apply generally--allowing, perhaps, for exceptional circumstances--whenever official time is requested for negotiations with "another employer" or "a different activity" (terms that the Authority used elsewhere in its Dahlgren decision on reconsideration. 12 FLRA at 732, 734.) Thus I find that the words, "separate and independent," are, for the most part, mere surplusage. That is to say, like the word, "mere," in the last sentence and the words, "to say," earlier in this sentence, they serve no substantive purpose but reflect, in the latter examples, conventional speech patterns, and in the former, customary legal reticence.

Since it is undisputed that Sharon Green was not an employee of Weapons Station and that Judith Burton was not an employee of WSF/AOC, neither was entitled to official time under section 7131(a) to negotiate on behalf of the employees of those respective activities. This renders irrelevant the question of the appropriate bargaining unit or units and of the final disposition of the representation petitions. [n12] Accordingly, I recommend that the Authority issue the following order.

ORDER

The consolidated complaint is dismissed.

Issued, Washington, D.C., May 12, 1999

______

JESSE ETELSON

Aministrative Law Judge

File 1: Authority's Decision in 55 FLRA No. 181

File 2: ALJ Decision

Footnote # 1 for
55 FLRA No. 181

• ALJ Decision

Respondent Department of the Navy, Atlantic Ordnance Command, Yorktown, Virginia, was formerly Department of the Navy, Weapons Support Facility, Yorktown, Virginia, and the consolidated complaint in these cases so named it. The complaint was amended at the hearing to reflect the new name, and the present case caption reflects that change. The complaint was also amended at the hearing to allege that the renamed Respondents are "activities" rather than "agencies." There was no objection to, or denial of, this amendment.

Footnote # 2 for
55 FLRA No. 181

• ALJ Decision

Shortly before the hearing, Counsel for the General Counsel moved to amend the complaint to add three substantive but noncontroversial allegations. The motion is granted.

Footnote # 3 for
55 FLRA No. 181

• ALJ Decision

"Activity" means any facility, organizational entity, or geographical subdivision or combination thereof, of any agency. Federal Labor Relations Authority Rules and Regulations § 2421.4, 5 CFR 2421.4.

Footnote # 4 for
55 FLRA No. 181

• ALJ Decision

The record establishes that Green was not an employee of Weapons Station at the time of the hearing. I infer that, consistent with the parties' positions here, she was not an employee of Weapons Station at the time of the request.

Footnote # 5 for
55 FLRA No. 181

• ALJ Decision

My observations concerning Green in n.4 apply also to Burton, in reverse, since she remained an employee of Weapons Station.

Footnote # 6 for
55 FLRA No. 181

• ALJ Decision

While here, again, the positions of the parties suggest that the denials of both requests were based on the designee's being employed by the wrong activity or in the wrong bargaining unit, the record contains nothing about the reasons, if any, given when the requests were denied.

Footnote # 7 for
55 FLRA No. 181

• ALJ Decision

As noted, the Respondents admitted that the proposed changes over which the Union requested to bargain would affect the conditions of employment of bargaining unit employees. The Respondents do not contend that any change in the number of bargaining units negates this admission or its implications concerning the nature of the requested negotiations.

Footnote # 8 for
55 FLRA No. 181

• ALJ Decision

Subsequently, the Authority took the opportunity to explain that its decisions about entitlement to official time should not be taken to preclude any employee from participating in negotiations other than on official time. United States Department of Defense, Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas, 15 FLRA 998, 1001 n.6 (1984).

Footnote # 9 for
55 FLRA No. 181

• ALJ Decision

None of the parties here have commented on the significance, if any, of the absence of evidence as to what reason the Respondents gave at the time they denied the requests for official time.

Footnote # 10 for
55 FLRA No. 181

• ALJ Decision

The Authority purported, in this statement, to describe its prior holding in U.S. Naval Space Surveillance Systems, Dahlgren, Virginia, 12 FLRA 731 (1983) (Dahlgren), aff'd sub nom. American Federation of Government Employees, Local 2096 v. FLRA, 738 F.2d 633 (4th Cir. 1984). While one might question whether that description of the holding in Dahlgren is accurate in every respect, the statement in Veterans Administration must be deemed to reflect the Authority's understanding of its own precedent. It is, therefore, entitled to my deference.

Footnote # 11 for
55 FLRA No. 181

• ALJ Decision

Dahlgren was submitted to the Authority on a stipulation of facts. Therefore, there is little room for speculation about any facts other than those quoted above upon which the Authority might have relied.

Footnote # 12 for
55 FLRA No. 181

• ALJ Decision

No party in this unfair labor practice proceeding has questioned the legitimacy of the reorganization or the resulting division of former Weapons Station employees between Weapons Station and WSF/AOC.