[ v19 p215 ]
19:0215(23)NG
The decision of the Authority follows:
19 FLRA No. 23
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO,
COUNCIL OF LOCALS NO. 214
Union
and
DEPARTMENT OF THE AIR FORCE,
AIR FORCE LOGISTICS COMMAND,
WRIGHT-PATTERSON AIR FORCE
BASE, OHIO
Agency
Case No. O-NG-1002
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 issues
concerning the negotiability of one Union proposal. Upon careful
consideration of the entire record, including the parties' contentions,
the Authority makes the following determinations.
Union Proposal /1/
Section 4.07
Full-Time Union Representatives
In addition to the representatives authorized official time
provided above, the Union is hereby authorized the following
number of representatives with 100 percent official time:
(a) 2 100% representatives at Warner Robins AFB, Kelly AFB,
Tinker AFB, Hill AFB, and McClelland AFB.
(b) 1 100% representative at Newark Air Station and
Wright-Patterson AFB.
(c) 1/2 100% representative at Battle Creek, Michigan.
The dispute in this case concerns the negotiability of a Union
proposal for 12 full-time Union representatives, i.e., unit employees
whose 40-hour workweek would be spent performing representational
activities instead of the duties of their positions. The Agency
contends that the proposal concerns the "numbers, types, and grades of
employees or positions assigned to any organizational subdivision, work
project, or tour of duty," which, under section 7106(b)(1) of the
Statute, is a matter negotiable only at the election of the Agency. /2/
The Agency argues, in essence, that by permitting certain employees to
perform Union representational activities on a full-time basis, the
proposal has the effect of reducing the number of employees assigned to
a given work project, organizational entity, or tour of duty. The Union
states, on the other hand, that the sole issue presented by this case is
whether the amount of official time provided in the proposal is
negotiable under the Statute. The Union argues, in this regard, that
the proposal is clearly negotiable under section 7131(d) of the Statute
/3/ and that, contrary to the Agency, it does not directly relate to the
Agency's determination of the numbers of employees assigned to a work
project so as to be nonnegotiable under section 7106(b)(1). Based upon
the circumstances set forth in the record of this case, the Authority
agrees with the position of the Agency.
The basic issue in this case concerns the relationship between the
right of an exclusive representative, under section 7131(d), to
negotiate for "official time," i.e., time when an employee would
otherwise be in a duty status, for employee use in the performance of
representational activities and management's rights under section 7106
of the Statute. In this regard, neither the language nor the
legislative history of these provisions provide any evidence of
congressional intent as to the manner in which these provisions should
be construed in relation to each other. /4/ In circumstances where the
Authority has considered this matter, the Authority has recognized that
an accommodation must be worked out between management's right and
obligation to accomplish its mission consistent with an effective and
efficient Government and the right of the union to perform its
representational function. See American Federation of Government
Employees, AFL-CIO, New York-New Jersey Council of District Office
Locals, Social Security Administration and Department of Health and
Human Services, Social Security Administration District Office
Operations, 7 FLRA 413, 417 (1981); National Federation of Federal
Employees, Local 541 and Veterans Administration Hospital, Long Beach,
California, 12 FLRA 270, 273-75 (1983).
On the one hand, an agency cannot deny to an employee designated by
the exclusive representative to perform representational functions any
use of official time to which that employee is otherwise entitled under
the collective bargaining agreement. United States Air Force, 2750th
Air Base Wing Headquarters, Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio and American Federation of
Government Employees, Local 1138, AFL-CIO, 16 FLRA No. 122 (1984). Nor
can an agency reassign an employee because that employee's use of
official time for union representational activities interferes with the
performance of assigned duties, unless the agency can show in the facts
of the case that the reassignment is warranted. Department of the Navy,
Norfolk Naval Shipyard, Portsmouth, Virginia and Tidewater Virginia
Federal Employees Metal Trades Council, 15 FLRA No. 165 (1984). Cf.
United States Air Force, Air Force Logistics Command, Wright-Patterson
Air Force Base, Ohio and American Federation of Government Employees,
AFL-CIO, Local 1138, 14 FLRA 311 (1984) (agency commits unfair labor
practice under section 7116(a)(1) by taking an employee's union
representational activities on official time into account to give that
employee a lower performance rating). On the other hand, a provision of
a collective bargaining agreement providing official time for union
representational activities under section 7131(d) does not entitle an
employee to use of such official time without regard to the agency's
needs and requirements for the performance of work. Harry S. Truman
Memorial Veterans Hospital, Columbia, Missouri and American Federation
of Government Employees (AFL-CIO), Local No. 3399, 14 FLRA 103 (1984).
Cf. Bigelow v. Department of Health and Human Services, 750 F.2d 962
(Fed. Cir. 1984) (court affirms arbitrator's award upholding discipline
for insubordination where employee, based on claim of entitlement to
100% official time under collective bargaining agreement, refused to
obey an order to undergo retraining). Simply stated, section 7131(d)
does not mandate the granting of official time under any and all
circumstances. Local 1770, American Federation of Government Employees,
Fort Bragg, North Carolina and Department of the Army, Headquarters,
XVIII Airborne Corps and Fort Bragg, North Carolina, 8 FLRA 242 (1982).
Thus, under Authority precedent, the right to negotiate for an amount of
official time available to employees for union representational purposes
is not without limitations. Rather, as the cases cited above
demonstrate, where the agency can show, in the circumstances of a given
case, that the use of official time will interfere with the
accomplishment of the agency's work, the exercise of management's rights
will take precedence.
In this regard, the Authority rejects the Union's contention that the
proposal only concerns the amount of official time which would be
available for employees to perform representational activities and that
it does not directly relate to management's right to determine staffing
patterns. The Authority has consistently held that a proposal which is
directly or integrally related to the numbers, types and grades of
employees or positions assigned to a work project, organizational entity
or tour of duty, so as to be determinative of such numbers, types and
grades, is negotiable at the election of the agency under section
7106(b)(1) of the Statute. See, e.g., National Treasury Employees
Union, Chapter 66 and Internal Revenue Service, Kansas City Service
Center, 1 FLRA 927 (1979); American Federation of Government Employees,
Local 236 and General Services Administration, National Archives and
Records Service, 14 FLRA 461 (1984). Moreover, as the Authority's
decisions in American Federation of Government Employees, Local 3669,
AFL-CIO and Veterans Administration Medical Center, Minneapolis,
Minnesota, 2 FLRA 641 (1980) and National Maritime Union of America,
AFL-CIO and Department of Commerce, National Oceanic and Atmospheric
Administration, National Ocean Survey, Rockville, Maryland, 15 FLRA No.
125 (1984) (Union Proposal II), demonstrate, the Authority considers the
direct consequences of proposals which do not purport to relate to
staffing patterns in determining whether such proposals are integrally
related to, so as to be determinative of, the numbers, types and grades
of employees assigned to a work project, organizational entity, or tour
of duty. In Veterans Administration Medical Center, Minneapolis, the
proposal at issue provided for individual nurses to have every other
weekend off from work. The Authority determined that, in the
circumstances of that case, the effect of the proposal was to require
management to hire additional nurses, increasing the numbers of
employees on the nursing staff, and, thus, that the proposal was
integrally related to, so as to be determinative of, the number of
employees assigned to a work project or tour of duty. The Authority
held, therefore, that the proposal was negotiable only at the election
of the agency under section 7106(b)(1). In National Ocean Survey, the
proposal provided that whenever the work of a "watch," i.e., tour of
duty, was performed by less than three seamen, the equivalent of the
wages of the missing seamen would be distributed to those who worked the
watch. The Authority held that the effect of the proposal, though not
its terms, required the agency to maintain minimum crew levels of three
seamen and, thus, was directly related to, and determinative of, the
numbers of employees assigned to a work project or tour of duty so as to
be nonnegotiable under section 7106(b)(1). Therefore, contrary to the
Union, the fact that the proposal on its face concerns only official
time is not dispositive. Consistent with Authority precedent, the issue
is whether the effect of the proposal is such that it is directly or
integrally related to, so as to be determinative of, the numbers, types
and grades of employees assigned to a work project, organizational
entity or tour of duty within the meaning of section 7106(b)(1) of the
Statute.
As to the instant case, the Agency has made a substantial
demonstration on the record herein that the Union's proposal for 12
full-time representatives is integrally related to, so as to be
determinative of, the numbers of employees assigned to a work project,
organizational entity, or tour of duty. /5/ Specifically, the record
indicates that the primary mission of the Air Force Logistics Command
(AFLC) is the repair, maintenance, and overhaul of military aircraft
systems, ground support systems, and weapons systems of the aircraft
within the inventory of the United States Air Force. /6/ Such systems
are made up of unique and complex mechanical and electronic equipment,
which requires for its care and maintenance employees with specialized
technical skill, training, and experience. /7/ The employees in the
units of exclusive recognition involved herein are skilled technicians
in areas of sheet metal work, electronics, electrical engineering, data
processing, and procurement functions. /8/ It is often the case that
the employees work in crews in which the various tasks and skills are
interrelated and interdependent so that the progress of the work depends
on each function in the work process being fulfilled. /9/
Moreover, the AFLC is subject to congressionally imposed limitations
on the numbers of positions available for staffing its work. /10/
According to the Agency, calculations based upon actual workload
indicate that the number of positions which have been authorized are
less than the number needed to perform the work. /11/ That is, the AFLC
is "undermanned." Therefore, in allocating the available positions among
its various work projects, organizational entities and tours of duty,
the AFLC has been forced to assign fewer positions to some than are
warranted by the requirements of the workload, thus necessitating the
use of overtime, leaving work undone, or completion of work behind
schedule. /12/ In some situations, work projects which are otherwise
fully staffed have been forced to operate with vacancies, despite low
turnover, because of the unavailability of personnel with the special
skills and experience that are needed to fill those vacancies. /13/
The Agency maintains that in these circumstances the loss of 12
employees to full time Union representational activities would
necessitate a reallocation of positions and employees, forcing changes
in its staffing patterns. Given the limitations on authorized positions
in the units of exclusive representation involved herein, the Agency
contends, where a work project is fully staffed, the absence of
vacancies in the job type and grade level of the employee who is
designated a full-time Union representative will require the shift of a
position from some other work project or organizational entity. /14/
Unlike a position vacated by the detail of an employee, the position
left by a full-time Union representative could not be filled by another
employee since the pay and benefits of the Union representative are
based upon that position. Cf. American Federation of Government
Employees, Local 3615 and Social Security Administration, Arlington,
Virginia, 17 FLRA No. 126 (1985) (arbitrator's award directing union
representative not be charged official time or required to use annual
leave but still receive compensation due position to which assigned
contrary to section 7131 of Statute). In such a situation, in order to
maintain previous staffing levels, another position would need to be
created and added to the existing staffing complement of the work
project or organizational entity from which the employee was designated
as full-time union representative. Manning level restrictions would
thus necessitate a reduction in the number of positions allocated
elsewhere in the AFLC.
Moreover, even if a vacant position of the job series and grade level
of the employee designated as a full-time union representative was
available, whether management decided to fill it by transferring another
employee or hiring an additional employee, the consequence is an
increase in the number of employees assigned to the work project or
organizational entity involved. Of course, in the case of an employee
transferred in, the result would also be a decrease in the number of
employees assigned to the work project or organizational entity from
which that employee was transferred. In addition, based on the record
herein, management's ability easily to move employees from work project
to work project is restricted because of the specialized technical
skills and experience which are involved in the different systems on
which some employees work. The specialized nature of the work similarly
restricts its ability to replace full-time Union representative
employees with new hires, particularly without extensive training. In
many instances as well, the specialized nature of the work, together
with the interrelatedness of the work process, precludes dividing among
the remaining employees the tasks of the employee who assumes full-time
Union responsibilities. /15/
In terms of its effect on the Agency's staffing patterns, therefore,
the impact of the Union's proposal is substantively the same as the
proposal at issue in Veterans Administration Medical Center,
Minneapolis. As noted above, the proposal at issue in that case
required management to give nurses every other weekend off. The Agency
demonstrated on the record in that case that, given variations in
patient care needs and differences in the skills and experience of its
nurses, it would have no alternative, in order to maintain a level of
quality of patient care, but to hire additional nurses, possessing
requisite skills, to cover for employees given the weekend off. The
Authority held that by requiring the agency to employ additional nurses
to maintain its weekend staffing complement, particularly in areas
requiring particular skills and experience, the proposal at issue in
that case was integrally related to the numbers of employees assigned to
a tour of duty, a matter about which the agency could elect to bargain
under section 7106(b)(1) of the Statute. Similarly, as indicated above,
the effect of the Union's proposal in the circumstances of this case is
to require management, in order to maintain staffing levels, to add
positions or employees to the work project or organizational entity from
which an employee is designated to serve as a full-time Union
representative. Thus, the Agency has demonstrated that, in the
circumstances of this case, the Union's proposal is integrally related
to, so as to be determinative of, the numbers of employees or positions
assigned to such work project or organizational entity and, for the
reasons set forth in Veterans Administration Medical Center,
Minneapolis, is negotiable only at the election of the Agency under
section 7106(b)(1) of the Statute.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review be, and
it hereby is, dismissed. Issued, Washington, D.C., July 22, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ The proposal included in the Union's petition for review provided
for 60 full-time Union representatives spread among the various locals
which make up the consolidated unit involved herein. During the
pendency of this appeal, the parties invoked the assistance of the
Federal Service Impasses Panel, which ordered the parties to utilize a
mediation-arbitration procedure to resolve their dispute. At issue were
over 100 separate subsections of Union proposals. The parties were able
to resolve all disputed matters except that involving full-time Union
representatives. During the pendency of the mediation process, the
Union filed its statement of position with the Authority, noting that
the issue before the mediator at that time concerned 12 full-time Union
representatives. The issue could not be resolved in mediation and the
mediator-arbitrator subsequently issued an arbitration award granting
the Union 12 full-time Union representatives. See Department of the Air
Force, Air Force Logistics Command, Wright-Patterson Air Force Base,
Ohio and American Federation of Government Employees, AFL-CIO, Council
of Locals No. 214, 18 FLRA No. 81 (1985). The Authority here addresses
the proposal for 12 full-time Union representatives which was the final
proposal in dispute between the parties on this matter.
/2/ Section 7106(b)(1) provides:
Sec. 7106. Management rights
. . . .
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
(1) at the election of the agency, on the numbers, types, and
grades of employees or positions assigned to any organizational
subdivision, work project, or tour of duty(.)
/3/ Section 7131(d) provides:
Sec. 7131. Official time
. . . .
(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.
/4/ As to section 7131(d), see, H.R. REP. NO. 95-1403, 95th Cong.,
2nd Sess. 58 (1978); S. REP. NO. 95-969, 95th Cong., 2nd Sess. 112-13
(1978); remarks of Congressman Clay, 124 Cong.Rec.E 4497 (daily ed.
Aug. 10, 1978), 124 Cong.Rec.H 9638 (daily ed. Sept. 13, 1978); remarks
of Congressman Ford, 124 Cong.Rec.H 9650 (daily ed. Sept. 13, 1978). As
to section 7106(b)(1), see, S. REP. NO. 95-969, 95th Cong., 2nd Sess.
104-5, 108-9 (1978); H.R. REP. NO. 95-1717, 95th Cong., 2nd Sess.
153-54 (1978); the sectional analysis of the "Udall substitute" to H.R.
11280, 124 Cong.Rec.H 9634 (daily ed. Sept. 13, 1978); the remarks of
Congressmen Ford and Edwards, 124 Cong.Rec.H 9646 (daily ed. Sept. 13,
1978); the remarks of Congressman Ford, 124 Cong.Rec.H 9649-50 (daily
ed. Sept. 13, 1978).
/5/ As indicated above, note 1, the parties are in agreement that the
proposal before the Authority for decision herein concerns 12, and not
60, full-time Union representatives. As will be clear from the
following discussion, the numbers of proposed full-time representatives
is not a dispositive factor in the circumstances of this case.
/6/ Agency Statement of Position at 1.
/7/ Attachments 3 and 4 to Agency Statement of Position.
/8/ Attachments 2-4 to Agency Statement of Position
/9/ Attachment 3 to Agency Statement of Position.
/10/ Agency Statement of Position at 56-58.
/11/ Agency Statement of Position at 56-58.
/12/ Agency Statement of Position at 57.
/13/ Attachment 3 to Agency Statement of Position.
/14/ Based upon their work as Union stewards and in other
representational activities, the Agency has identified those employees
most likely to be designated as full-time Union representatives. The
Agency's assessment of the effect of the Union's proposal is based upon
the assumption that those employees would be designated, but is not
entirely dependent thereon. See Attachments 2-4 to the Agency Statement
of Position.
/15/ See Attachments 3 and 4 to the Agency Statement of Position.