19:0215(23)NG - AFGE Council of Locals No. 214 and Air Force, Air Force Logistics Command, Wright-Patterson AFB, OH -- 1985 FLRAdec NG



[ 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 Posit