21:0640(81)NG Overseas Federation of Teachers and DOD Dependent Schools Mediterranean Regaion, APO New York -- 1986 FLRAdec NG

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21 FLRA NO. 81

OVERSEAS FEDERATION OF TEACHERS

Union

and

DEPARTMENT OF DEFENSE DEPENDENT SCHOOLS, MEDITERRANEAN REGION, APO NEW YORK

Agency

Case No. 0-NG-1173

DECISION AND ORDER ON NEGOTIABILITY ISSUE I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute) and concerns the negotiability of the following union proposal:

Official Time

Both parties agree that the Union is authorized to designate at least two (2) representatives who will be released from duty and will receive their full pay and benefits. These representatives would be entitled to permissive TDY orders, at no cost to the government, when traveling, when not on official TDY orders. At the conclusion of their term of office these representatives will be authorized to return to their former positions. Upon request of the Union the contract may be opened for renegotiation of official time for representation within one

year of the initiation of the above requested negotiations. [ v21 p 640]

II. Preliminary Issue

The Union contends that the Agency's written allegation that the proposal is nonnegotiable is defective because it fails to

state the reason for its determination. Contrary to the Union's position, the Authority concludes that under section 2424.6(a)(2)

of the Authority's Rules and Regulations, the Agency's statement

of position sets forth a full and detailed statement of its

reasons supporting the allegation. As it appears from the record that the Union has been given full notice of the Agency's

position and was not prejudiced by the brevity of the Agency's initial nonnegotiability allegation, the Union's contention in

this regard must be denied.

III. Positions of the Parties

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. The Agency argues,

in essence, that the proposal would require it to hire additional full-time or substitute teachers, and, hence, is determinative of the number and type of employees assigned to the schools the

Agency operates.

The Union states, on the other hand, that the proposal would have at most a negligible effect on staffing, and, therefore, interferes neither with the number of employees assigned to the schools nor with the mission of the Agency.

IV. Background

This proposal arises as the result of a reopener provision included in the parties' collective bargaining agreement by order

of the Federal Service Impasses Panel (the Panel). After the

Union chose, pursuant to the provision, to reopen negotiations

and the parties bargained to impasse, the Panel directed the

parties to submit the dispute to an arbitrator. Both prior to and during the mediation/arbitration sessions held before the Arbitrator, the Agency held that the proposal was negotiable only

at its election, and that it did not wish to negotiate over the matter. Based on the Agency's declaration of nonnegotiability,

the Arbitrator ruled that he would not decide the merits of the

case until the Authority determined specifically that the

proposal is within the duty to bargain. [ v21 p641 ]

V. Analysis

It appears from the record that only that part of the

proposal is in dispute which would authorize the Union to

designate at least two (2) full-time Union representatives, that

is, unit employees whose 40-hour workweek would be spent

performing representational activities instead of the duties of their positions.

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," that is, 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. As the Authority stated

in Department of the Air Force, Scott Air Force Base, Illinois,

20 FLRA No. 89 (1985) petition for review filed sub nom.

National Association of Government Employees, Local R7-23 v.

FLRA, No. 86-1011 (D.C. Cir., January 7, 1986), section 7101 of the Statute provides both for the right of employees to

participate in the collective bargaining process through labor organizations of their own choosing and for the safeguarding of

the public interest in maintaining an effective and efficient Government. Thus, the Authority has held that management cannot

deny official time for representational functions to a representative of the exclusive representative unless it can show that the use of official time will interfere with the

accomplishment of the agency's work. Scott Air Force Base at 765.

On the other hand, the Authority has also explained that an exclusive representative cannot claim that it is entitled to negotiate a contract provision regarding the allocation of

official time for representational functions without regard to management's needs and requirements regarding the performance of

its assigned work. Department of the Navy, Norfolk Naval

Shipyard, Portsmouth, Virginia, 15 FLRA 867 (1984); Harry S.

Truman Memorial Veterans Hospital, Columbia, Missouri and

American Federation of Government Employees (AFL - CIO), Local

No. 3399, 14 FLRA 103 (1984); Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 18 FLRA No. 9 (1985). Compare Bigelow v. Department of Health and Human Services, 750 F.2d 962 (Fed. Cir. 1984) (an employee may

not refuse a training assignment based on a claim that he or she

was entitled to 100% official time for representational

functions). 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,

[ v21 p642 ] 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.

Turning to the instant case, in support of its contention that the proposal is determinative of the number and types of employees assigned to its schools, the Agency cites, among other things, American Federation of Government Employees, AFL - CIO, Council of Locals No. 214 and Department of the Air Force, Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio, 19 FLRA No. 23 (1985); petition for review filed sub nom. American Federation of Government Employees, Council of Locals No. 214 v. FLRA, No. 85-1500 (D.C., Cir., August 12, 1985), where the Authority found, based on the particular facts and circumstances pertaining there, that a proposal which would have granted 12 union representatives 100% official time under section 7131(d) of the statute was negotiable only at the election of the agency. However, we find, contrary to the Agency's position, that the facts and circumstances of this case are substantially different from th