45:1063(108)NG - - NFFE Local 466 and Agriculture, Forest Service, Regional Office, Atlanta, GA - - 1992 FLRAdec NG - - v45 p1063



[ v45 p1063 ]
45:1063(108)NG
The decision of the Authority follows:


45 FLRA No. 108

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 466

(Union)

and

U.S. DEPARTMENT OF AGRICULTURE

FOREST SERVICE

REGIONAL OFFICE

ATLANTA, GEORGIA

(Agency)

0-NG-2022

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

September 3, 1992

Before Chairman McKee and Members Talkin and Armendariz. 1/

I. Statement of the Case

This case is before the Authority on 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 one proposal pertaining to Union representatives at "fire camps." Fire camps are established by the Agency when it is necessary to fight a forest fire. They are usually established near the site of the forest fire, in areas that may not be easily accessible, and have limited means of communication.

For the following reasons, we find that the proposal is negotiable.

II. Proposal 2/

Since officers or representatives of the N.F.F.E. Forest Service Council have the right to represent all bargaining unit members at fire camps, and since this time has been limited to not more than one eight-hour shift by the Regional Office, I make the following proposal to insure proper coverage.

(1) Not less than five (5) Union representatives will be assigned to a fire camp.

(2) All Union representatives will be dispatched to the fire[] camp as required in Article 5, (11)(b).

(3) Union representatives, who are not on duty, shall be lodged at the nearest motel/hotel at Agency expense.

. . . .

(5) The Regional Office shall advise the Regional Vice President of all fire activity in the Region as it occurs.

III. Positions of the Parties

A. Agency

The Agency asserts that it has no duty to bargain over the entire proposal, including the preamble, because the dispute in this case arose during bargaining at a subordinate level of the Agency and the proposal is inconsistent with the parties' controlling Master Agreement. In this regard, the Agency cites National Association of Agriculture Employees, Branch 11 and Department of Agriculture, 14 FLRA 759 (1984) (Department of Agriculture) and National Federation of Federal Employees, Local 1979 and U.S. Forest Service, San Dimas Equipment Development Center, 16 FLRA 369 (1984) (San Dimas).

Specifically, the Agency argues that paragraph 1 of the proposal, which requires the Agency to assign at least five Union representatives to a fire camp, is inconsistent with Article 5.11 of the Master Agreement, "Union Representation at Fire Camp," because that provision of the agreement refers to the assignment of only one Union representative at a fire camp.3/ Similarly, the Agency contends that paragraph 2 of the proposal, which states that "[a]ll Union representatives will be dispatched" to a fire camp, is inconsistent with Article 5.11b, which refers to only one representative. The Agency argues that paragraph 3 of the proposal, which states that Union representatives who are not on duty will be lodged at the nearest motel or hotel at Agency expense, is inconsistent with Article 5.11b, which provides that Union representatives will receive the same type of lodging as other employees assigned to the fire camp and that travel to a fire camp will be by the most efficient and cost-effective method. Finally, the Agency claims that paragraph 5 of the proposal, which states that the Agency's Regional Office will advise the Union's Regional Vice President of all fire activity in the Region as it occurs, is inconsistent with Article 5.11a(1) of the agreement, "which clearly defines when and how the Regional Vice President is to be informed of fire activity." Agency's Statement of Position (Agency's Statement) at 9.

The Agency also claims that the proposal excessively interferes with its rights under section 7106 of the Statute. According to the Agency, an employee serving as a Union representative at a fire camp "is not performing representational activities as a collateral function; he/she devotes full time to that function." Id. at 10. See also id. at 6 ("It was also understood [during the negotiations of Article 5.11] that the Union representative's presence at the fire camp was for the sole purpose of representational activities and that he/she would not be assigned firefighting duties.") (emphasis in original). Thus, the Agency contends that it "cannot increase the efficiency and effectiveness of firefighting activities by utilizing the Union representative[']s skills in extinguishing the fire; that person can be used only to perform representational functions should the need arise." Id. at 10. The Agency asserts that the "practical effect" of the proposal is "to reduce [m]anagement's available work force . . . ." Id. The Agency claims that the proposal excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute because it deprives management of the services of no fewer than five employees who would otherwise be performing the Agency's work. The Agency also claims that the proposal excessively interferes with management's right, under section 7106(b)(1) of the Statute, to determine the numbers of employees assigned to a work project by requiring the assignment of no fewer than five Union representatives to a fire camp.

B. Union

The Union states that its representatives have the right to represent unit employees at fire camps and that the intent of the proposal is "to insure proper coverage." Petition for Review at 1. Noting that fire camps are generally 24-hour a day operations and that Union representatives have been limited by the Agency to 8-hour shifts, the Union asserts that "it is necessary to have five people to cover all shifts and provide two days off for the other representatives." Id., Enclosure.

The Union claims that the proposal is consistent with the parties' Master Agreement. The Union contends that the agreement was not intended to limit the number of Union representatives who could be assigned to a fire camp. Further, the Union maintains that the proposal would not interfere with management's rights to assign work or to determine the number of employees assigned to a work project because "representational duties are not [the] assignment of work[.]" Union Response at 2. The Union disputes the Agency's claim that the proposal would "reduce management's available work force." Id. The Union explains that the Union representatives at a fire camp would be in addition to the firefighters and would not be "taken from the firefighting force." Id. Therefore, according to the Union, the Union representatives "do not affect the mission and do not hamper the firefighting." Id.

IV. Analysis and Conclusions

For the following reasons, we find that the proposal is negotiable.

A. Master Agreement

The Agency claims that the proposal is inconsistent with the Master Agreement. The Agency also claims that the proposal is inconsistent with the Statute. Under section 7117 of the Statute and Part 2424 of the Authority's Rules and Regulations, we will consider a petition for review of a negotiability issue only where the parties disagree over whether a proposal is inconsistent with law, including the management rights provisions of section 7106 of the Statute, rule, and regulation. See Patent Office Professional Association and Department of Commerce, Patent and Trademark Office, 39 FLRA 783, n.1 (1991). The Agency's claim that the proposal is inconsistent with the Statute meets the conditions for review of a negotiability dispute and, therefore, the Union is entitled to a decision from the Authority on the negotiability of that proposal. See National Federation of Federal Employees, Forest Service Council and U.S. Department of Agriculture, Forest Service, Region 6, Portland, Oregon, 45 FLRA 242, 246 (1992).

However, the Agency's claim that the proposal is inconsistent with a higher-level agreement does not constitute a claim that the proposal is inconsistent with law, rule, and regulation. Consequently, that claim is not properly before us under section 7117 of the Statute and Part 2424 of our Rules and Regulations. See id. We note that the Agency's contractual claim does not preclude us from determining whether the proposal is inconsistent with the Statute. See id. The Agency's contractual claim, therefore, provides no basis for dismissing the petition for review. See id. at 247. The Agency's contractual claim should be decided in other appropriate proceedings. See id. at 246.

As to the Agency's additional argument, based on Department of Agriculture and San Dimas, that it has no duty to bargain at the regional level over Union-initiated mid-term proposals, we note that this case is distinguishable from Department of Agriculture and San Dimas. In Department of Agriculture, the Authority determined that a negotiability appeal was moot because the General Counsel had determined in an unfair labor practice that the agency had no duty to bargain at the local level over the matter in dispute. In San Dimas, the Authority determined that a negotiability appeal was moot because, under agency regulations, the agency had no duty to bargain at the local level over the subject matter of the union's proposal. Without addressing the continued viability of Department of Agriculture and San Dimas, we find that, in this case, there is no evidence either that the General Counsel has determined in an unfair labor practice case that the Agency has no duty to bargain over the proposal at the regional level or that, under Agency regulations, the Agency has no such duty to bargain.

B. Management's Rights

The Agency claims that the proposal is nonnegotiable because, by providing that at least five Union representatives will be assigned to fire camps for the purpose of performing representational functions, the proposal excessively interferes with management's rights, under section 7106(a)(2)(B) of the Statute, to assign work and, under section 7106(b)(1) of the Statute, to determine the numbers of employees assigned to a work project. We disagree.

Union representational functions that do not involve official, prescribed duties of employees do not constitute "work" within the meaning of section 7106(a)(2)(B) the Statute. See National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Washington, D.C., 44 FLRA 637, 676 (1992) (Defense Mapping Agency). Because union representational functions do not constitute "work" within the meaning of section 7106(a)(2)(B), we find, for reasons stated in Defense Mapping Agency and the cases cited therein, that such functions also do not constitute a "work project" within the meaning of section 7106(b)(1) of the Statute. Consequently, we find that, by prescribing a minimum number of Union representatives to perform representational functions at fire camps, the proposal does not determine the numbers of employees who will be assigned to a work project. We conclude, therefore, that the proposal does not directly interfere with management's rights under section 7106(b)(1) of the Statute. See also American Federation of Government Employees, AFL-CIO, Council of Locals No. 214 v. FLRA, 795 F.2d 1525 (D.C. Cir. 1986) (court held that proposal providing 100% official time for 12 employees, which would result in changes to the agency's staffing patterns, did not directly interfere with management's rights under section 7106(b)(1)).

Turning to the Agency's claim that the proposal excessively interferes with management's right to assign work because it has the practical effect of reducing management's available workforce, we note at the outset the Union's contention that the proposal would not affect the numbers of employees available to perform firefighting duties. The Union states that the Union representatives at the fire camps would be in addition to the firefighting force. Moreover, the Agency states, and the Union does not dispute, that the Union representatives would be at the fire camps only to perform representational functions. Therefore, the proposal effectively requires the Agency to agree to authorize official time for at least five Union representatives during the period of the fire camps. Consequently, we interpret the proposal as providing for a minimum of five Union representatives at fire camps who would: (1) perform only representational functions; (2) be on official time; and (3) be in addition to the firefighting force.

Interpreted in this manner, we find that the proposal would not have the effect of reducing the firefighting force. However, as argued by the Agency, because the employees serving as Union representatives would be at the fire camps, they would not be available for other duties elsewhere, including the normal duties of their positions. In other words, during the period that the Union representatives are at fire camps on official time performing representational functions, the Agency would be prevented from assigning other duties to them.

We recently reexamined the relationship between management's right to assign work under section 7106(a)(2)(B) of the Statute and the authorization to negotiate official time for representational purposes under section 7131(d) of the Statute. See BATF, 45 FLRA at 346-48. Specifically, we considered the effect of the Supreme Court's decision in Department of the Treasury, Internal Revenue Service v. FLRA, 494 U.S. 922 (1990) (IRS v. FLRA) on the Authority's holding, in Military Entrance Processing Station, Los Angeles, California, 25 FLRA 685 (1987), that section 7131(d) carves out an exception to section 7106(a). We found that matters pertaining to official time are distinguishable from the matters pertaining to negotiated grievance procedures that were involved in IRS v. FLRA and concluded that we would "continue to carve out an exception to section 7106 in order to maintain the negotiability, where otherwise warranted, of matters involving official time." BATF, 45 FLRA at 348.

Because the proposal in this case requires the Agency to authorize official time for a minimum of five Union representatives for the period of a fire camp, we find, consistent with BATF, that the proposal falls within the exception to section 7106(a)(2)(B) that is provided under section 7131(d) for matters pertaining to official time for union representational activities. We conclude, therefore, based on BATF, that the proposal is negotiable.

We also noted in BATF that, alternatively, "where it is asserted that a provision seeking to negotiate over official time under section 7131 is inconsistent with section 7106, we will analyze such provisions to determine whether the provision directly interferes with management's rights under section 7106 and whether it constitutes an appropriate arrangement that is negotiable pursuant to section 7106(b)(3)." Id. at 349. Consequently, although the Union in this case did not claim that the proposal constitutes an appropriate arrangement, we will consider whether the proposal directly interferes with management's rights under section 7106 and, if so, whether it constitutes an appropriate arrangement.

Proposals that place restrictions on an agency's ability to deny a request that an employee be excused from performing assigned duties for the period covered by the request directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. Id. at 350. By requiring the Agency to grant official time to at least five Union representatives to be assigned to a fire camp, the proposal in this case restricts the Agency's ability to deny those employees' requests that they be excused from performing assigned duties for that period. Consequently, we find, consistent with BATF, that the proposal directly interferes with management's right to assign work under section 7106(a)(2)(B).

To determine whether the proposal is negotiable under section 7106(b)(3), we initially must determine whether the proposal constitutes an arrangement within the meaning of that section. To do that, we must determine whether the proposal seeks to address or compensate for the adverse effects on employees that may result from the exercise of management rights. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31 (1986) (KANG). See also BATF, 45 FLRA at 350-51.

As noted above, fire camps are established when it is necessary to fight a forest fire. Because such camps are away from employees' normal work locations, where Union representatives would be readily available, the assignment of employees to a fire camp for the purpose of fighting a fire deprives them of immediate access to their representatives. Moreover, the Union claims, and the Agency does not dispute, that fire camps are a 24-hour operation. According to the Union, because fire camps are 24-hour operations, three Union representatives are necessary to provide representational services each day and at least five representatives are required to cover an entire week to allow for sufficient days off. We find, therefore, that the proposal constitutes an