[ v19 p215 ]
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.