[ v21 p508 ]
The decision of the Authority follows:
21 FLRA No. 68 FEDERAL RAILROAD ADMINISTRATION Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2814, AFL-CIO Charging Party Case No. 3-CA-50265 DECISION AND ORDER I. Statement of the Case This unfair labor practice case is before the Authority, in accordance with section 2429.1(a) of the Authority's Rules and Regulations, based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. Briefs for the Authority's consideration were filed by the Respondent and by the General Counsel. The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to recognize and bargain in good faith with a representative designated by the Charging Party (the Union) for collective bargaining purposes. Specifically, the complaint alleges that on or about April 1, 1985, /*/ supervisor Brenda Hooks told Union President Fiori Perdichizzi that employee Joel Litzky could not serve as a member of, and would not be available to serve on, the Union negotiating team. II. The Facts On or about January 14, the parties agreed to ground rules for the negotiation of a new collective bargaining agreement which provided, in part, for negotiations to begin on April 15, to be conducted in two-week sessions, with two weeks between each session, until completed. The Union's team members were to be granted official time to participate in the negotiations. The Union then designated its negotiating team, which included Litzky. Litzky was part of the Respondent's Conrail Division, whose function was to give support to the Secretary of Transportation in accomplishing, by Congressional mandate, including deadlines, the transfer of Conrail to the private sector. On April 1, Hooks orally advised Perdichizzi that Litzky would not be given official time to serve as a member of the Union negotiating team because of workload considerations. Litzky then informed Perdichizzi that his current workload should not prevent him from participating in negotiations as, in his opinion, he was up to date on all overdue or urgent correspondence. On April 9, Hooks informed Perdichizzi by memorandum that, due to workload constraints, Litzky would not be given official time to serve on the Union negotiating team. By memorandum dated April 12, Perdichizzi notified the Respondent that, due to its actions, the Union would not proceed with negotiations as scheduled. III. Positions of the Parties The Respondent states that, after being informed that Litzky had been selected by the Union, it thoroughly reviewed both his current and anticipated workload; estimated that Litzky's participation as a member of the bargaining team would require that at least one half of his duty time be devoted to the negotiating sessions; noted that Litzky already held the position of grievance chairperson, which position itself would require some duty time; and concluded that Litzky's function as the sole person who, among other duties, had been answering Congressional inquiries, was critical to the Conrail Division's mandate. The Respondent argues that its actions did not constitute either an interference with the rights of the Union or Litzky, or a failure to negotiate in good faith, but rather were a proper exercise of management's right to determine that its workload in view of all these considerations would not permit it to release Litzky from his assigned duties to allow him to participate in negotiations at that time. The General Counsel argues that management interfered with the Union's right to designate its own representative(s) for collective bargaining purposes, noting that the ground rules agreed to by the parties said nothing more than that the parties would designate their respective representatives, and argues that Litzky, having been designated by the Union, must therefore be accepted by management as a member of the Union's team. The General Counsel also argues that Litzky's duties at the time were not so demanding or critical as to justify management's argument that he could not be spared to serve on the Union's team. IV. Analysis The actions of the Respondent complained of here arose out of a conflict between the right of employee Litzky to official time, under section 7131 of the Statute, to serve as a designated member of the Union's bargaining team and the right of management, under section 7106 of the Statute, to manage consistent with an effective and efficient Government. 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, including negotiations, 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. On the other hand, the Authority has also explained that an exclusive representative cannot claim that it is entitled to the allocation of official time to a particular employee without regard to management's needs and requirements regarding the performance of assigned work. See Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 15 FLRA 867 (1984); 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. Aug. 12, 1985); 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. Jan. 7, 1986). In light of these principles, it is the Authority's view that the Respondent's denial of official time to employee Litzky was not unlawful, as it has demonstrated that the use of official time by him, at the time requested, would have interfered with the accomplishment of the agency's work. In this regard, it is noted that the Respondent was operating under a Congressional mandate which included time constraints. Litzky was performing a function which in management's judgment was essential, and which required his particular expertise. This was explained to the Union in management's April 9 memorandum. Conversely, Litzky was but one of five designated members of the Union's negotiating team, and it is neither alleged nor shown that Litzky was essential to the functioning of the Union's bargaining team so that his absence required the Union to discontinue negotiations or that the right to name another representative in his place was requested or denied. In short, it appears that the argument of the General Counsel is that the right to choose employees as members of a union bargaining team is absolute. As noted above, however, the Authority has previously held to the contrary. V. Conclusion The Authority has considered all the facts and circumstances of this case, including the positions of the parties, and concludes that the Respondent did not violate section 7116(a)(1) or (5) of the Statute, as alleged, and therefore we shall dismiss the complaint. ORDER IT IS ORDERED that the complaint in Case No. 3-CA-50265 be, and it hereby is, dismissed in its entirety. Issued, Washington, D.C. April 28, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY FOOTNOTES$ --------- (*) All dates refer to 1985.