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21:0508(68)CA - Fed'l Railroad Admin. and AFGE, Local 2814 -- 1986 FLRAdec CA

[ v21 p508 ]
The decision of the Authority follows:

 21 FLRA No. 68
 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.
    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.