United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
DEPARTMENT OF THE AIR FORCE
LOCAL 2924, AMERICAN
Case No. 05 FSIP 104
DECISION AND ORDER
Local 2924, American Federation of Government Employees, AFL-CIO (Union), filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the Department of the Air Force, Davis-Monthan Air Force Base, Tucson, Arizona (Employer).
After investigation of the request for assistance, which involves a dispute over whether cell phones should continue to be permitted in the work area, the Panel determined that the parties should resume negotiations, on a concentrated schedule, with the assistance of the Federal Mediation and Conciliation Service (FMCS). Thereafter, should any issues remain unresolved, the parties were instructed to submit to the Panel their final offers, statements of position with supporting evidence and arguments, and rebuttal statements, if any. After considering the entire record, the Panel would resolve the dispute by taking whatever action it deems appropriate, including the issuance of a Decision and Order. Pursuant to this procedural determination, the parties resumed mediation with FMCS on November 8, 2005; however, they were unable to reach a voluntary resolution. Accordingly, pursuant to the Panel's procedural determination, the issues were returned to the Panel for resolution.
The Employer's mission, overall, is to serve as "host" to an A-10 fighter wing. The dispute herein arose at a tenant organization on the base, the Aerospace Maintenance and Regeneration Center (AMARC), whose mission is to de-activate aircraft; employees are responsible for aircraft maintenance, including preparing aircraft for flight and storage. The Union represents approximately 1,000 professional and non-professional employees on the base; of those, about half work for AMARC on flight lines, in hangars and reclamation centers. Typical bargaining-unit positions in AMARC are aircraft mechanic, aircraft electrician and aircraft sheet metal worker. The parties' collective-bargaining agreement (CBA) expired on November 5, 2001; since then, they have been following its terms as past practices.
On August 4, 2004, the Air Force Materiel Command (AFMC) issued Instruction 21-122, titled "Foreign Object Damage and Dropped Object Prevention Program." This Instruction sets forth safety measures to ensure that foreign objects, including cell phones, do not find their way into aircraft engines and machinery. It allows local Commanders to issue supplemental instructions that identify where cell phone usage would be appropriate in the work place.1/
Essentially, the parties disagree over the extent to which cell phones should continue to be permitted in the work area.
POSITIONS OF THE PARTIES
a. The Employer's Position
The Employer's proposes that the local supplement, which contains implementing procedures for AFMC Instruction 21-122, include the following four provisions:
3.7. Cell phones will not be used while driving any vehicle on AMARC. 3.7.1. Personnel are prohibited from using cell phones while performing any type of aircraft maintenance operation.
3.7.2. Cell phones will not be used in the production areas around active maintenance or at any time around flammable liquid or fumes, cartridge-activated devices, propellant-activated devices, or any armed component to include ejection seats.
3.7.3. Cell phones will be stored in personal lockers or tool kit personal drawers while not in use.
The provisions are consistent with the requirements of AFMC Instruction 21-122, which gives local commanders the sole and exclusive right to identify procedures for the use and control of cell phones. In this regard, the Employer has no duty to bargain over the substance of the four provisions; its bargaining obligation extends only to proposals from the Union that address the impact and implementation of management's decision to include the provisions in the local supplement on affected employees' conditions of employment. For this reason, it has no obligation to negotiate further over the Union's final offer to delete the four provisions from the supplement. As to the merits of the Employer's proposals, essentially, banning cell phones in the immediate work area is a safety issue. The Department of the Air Force has taken great care to eliminate any foreign objects from certain work areas, which, if left inside an engine or other mechanical part of an aircraft, could cause severe damage.
b. The Union's Position
The Union proposes that the Employer's four provisions be eliminated from the local supplemental instruction. Its proposal is negotiable either because the Union has a right to bargain over the substance of the changes, as they affect employees' working conditions, or because it is an appropriate arrangement for employees adversely affected by the exercise of a management right. More specifically, Section 3.7 would prohibit cell phones from being used while driving any vehicle on the AMARC. In the absence of legitimate duty-to-bargain questions, it should be eliminated because it is inconsistent with the purpose of the local supplemental instruction, whose subject is "Foreign Object Damage (FOD) or Dropped Object (DO) free areas," and conflicts with an existing base policy that permits hands-free cell phone usage in vehicles being driven on the base.
Regarding Sections 3.7.1 and 3.7.2, the Employer has provided no evidence that cell phones have ever caused damage in maintenance areas; therefore, the current practice permitting their use, which has been in effect for several years, should be continued. A prohibition against cell phone usage around flammable liquids, fumes, cartridge-activated and propellant-activated devices, or any armed component, may be more appropriately addressed in the Employer's Safety or Hazardous Risk Prevention programs and not under the "Foreign Object Damage/Dropped Object Awareness and Prevention Program." Finally, there is no need for section 3.7.3, which calls for storage of cell phones in lockers or tool kits when not in use.
Having carefully considered the Employer's threshold arguments questioning its duty to bargain over the Union's proposal, the Panel declines to retain jurisdiction over the parties' dispute. According to the Employer, the Union is impermissibly attempting to bargain over the substance of its decision to curtail cell phone use. Neither party, however, has cited decisions that the Panel could apply, under Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988) (Carswell AFB), to determine whether the Union's proposal to delete the four sections is within the Employer's duty to bargain.2/ Given the uncertainty as to whether the Union's proposal interferes with management's right to act unilaterally in this matter, as the Employer contends, we are reluctant to issue an order addressing the merits of the dispute until a decision regarding the negotiability of the Union's proposal has been rendered in the appropriate forum. This determination to decline to retain jurisdiction is made without prejudice to the right of either party to file another request for assistance if an impasse is reached once the legality of the Union's proposal has been established.
Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because the negotiability of the Union's proposal has not been established, the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby declines to retain jurisdiction over the parties' dispute.
By direction of the Panel.
H. Joseph Schimansky
December 16, 2005
In regard to cell phones, AFMC Instruction 21-122 provides: