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21:0508(68)CA
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.