[ v31 p1259 ]
31:1259(113)NG
The decision of the Authority follows:
31 FLRA NO. 113
31 FLRA 1259
27 APR 1988
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
COUNCIL 214, AFL-CIO
Union
and
DEPARTMENT OF THE AIR FORCE
AIR FORCE LOGISTICS COMMAND
Agency
Case No. O-NG-1472
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This petition for review comes before the Authority pursuant
to section 7105(a)(2)(D) and (E) of the Federal Service Labor -
Management Relations Statute (the Statute). It concerns 25
proposals relating to telephone service for the Union's use in
conducting labor-management relations activities. We find that
the proposals are within the duty to bargain because they do not
concern the technology of performing work or conflict with an
Agency regulation for which there is a compelling need.
II. The Proposals
The proposals are set forth in the Appendix to this
decision.
III. Position of the Parties
The Agency asserts that all of the proposals &either
expressly require, or infer authorization of AUTOVON access. 1
The Agency argues that the proposals are nonnegotiable on
three grounds. First, the Agency contends that the union has
waived its right to raise AUTOVON access during the term of the
existing negotiated agreement between the parties. Second, the
Agency contends that the proposals are not within the duty to
bargain because AUTOVON access concerns the technology of
performing its work within the meaning of section 7106(b)(1).
Finally, the Agency contends that the proposals conflict with
Department of Defense Directive 4640.9 for which a compelling
need exists under section 7117(a)(2) of the Statute and section
2424.11 of the Authority's Rules and Regulations. The Agency
argues that the portion of the regulation which precludes labor
union access to the AUTOVON network is essential to the
accomplishment of the mission of the Agency.
The Union argues that access to AUTOVON is a negotiable
condition of employment. The Union further asserts that it has
not waived its right to raise the subject during the term of the
contract. The Union requests that a hearing be conducted pursuant
to section 2424.9 of the Authority's regulations.
IV. Analysis and Conclusions
The Agency asserts that all of the proposals relate to Union
access to AUTOVON and the Union does not challenge this
characterization. Accordingly, we will accept the Agency's
unchallenged assertion for purposes of this decision.
The only objections which the Agency has expressed as to the
negotiability of the proposals focus on its contention that they
involve access to AUTOVON. Therefore, we limit our consideration
to that issue. Proposal 14 provides that the Union will be part
of any committee or board that sets telephone rates at the
Agency. The Agency makes no argument as to the negotiability of
this particular proposal that is different from the arguments
made as to the other proposals. Therefore, we do not consider
this proposal on any basis different than the others. The parties
are responsible for creating the record upon which we will
resolve negotiability disputes. National Federation of Federal
Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982). A
party failing to assume this burden acts at its peril.
A. Whether the Union Waived Its Right to Bargain Over the
Proposals
Where the conditions for review of negotiability issues have
been met--where the parties are in dispute as to whether
a proposal is inconsistent with law, rule or regulation--a union
is entitled to a decision by the Authority as to whether a
proposal is negotiable under the Statute. This is true despite
the existence of additional issues in the case concerning the
duty to bargain. See American Federation of Government Employees,
Local 2736 v. FLRA, 715 F.2d 627, 631 (D.C. Cir. 1983).
Accordingly, the Agency's allegation that there is a threshold
duty to bargain question does not preclude us from determining
whether there is a conflict with section 7106(b)(1) and an agency
regulation for which a compelling need exists. Issues regarding
the alleged waiver of the Union's right to bargain should be
resolved in other appropriate proceedings. See American
Federation of Government Employees, AFL - CIO, Local 2736 and
Department of the Air Force, Headquarters 379th Combat Support
Group (SAC) Wurtsmith Air Force Base, Michigan, 14 FLRA 302, 306
n.6 (1984).
B. Union Access to AUTOVON for Labor - Management Relations
Activities Does Not Concern the Technology of Performing Work
The Agency argues that the AUTOVON system is a technology of
performing work within the meaning of section 7106(b)(1). It
asserts that the Authority has overruled its decision in American
Federation of Government Employees, AFL - CIO and Air Force
Logistics Command, Wright - Patterson Air Force Base, Ohio, 2
FLRA 604, 610 (1980), aff'd as to other matters sub nom.
Department of Defense v. Federal Labor Relations Authority, 659
F.2d 1140 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982),
that a proposal seeking access for union officials to the AUTOVON
system was negotiable. It further asserts that under current
Authority case law, an agency has no obligation to bargain over
(1) the use of equipment and facilities which constitute a part
of the technology it uses in performing its work, and (2) the
expansion of such equipment and facilities to accommodate
additional users.
The Agency correctly states that its choice of the AUTOVON
system as a technical method for furthering the performance of
its mission constitutes the technology of performing work under
section 7106(b)(1). However, the Agency misconstrues the
Authority's decisions applying that section of the Statute.
Telephone use by union officials in conducting
labor-management relations activities under the Statute is
distinguishable from telephone use by employees in performing the
official duties of their positions. Participation in
labor-management activities by employees on behalf of a union
does not involve performing the work of the agency. Therefore,
the use of telephones in such activities does not involve the
technology of performing work within the meaning of section 7106
(b) (1) of the Statute, even if the agency uses telephones in
performing its work.
In contrast, the use of telephones by employees in
performance of the official duties of their positions involves
the technology of performing work under section 7106(b)(1).
Compare National Federation of Federal Employees, Local 2059 and
U.S. Department of Justice, U.S. Attorney's Office, Southern
District of New York, New York, New York, 22 FLRA 136, 138
(1986) (the participation of union representatives on a Health
and Safety Committee did not involve the assignment of "work"),
and Social Security Administration and American Federation of
Government Employees, Local 1164, AFL - CIO, 19 FLRA 43 (1985)
(time spent by an employee engaged in union representation
activities did not constitute hours of work for purposes of
overtime compensation), with American Federation of Government
Employees Local 644 and U.S. Department of Labor, Mine Safety and
Health Administration, 21 FLRA 1046 (1986) (Proposal 1) (a
proposal requiring the agency to furnish sufficient telephones
for the conduct of Government business concerned the technology
of performing work). We recently reaffirmed this distinction
between telephone use by union officials for labor management
relations and telephone use by employees on the job in National
Federation of Federal Employees and General Services
Administration, 24 FLRA 430, 433 (1986).
Consistent with these decisions, the use of the AUTOVON
system relates to the technology of performing work only insofar
as AUTOVON is used to perform the work of the agency. The use of
AUTOVON by union representatives to conduct labor-management
relations activities as proposed does not per se involve the
Agency's right to determine the technology of performing its
work. See Wright - Patterson Air Force Base, Ohio, 2 FLRA 604,
610 (1980).
Moreover, the Agency has neither asserted nor does the
record establish that the proposals for Union access to AUTOVON
necessarily impair the use of AUTOVON by employees to perform the
Agency's work. The Agency does not assert that the capabilities
of the AUTOVON system cannot be expanded if necessary to
accommodate whatever increased use might result if it implemented
the proposals, nor does the Agency assert that access could not
be allowed at other times than times of peak use of the system.
Based on the foregoing, we find that the Agency has not
established that the proposals for access to AUTOVON for purposes
of conducting labor-management relations activities interfere
with its right under section 7106(b)(1) to determine the
technology of performing work.
C. The Agency Has Not Shown That the Proposal Conflicts with
a Regulation for Which a Compelling Need Exists
The DOD Directive on which the Agency relies provides for
exclusive access to the AUTOVON network by operational/ military
users, although the directive does not define an "operational
user." The directive indicates that a waiver may be granted on a
case-by-case basis to those who are not operational/military
users based on criteria provided in the directive. However, the
directive specifically states, without any supporting reasoning,
that requests from labor unions do not meet the stated
criteria.
The Agency asserts that a compelling need exists for DOD
Directive 4640.9 under section 2424.11(a) of the Authority's
regulations because it is essential to the accomplishment of the
mission or the execution of functions of the agency in a manner
which is consistent with the requirements of an effective and
efficient Government. The Agency states that prohibiting access
to AUTOVON by 100 different labor organizations in 1750
bargaining units would lessen the burden on the system. However,
the Agency provides no evidence relating to the projected amount
of AUTOVON use by the Union. Moreover, as noted above, the Agency
has not demonstrated that the only way that it can preserve the
AUTOVON system for use in the performance of its work is to deny
access to the Union.
We find that the Agency has failed to demonstrate that a
compelling need exists for DOD Directive 4640.9. See American
Federation of Government Employees, AFL - CIO, Local 2635 and
Naval Communications Unit Cutlet, East Machias, Maine, 30 FLRA
41 (1987) (Provision 2) (the agency failed to establish that a
compelling need existed for DOD Directive 4640.9.)
D. Conclusion
The Agency has not established that the proposals conflict
with section 7106(b)(1) or an agency regulation for which a
compelling need exist. We find, therefore, that the proposals are
within the Agency's duty to bargain. Whatever questions
the Agency may have concerning the existence of a waiver by the
Union should be resolved in other appropriate proceedings.
In view of the fact that we are able to resolve the dispute
as to the negotiability of these proposals on the basis of the
record, we deny the Union's request for a hearing.
V. Order
The Agency shall upon request (or as otherwise agreed to
between the parties) bargain concerning the proposals. 2
Issued, Washington, D.C., April 27, 1988.
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
1. Proposal: For purposes of administering this nationwide
agreement and other appropriate official business, the local
president, chief steward or their designees will have the use of
nationwide Air Force Telephone systems at the union office. This
applies to AFGE Council 214's affiliate Locals.
2. Proposal: Two Class A telephone lines serving two
telephone instruments (identical systems as currently have). This
applies to the AFGE Council 214 office.
3. Proposal: With regard to the contractual grievance
procedure in the Master Labor Agreement (MLA), the parties agree
that for the first three steps of the grievance procedure, any
meeting or discussions will be conducted by telephone conference
(AV) for AFLC employees at AFLC satellite stations identified in
FLRA Case Nos. 5-CU-60007 and 57-RO-70004.
4. Proposal: The current telephone agreement between AFGE
916 and the employer will continue on their present phones. In
addition, they are authorized a line with access to AUTOVON
within the provisions of Air Force Manual 100-22 and Tinker Air
Force Base Regulation 100-3.
5. Proposal: Class A (AUTOVON) telephone lines be provided
in the union offices at the employer's expense (installation and
monthly charge).
6. Proposal: The employer will make available to the union
the use of the Federal Telecommunications System at no cost to
the union.
7. Proposal: AFGE Council 214 and its affiliate Locals shall
have access to the agency's AUTOVON telephone system or the
subsequent updated AUTOVON system (may not be called AUTOVON
after update) at no cost to the Union.
8. Proposal: AFGE Council 214 and its affiliate Locals shall
have access to AFLC's WATS telephone system at no cost to the
Union.
9. Proposal: AFGE Council 214 and its affiliate Locals will
be provided access to the Federal Telecommunications System (FTS)
at no cost to the Union.
10. Proposal: AFGE council 214 and its affiliate too Locals
shall be provided access to Class B telephone service at no cost
to the Union.
11. Proposal: AFGE Council 214 and its affiliate locals
shall be provided access to commercial long-distance telephone
service at no cost to the Union.
12. Proposal: AFLC agrees that AFGE Council 214 and its
affiliate Locals meet the definition of "...no charge for
services requested by a non-profit organization performing a
function related to, or furthering, an objective of the federal
government or which is in the interest of public health and
welfare" as it applies to telephone service including
long-distance.
13. Proposal: AFGE Council 214 and its affiliate Locals
shall be provided access to long-distance telephone service
offered by private companies which advertise low rate
long-distance service at no cost.
14. Proposal: AFGE Council 214 and its affiliate Locals will
be part of the committee, board, etc. that sets telephone rates
at AFLC and its facilities.
15. Proposal: AFGE Council 214 and its affiliate Locals will
be provided Class A telephone service with all accesses to Class
A lines at no cost to the Union.
16. Proposal: AFGE Council 214 and its affiliate Locals will
be provided access to Class B four-party and eight-party
telephone service at no cost to the Union.
17. Proposal: AFGE Council 214 and its affiliate Locals will
be provided MCI telephone service at no cost to the Union.
18. Proposal: AFGE Council 214 and its affiliate Locals will
be provided direct access to the WATS telephone system not shared
among several users at no cost to the Union.
19. Proposal: AFGE Council 214 and its affiliate Locals will
be provided access to the Federal Telecommunications System (FTS)
or its subsequent replacement due to its becoming obsolete at no
cost to the Union.
20. Proposal: AFGE Council 214 and its affiliate Locals will
be provided access to AFLC's video tele-conferencing upon request
at no cost to the Union.
21. Proposal: The duration of this agreement shall be for a
period of 2 1/2 years.
22. Proposal: This agreement may be renegotiated provided
written notice is given 90 days prior to expiration and proposals
provided 30 days prior to same. In this event, the agreement
will remain in effect until changed through negotiations in
accordance with the Labor Statute.
23. Proposal: AFGE Council 214 and its affiliate Locals will
be provided access to AFLC's video tele-conferencing upon request
for the purpose of conducting proper labor relations
responsibilities, including arbitration proceedings at no cost to
the Union.
24. Proposal: AFGE Council 214 and its affiliate Locals will
be provided direct access to AFLC's WATS telephone system, which
includes capability for telephone conferences at no cost to the
Union.
25. Proposal: AFGE Council 214 and its affiliate Locals will
be provided direct access to AFLC's AUTOVON telephone system
which includes the capability for telephone conferences at no
cost to the Union.
FOOTNOTES
Footnote 1 AUTOVON (Automatic Voice Network) is the
principal long-haul, unsecure voice communications network
within the Defense Communications System.
Footnote 2 In finding these proposals negotiable, we make no
judgment as to their merits.