United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of DEPARTMENT OF THE AIR FORCE DOVER AIR FORCE BASE DOVER AFB, DELAWARE
and LOCAL 1709, AMERICAN FEDERATION OF      GOVERNMENT EMPLOYEES, AFL-CIO	Case No. 03 FSIP 92

DECISION AND ORDER

   Local 1709, American Federation of Government Employees, AFL-CIO (Union) and the Department of the Air Force, Dover Air Force Base, Dover AFB, Delaware (Employer) filed a joint 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.

   Following an investigation of the request for assistance the Panel determined that the dispute, which concerns the last ground rule to govern bargaining over anthrax inoculations, should be resolved through an Order to Show Cause. In this regard, the parties were ordered to show cause why the Panel should not direct them to withdraw their proposals on ground rule 4. Accordingly, the parties submitted statements in response to the Panel’s Order to Show Cause, and the Panel has now considered the entire record.

BACKGROUND

   The Employer manages C-5 aircraft for airlifting passengers and cargo, such as tanks and trucks, worldwide for the Department of Defense. The Union represents 666 bargaining-unit employees in a stand-alone unit, who work as accounting technicians, aircraft mechanics, air traffic controllers, civil engineers, painters, and in crafts and trades, clerical, supply, child development, youth, and recreational service positions. Their grades range from GS-3 through -11 and WG-5 through -11. A group of 11 power support systems mechanics on the Civil Engineering Maintenance, Inspection and Repair Team (CEMIRT), who travel to remote and sometimes hostile environments to work on various types of generators for the Department of Defense, will be affected by the outcome of the substantive negotiations the ground rules are to govern. The parties’ collective bargaining agreement (CBA) expired June 15, 1998, but its terms will continue until the implementation of a new agreement.

ISSUE AT IMPASSE

   The parties essentially disagree over whether the Union should receive 24-hours’ advance notice and written reasons when the Employer denies official time to a Union negotiator for attending a scheduled bargaining session.

POSITIONS OF THE PARTIES

1. The Employer’s Position

   In response to the Panel’s order, the Employer contends, as it had during the investigation, that the Panel should decline to assert jurisdiction over the dispute because, among other things, the Union’s proposal is covered by the parties’ CBA.⁽¹⁾   The parties "already negotiated a contract provision regarding the use of official time for labor-management activities and other representational activities." Should the Panel adopt the Union’s proposal, it would be sanctioning the Union’s tactic of proposing ground rules that are covered by the CBA in future situations where management proposes midterm changes. Even if the Panel orders the Union to withdraw its proposal, the CBA provisions would effectively be rendered "null and void." Finally, "Dover AFB has only rarely been unable to grant official duty time to union officials under that CBA provision."

2. The Union’s Position

The Union’s proposed ground rule 4 states as follows:

In the event the Employer determines the need to deny official time for any Union negotiator, the Employer will notify the Union in a reasonable and timely manner, minimum of 24 hours. Any denial of official time for this negotiations must be supported by written documentation and provided to the Union within 5 days.

The Panel has failed to properly capture the issue in dispute, which should be described as "notification of denial of official time to the Union, ‘in a reasonable and timely manner.’" This construction explains why the proposal is not covered by the parties’ CBA and remains within the Employer’s duty to bargain under SSA Baltimore. In addition, employees who will be subject to vaccination are "highly trained individuals," who are part of a tenant organization at Dover AFB, the Air Force Civil Engineer Support Agency, which is headquartered at Tyndall Air Force Base, Florida. Without this ground rule, the Employer may "stall" negotiations by the last-minute denial of official time, giving the work of its organization priority over the Air Force Civil Engineer Support Agency. The appropriate outcome is to avoid any delay in negotiations, so that affected employees can be "redeployed into high threat anthrax areas of the world [] to carry out duties important to [the] Air Force, DOD, and [] the taxpayer." Moreover, the "supervisors [of Union negotiators] do not coordinate with anyone as their concern is their everyday work [] and how it fits into D[over] AFB’s mission."⁽²⁾

CONCLUSIONS

   Having carefully considered the parties’ responses to the Order to Show Cause, the Panel declines to retain jurisdiction over the disputed issue in this case. While it appears from a practical perspective that a decision on the merits of the issue would be in the interest of the parties and the public, the Employer nevertheless continues to maintain that the subject of the Union’s proposal is covered by Article 5, Section 2A, of the parties’ CBA. In circumstances such as this, where the Employer’s contention that it has satisfied its duty to bargain is clearly arguable, the Panel is constrained to permit the legal matter to be settled in an 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 the Union’s proposal is found to be within the Employer’s duty to bargain and an impasse is subsequently reached.

ORDER

   Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, 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
Executive Director

August 5, 2003
Washington, D.C.

1. The Employer cites U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees and National Council of Social Security Administration Locals, Council 220, 47 FLRA 1004 (1993) (SSA Baltimore), i n which the FLRA first set out its “covered by” doctrine. Article 5, Section 2A, of the CBA provides in pertinent part, that:

The Employer recognizes that official time utilized is beneficial to the interests of both parties. Worksite demands shall not be unjustly used to control or frustrate the role of Union Representatives or to prevent attendance at scheduled Labor/Management Meetings.

2. During the investigation of the case, the Union stated that these denials are infrequent.