American Federation of Government Employees, AFL-CIO, Local 1617 and Headquarters, San Antonio Air Logistics Center, Kelly Air Force Base, Texas (Authority decision, January 11, 1980)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

AFGE Local 1617 challenged the Air Force's establishment of a staggered seven day shift at Kelly Air Force Base. The union filed both an unfair labor practice charge and a negotiability appeal. The regional director declined to issue a complaint on the charge, finding that the collective agreement covered the shift change and that the parties had agreed on its impact and implementation; the General Counsel affirmed. The Authority said a negotiability ruling in those circumstances would be advisory, so it dismissed the appeal as moot without deciding its merits.

Decision snapshot

• Authority: 5 U.S.C. § 7117(c); 5 C.F.R. §§ 2424.8 and 2429.10.
• Outcome: Negotiability petition dismissed as moot without a merits ruling.
• Key point: The related unfair labor practice disposition left no live negotiability dispute for an Authority ruling.

Full text (FLRA public release)

[ v02 p419 ]

02:0419(57)NG

The decision of the Authority follows:

2 FLRA No. 57

MR. RONALD D. KING, DIRECTOR
CONTRACT AND APPEALS DIVISION
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
1325 MASSACHUSETTS AVENUE, NW.
WASHINGTON, D.C. 20005

RE: AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1617 AND
HEADQUARTERS, SAN ANTONIO AIR
LOGISTICS CENTER, KELLY AIR FORCE
BASE, TEXAS, Case No. 0-NG-33

DEAR MR. KING:

REFERENCE IS MADE TO YOUR PETITION FOR REVIEW FILED ON BEHALF OF THE
UNION, THE AGENCY'S STATEMENT OF POSITION AND THE UNION'S RESPONSE
THERETO, IN THE ABOVE-ENTITLED CASE. FOR THE REASONS INDICATED BELOW,
THE AUTHORITY HAS DETERMINED THAT THE PETITION FOR REVIEW MUST BE
DISMISSED.

THE BASIC FACTS, AS SET FORTH IN THE RECORD, ARE AS FOLLOWS: CURING
THE TERM OF AN AGREEMENT BETWEEN THE SAN ANTONIO AIR LOGISTICS CENTER
(ACTIVITY) AND THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 1617 (UNION), THE ACTIVITY NOTIFIED THE UNION OF ITS INTENT TO
ESTABLISH AN "UNCOMMON TOUR OF DUTY," I.E., A SEVEN-DAY STAGGERED SHIFT
OPERATION TO MEET INCREASED WORK LOAD REQUIREMENTS. THE PARTIES MET TO
DISCUSS THE IMPACT ON ADVERSELY AFFECTED UNIT EMPLOYEES. AT THAT TIME,
HOWEVER, THE ACTIVITY REFUSED TO BARGAIN ON ITS DECISION TO ESTABLISH
THE NEW TOUR OF DUTY. FOLLOWING THE ACTIVITY'S IMPLEMENTATION OF THE
UNCOMMON TOUR OF DUTY, THE UNION FILED AN UNFAIR LABOR PRACTICE CHARGE
WITH THE DALLAS REGIONAL OFFICE OF THE AUTHORITY ALLEGING THAT THE
ACTIVITY HAD "IMPLEMENTED A CHANGE IN PAST PRACTICES, POLICIES AND
WORKING CONDITIONS BY ESTABLISHING (U)NCOMMON (T)OURS OF (D)UTY FOR
(U)NIT EMPLOYEES WITHOUT GIVING THE EXCLUSIVE REPRESENTATIVE . . . AN
OPPORTUNITY TO BARGAIN ON ITS MERITS OR THE IMPACT ON (U)NIT EMPLOYEES,"
IN VIOLATION OF SECTION 7116(A)(1), (2), (5), (7) AND (8) AND SECTION
7117 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
(STATUTE). AT THE SAME TIME, THE UNION FILED THE NEGOTIABILITY APPEAL
HEREIN.

IN THE CIRCUMSTANCES OF THIS CASE, THE NEGOTIABILITY ISSUE SOUGHT TO
BE RAISED BY THE UNION IN ITS APPEAL, I.E., WHETHER THE ESTABLISHMENT OF
UNCOMMON TOURS OF DUTY IS A NEGOTIABLE MATTER UNDER THE STATUTE, HAS
BEEN RENDERED MOOT. AS PREVIOUSLY INDICATED, THE UNION FILED AN UNFAIR
LABOR PRACTICE CHARGE ALLEGING, IN PART, THAT THE ACTIVITY VIOLATED THE
STATUTE BY "ESTABLISHING (U)NCOMMON (T)OURS OF (D)UTY FOR (U)NIT
EMPLOYEES WITHOUT GIVING THE EXCLUSIVE REPRESENTATIVE . . . AN
OPPORTUNITY TO BARGAIN ON ITS MERITS . . . ." THE REGIONAL DIRECTOR (RD)
REFUSED TO ISSUE A COMPLAINT ON THE UNFAIR LABOR PRACTICE CHARGE,
FINDING, IN EFFECT, THAT THE ACTIVITY WAS UNDER NO OBLIGATION TO BARGAIN
ON THE MATTER OF UNCOMMON TOURS OF DUTY INASMUCH AS IT WAS COVERED BY
THE PARTIES' NEGOTIATED AGREEMENT /1/ AND THE ACTIVITY HAD COMPLIED WITH
THE PROVISIONS CONTAINED THEREIN. THE RD ALSO FOUND THAT THE PARTIES
HAD NEGOTIATED AND REACHED AGREEMENT ON THE IMPACT AND IMPLEMENTATION OF
MANAGEMENT'S DECISION TO ESTABLISH THE UNCOMMON TOURS OF DUTY. HE
FURTHER NOTED THAT, IF THERE WAS ANY DISAGREEMENT WITH THE ACTIVITY'S
INTERPRETATION AND APPLICATION OF THE AGREEMENT, THE UNION COULD HAVE
UTILIZED THE CONTRACTUAL GRIEVANCE AND ARBITRATION PROCEDURE TO RESOLVE
THE MATTER. THE GENERAL COUNSEL, PURSUANT TO SECTION 2423.9(E) OF THE
AUTHORITY'S RULES AND REGULATIONS (44 FED. REG. 44761(1979)), AFFIRMED
THE RD'S REFUSAL TO ISSUE A COMPLAINT. SAN ANTONIO AIR LOGISTICS
CENTER, KELLY AIR FORCE BASE, TEXAS, CASE NO. 6-CA-33(DEC. 21, 1979).

IN VIEW OF THE FINDING THAT THE ACTIVITY WAS UNDER NO OBLIGATION TO
BARGAIN IN THESE CIRCUMSTANCES, WERE THE AUTHORITY TO ISSUE A DECISION
UNDER SECTION 7117(C) OF THE STATUTE, SUCH DECISION WOULD CONSTITUTE
MERELY AN ADVISORY OPINION CONTRARY TO THE AUTHORITY'S RULES AND
REGULATIONS. /2/

THEREFORE, INASMUCH AS THE DISPOSITION OF THE UNION'S RELATED UNFAIR
LABOR PRACTICE CHARGE HAS RENDERED THE UNDERLYING NEGOTIABILITY ISSUE
MOOT, THE UNION'S PETITION FOR REVIEW IS DISMISSED PURSUANT TO SECTION
2424.8 OF THE AUTHORITY'S RULES AND REGULATIONS (44 FED. REG. 44740 ET
SEQ.(1979)), WITHOUT PASSING UPON THE MERITS OF THE APPEAL.

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

CC: D. DRESSER

AIR FORCE

/1/ AS FOUND BY THE RD, ARTICLE X, SECTION 2 OF THE PARTIES'
AGREEMENT STATES:

"SHIFTS AND TOURS OF DUTY ALREADY ESTABLISHED BY THE EMPLOYER WILL
REMAIN IN EFFECT EXCEPT AS FOLLOWS. CHANGES TO THESE SHIFTS AND TOURS
OF DUTY WILL BE KEPT TO THE MINIMUM POSSIBLE AND WILL BE MADE ONLY WHEN
DICTATED BY MISSION REQUIREMENT. THE UNION WILL BE GIVEN THE
OPPORTUNITY TO HAVE ITS VIEWS CONSIDERED BY MANAGEMENT PRIOR TO THE
IMPLEMENTATION OF A CHANGE . . . ."

SAN ANTONIO AIR LOGISTICS CENTER, KELLY AIR FORCE BASE, TEXAS AND
AFGE, LOCAL 1617, CASE NO. 6-CA-33(AUG. 29, 1979).

/2/ IN THIS REGARD, SECTION 2429.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (44 FED. REG. 44771(1979)) PROVIDES THAT "(T)HE AUTHORITY .
. . WILL NOT ISSUE ADVISORY OPINIONS."