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In the Matter of DEPARTMENT OF THE NAVY NAVAL SURFACE WARFARE CENTER INDIAN HEAD DIVISION INDIAN HEAD, MARYLAND |
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and LOCAL 1923, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
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Case No. 00 FSIP 68 |
ARBITRATOR'S OPINION AND DECISION
Local 1923, 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 between it and the Department of the Navy, Naval Surface Warfare Center, Indian Head Division, Indian Head, Maryland (Employer or Agency) under the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119 (Statute). After investigation of the request for assistance, which involves negotiations over the impact and implementation of the Employer's decision to conduct a reduction in force (RIF), the Panel asserted jurisdiction and determined that the impasse over twenty-five separate issues should be resolved through a mediation-arbitration proceeding before the undersigned.(1)
A mediation-arbitration hearing was conducted on June 6, 7, and 8, 2000, at the Naval Surface Warfare Center, Indian Head, Maryland. On the first day of the proceeding, the Union sought to bring to the table nine new proposals covering: competitive and non-competitive promotions (Section 31B), Types of Employees/Costs (Section 34), Procedures for Costing (Section 35), Travel (freezing travel expenditures) (Section 36), Training (freezing training expenditures) (Section 37), Exception to Release from Competitive Level (using leave to achieve early retirement eligibility)(Section 38), Entertainment (reducing entertainment expenses) (Section 39), Notification of all Personnel Actions (notice to union) (Section 40), Exemptions to RIF (notice to union) (Section 41), and Separation Coverage (continued health insurance coverage) (Section 42). The Arbitrator ruled that she had no jurisdiction to consider these proposals. Thereupon the Union made a motion that the hearing be canceled and the parties ordered back to intensive bargaining on its new proposals. The Union maintained that these proposals responded to information just recently and independently obtained after extensive, unsuccessful efforts by the Union to secure this information from the Employer. The Union had directed a request for bargaining to the Agency the previous day. The Arbitrator denied the motion and hereby reaffirms that denial. At the Union's request, the rationale for that denial is set forth in the footnote below.(2)
During mediation, the parties were able to reach agreement resolving 11 issues and subparts of two others.(3) The post-hearing submissions establish agreement on two additional issues.(4) Remaining unresolved is a Union proposal on Service Computation Disputes that was not offered during the parties' negotiations or mediation but was included in the request for assistance to the Panel. The Agency objects to its consideration since there has been no bargaining, and thus no impasse within the meaning of the Statute. This Section is discussed in the outline of issues at impasse, below.
As Arbitrator, the undersigned has provided the parties a full opportunity to submit evidence and arguments in support of the remaining disputed proposals, which number 13, and post-hearing submissions were received from both parties.(5)
The record is now closed and I have considered all of the relevant information contained therein.BACKGROUND
The Employer's mission is to research, develop, manufacture, and test explosives, propellants, pyrotechnics, and specialty chemicals. It operates under the Navy Working Capital Fund, which means it is a non-appropriated fund activity that generates income by charging its customers. There are about 850 GS and WG non-professional bargaining-unit employees at the facility working in a variety of occupations and crafts. The parties' master collective bargaining agreement (MCBA) is due to expire on February 19, 2001.
In September 1999, the Employer requested RIF authority to reduce indirect (i.e., overhead) labor costs by eliminating 96 positions to address a loss of work coming to Indian Head that according to the Agency, has resulted in accumulated losses of $14 million. A general RIF notice was issued on November 29, 1999. Early-out opportunities were offered in December and January 2000 and the number of positions to be reduced through RIF now stands at 69.
The parties arrived at the Panel having engaged in both traditional and interest-based bargaining, as well as mediation, but with the Union nevertheless frustrated over difficulty in obtaining information, non-receptivity on the part of the Agency to working with the Union to find ways to avoid the necessity of a RIF, concern about the accuracy and currency of Agency personnel records and actions that will directly affect the RIF rights of employees, and local management actions taken during the pendency of this impasse case. The bargaining and impasse proceedings then became a primary venue for the Union to seek remedies for this whole range of concerns. However, the Arbitrator is constrained by the fact that the governing statutes dictate the use of parallel venues, limiting the Panel's jurisdiction to impasses over clearly negotiable proposals, consigning employees to grievances and appeals for procedural errors, and unions to the Office of General Counsel of the FLRA for unfair labor practices.
ISSUES AT IMPASSE(6)
1. Preamble
The parties have agreed to language stating that the Memorandum of Understanding sets forth "terms and conditions for implementing the Activity's November 29, 1999, Notice of Reduction in Force." In dispute is Union-proposed language concerning the scope of matters to be covered.
a. The Union's Position
The Union's language states that "the numbers, types and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty and the technology, methods and means of performing work" are directly related to government mandates for increasing Federal workforce performance and are mandatory subjects of bargaining.
b. The Employer's Position
The Agency declines to elect to bargain over these subjects which are covered by section 7106(b)(1) of the Statute.
CONCLUSIONS
The Statute makes the subjects of the Union language negotiable solely at the election of the Agency and a recent Federal court decision reaffirms this principle and holds that Executive Order 12871 does not serve as an election on behalf of Federal agencies. The Agency here having made no election to bargain, the Arbitrator must decline to consider the disputed Union proposal.
2. Section 1(G)
a. The Union's Position
The Union proposal calls for the Agency to hold the RIF in abeyance pending the outcome of "all bargaining, including but not limited to, mediation and/or impasse proceedings."
b. The Employer's Position
The Employer's counter-proposal contains this qualifying language: "absent budgetary contraints."
CONCLUSIONS
The Union proposal is adopted. The Agency is already under a Panel Order to maintain the status quo.
3. Section 3. Streamlining the Bureaucracy
a. The Union's Position
The Union's proposal is as follows:
A. Prior to effectuating the RIF, the Activity agrees to comply with the President's Executive Order entitled "Streamlining the Bureaucracy" and the Activity's Plan for Streamlining the Bureaucracy, by reducing the ratio of managers and supervisors to other personnel, and by decreasing their supervisor to employee ratio to one (1) to thirteen (13).B. Pursuant to Instruction 5400.15A the activity agrees that prior to effectuating the RIF that there will not be more than one (1) supervisory level between the employee and Department Head.
C. The Activity agrees to streamline processes prior to effectuating the RIF.
The Union believes that to require the Agency to abide by its own legal requirements to streamline its operations and thereby reduce costs and the need for a RIF is an appropriate arrangement to alleviate adverse impact on employees.
b. The Employer's Position
These proposals are non-negotiable since they address the numbers and types of positions to be abolished in the RIF, and seek to regulate the conditions of supervisory and management employees.
CONCLUSIONS
The Employer has raised substantial issues regarding the negotiability of the Union's proposals since they address numbers and types of positions, and address supervisory and management positions, matters over which the Agency cannot be compelled to bargain. A review of FLRA case law lends support for its position. Casting its proposal as simply requiring the Employer to abide by its own rules and regulations (if these kinds of policies and directives can be so construed) does not overcome the Union's problem. Under Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 3364, 31 FLRA 620 (1988) the Arbitrator cannot resolve questions of negotiability to address a proposal on its merits unless there is clear, relevant FLRA precedent to follow and the Union offered none to support is position. Furthermore, not only the Union's evidence, but documents submitted by the Employer concerning its internal reorganization and streamlining steps at Indian Head convince the Arbitrator that the Union's language would directly involve the Union and any third party trying to enforce the language (e.g., determining whether there was genuine streamlining) in decisions about the supervisory, management, and organizational structure of the Agency and about the means and methods of carrying on its mission.
Given the substantial, unresolved issues concerning negotiability, the Arbitrator declines to consider this issue.
4. Section 4. Outplacement and Employee Assistance Program Services
The parties have already agreed in this section to establish an Employee Assistance/Transition Center (Center), in which Union representatives will participate, to provide career transition and outplacement services. The issues remaining in dispute are the following:
a. The Union's Position
In subsection C, the Union proposal creates an obligation on "the Activity and the Union, through the Employee Assistance/Transition Center, to seek reimbursable detail opportunities for RIF impacted employees" and for the Activity to document these efforts. The assumption behind the term "reimbursable" is that the salary of the detailed employee is paid by the user entity rather than the Employer.
In subsection D, the Union proposal provides that 2 weeks prior to the effective date of the RIF the parties will meet to assess use of the Center and then bargain over how long the Center will remain open.
In subsection E, the Union proposes that the Agency continue to make services of the Employee Assistance Program (EAP) available to surplus and displaced employees. The intention is that even after having their Federal employment terminated, RIFed employees will be eligible to continue to receive EAP support.
b. The Employer's Position
The Agency does not accept the Union's proposal concerning "reimbursable details" (and has no counter), expressing concern about the meaning of this term, arguing that details do not necessarily eliminate salary costs for the Agency.
In its proposal for subsections C and D, the Agency provides for the parties to track usage of the Center and, based on the information learned, either close it or enter into time-limited interest-based bargaining about how long it should remain open.
Concerning EAP services, the Agency would add an additional counselor to support RIF-impacted employees and have counselors on site 3 days a week. The Employer opposes the Union proposal concerning extending EAP services on the grounds that it cannot legally provide such services to non-employees. The Federal statute providing for benefits states that these are authorized for "employees" and defines that term in a way that clearly excludes former employees.
CONCLUSIONS
The Arbitrator is persuaded that certain kinds of details to other agencies might afford at least temporary placement for a RIFed employee, but enough questions were left unaddressed that the Arbitrator will adopt the Union's proposal with qualifying language that insures that the details indeed transfer labor costs out of the Agency and thus are consistent with the goals of the RIF.
Given the parties' difficulty in concluding bargaining, the Arbitrator will adopt the Employer's language concerning the continued operation of the Center.
There was no opposition expressed to the Employer's language concerning an additional counselor. As to requiring continuing services from the EAP, there may be a legal problem, although the Arbitrator is not confident that any advice on this point was sought from OPM or other relevant authority. Consequently, the Arbitrator will adopt the Union proposal but with a proviso "to the extent authorized by law".
5. Section 5. Executive Order 12871
a. The Union's Position
Union subsection A states:
Pursuant to Executive Order 12871 and the National Performance Review, the parties agree to negotiate over numbers, types and grades of employees through the Partnership Council by use of consensus. Agreement to outstanding issues shall be agreed to on numbers, types, and grades to be impacted by the RIF. This Agreement shall be reduced to writing in the form of an MOU and signed by the parties.
Subsections B and C require the Agency to provide various documents including performance reports and documents reflecting direct and indirect Agency expenditures.
Subsection D imposes an agreement to "negotiate and implement Self Directed Work Teams (SDWT) to minimize the RIF."
Subsection E is an agreement to "negotiate and implement furloughs in lieu of effectuating the RIF or minimizing the RIF."
According to the Union, subsection A only requires that the parties "talk and discuss" these issues in the Partnership Council, the Union having modified its language to address Agency concerns. The Union believes this new version is unobjectionable to the Agency.
b. The Employer's Position
The Agency does not elect to negotiate over 7106(b) matters and therefore asserts no duty to bargain over Union proposals A, B and C. The Agency takes the same position concerning the proposal for work teams, arguing that this is a method and means of performing work.
As to the topic of furloughs, the Employer has no counter-proposal. Its basic position is to object to having this MOU impose any further negotiation requirements at this late date, when there is a pressing need to move forward with the RIF.
CONCLUSIONS
As discussed above, there has been no election to bargain over 7106(b) matters by management. The Union's insertion of "by consensus" and "through the Partnership Council" do not, to the Arbitrator's reading, alter the fact that use of the terms "negotiate", "agreement", and "MOU" make sense only if the concept is bargaining. Thus, the Union's proposal for subsection A cannot be adopted as written. Subsections B and C meet the same fate because in the Arbitrator's view they presuppose the ability to bargain over numbers, types and grades and methods and means of work in connection with this RIF. Without the underlying right to submit bargaining proposals, a need for this information in this context cannot be demonstrated.
The following language is the Arbitrator's formulation, intended to allow the Union to join an important workplace discussion, and to promote increased communication and information-sharing between the parties under the auspices of partnership since these are not mandated by a duty to bargain. At the same time, the Arbitrator has taken pains to avoid the suggestion of negotiations or the possibility of this process being used for delay:
The Partnership Council shall meet prior to the issuance of specific RIF notices to air any outstanding questions the Union has about the underlying reasons for the RIF and/or any alternatives to RIF it wishes to suggest. At least 72 hours prior to this meeting the Union will submit a concise list of questions/topics it wishes to discuss. The Agency is required to send to the meeting representatives prepared and able to address these topics. A dispute over the amount or quality of information brought to the meeting will not be a reason to extend or postpone the meeting. The meeting will not exceed beyond 3 hours in length except by mutual agreement. This partnership discussion is for the purpose of sharing information and suggestions, only. It is not for the purposes of bargaining over the reduction in force, such bargaining having concluded with issuance of this Award. Consequently, the failure of the parties to come to any agreements during this discussion will not constitute a bargaining impasse. A failure to hold this meeting prior to issuance of specific notices that results from the Union's non-availability shall not justify a postponement of the notices being issued.
The Arbitrator expects that both parties will regard with skepticism the potential value of this meeting. The labor-management relationship displayed at the mediation-arbitration proceeding has not left the Arbitrator unrealistically optimistic. On the other hand, the Arbitrator views it as worthwhile to at least make this opportunity.(7)
The negotiability question raised with regard to the proposal requiring negotiations on self-directed work teams cannot be resolved here, despite the Union's bare assertion that this proposal is "clearly negotiable." The Arbitrator was provided with no FLRA precedent establishing the negotiability of a substantively similar proposal and Panel research uncovered no such decision. Jurisdiction over this proposal must therefore be relinquished as well.
As to the proposal concerning furloughs, the Arbitrator believes it ill-advised to provide for further negotiations as part of an MOU which, after 9 months of bargaining, mediation, litigation and impasse procedures, should be laying to rest the outstanding issues between the parties on a RIF that is driven by economic factors which worsen daily. If the Union had ideas for ameliorating the impact of the RIF through furloughs, it should have offered substantive proposals during the RIF negotiations that started last winter. No specific ideas were offered at the hearing as to how furloughs might address the financial situation here when the problem is not a temporary funding shortfall but a $14 million accumulated loss. This proposal is simply a recipe for delay and further impasse.
6. Section 13. Exceptions/Appeals
The parties have already agreed to language in Section 13 (A) consistent with 5 CFR 531.607 requiring exceptions to be made in a fair, uniform and objective manner, and also requiring notice to the Union and affected employees as to the reasons the exception was used and the rationale for the selection made.
a. The Union's Position
The Union proposal for 13 (B )is:
All employees passed over will have an opportunity to assert and demonstrate their readiness to perform the same work. Moreover, they will be given a notice and the opportunity to respond orally and in writing prior to being passed over. This response will be replied to before the employee is passed over and all procedural issues will be identical to those provided for oral and written replies to disciplinary action under the parties' Master Agreement.
Because of the length of the RIF notice period the Union allows that no delay in carrying on the RIF will occur by virtue of providing these procedures, and that the provision will give an employee the opportunity to prove his/her ability to perform in a position and provide the Employer the chance to correct any unfairness or error prior to an exception taking effect.
b. The Employer's Position
The Employer emphasizes its opposition to creating any right to a "trial period," which is how it reads the Union proposal, because of its potential to cause undue delay in effectuating the RIF, and argues that the RIF appeal and grievance rights wherein an employee can raise any allegation of error or unfairness are sufficient. The Employer's language tracks 5 CFR 531.607 and provides that employees receiving notice of an exception may submit a written response that will be given "full consideration," and receive a written decision of any subsequent decisions.
CONCLUSIONS
There is an overlap in the Union and Employer approaches. Both provide for notice to an employee, reasons for the exception, and the right to make a written response and get a written decision. The Union adds an oral response, the due process elements of the negotiated adverse action procedure and a chance to "demonstrate" readiness to perform the duties of the job in question. In both approaches, the employee has the right to grieve or file a RIF appeal with the MSPB.
The Arbitrator is not persuaded that giving employees the right to an actual trial demonstration of their readiness to perform is workable or reasonable given how a RIF works, i.e., the impact of holding up one action on the chain of events that makes up the release/bump-and-retreat process. Nor is she assured that using the 30 notice/25 day reply time frames of the contract procedure would not carry the potential of unduly delaying the RIF. At the same time, given the small number of exceptions that can be expected, the right to make an oral response is not an undue burden while it will provide more assurance to employees that their responses will be considered (an assurance that is warranted given what the Arbitrator heard at the hearing concerning the fate of other corrective responses). The Arbitrator therefore adopts a modified version of the Employer’s proposal to include opportunity for an oral response.
7. Section 14. Qualification Determinations
During the mediation-arbitration the parties reached agreement on subsection E of this section dealing with recency of experience. In its final submission the Union accepts the Employer language for subsection B. Subsection A was agreed to during negotiations. The remaining two subsections in dispute are C and D and concern the use of proficiency tests.
a. The Union's Position
Union proposal 14(C) allows the Agency ("may") to use a proficiency test to determine qualifications as an alternative to modifying qualifications as described in subsection A or allowing an employee to demonstrate qualification as provided in subsection B. Proposal 14(D) provides for testing results to go to the Union and short time frames for requesting and taking any such test.
b. The Employer's Position
The Employer opposes what it reads as a requirement that it develop proficiency tests and "allow any and all employees to be tested" (Agency final submission).
CONCLUSIONS
The Union proposal plainly does not mandate the development of proficiency tests but creates a proficiency test option for Agency determinations of qualifications. There is an existing limited use of proficiency tests within the Agency, albeit not for initial qualification. If the Agency does not believe it appropriate (or legal) to use these tests for qualifying employees under this section, it has the discretion under the Union's language to decline to use this option. The Arbitrator sees no disadvantage to the Agency in allowing this language.
8. Section 18. Training (Re-/Cross)
a. The Union's Position
The Union's proposal obligates the Agency to "make aggressive efforts to train any employee to increase their potential of being placed in another Activity [.] wherein the employee has been identified by Activity determination for involuntary separation." (The Arbitrator makes the above correction to the Union's punctuation to make clear the restriction of its application to RIF-impacted employees, an intention clearly stated in the Union's final submission.) The language further directs the Agency to "consider the extent to which the current skills, knowledge and abilities of the employee can be increased and put to use in a new position resulting in a benefit to the Government by retaining the employee in the Federal Service." The Union believes that reallocation of money within the Agency could make additional training funds available.
b. The Employer's Position
The Employer's proposal promises aggressive efforts to ensure that employees reached for separation by the RIF will receive benefits under Title II of the Federal Job Training Partnership Act, and information from state and local programs about training services/opportunities. The Union proposal would require the Employer itself to provide training and this is not possible due to the financial constraints that are dictating the RIF.
CONCLUSIONS
The Arbitrator adopts the Employer proposal, as modified below, based on the following considerations. The obligation to directly provide or pay for education and training that the Union would impose runs directly counter to the need to reduce indirect labor costs that is driving the RIF. The Union's argument that such training funds could be made available seems to rest on an inaccurate assumption that money can be redirected from "golf tournaments, bowling leagues, officers' clubs, etc." (Union's final submission, page 8). An Agency witness explained at the hearing that it receives Congressionally earmarked funds for increasing military morale which it cannot use for any other purposes.
The Union is justified in worrying about the employability of personnel whose career experience is in highly specialized positions unique to the Agency's mission. However, under Section 4 to which the parties agreed during negotiations, the Employer already is obligated to "provide employees with all reasonable career transition and outplacement services to enhance their opportunities for placement either within NSWC or another Activity in the Federal Government . . . Such assistance will include, but is not limited to . . . exploring job opportunities for affected employees." A Union-Management Outplacement Committee has been established and is arranging for access to on-base or nearby employment services.
It became apparent at the hearing that an underlying concern of the Union is that the benefits of these programs will not be felt by employees if the responsibility for implementation is located at the Employer personnel headquarters in Washington. In response, the Employer represented that there will be a RIF program manager located at Indian Head to serve as a liaison between the job/training programs/agencies, the Agency, and displaced employees. The Arbitrator finds it appropriate to add the following requirement to the Employer proposal being adopted: "There will be a designated RIF program manager at Indian Head NSWC to coordinate and be responsible for the carrying out of the above efforts."
9. Section 19. Details to Other Agencies
a. The Union's Position
The Union proposal reads:
The Activity will seek to detail as many employees as possible on a reimbursable basis to other agencies. A committee shall be established by the Activity with no less than two (2) Union representatives that shall be responsible for the accomplishment of this effort. The committee shall document its efforts . . . and a copy of the documentation shall be provided to the Union. The Activity is responsible for all necessary equipment and data that shall be necessary for accomplishing this function. The committee's function shall terminate on the date effectuating the RIF or when all available agencies have been reached for consideration.
The intent of this proposal is "to have the Employer find positions at other Agencies for impacted employees" in order to lessen the impact of the RIF (Union final submission page 9).
b. The Employer's Position
The Agency has no counter and believes efforts to detail employees will be carried on through the Employee Assistance Transition Center.
CONCLUSIONS
The Arbitrator has adopted a modified version of the Union's proposal at Section 4 C that requires the Agency and Union to seek reimbursable details for impacted employees where this shifts the labor cost to the receiving agency and is otherwise feasible. The Arbitrator does not see employees benefitting from the duplication of efforts that this Union proposal would create. Furthermore, the Union's language extends to "all" employees, not just impacted employees, though its stated intention is for details to be sought for the latter. Therefore, the Arbitrator declines to adopt the Union's proposal.
10. Section 20 B. Reassignment to Different Geographical Area
The Union's final submission indicates agreement to the Employer's proposed language for subsection B which references the Joint Travel Regulations (JTR) on the length of time employees will be given for relocation, locating new housing and related activities. Nevertheless, the Union makes an allegation that the Employer has failed to fulfill its bargaining obligations with regard to implementing the JTR, and has expressed a concern that its bargaining rights not be construed as waived by virtue of the position it takes here that the JTR will govern these RIF matters. While it is not within the jurisdiction of the Arbitrator to order the Employer to bargain over the JTR, which the Union requests, the Arbitrator will include in the ordered language a statement that, "the incorporation of this language in the parties' RIF MOU should not be construed to diminish any rights the Union may have under the Statute to bargain over the JTR or its implementation."
11. Section 21. Mock RIF
a. The Union's Position
The Union proposal would obligate the Employer to conduct, "with the participation of the Union," practice runs of the RIF "under alternative assumptions to increase understanding of the process by employees, to identify problems and jointly (labor and management) develop solutions, and to compare costs of the alternatives." This would reduce the potential for appeals and grievances, and eliminate mistakes in advance. Interference with management rights is not implicated since the Union is not seeking involvement in management decisions but simply the ability to monitor and comment on the mock RIFs.
b. The Employer's Position
The Union proposal is non-negotiable under section 7106(a) of the Statute since it would require Union participation in management discussion and deliberations on relevant factors upon which RIF decisions are made, integral to management's right to lay off employees. On the merits, the Agency opposes providing the Union with a mock RIF document that, because it is subject to constant change, may unnecessarily alarm employees.
CONCLUSIONS
The Arbitrator is unpersuaded that there is no appropriate role for the Union to provide feedback on practice RIFs run by the Agency and that indeed this feedback could be of benefit to employees, and the Agency. She therefore will order adoption of the following language:
Should the Agency conduct practice runs or "mock" RIFs, at the conclusion of such mock RIFs, for the purpose of increasing understanding and identifying problems that may adversely impact employees the Union President and two other Union representatives designated by the President will be briefed on the mock RIF, given an opportunity to provide comments to the Agency and provided with documentation of the mock RIF, on condition that the Union agree to such conditions of confidentiality as the Agency believes are necessary.
The revised language avoids any implication that the Union is to be involved in management discussions or decisions concerning the design of the RIF, and does not mandate a mock RIF but requires the Union to be given information about any that is undertaken (and the Arbitrator's understanding is that mock runs of the RIF are being undertaken). The conditions imposed are to address the concerns about confidentiality expressed by the Employer.
12. Section 22. VERA Extensions
a. The Union's Position
The Union's final proposal submitted to the Panel at the time of the request for assistance was for the Employer to "extend the offer of voluntary early retirement throughout the planned effective date of March 3, 2000 (when employees are to be off the rolls of government service)." The Union's current position is to propose that the Agency make "every reasonable effort to request and receive authority to offer additional early retirement opportunities (VERA/VSIP) base-wide for as long a period as possible. The Activity shall expedite these efforts and shall provide copies of all documents and briefings on the issue to the Union." This latest language was offered at the mediation-arbitration proceeding.
b. The Employer's Position
The Agency provided two windows for early retirement, November 11 to December 15, 1999, and January 13 to 27, 2000, and numerous employees applied and received an "early out." Thus, employees have been given full opportunity to apply to volunteer for VERA. No proposal other than extending the open time to March 3 was ever made during negotiations. The Agency's authority for providing early retirements under VERA/VSIP expired on March 3, 2000.
CONCLUSIONS
The two windows for early retirement, the period of VERA authority, and the Union's earlier proposal, were all predicated on a RIF completed in March. The circumstances have changed considerably and now the Agency's anticipated RIF effective date is in December. The Union's position has plainly been to seek early out opportunity for as long as possible. Therefore, the Arbitrator does not consider the Union's modified language to be a new proposal.
The Union has acknowledged that the Agency cannot offer any additional early retirements without being granted new authority, and heard the possible hurdles and questions of feasibility that were raised at the mediation-arbitration by the Agency. The Union's modified position simply asks the Agency to see if an additional opportunity is possible. The Arbitrator will adopt the Union's last proposal language.
13. Section 33. Service Credit Disputes
The Union formulated a proposal on this subject after the Federal Mediation and Conciliation Service had concluded its efforts with the parties and the proposal was never the subject of bargaining, though submitted with the Union's request for assistance to the Panel. After hearing the Union's presentation about the issue, the Arbitrator believes that this is an instance where, rather than filing a grievance or other action, the Union is seeking to negotiate a remedy to a problem that occurred when the Agency failed to provide all employees with corrected data sheets after errors were identified by some employees last winter. The Arbitrator does not believe this issue is properly before her and remands the Union to other avenues to remedy this problem.
DECISION
1. The Arbitrator declines to consider the Union proposal.
2. The parties shall adopt the Union proposal.
3. The Arbitrator declines to consider the Union proposal.
4. The parties shall adopt the following language:
Section 4. Outplacement Employee Assistance Program ServicesC. The Activity and the Union, through the Employee Assistance/Transition Center, will seek reimbursable detail opportunities for RIF impacted employees where such details are not inconsistent with the purpose for which the RIF is being conducted. The Activity will be responsible for documenting the parties' efforts (e.g. Activity(ies) contacted for details, employees detailed, duration, Activity(ies) not accepting, etc.). Copies of this information will be provided to the Union on a weekly basis.
D. During the last month of the RIF, the Activity and Union will jointly track the usage of the Transition Center, using a sign-in sheet indicating what resources the employee intends to use at the Center.
a) If there is no usage, the center will close at the end of the 120 calendar days.
b) If there is usage then,
1) Activity and Union will engage in interest-based bargaining with the intent of coming to agreement on how long the Center will remain open. The parties will reach an agreement within one month of the onset of negotiations, Or
2) The Center remains open an additional month.
E. The Activity will add one additional counselor to support RIF impacted employees. Counselors will be on site three days a week until the RIF is effected.
F. The Activity agrees to continue to make available to displaced and surplus employees services and assistance currently offered through the Employee Assistance Program to the extent authorized by law.
5. The Arbitrator declines to consider the Union proposals for subsections (A), (B), (C), and (D). The parties shall adopt the following language:
The Partnership Council shall meet prior to the issuance of specific RIF notices to air any outstanding questions the Union has about the underlying reasons for the RIF and/or any alternatives to RIF it wishes to suggest. At least 72 hours prior to this meeting the Union will submit a concise list of questions/topics it wishes to discuss. The Agency is required to send to the meeting representatives prepared and able to address these topics. A dispute over the amount or quality of information brought to the meeting will not be a reason to extend or postpone the meeting. The meeting will not exceed three hours in length except by mutual agreement. This partnership discussion is for the purpose of sharing information and suggestions, only. It is not for the purposes of bargaining over the reduction in force, such bargaining having concluded with issuance of this Award. Consequently, the failure of the parties to come to any agreements during this discussion will not constitute a bargaining impasse. A failure to hold this meeting prior to issuance of specific notices that results from the Union's non-availability shall not justify a postponement of the notices being issued.
The Arbitrator declines to adopt the Union proposal for subsection (E).
6. The parties shall adopt the following language:
Section 13. Exceptions/Appeals
(B) When the Activity decides to use one of the exceptions set forth in the CFR and the employees receive notice of such action, the employees may submit a written response, and at their request will be given the opportunity for an oral response. The employee response will be given full consideration and any subsequent decisions will be provided to the employees in writing.
7. The parties shall adopt the Union's proposal (Sections 14(C)and (D).)
8. The parties shall adopt the Employer proposal, modified by the addition of the following new paragraph:
There will be a designated RIF program manager at Indian Head NSWC to coordinate and be responsible for carrying out the above efforts.
9. The Arbitrator declines to adopt the Union's proposal.
10. The parties shall adopt the Employer's proposal as agreed to by the Union, modified by addition of the following language:
The incorporation of this language in the parties' RIF MOU should not be construed to diminish any rights the Union may have under the Statute to bargain over the JTR or its implementation.
11. The parties are ordered to adopt the following language:
Should the Agency conduct practice runs or "mock" RIF/s, at the conclusion of such mock RIFs, for the purpose of increasing understanding and identifying problems that may adversely impact employees the Union President and two other Union representatives designated by the President will be briefed on the mock RIF, given an opportunity to provide comments to the Agency and provided with documentation of the mock RIF, on condition that the Union agree to such conditions of confidentiality as the Agency believes are reasonably necessary.
12. The parties shall adopt the Union's proposal as revised on June 7, 2000.
13. The Arbitrator declines to consider the Union's proposal.
Mary E. Jacksteit
Arbitrator
July 27, 2000
Takoma Park, Maryland
1.The Panel also ordered the Employer to maintain the
status quo by taking no further steps to move the RIF to completion, in accordance with the Federal Labor Relations Authority’s decision in
U.S. Immigration and Naturalization Service and National Border Patrol Council, American Federation of Government Employees,
AFL-CIO, 55 FLRA No. 19 (January 12, 1999).
2.First, the Arbitrator was unpersuaded that these proposals could not have been offered months earlier. Some of them reflect long-held concerns of the Union about the bona fides of this RIF (e.g. seeking to halt spending in non-direct salary accounts); others (e.g. separation coverage) were not related to newly obtained information and were additional measures to alleviate adverse impact; some were, in effect, attempts to remedy what the Union believed were improper actions being taken by the Agency during the pendency of the FSIP proceeding more properly addressed through other means. Also, the Union had not availed itself of all avenues for obtaining information provided by statute that are outside of the negotiation process. Second, many of the proposals raised substantial issues of negotiability. Third, the Employer stated its refusal to return to the table based on its position that it had no duty to bargain on these proposals, substantively and/or at this point in time. Therefore, it was predictable that nothing other than further, protracted litigation and delay would result from granting the Motion. Fourth, the Arbitrator acted in accord with the Panel’s statutory responsibility to bring bargaining impasses brought before it to resolution. Here, it was the Union that brought the case to the Panel, the Panel had asserted jurisdiction having found an impasse, the parties were properly before the Arbitrator pursuant to the Panel’s jurisdictional order, and there was before the Arbitrator a set of RIF proposals over which the parties were at impasse following bargaining and mediation. Further, the Employer was under order from the Panel not to proceed with the RIF until the impasse was resolved.
3.The parties reached agreement regarding the following issues (the section numbers used here and throughout are the Union’s): Section 6, Adverse Impact Analysis; Section 8, Competitive Level Determinations; Section 9, Competitive Areas; Section 12, Bids on Vacant Positions; Section 14(E), Qualification Determinations – recency of experience; Section 15, Physical Qualifications; Section 23, Vacancies Established Through VERA; Section 24, Position Descriptions; Section 29, Examination of Records; Section 30, Personnel Files; Section 31(A), Career Ladders; and Section 32, Performance Appraisals.
4.For Section 17 (B) (Representative Rate), the Union agreed to the Employer’s last proposal language. For Section 20 (B) (Reassignment to Different Geographical Area), the Union indicated a qualified agreement with the Employer proposal. Because the Arbitrator has adopted additional language relating to the Union’s concern, Section 20(B) is discussed in the outline of disputed issues, below.
5.Subsequent to the date on which the briefs were received, the Union filed a “Motion to Strike” the Employer’s post-hearing submission, essentially because it did not receive a copy of the Employer’s submission. The Employer filed a “Response to Union’s Motion to Strike” which requests that the Union’s Motion be denied. After carefully considering the Union’s Motion and the Employer’s Response, the Arbitrator denies the Motion. Normally, FSIP parties service one another with pleadings but this was not specifically directed by the Arbitrator, the Arbitrator had instructed that no responsive pleadings were to be allowed, there is no FSIP rule explicitly requiring such service and, most importantly, in this instance there was no prejudice to the Union. The Agency should note that regular service to the other party will avoid this type of controversy in the future.
6.For convenience, the Arbitrator is using the Union’s section numbers, which in some cases are the same as the Employer’s and in others, not. For clarity, the title of the section is also provided.
7.Executive Order 12871 calls for unions and employees to be involved as partners with management in the identification of problems and the crafting of solutions to better serve the agency’s customers and mission and resolving workplace issues. During the testimony of an employee of the Comptroller’s office, it became obvious to the Arbitrator that great benefit would accrue to these parties from a greater sharing of information and a more collaborative approach to problem-solving.