United States of America

 

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

 

In the Matter of DEPARTMENT OF THE ARMY ARMY CORPS OF ENGINEERS ROCK ISLAND DISTRICT ROCK ISLAND, ILLINOIS
and LOCAL 584,  AMERICAN FEDERATION OF  GOVERNMENT EMPLOYEES, AFL-CIO	Case No. 00 FSIP 143

DECISION AND ORDER

    Local 584, American Federation of Government Employees, AFL-CIO (Union) and the U.S. Army Corps of Engineers, Rock Island District, Rock Island, Illinois (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, arising from negotiations over the parties’ successor collective bargaining agreement (CBA), the Panel determined that the dispute should be resolved through an informal conference with a Panel representative. The parties were advised that if no settlement was reached, the representative would report to the Panel on the status of the dispute, including the parties’ final offers and her recommendations for resolving the impasse. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.

        Pursuant to this procedural determination, Panel Representative (Labor Relations Specialist) June M. Marshall conducted an informal conference with the parties on October 17 and 18, 2000, at the Rock Island facility in Rock Island, Illinois. At the close of the proceeding, the parties remained deadlocked over three issues, and were permitted to submit final offers and statements in support of their positions.⁽¹⁾ Ms. Marshall has reported to the Panel, and it has now considered the entire record.

BACKGROUND

        The Employer’s mission is to maintain water channels for boat navigation, which includes the construction, repair, and operation of locks and dams. The Rock Island District covers the states of Illinois, Iowa, Missouri, and portions of Wisconsin and Minnesota. The Union represents approximately 450 nonprofessional General Schedule (GS) and Wage Grade (WG) employees. Bargaining-unit positions include civil engineering technicians, contract specialists, clerks, lock and dam operators, lock and dam equipment mechanics, welders, and dam operators. The parties’ CBA expired on March 31, 2000, but has been extended until the successor agreement is implemented.

ISSUES AT IMPASSE

    The parties disagree over: (1) official time for training Union officials; (2) the amount of official time for the Union president and another executive officer; and (3) the payment of arbitration fees and expenses.

POSITIONS OF THE PARTIES

1.  Official Time for Training Union Officials

a. The Employer’s Position

    The Employer proposes the following wording:

The Employer agrees to authorize official time for the Union officials to attend Labor-Management Relations training that is of mutual benefit to the Employer and the Union. The total amount of official time for this training shall not exceed four hundred (400) hours per calendar year. The Union will submit a written request for this official time and provide an agenda of all subject matter to be covered at the training at least thirty (30) days in advance of the requested training. The Union will provide the Employer with copies of all materials used and/or handed out at such training, so that the Employer can be equally well-informed about the subject of the training. Official time not used under this Article 6, Section 1d(2) will not accumulate. Approval of individual attendees will be granted in accordance with mission needs.

The Employer’s proposal would increase the current bank of hours for training from 200 hours to 400 hours for Union officials attending Labor-Management Relations training that is of benefit to both parties. By defraying the full cost of training for Union officers and stewards, the proposal recognizes "the value of a trained Union staff." The Union, however, should bear "an equal responsibility" for training employees who accept Union positions and should not expect the Employer to bear the full cost. Additionally, despite the Union’s assertion that more training hours are needed to ensure all officials are adequately trained, in several instances, the Union has not appropriately used the officials it has already trained. Because the Union is not utilizing these individuals, the increase of 600 hours it proposes is not warranted.

b. The Union’s Position

    The Union’s proposal is as follows:

The Employer agrees to authorize official time for Union officials to attend training for representational duties. The total amount of official time for the training shall not exceed six hundred (600) hours per calendar year. The Union will submit a written request for this official time and provide an agenda of all subject matter to be covered at the training at least thirty (30) days in advance. The Union will provide the Employer with copies of all materials used and/or handed out at such training so the Employer will be equally well-informed about the subjects of the training. Unused hours of official time will not accumulate.

The Union’s proposal would increase the existing bank from 200 to 600 hours for training related to representational duties. Currently, Union officials receive only 1 day of official time when attending a 3-day, Union-sponsored training course because the 200 hour training bank is insufficient to cover the training needs of the active stewards and officers. To attend the 2 other scheduled days, officials must use their annual leave. Union officials should not be required to take annual leave to acquire knowledge that is relevant only to their official Union functions.

        The Employer’s proposal to increase the training bank to 400 hours is deceiving because the current contract allocates a total of 376 training hours (a base of 200 hours, plus an additional 176 allocated for joint training). The Employer, therefore, is really offering to increase the training allocation by a mere 24 hours. Furthermore, the Union should have more control over the distribution of training hours. By increasing the training bank, the Union would have the freedom to send officials to training on a greater variety of subjects: Equal Employee Opportunity (EEO) and Worker’s Compensation training are some examples. Bargaining-unit employees expect the Union officials to be trained in these subjects, especially since the Employer has designated employees who specialize in these same areas.

CONCLUSIONS

        Having carefully reviewed the evidence and arguments presented by the parties in support of their positions, we are persuaded that the Employer’s proposal should serve as the basis for settling this issue. In our view, 400 hours appears adequate to train Union stewards and officers. The increase the Union proposes, on the other hand, is not supported by sufficient evidence. There is no disagreement that Union officials have had to supplement their official time with annual leave, and the additional 200 hours over the previous amount allocated should alleviate their burdens in that regard. While the Union argues that the Employer’s increase is illusory, a reference to the 176 hours designated for "joint training" under the current CBA, the successor CBA will give the Union discretion over 200 additional hours that were not at its disposal before. This meets its stated interest of having "more control" over the distribution of training hours. This should also provide the Union with flexibility to send officials to EEO or Worker’s Compensation training. For these reasons, we shall order the adoption of the Employer’s proposal.

2. Official Time for the Union President and Another Executive Officer

    a. The Employer’s Position

    The Employer proposes to maintain the status quo, i.e., to authorize 1 day of official time each week for the local president to administer the provisions of the negotiated agreement. The Union has not met its burden of justifying a need for additional official time for the local president. Its proposal is contrary to the "spirit and intent of both parties’ proposal[s] for Article 6, section 1(d)(2) providing increased official time for training of all Union stewards and officials." Under either of the party’s proposals concerning the previous issue, Union officials will receive more training which should make them better equipped to take a share of the Union’s representational responsibilities. If any adjustment to the local president’s official time allocation is warranted, it should be a decrease. In an effort to show "good faith and cooperative spirit," however, the Employer is willing to maintain the status quo.   The Union’s proposal to increase the local president’s official time also is unnecessary because the president receives additional official time for "representational purposes, to attend District meetings, ceremonies, and related travel time." Moreover, not only has the Union failed to provide documentation to support the local president’s need for such an increase during contract negotiations: The current contract contains a provision allowing for consideration of requests for more official time, to be submitted with supporting documentation, but the local president has never made such a request.

b. The Union’s Position

    The Union’s proposal states that:

The Employer agrees to authorize the Union president two (2) days of official time each week to administer provisions of the Negotiated Agreement; and one (1) day of official time per month for a Union executive officer to administer the provisions of the Negotiated Agreement. The need for additional time for the Union president will be evaluated in one year, based on data accumulated by the Union president to document the amount of time required (The documentation can be a calendar or day book, etc. If either party believes that the documentation does not justify a given position, they may immediately refer to the impasse panel for a decision). Unused official time is not cumulative except in accordance with Section 2 of this Article.

As opposed to other Federal work places, this work place does not permit "casual contact labor relations." While in a duty status, the local president is not conveniently accessible to bargaining-unit employees or located near a telephone to deal with Union responsibilities. In addition, the president is the only official who has access to confidential material and private consulting space. Since it is inconvenient or nearly impossible for him to leave work during the workday, the proposal takes these unusual conditions into consideration by increasing the local president’s official time allocation by an extra day per week.

        The wording in the current contract stating that the president’s need for additional official time "will be evaluated in one year, based on data accumulated by the Union president to document the amount of time required," was poorly negotiated. It failed to explain how the evaluation would work or illustrate the types of documentation that would be acceptable. The proposed wording seeks to clarify the type of evidence needed to support the local president’s request for additional official time, as well as to include a procedure for resolving the parties’ disagreements. The proposal also incorporates what the Union believes the Employer agreed to orally during the informal conference – to give a Union executive officer (someone other than the local president) 1 day of official time per month to administer provisions of the negotiated agreement.

CONCLUSION

        Upon full review of the parties’ positions on this issue, we shall order the adoption of compromise wording to resolve their impasse. The compromise maintains the status quo by retaining the 1 day per week allocated to the local president for performing representational functions. Because the record contains little if any evidence to support the Union’s proposal for an additional day of official time, we are persuaded that the current allocation for the local president should not be increased. In particular, the Union never exercised its option under the current agreement to request more time, which suggests that 1 day is sufficient. Furthermore, the Union has not presented other documentation that shows the current amount of official time falls short of meeting its needs.

        Since the wording in the current contract does not specify the type of evidence that would support the local president’s request for additional official time, the compromise wording includes examples of data collection methods the Union proposed during the informal conference. Based on the parties’ discussions over how the local president’s future requests for additional official time would be evaluated, the compromise also specifies that the parties are to follow the statutory impasse procedures, which include both bilateral negotiations and mediation assistance, if future disagreements are reached over the issue. Finally, as to the Union’s proposal that the executive officer, someone other than the local president, be granted 1 day per month to administer provisions of the contract, we find this measure is justified. In our view, it is reasonable to provide some amount of time for a Union official to prepare and submit certain forms and documents that are required by law. Moreover, during the informal conference, the Employer essentially agreed to such wording.

3. Payment of Arbitration Fees and Expenses

    a. The Employer’s Position

        The Employer proposes to maintain the status quo, that is, "arbitrator’s fees and expenses shall be paid by the losing party." Wording under the current contract would also be retained providing that "the parties will request the arbitrator specify in any decision not favoring one party’s position over the other’s, that all costs be shared equally by the parties." The parties’ previous arbitration decisions indicate that arbitrators tend to avoid placing a cost burden on one party. Although the Employer prevailed in three out of the last four arbitration decisions, the arbitrators exhibited a reluctance to impose full costs on the Union, and instead split the fees and expenses equally. Regardless of the parties’ actual experience, the Employer is willing to retain the current wording. By contrast, the Union’s proposal "is completely unworkable" and could lead to more litigation because it would require repeated interpretation of its meaning "in each and every arbitration case." Additionally, the proposed wording "ignores the simple fact that regardless of arrangements, [the Employer] always bears some cost in the form of employee official time, employee travel costs, facility support, etc., in every single arbitration, win or lose."

    b. The Union’s Position

    The Union proposes that:

The arbitrator’s fees and expenses shall be paid by the losing party. In order to be considered the losing party for the purpose of billing, it is only necessary for the arbitrator’s decision to be a preponderance in favor of the other party. Arbitrator’s cost of living and travel expenses will not exceed maximum allowable under DOD (Civilian) Joint Travel Regulations for the area.

The current contractual wording does not "guarantee" that the arbitrator will honor the parties’ losing-party-pays concept. The parties’ recent history shows that they have had little success in getting arbitrators to designate the losing party. The proposed wording will help ensure compliance with the loser-pays concept.

CONCLUSION

    Having considered the parties’ proposals and arguments, we conclude that the dispute concerning payment of arbitrator fees should be resolved on the basis of the Employer’s proposal to maintain the status quo. In our view, the Union’s solution to the parties’ difficulty in getting arbitrators to designate a loser would lead to disagreements over which side an arbitrator’s decision favored by a "preponderance." In other words, the proposed standard is vague and not self-enforcing. Given that the parties have apparently decided to stick with the loser-pays concept, despite their unsatisfactory experiences, for the reason provided above, the Employer’s approach appears to be the better of the two. Accordingly, we shall order its adoption.

ORDER

    Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of the proceedings instituted under the Panel’s regulations 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel under 5 C.F.R. § 2471.11(a) of its regulations hereby orders adoption of the following:

1. Official Time for Union-Sponsored Training

    The parties shall adopt the Employer’s proposal.

2. Official Time for the Union President and Another Executive Officer

    The parties shall adopt the following compromise wording:

The Employer agrees to authorize the Union President one (1) day of official time each week to administer provisions of the Negotiated Agreement; and one (1) day of official time per month for a Union executive officer other than the Union president to administer provisions of the Negotiated Agreement. The need for additional official time for the Union president will be evaluated in one (1) year, based on data accumulated by the Union president to document the amount of time required. The documentation may include a calender or day book, etc. If either party believes that the documentation does not justify a given position, they may follow the statutory impasse procedures. Unused official time is not cumulative except in accordance with Section 2 of this Article.

3. Definition of "Losing Party" in Arbitration Proceedings

    The parties shall adopt the Employer’s proposal.

By direction of the Panel.

H. Joseph Schimansky

Executive Director

December 22, 2000

Washington, D.C.

1.During the informal conference, the parties resolved their dispute concerning the procedures for negotiating changes in conditions of employment, the duration of the agreement, whether to include the parties’ Partnership Agreement in the contract, the Employer’s monetary contribution toward safety shoes and safety glasses, and providing Union officials with OSHA training. The Union withdrew, without prejudice, its proposal requiring the Employer to provide inclement weather clothing in order to pursue the matter in the grievance forum.