United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
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In the Matter of DEPARTMENT OF THE INTERIOR
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and LOCAL 2192, NATIONAL FEDERATION DISTRICT I, IAM&AW, AFL-CIO
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Case No. 06 FSIP 57 |
DECISION AND ORDER
The Department of the Interior, National Park Service (NPS), Pictured Rocks National Lakeshore (PIRO), Munising, Michigan (Employer or NPS) and Local 2192, National Federation of Federal Employees, Federal District 1, IAM&AW, AFL-CIO (Union or NFFE), jointly filed a 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.
After investigation of the request for assistance, which involved three articles arising from negotiations over the parties' successor collective bargaining agreement (CBA), the Panel determined that the dispute should be resolved through a face-to-face informal conference with Special Assistant to the Chairman Victoria L. Dutcher (Panel Representative). The parties were informed that, if a complete settlement were not reached during the informal conference, the Panel Representative would notify the Panel of the status of the dispute. The notification would include, among other things, the final offers of the parties and recommendations to the Panel for resolving the issues. The parties also were informed that, after considering the entire record, the Panel would resolve the dispute by taking whatever action it deemed appropriate, which could include the issuance of a binding decision.
In accordance with the Panel's procedural determination, the Panel Representative met with the parties at an NPS facility in Empire, Michigan, on July 6, 2006. During the course of the informal conference, the parties reached voluntary agreements on Article 4, Section 3, Management Rights; and Article 26, Section 9, Union Training. Efforts to resolve their dispute over Article 11, Section 2, Volunteers and Government-Sponsored Work Programs, however, were unsuccessful. At the conclusion of the informal conference, the parties' submitted their final offers on the remaining issue. As the parties' positions were fully developed and explored during the meeting with the Panel Representative, they were not asked to submit written summary statements of position.1/ The Panel now has considered the entire record in rendering its decision in this case.
BACKGROUND
The Employer's primary mission is conservation and preservation of the recreational area along Lake Superior that is used for hiking, camping and snowmobiling. It provides visitor information services and maintains the park's facilities and trails. The Union represents a bargaining unit of 14 permanent employees, including Wage Grade employees who maintain the facilities, General Schedule clerical employees who work in the park office, and park rangers who are law enforcement officers. In addition, every year the Employer hires seasonal employees who become part of the bargaining unit represented by the Union; for the purpose of this document, seasonal workers are employed by the NPS from 6 to 11 months per year. The Employer also uses volunteers under the Volunteers-in-parks (VIP) Program.2/ The parties' most recent CBA, which was to expire on June 27, 2005, remains in effect until a successor agreement is implemented.
ISSUE AT IMPASSE
The parties' disagreement essentially involves the level of protection the CBA should provide to ensure that seasonal employees are not displaced by park volunteers.
POSITIONS OF THE PARTIES
1. The Union's Position
The Union's final offer is the following:
In accordance with law, non-employee workers such as volunteers and enrollees of Government-sponsored work programs will not displace employees or positions or their grade-controlling duties. No NPS employee will be required or requested to perform as a volunteer. A volunteer or enrollee will not be given unfair preference or advantage for appointment to NPS positions at PIRO (Pictured Rocks).
The Union contends that its proposal generally maintains the status quo, as reflected in the CBA provision currently in effect.3/ Its purpose is to protect current seasonal employees from displacement by volunteers, and discourage management from using volunteers to perform the "grade-controlling duties" that establish career experience and may directly tie to advancement within the NPS. During their employment, seasonal workers become bargaining-unit employees (BUE). Volunteers may gain work experience similar to that of paid seasonal employees; the Employer should not favorably consider this experience when a former/current seasonal employee and former/current volunteer apply for the same posted vacancy. Thus, the Union's proposal would make it more difficult for volunteers to compete for paid seasonal or permanent positions, thereby preserving bargaining-unit jobs for those with work experience as a seasonal employee. In addition, the proposal is similar to wording in the CBA of an adjacent Federal entity, the Hiawatha National Forest.
2. The Employer's Position
The Employer proposes the following wording:
The Employer is authorized to recruit, train, and accept without regard to the civil service classification laws, rules, or regulations, the services of individuals without compensation as volunteers for or in aid of interpretive functions, or other visitor services or activities. The Employer will not terminate the employment of any current employee solely for the purposes of replacing that current employee with a volunteer.
Its final offer eliminates the ambiguities of the current contract language while restating management's obligation under the law creating the VIP program.4/ At the same time, it preserves the Employer's discretion to hire the best-qualified person for a position. It's proposed wording also would not perpetuate positions simply because they once existed, a situation that would greatly restrict necessary budget flexibilities. In summary, it allows the Employer to manage the VIP Program successfully, protect the interests of the BUEs, and fully consider job applicants' knowledge, skills and abilities in a manner that best meets the needs of the park and its ever-changing priorities. The Union's proposal, on the other hand, is inconsistent with the intent and spirit of the law and agency guidance concerning implementation of the VIP Program. It artificially veils the experience of former/current volunteers from consideration for a posted vacancy, and could lead to additional grievances5/ over the filling of vacancies.
CONCLUSIONS
Having carefully considered the arguments and evidence presented in this case, we conclude that the Employer's final offer provides the better basis for resolving the parties' dispute. The Employer's final offer, which essentially incorporates into the parties' CBA the requirements of the legislation creating the VIP Program, is sufficient to protect the Union's interests. 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 proceedings instituted under the Panel's regulations, 5 C.F.R. § 2471.6(a) (2), the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the following:
The parties shall adopt the Employer's final offer.
By direction of the Panel.
H. Joseph Schimansky
Executive Director
November 2, 2006
Washington, D.C.
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Nevertheless, in August the Employer submitted unsolicited statement in support of its final offer. statement was not considered by the Panel.
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NPS's VIP Program was authorized by Public Law 91-357 enacted in 1970. The primary purpose of the VIP Program is to provide a vehicle through which the NPS can accept and utilize voluntary help and services from the public.
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Article 11, Section 2 of the current CBA, titled "VOLUNTEERS AND GOVERNMENT SPONSORED WORK PROGRAMS," states: In accordance with law, non-employee workers such as volunteers and enrollees of government sponsored work programs will not displace employees or positions or their grade-controlling duties. No NPS employees will be required or requested to perform as a volunteer. Volunteer's or other enrollee's experience will not be used to give unfair preference or advantage for appointment to NPS government sponsored work programs.
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Title 16 U.S.C. § 18g provides that: The Secretary of the Interior (hereinafter, referred to as the Secretary) is authorized to recruit, train, and accept without regard to the civil service classification laws, rules, or regulations the services of individuals without compensation as volunteers for or in aid of interpretive functions, or other visitor services or activities in and related to areas administered by the Secretary through the National Park Service. In accepting such services of individuals or volunteers, the Secretary shall not permit the use of volunteers in hazardous duty or law enforcement work or in policymaking processes, or to displace any employee: Provided, that the services of individuals whom the Secretary determines are skilled in performing hazardous activities may be accepted.
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In this regard, the current contract provision was the subject of a decision by the Federal Labor Relations Authority (FLRA) in United States Department of the Interior, National Park Service, Pictured Rocks National Lakeshore, Munising, Michigan and National Federation of Federal Employees, Local 2192, 61 FLRA No. 74 (December 12, 2005); Order Denying Motion for Reconsideration, United States Department of the Interior, National Park Service, Pictured Rocks National Lakeshore, Munising, Michigan and National Federation of Federal Employees, Local 2192, 61 FLRA No. 104 (May 3, 2006). The Union had filed grievances alleging that the Employer violated Article 11, Section 2 of the parties' CBA, and agency policy, by using volunteers in lieu of paid BUEs at certain park facilities. It argued that by assigning only volunteers to work previously performed by seasonal employees, the seasonal employees have been "displaced" in violation of law and the parties' CBA. The arbitrator interpreted the CBA in favor of the Union; however, the FLRA set aside the arbitrator's decision, finding that the arbitrator's interpretation of what constituted employee "displacement" was contrary to law. |