United States of America BEFORE THE FEDERAL SERVICE IMPASSES PANEL In the Matter of NATIONAL LABOR RELATIONS BOARD OFFICE OF GENERAL COUNSEL WASHINGTON, D.C. and NATIONAL LABOR RELATIONS BOARD UNION Case No. 07 FSIP 90 DECISION AND ORDER The National Labor Relations Board (NLRB), Office of General Counsel (OGC), Washington, D.C. (Employer) 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, between it and the National Labor Relations Board Union (Union or NLRBU). Following an investigation of the request for assistance the Panel determined that the dispute, concerning a decision by the NLRB’s General Counsel to require the American flag to be displayed by Board agents at the site of representation elections, should be resolved through an informal conference by telephone with Panel Member Richard B. Ainsworth. The parties were informed that if no settlement was reached, Member Ainsworth would notify the Panel of the status of the dispute, including the parties’ final offers and his recommendations for resolving the impasse. After considering this information, the Panel would take whatever action it deems appropriate, which could include the issuance of a binding decision. Pursuant to this procedural determination, Member Ainsworth convened a teleconference with the parties on October 24, 2007. Although the parties discussed various modifications to their proposals, no voluntary settlements were reached on any of the issues. The Panel has now considered the entire record, 2 including the parties’ statements of position. final offers and post-conference BACKGROUND The Employer administers provisions of the National Labor Relations Act (NLRA), which vests it with the authority to, among other things, prosecute complaints in unfair labor practice (ULP) cases and resolve questions concerning representation between private sector employers and unions. The Union represents approximately 1,100 employees in a recently consolidated bargaining unit that includes all nonprofessional employees of the NLRB’s headquarters office and the NLRB’s OGC, and all professional employees of the OGC in the Regional, Subregional and Resident Offices.1/ There have been no negotiations between the parties over a collective bargaining agreement (CBA) governing the conditions of employment of the newly-consolidated unit. On July 24, 2007, however, the General Counsel and the NLRBU agreed to extend the two existing CBAs governing field office professionals and field office support staff, respectively, through the close of business on January 31, 2008. ISSUES AT IMPASSE The parties disagree on a variety of issues, among them, whether: (1) the Employer should purchase flags of differing weights and heights and, if so, Board agents should have the discretion to select which flag to display; (2) Board agents traveling via common carrier should be authorized to incur reasonably necessary excess baggage charges to transport the flag and accompanying luggage; and (3) the parties’ Advisory 1/ The unit was officially certified in Case No. WA-RP-06-0019 on June 8, 2007, by the Federal Labor Relations Authority’s (FLRA) San Francisco Regional Director, following a decision by the FLRA in NLRB and NLRBU, 62 FLRA No. 9 (March 14, 2007), affirming his finding that four previously separate bargaining units represented by the NLRBU should be consolidated into one unit. In addition, on November 5, 2007, an FLRA Administrative Law Judge (ALJ) found that the Employer violated the Statute when it refused to bargain with the Union as the exclusive representative of the consolidated unit certified in Case No. WA-RP-06-0019. The Employer has filed exceptions to the ALJ’s decision with the FLRA. 3 Committee on Health and Safety (ACHS) and the Designated Agency Safety and Health Official (DASHO) should be involved in establishing weight and bulk standards for materials Board agents transport to elections prior to the implementation of the requirement to display the flag. POSITIONS OF THE PARTIES 1. The Employer=s Position The Employer proposes that the first paragraph of the parties’ MOA include wording specifying that the agreement is between “the General Counsel of the NLRB and the NLRBU.” It also offers to: (1) purchase three wheeled luggage carriers for each Regional Office, and one wheeled luggage carrier for each Subregional and Resident Office, which may be used by Board agents to transport the voting booth, the flag kit and other materials to an election site; (2) authorize Board agents traveling via common carrier to incur excess baggage fees, to the extent necessary, to transport the American flag to and from an election site; (3) attach to the MOA instructions on flag etiquette and assembly that would be distributed to employees in all field offices, and provide training for each field office on flag etiquette and assembly within 90 days of the date on which the MOA is executed; (4) distribute hex nuts, screws, and/or socket wrenches, upon request of Regional management, to keep all flag kits complete and intact; (5) permit any Board agent who has concerns regarding the transport, assembly, or display of the American flag in connection with an election to raise such concerns with his or her supervisor; and (6) disseminate the MOA by “O[perations] M[anagement] Memorandum” and to post it on the Agency “SurfBoard.”2/ Overall, the Employer has presented “a package of reasonable proposals that address the concerns raised by the Union, recognizing that there is some minor impact on unit employees” in having to carry a flag “weighing approximately 5 pounds.” Three additional wheeled luggage carriers for each office would ensure that there are enough carriers available to meet employees’ needs, even though “the only change to the election process is the addition of the small, lightweight flag that fits neatly” into the collapsible voting booth “that Board agents have transported to elections for decades.” The Employer 2/ See Attachment A for the complete text of the Employer’s final offer. 4 also would pay excess baggage fees, where necessary, to transport an American flag (or flags) to and from an election site for employees traveling by air; this acknowledges that the weight of Agency equipment, when combined with a reasonable amount of personal luggage, may in some instances exceed an airline’s weight limit. The Agency’s flag assembly and etiquette instructions consist of “very straightforward documents that experienced Board agents should be able to easily understand.” Providing training at each office within 90 days of implementation of the policy is a “reasonable response[] to the Union’s stated concerns.” Permitting employees to raise specific concerns regarding the transport, assembly and display of flags with their supervisors on a case-by-case basis is consistent with ongoing practices involving a host of other election-related concerns. Finally, the Employer’s proposal to disseminate the parties’ MOA by OM Memorandum and to post it on the Agency’s intranet (i.e., the “SurfBoard”) comports with the parties’ longstanding practices concerning the publicizing of labor-management agreements. In general, the Union has offered “a number of frivolous proposals that go well beyond the scope of the proposed changes,” and would delay implementation of the flag policy by shifting the debate “to the parties’ [ACHS].” More specifically, the portions of its final offer that refer to flags or flag representations in addition to the one the General Counsel has selected for display interfere with management’s right to determine the methods and means of performing work, under section 7106(b)(1) of the Statute, and are negotiable only at the Employer’s election. In addition, the use of miniature flags would not achieve the General Counsel’s goals of clarifying for voters that the election is being conducted by the U.S. Government and adding “solemnity and dignity to the proceeding.” Shipping flags to employers’ premises, among other things, could compromise an NLRB employee’s neutrality if he or she is seen carrying election materials from the employer’s offices. The proposal authorizing employees to incur excess baggage charges includes additional wording that is beyond the scope of the change (i.e., “accompanying luggage”) and could “lead to disputes about what is ‘reasonable’ as opposed to what is merely ‘necessary’.” The Union’s proposed wording on the use of taxicabs “is simply an attempt to change a protocol where no change is necessary.” In this regard, the Employer is not opposed to allowing employees to take taxis to and from elections “when appropriate,” but the addition of a lightweight flag does not justify a different standard regarding the use of 5 taxicabs that “is likely to invite disputes over whether denial of taxi fare is ‘arbitrary’ or ‘unreasonable’.” a The Union’s proposal shielding employees from discipline for failing to display the flag at half mast unless they are specifically directed to do so interferes with management’s right to discipline under section 7106(a)(2)(A) of the Statute. Its version of flag etiquette is abbreviated and provides little information to employees, and its proposed assembly instructions do not accurately describe the three-pole flag that will be used by all field offices; it also includes reference to the availability of lightweight flag alternatives that infringes on management’s right to determine the methods and means of performing work. Of particular note, the Union’s multi-part proposal involving the ACHS “is simply unnecessary” given the nature of the change at issue, “cumbersome,” and “would unnecessarily delay implementation of the new flag policy.” While the Union also “has not demonstrated any need” to require management to provide information on accommodating employees with religious beliefs in conflict with the change, “if such a situation were to arise, the best course for the employee would be to raise the matter with his or her supervisor, as envisioned by Agency Proposal 5.” The Union’s proposals concerning employees’ use of professional judgment regarding whether to display the flag or ask for additional help so the election can begin on time are unacceptable and inappropriate. In principle, assembly and display of the flag is another assignment of work in connection with conducting elections and does not merit special treatment. It also has not justified the need for requiring management to reimburse employees and outside parties for damage to property caused by the flag, nor does the Union have the authority to bargain on behalf of outside parties. The Union’s proposal to link the MOA to General Counsel policy statements concerning display of the flag is contrary to longstanding practice whereby labor-management agreements are issued with a cover memo by the Associate General Counsel. It also “would likely be confusing to practitioners and other members of the public.” The Union has not identified any portion of the MOA that might interfere with Government-wide regulations, the CBA, or other Agency policies, so its proposed wording that the MOA not diminish employee or Union rights is “vague and unnecessary.” It is “the parties’ longstanding practice not to place expiration dates on these types of stand-alone agreements, thereby allowing them to remain in effect unless one party seeks to reopen the subject during national agreement negotiations.” Providing an expiration 6 date also “could create a great deal of confusion if the parties agree during national agreement negotiations” that the MOA should remain in place during the term of any successor agreement. Finally, the Union’s Footnote 1, which would require that any terms imposed by the Panel be applied to all employees in the bargaining unit certified by the FLRA in Case No. WA-RP06-0019, should be rejected. The Union’s approach “would create confusion” because the parties have agreed that existing CBAs will continue through January 31, 2008, “and by doing so, [the parties] have maintained the existing unit structure.” Moreover, the proposed change in conditions of employment applies only to field office employees because only field office employees conduct representational elections. Thus, “any terms imposed by the Panel should not be applied more broadly.” 2. The Union=s Position Under the Union’s proposed preamble, the MOA would specify that the agreement is between the “NLRB and the NLRBU.” The Union also would require the Employer to distribute to each field office a 24” x 36” flag consisting of four flagpole pieces plus cap, and a flag or flag representation that weighs no more than 8 ounces in total; Board agents would be given the discretion to select which flag to take to the election, taking into account the practicability of carrying the total bulk and weight of all materials being transported. If management determines that Board agents should use the 24” x 36” flag, its proposal would grant them the discretion to determine whether the flag or voting booth should be shipped to the polling site via a commercial delivery service or hand carried. In addition, Board agents traveling via common carrier would be authorized to incur reasonably necessary excess baggage charges to transport the American flag and accompanying luggage on trips that include one or more elections, and Board agents’ requests to use taxis and car service to travel to and from the polling site and the office and their homes would not be “arbitrarily or unreasonably denied.” Furthermore, the Employer would be required to provide each field office with wheeled luggage carts (and adjustable handles) of sufficient strength and size to support a voting booth, flag and carrying case, an election kit in a litigationbag type case, and three wheeled luggage carriers for each Regional Office and one wheeled luggage carrier for each Subregional and Resident Office, in addition to existing wheeled carriers used as litigation bags and for similar purposes. The Union also proposes that no employee be disciplined for failing to display the American flag at half mast unless he 7 or she is specifically directed to do so. The Employer would have to distribute hex nuts, screws, and/or socket wrenches, upon request of Regional management, to keep all flag kits complete and intact, and the Union’s preferred instructions on flag etiquette and assembly would be attached to the MOA and distributed to employees conducting elections. Training would be provided in each field office on flag etiquette and assembly within 90 days of the date on which the MOA is executed. Information would be given to employees through training sessions, written handouts, or both, on methods of carrying objects with the weight and bulk typical of those brought by Board agents to elections that minimizes risk of occupational injury, after the performance of a “work site and job analysis” by the ACHS. Information also would be disseminated to employees regarding the prevention and treatment of injuries caused by the handling of heavy and bulky objects, procedures for requesting reasonable accommodations of disabilities, and employees’ rights under the Federal Employees’ Compensation Act (FECA) and FECA claims procedures. The ACHS would prepare a written statement summarizing safe manual material handling practices which would be distributed to all professional employees and all support staff that perform elections and affixed to every voting booth. The DASHO would establish Agency standards in the handling of materials of weight and bulk typical of Board agents traveling to elections, considering the ACHS’s recommendations, and Board agents would not be required to carry materials to elections that exceed the established Agency weight standards. In this regard, alternative approaches would include assignment of additional Board agents to the election, delivery of materials to polling places via commercial delivery services, and the use of manual assistive devices. The Employer would provide each field office with access to equipment, such as scales, enabling employees and management to determine whether files, supplies and equipment brought on field trips exceed the Agency’s standard. In addition to the foregoing, the Union’s final offer would require the Employer to provide employees with information on procedures for requesting accommodation of the requirement to display the flag “that are based on bona fide religious beliefs.” Board agents would be permitted to exercise professional judgment regarding how to proceed if flag assembly would delay the start of the election or if conditions in the polling area are inappropriate for display of the flag, including a decision to forego flag assembly; management would provide Board agents with telephone numbers for contacting a manager during non-office hours for guidance; and Board agents 8 could request assignment of additional Board agents if they believe this would ensure that the flag is assembled and the election is started on time. The Employer would have to reimburse employees and outside parties for damage to property caused by the flag in accordance with Government-wide rule and regulation. The MOA would be distributed by OM Memorandum and posted on the Agency “SurfBoard,” and any General Counsel or OM memorandum to the staff would state that the memorandum be read in conjunction with the MOA and include a link to the SurfBoard page where the MOA is posted. Wording would be included in the MOA stating that it does not diminish any right of employees or the Union under applicable laws, Government-wide rule and regulation, CBAs or Agency policy, including reasonable accommodation of disabilities or religious practices and proper regard for employees’ privacy and Constitutional rights. The MOA would remain in effect until successor CBAs to the field agreements signed on September 27, 2002, become effective. Finally, the MOA would apply to “all employees in the bargaining unit certified by the [FLRA] in Case No. WA-RP-06-0019.”3/ The Employer’s final offer “fails to address the extra weight of the flag” and “makes no attempt to provide any alternative to ameliorate the extra burden” of requiring that it be displayed. Union proposals 1 through 4, on the other hand, would “ameliorate the burden caused by the need to display a flag at the election,” in addition to the approximately 40-50 pounds of other items taken to elections and on field trips, “while affording the Agency maximum flexibility.” In this connection, it would give employees the option of displaying a lightweight flag, or using a number of other alternatives, such as modifying Board agent badges to add a representation of the flag, rather than using the heavier flag the Employer has already purchased. If the Employer “determines that usage of the heavier flag is required,” it would permit employees alternatives to hand-carrying the flag, such as shipping it to the voting site. Its proposals also ameliorate the burden by permitting employees to use taxis or incur “reasonably necessary” excess airline baggage fees to carry the flag or other equipment, and by requiring the Employer to furnish “sturdy wheeled luggage carriers” to carry election equipment. Contrary to management’s contention, placing disassembled flags inside voting booths does not adequately address the adverse impact on employees; doing so would merely displace other items 3/ See Attachment B for the complete text of the Union’s final offer. 9 employees normally carry to the election site, such as tape, ballots, signs, and files. Its proposed instructions on flag assembly and etiquette are superior to the Employer’s because they would be distributed only to employees conducting elections, rather than “to employees in all field offices.” They are also superior because of their simplicity and practicality, i.e., they provide information that is necessary for a Board agent to set up the flag in front of contentious parties in the moments before the polls are supposed to open. The portion of its final offer that would create Agency weight standards through meetings of the ACHS and recommendations to the DASHO addresses the issue of the total weight and bulk of items that employees conducting elections now have to carry, and has “the potential to reduce Agency costs and lost work time while reducing employee injuries.” While the Union believes the more reasonable approach would be for the Agency to inform employees when flags are to be flown at half mast, in the alternative, the MOA should “relieve employees of responsibility for failing to fly the flag at half-mast unless they have been specifically instructed to do so.” It also should include information on religious accommodation because “some Union members” have expressed concern that displaying the flag is inconsistent with “deeply held beliefs.” In addition, the portion of its final offer requiring management to provide Board agents with the telephone numbers of managers is better than the Employer’s approach because it acknowledges that supervisory guidance may be necessary during early morning or late night hours. This is further justified by the fact that “elections are often conducted in dirty, greasy areas such as mines, storage rooms and mechanics rooms where display of the flag would not be appropriate.” Its proposed wording addressing the reimbursement of employees and outside parties for property damage caused by the flag should be adopted given the photographic evidence the Union has provided, and the experience of Union representatives who have found that “the base of the flags are sharp and inadvertently cause deep scratch marks and gashes on the surface of the table under the flag base.” In addition, without a “link and reference” to the MOA, “over the passage of time” employees receiving the General Counsel’s memorandum advising them of the decision to display the flag at elections may not be aware of the MOA’s “mitigating effects.” The Union’s proposal addressing the non-waiver of employee and Union rights would prevent future litigation over the “waiver issue should a grievance or 10 complaint arise that may touch on the display of flags at elections.” Given their recent history concerning the continued viability of numerous Memoranda of Understanding (MOUs), where the parties took nearly 2 years to review the status of 44 MOUs, specifying that the MOA will remain in effect until successor field CBAs become effective would eliminate future disputes over this matter. The parties could always agree to extend the MOA, incorporate it into the successor CBA, or resolve its status in some other way during successor CBA negotiations. Finally, adoption of the Union’s preamble and its proposed Footnote 1 is consistent with the FLRA’s recent consolidation of pre-existing bargaining units into a single unit. The Employer’s proposed preamble, on the other hand, states that the MOA is “between the General Counsel rather than the unit described in the certification.” The Union states, however, that it “does not elect to entertain permissive bargaining by altering the unit to anything other than the certified unit,” and the Panel “must direct the parties to adopt an agreement that reflects the [FLRA’s] certification and is applicable to the entire bargaining unit.” CONCLUSION Having carefully considered the evidence and arguments presented by the parties in support of their positions concerning this matter, we shall order the adoption of a modified version of the Employer’s final offer to resolve the impasse. Preliminarily, we note that the parties’ proposed MOAs contain a number of similar, in some cases identical, provisions addressing the impact of management’s decision to require Board agents to display the American flag at election sites. In our view, however, the Union has not demonstrated that the impact on Board agents would be so severe that the General Counsel’s decision should be delayed while the parties, among other things, go through a time-consuming process resulting in the establishment of Agency weight standards. On balance, therefore, we are persuaded that the Employer’s final offer provides the more reasonable approach to resolving the dispute. After reviewing the entire record we also believe that some modification of the Employer’s final offer is warranted to accommodate certain employee and Union interests. For example, ensuring that Board agent requests to use taxis are not arbitrarily denied, and permitting Board agents to incur reasonably necessary excess airline baggage fees to transport the flag and accompanying luggage would further mitigate the impact of management’s decision, and to some extent merely 11 codifies current practices. A separate provision requiring management to inform employees when flags should be flown at half mast appears reasonable, and was proposed by the Employer during an earlier phase of the bargaining process. Moreover, given the amount of time the parties recently spent determining the status of a large number of mid-term MOUs, specifying that the MOA will remain in effect until successor field CBAs become effective should eliminate any future ambiguity in this instance. Accordingly, these, and a few other minor modifications to the Employer’s final offer, are reflected in the order specified below. 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 5 C.F.R. ' 2471.11(a) of its regulations, hereby orders the parties to adopt the following wording: MEMORANDUM OF AGREEMENT This agreement between the Employer and the Union concerns appropriate arrangements and procedures arising from management’s decision to display the American flag at voting locations in Agency-conducted representation elections. 1. The Agency will purchase three wheeled luggage carriers for each Regional Office and one wheeled luggage carrier for each Subregional and Resident Office. These luggage carriers may be used by Board agents to transport the voting booth, the flag kit and other materials to an election site. 2. (a) Board agents traveling via common carrier are authorized to incur reasonably necessary excess baggage charges to transport the American flag and accompanying luggage on trips that include one or more elections. 12 (b) Board agent requests to use taxis and car service to travel to and from the polling site, as well as between the office and their home (for instance, the morning after an evening election or the evening before an early-morning election) will not be arbitrarily or unreasonably denied. 3. The Employer’s attached flag etiquette and assembly instructions will be distributed to employees in all field offices. Within 90 days of the date on which this agreement is executed, the Agency will conduct training in each field office on flag etiquette and assembly. When flags are to be flown at half mast, Agency management will provide notice either by email or by posting a notice on the Agency SurfBoard. 4. Upon request of Regional management, the Agency will distribute replacement hex nuts, screws, and/or socket wrenches in order to keep all flag kits complete and intact. 5. Any Board agent who has concerns regarding the transport, assembly, or display of an American flag in connection with an election may raise such concerns with his or her supervisor. 6. The Agency will disseminate this agreement by OM Memorandum and will post a copy on the Agency SurfBoard. Any General Counsel or Operations Management memo to the staff will state that the memo should be read in conjunction with this MOA and will include a link to the SurfBoard page where this MOA is posted. 7. This agreement does not diminish any right of employees or the Union under applicable laws, government-wide rule and regulation, collective bargaining agreements or Agency policy including reasonable accommodation of disability or religious practices and proper regard for their privacy and Constitutional rights. 13 8. This agreement will remain in effect until successor agreements to the field agreements signed September 27, 2002, become effective. By direction of the Panel. H. Joseph Schimansky Executive Director January 16, 2008 Washington, D.C.