| In the Matter of
DEPARTMENT OF DEFENSE DEPARTMENT OF DEFENSE STATESIDE DEPENDENTS SCHOOLS FORT CAMPBELL DEPENDENTS SCHOOLS FORT CAMPBELL, KENTUCKY |
Case No. 95 FSIP 160
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and FORT CAMPBELL NON-CERTIFIED EDUCATION ASSOCIATION, FEDERAL EDUCATION ASSOCIATION, NEA
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ARBITRATOR’S OPINION AND DECISION
The Federal Education Association 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 the Fort Campbell Non-Certified Education Association (Union) and the Department of Defense, Department of Defense Stateside Dependents Schools, Fort Campbell Dependents Schools, Fort Campbell, Kentucky (Employer).
After investigation of the request for assistance, the Panel directed the dispute to the undersigned for mediation-arbitration. Pursuant to this procedural directive, representatives of the parties convened before me on February 8, 1996, at the Panel’s offices in Washington, D.C. During the mediation phase of the proceeding, the parties reached agreement on language concerning Transfer and Promotion (originally Issue V before the Panel); Position Descriptions (Article 30, Section 1, of the Union proposal as modified and initialed by the parties); and Severance Pay (originally Issue VIII before the Panel). In addition, the Employer withdrew its proposal on exclusions to the grievance procedure (originally Issue VII before the Panel). Because the parties were unable to reach agreement on the remaining six issues, the matter was submitted for arbitration with the parties given an opportunity to present their final proposals and to present evidence and arguments in support of their positions. The record is now closed, and I have considered all of the relevant information contained therein.
BACKGROUND
The Employer provides quality education to dependents of military personnel who are stationed at Fort Campbell. The bargaining unit consists of approximately 200 nonprofessional employees who work in occupations such as secretary, teacher assistant, custodian, clerk, library assistant, purchasing agent, truck driver, HVAC technician, electrician, plumber, and carpenter. The parties have reached impasse following lengthy negotiations for an initial agreement.
ISSUES AT IMPASSE
The parties are at impasse over: (I) leave provisions for seasonal employees; (II) the effective date of pay increases; (III) entitlement to higher level pay for educational assistants; (IV) a cafeteria benefits plan; (V) emergency suspensions; and (VI) pay increases.
I. Leave Provisions for Seasonal Employees (Article 25, Union's Proposal; Article 15, Employer's Proposal).
a. The Union's Position
The Union is seeking to change the current leave policy and make seasonal employees eligible to earn annual leave in the manner of year-round employees, prorated to reflect the amount of time worked. The effect would be to permit such employees to achieve paid status during school breaks. This was the policy until the 1970's when the current approach was adopted. The disparity between employees who perform the same type of work but are distinguished only by whether they work year-round or not (which may in a few cases be a difference of only several weeks), is strongly perceived as unfair by seasonal employees.
b. The Employer's Position
The Employer proposal maintains the status quo in which seasonal employees do not earn annual leave as year-round employees do and, therefore, cannot cover school vacations and other school closures with annual leave. This is the same leave policy that applies to teachers who are also seasonal. The Employer proposes one administrative leave day per year, with the opportunity to convert three sick leave days for personal hardship situations. The Employer calculates the cost of the Union proposal to be approximately $150,000, or about $1,000 per employee (there are 148 seasonal employees).
CONCLUSIONS
The Arbitrator adopts the Employer's proposal but with an increase in the number of personal days to 3 per year. This creates consistency with the latest teacher's contract. The Union's proposed change would represent a significant additional pay increase for the segment of the bargaining unit which it would cover. The Union did not support the reasonableness of this economic impact in conjunction with its other economic proposals. No evidence shows seasonal non-certified employees in other DODDS schools, or directly comparable workplaces, earning annual leave. In these circumstances, a past practice ending 20 years ago does not by itself support adoption of the Union’s proposal.
II. Effective Date of Pay Increases (Article 29, Section 2).
a. The Union's Position
The Union proposes that if the parties have not reached agreement on pay by the start of the school year, the Employer's offer will be implemented pending the parties reaching an agreement or otherwise having the matter resolved. The Union takes the view that it would be advantageous to both parties to not have the Union pressured on the pay issue, and asserts that other contracts follow this approach.
b. The Employer's Position
The Employer's proposal provides that in the event the parties do not reach agreement on pay by the start of the school year any pay increase provided by an eventual agreement or other resolution "will be implemented following final resolution." It argues that the Union's proposal would eliminate any incentive for the Union to reach agreement and would mean twice as much payroll work and costs in implementing a pay increase twice.
CONCLUSIONS
The Arbitrator adopts the following language for Article 29, Section 2, as a reasonable approach for implementing future pay increases, incorporating retroactivity but delaying implementation until a contract is achieved:
In the event agreement is not reached before the start of the school year and an increase is to be effective, the pay and benefits finally agreed to by the parties will be implemented retroactive to the beginning of the fiscal year.
III. Entitlement to Higher Level Pay -- Educational Assistants (Article 30, Section 1 (a), Union Proposal).
a. The Union's Position
The Union’s proposal states:
It is understood that Educational Assistants will, on occasion, be required to cover the class without certified supervision. If this time exceeds two hours or two class periods per day, the Educational Assistant will receive teacher pay BA lane, Step 5 for that day if higher than their Educational Assistant pay.
Currently the EA's are being used as substitutes and left in charge of classrooms for significant periods without additional compensation. The proposal is aimed at ending this practice.
b. The Employer's Position
The Employer has no proposal. It opposes the Union's proposal as improper on the basis that Federal government employees cannot be paid at a higher level unless they are properly assigned to, and qualified for, the higher level position. Educational Assistants are not certified teachers and are ineligible for teacher pay.
CONCLUSIONS
The Arbitrator will not order adoption of language on this subject. There is a general principle that Federal employees cannot be paid at a higher level unless assigned or detailed to higher level work for which they are qualified. Although the facts establish that Educational Assistants are used to fill in for teachers and other professionals on a regular basis, the Arbitrator was offered no instance or example where the kind of proposal the Union proposes has been adopted in a Federal workplace, generally, or in a DODDS institution, specifically. The Employer questions both the legality and negotiability of this concept. The parties have agreed to language entitling Educational Assistants to accurate position descriptions. This provides an avenue for the Union to document the actual responsibilities performed by this category of employees and negotiate in the future on the basis of what that documentation shows. Accordingly, the Union shall be directed to withdraw its proposal.
IV. Cafeteria Benefits Plan (Article 35, Union Proposal).
a. The Union's Position
The Union's goal is establishment of a Section 125 cafeteria plan and premium Section 125 plan (flexible spending accounts). The contract at Fort Knox contains such a provision. But because this issue is pending in another bargaining unit, the Union's last proposal is the following:
The parties will incorporate any language concerning cafeteria plans mutually agreed to by the parties or ordered to be adopted by the Federal Service Impasses Panel in Case No. 95 FSIP 76 (Ft. Bragg).
The Fort Bragg case involves a similar proposal for a similar bargaining unit represented by the same national union and there is a desire for consistency.
b. The Employer's Position
The current situation at Fort Knox is that various legal and practical difficulties have prevented implementation of a cafeteria benefit plan. The Employer does not wish to be faced with that situation, and urges that the problems be worked out in one installation, first.
CONCLUSIONS
The recently issued factfinder’s report in the Fort Bragg case recommends, on the basis of extensive evidence presented to the Factfinder, that the Fort Bragg agreement not institute a cafeteria plan at this time but instead provide for a study of the "interest in and feasibility of a flexible benefit (cafeteria type) plan in view of its questionable legality and capacity of Defense Finance Accounting System to manage necessary transactions." The study is also to address the administrative costs and legal limitations of such a plan. The Arbitrator sees no point in ordering another study and will instead order adoption of language permitting reopening of this agreement for negotiations based upon the results of the Fort Bragg study.
V. Discipline/Adverse Action (Emergency Suspension) (Article 24, Employer Proposal).
a. The Union's Position
The Union has no proposal on this subject. The Employer currently has authority to deal with safety and crime situations and has shown no need for its proposal. The Union is concerned that shortening the notice period increases the chance of an employee being fired and/or stigmatized based on false accusations.
b. The Employer's Position
The Employer's proposal sets out a procedure by which a unit employee may be placed immediately in a non-duty, paid status where there is reasonable cause to believe that the employee has engaged in criminal behavior punishable by imprisonment, or when the safety of pupils or staff would be impaired or endangered by the employee remaining in a normal duty status. Also included is authority to reduce the required adverse action notice period to 7 days in such cases. The Employer urges that its proposals parallel Title 5 of the United States Code and implementing regulations. Currently the Employer places employees on administrative leave in this type of situation.
CONCLUSIONS
The Employer's proposal is actually significantly broader in scope than the provisions in Title 5 of the U.S. Code and the Code of Federal Regulations. These authorize the shortening of the statutorily mandated 30-day notice period for an adverse action only in the crime situation. No evidence was offered supporting a need for this broad proposal or describing problems that have been faced under currently existing authority which both parties acknowledge is sufficient to allow the Employer to bar an employee from the workplace when it is deemed necessary. The Arbitrator adopts no language on this subject and directs the Employer to withdraw its proposal.
VI. Pay
a. The Union's Position
This is the parties' first collective-bargaining agreement. The Union's goal is to achieve pay parity between employees at Fort Campbell and those at Fort Knox, the closest DODDS school, where pay is significantly higher for non-certified employees. The Union's final proposal calls for a 10% increase across the board over the FY 1995 wage scale as a significant first step in raising base wages to appropriately comparable levels. The proposal also calls for longevity increases as follows:
10-14 years - 1.5%15-19 years - 2.25%
20-24 years - 3.25%
25+ years - 4.5%
b. The Employer's Position
The Employer's proposal is:
Effective October 1, 1995, all unit employees receive a step increase and a 3.5% raise of the current pay schedule [which is the FY 1995 scale plus a 2.5% increase put into effect during the course of the year.]
Against any larger increase the Employer argues that it would exceed the amount itemized for wage costs in the current budget and require reallocation of monies dedicated to improving the educational program in the Fort Campbell schools.
CONCLUSIONS
The Fort Campbell bargaining unit is paid substantially below the rate of similar employees at the nearest DODDS school at Fort Knox, Kentucky. Current pay rates are also far below blue and white collar wage scales for jobs which appear to have comparable levels of responsibility.(1) The Employer has not justified this gap in wage level by differences in work performed, local pay standards or any other factor other than different spending priorities. The Fort Campbell and Fort Knox schools receive the same per student Federal payment. Non-certified employees should not carry a disproportionate burden of maintaining educational improvement at Fort Campbell, which is what a low wage scale that is not reasonably supported represents. Furthermore, improving quality and morale in the labor force that provides direct support to the teaching function can be fairly viewed as part of the educational mission, not competitive with it. The Arbitrator adopts the Union's proposal for an across-the-board pay increase of 10% over FY 1995 and longevity increases, but with the latter modified to bring the longevity increase rates in closer alignment with those contained in the Fort Knox contract. These pay increases are in addition to step increases (a matter not disputed) and shall be effective October 1, 1995.
DECISION
For the reasons provided, the Arbitrator orders adoption of the following:
1. Leave for Seasonal Employees.
The parties shall adopt the Employer’s proposal except that the number of administrative leave days is increased to 3 per year.
2. Effective Date of Pay Increases.
The parties shall adopt the following language for Article 29, Section 2:
In the event agreement is not reached before the start of the school year and an increase is to be effective, the pay and benefits finally agreed to by the parties will be implemented retroactive to the beginning of the fiscal year.
3. Entitlement to Higher Level Pay -- Educational Assistants
The Union shall withdraw its proposal.
4. Cafeteria Benefits Plan
The parties shall adopt the following language:
Within 20 days following completion of the study to be carried out pursuant to the recommendation in 95 FSIP 76 (Fort Bragg) the Employer shall provide the report of that study to the Union. Following the date of delivery of the study report, the Union will have 60 days in which to request reopening of this Agreement for the sole purpose of making a proposal pertaining to a cafeteria benefits plan.
5. Discipline/Adverse Action (Emergency Suspension).
The Employer shall withdraw its proposal.
6. Pay.
The parties shall adopt the Union’s proposal modified as follows:
Effective October 1, 1995, the pay schedule for bargaining unit members shall be increased 10% above the FY 1995 pay schedule that was effective October 1, 1994. Effective October 1, 1995, eligible employees will also receive a longevity increase for years of service at Fort Campbell, with the following rates calculated on the base salary:
10 - 14 years 1.5%
15 - 19 years 1.75%
20 - 24 years 2.0%
25 years/over 2.5%
Mary E. Jacksteit
Arbitrator
March 27, 1996
Takoma Park, Maryland
1.Some qualification is necessary because the record was not completely documented on this score for all positions. But certainly this is apparent from comparing Educational Assistants to the Office of Personnel Management's position classification standards for clerical and assistance work.