United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
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In the Matter of DEPARTMENT OF THE AIR FORCE FAIRCHILD AIR FORCE BASE FAIRCHILD AFB, WASHINGTON |
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and LOCAL 11, NATIONAL FEDERATION OF FEDERAL EMPLOYEES
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Case No. 96 FSIP 44
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DECISION AND ORDER
Local 11, National Federation of Federal Employees (Union) 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 Department of the Air Force, Fairchild Air Force Base, Fairchild AFB, Washington (Employer).
After investigation of the request for assistance, which concerns 28 provisions of a successor collective-bargaining agreement, the Panel directed the following procedures: (1) with respect to those provisions which previously had been settled and approved on agency head review, the parties were ordered to show cause why the earlier agreed-upon wording should not be ordered by the Panel; and (2) with respect to those provisions which were either disapproved on agency head review or raised as new matters (i.e., not specifically addressed in the successor agreement that was submitted for agency head review) each party was directed to file a single written submission. Written statements were submitted by the parties in response to the Panel’s procedural directive. The record is now closed, and the Panel has considered all relevant information contained therein.
BACKGROUND
The Employer’s primary mission is to refuel aircraft. The bargaining unit consists of approximately 300 General Schedule and Wage Grade employees who work in a variety of administrative, clerical, and technical occupations as well as trades and crafts. The parties’ collective-bargaining agreement (CBA) expired in April 1993, but remains in effect pending the implementation of a new contract.
Negotiations for a successor agreement began in April 1993 and continued until March 1994; at that point, the Union filed a request for Panel assistance which was docketed as Case No. 94 FSIP 111. During an informal conference with a Panel representative, which was conducted in August 1994, the parties narrowed the scope of their dispute in that case from 16 contract articles to 4 specific issues. In November 1994, the Panel issued a Decision and Order to resolve the impasse over those issues,(1) and during the next 7 months, the parties finalized and signed the successor agreement. In June 1995, the contract was submitted for agency head review in accordance with section 7114(c) of the Statute, and the parties were subsequently notified that eight provisions had been disapproved.
Negotiations resumed in December 1995. Although the parties initially agreed to "renegotiate" the entire successor agreement, they ultimately limited the scope of their discussions to a smaller number of provisions.
ISSUES
The parties are in disagreement over 28 contract provisions. Of these, 21 involve proposals by the Union to modify provisions which had been previously agreed upon; 19 of these items were resolved prior to the filing of Case No. 94 FSIP 111, and 2 were resolved during the informal conference in that case. Three other items in dispute involve provisions which were previously agreed upon, but disapproved on agency head review. Four of the disputed issues involve new proposals which were not addressed in the agreement that was submitted for agency head review.
I. Provisions Which Were Previously Resolved
A. Provisions Which Were Resolved Prior to the Filing of Case No. 94 FSIP 111 and Approved on Agency Head Review.(2)
The 19 provisions in this category were resolved during the parties’ original negotiations and left undisturbed on agency head review. Because the parties agreed to renegotiate the entire successor agreement, however, the matters were revisited during the second round of bargaining. The Panel ordered the parties to show cause "why the earlier agreed-upon provisions should not be ordered" and directed them to identify any "significant problems . . . which may justify [any] proposed modifications . . . ." In its response, the Union notes several changes, especially the issuance of Executive Order 12871, which, in its view, would support the adoption of its most recent proposals. In addition, it describes a number of problems or needs which have surfaced since the execution of the prior contract; these include (1) management providing notice of changed working conditions to the wrong individual; (2) disputes over the use of official time; (3) safety and health concerns; and (4) untimely processing of leave requests. The Employer, for its part, urges retention of the provisions which had been previously agreed upon since, from its perspective, no significant problems have arisen.
CONCLUSIONS
Having reviewed the parties’ responses to our Order to Show Cause, we conclude that the Union has not demonstrated why the earlier agreed-upon provisions should not be ordered in this case. While some new developments have occurred since the execution of the earlier contract, we do not believe that they are significant enough to justify alteration of the agreed-upon wording. For this reason, we shall order the parties to adopt the 19 agreed-upon provisions which were originally submitted for agency head review.
B. Provisions Which Were Resolved During the Informal Conference in Case No. 94 FSIP 111 and Approved on Agency Head Review.
Agreements concerning the parties’ grievance procedure and alternative work schedules were reached during the informal conference in Case No. 94 FSIP 111, and later approved on agency head review. In its procedural directive, the Panel applied the above-referenced Order to Show Cause to these items as well.
1. Article 10, § 10.6 -- Grievance Procedure
a. The Union’s Position
The Union essentially proposes to modify the earlier agreed-upon provision to: (1) permit employees to file oral grievances; (2) provide that an employee’s "Group Commander or Deputy," rather than the Installation Commander, issue a decision at "step 3" of the grievance process, if the employee does not request a grievance panel; and (3) retain a modified version of the grievance panel option available to employees under the current CBA, such that (a) each member may submit an opinion to the Installation Commander (the final decision maker) if the panel cannot reach a unanimous opinion and (b) the final decision maker would be the Installation Commander, rather than the employee’s "Support Group Commander."
Allowing employees to file grievances orally would "facilitate settlements and decrease paperwork." In this regard, since the earlier provision was agreed upon, several supervisors have remarked that, had employees discussed the grieved matters with them before filing their grievances, they could have been resolved beforehand. Since lately Group Commanders have been more "readily available" than the Installation Commander, their receipt of grievances at the "step 3" level would "better serve" the grievance process, because it would avoid problems related to the Installation Commander’s inaccessibility. With regard to grievance panels, their continuation "would best serve [the] parties in resolving grievances." Such panels, however, "must be empowered to render a binding decision, not a recommendation." Under the current CBA, panels have been "a waste of Government time and money" because Group Commanders may "ignore the panel’s recommendation."
b. The Employer’s Position
The Employer proposes that the Panel order the parties to adopt the earlier resolution. That provision was approved on agency head review and "there have been no significant problems or changes since on or about June 1995 which justify [any] modifications." Also, the use of grievance panels was "fully discussed" in earlier negotiations, including the informal conference in Case No. 94 FSIP 111, which led the Union to withdraw its proposal on the matter.
CONCLUSIONS
After careful consideration of the matter, we are persuaded that the earlier agreed-upon provision should be ordered to resolve this issue. Specifically, the Union has not cited any significant problems or changes that have occurred since on or about June 1995 which justify its proposed modifications. It acknowledges that the use of grievance panels without authority to issue binding decisions to date has neither served the parties well nor been a prudent use of Government funds. Further, it states that grievance panels should have the authority to issue binding decisions to be effective, but under its current proposal, the Installation Commander could still disregard a panel’s joint recommendation or its members’ separate recommendations. Given this, we believe their continued use to be inappropriate. With regard to the unavailability of the Installation Commander, the Union provided no evidence to show that he is any less available now than when the earlier agreement was reached. Moreover, the Union’s evidence for proposing that employees be allowed to file oral grievances is anecdotal, and it does not explain why in earlier negotiations it did not propose to allow such filings if it believes they facilitate settlements of disputes. On this matter, we note that nothing in the agreed-upon provision prohibits employees from informally discussing problems with supervisors before filing grievances. Accordingly, as proposed by the Employer, we shall order no change.
2. Article 24, § 24.5 -- Alternative Work Schedules (AWS)
a. The Union’s Position
The Union proposes to modify the earlier agreed-upon provision to: (1) permit employees to request to work certain AWS (e.g. gliding schedule and variable day) on other than an experimental basis; (2) permit individual employee requests to work AWS in addition to group requests; (3) require that employees be represented by the Union when making AWS requests; and (4) incorporate the statutory definition of "adverse agency impact" in the agreement. After agreement was reached, it became aware of a number of documents which support its proposed modifications.(3) Thus, its proposed modifications are a "direct effort" on its part to "comply" with these documents. Employees, whether individually or in groups, should be allowed to request to work any "Congressionally approved" AWS, with the Employer retaining the right to deny any such requests "in accordance with established law." Nothing in the documents cited prohibits individual employees from requesting to work an AWS. With regard to the Union’s representing employees when they make their requests, this is provided for under the OPM Bulletin which states that employees "do not have a right to vote;" the Union, therefore, is the "sole representative" of employees in "AWS negotiations."
b. The Employer’s Position
The Employer proposes to modify the earlier agreed-upon provision by adding the following paragraph:
k. Employees retain the right to request that approved AWS schedules be changed or abolished. As in proposing AWS, requested changes must be in writing and include a majority vote . . . . Unless agreed to by the Employer, proposals to change or abolish established AWS will be limited to one proposal per calendar year. This will provide for reasonable continuity in work operations.
This proposed procedure for employees to request changes to previously-approved AWS without Union involvement is consistent with past practice and the earlier agreed-upon procedure for their requesting approval of AWS. It is "fair and equitable" for the same procedure to be used for both purposes. A contractual procedure allowing employees to request changes to AWS is necessary because, late in 1995, a Union officer refused to accept the decision of an employee group of which he was a member to abolish a 5-4/9 AWS. Since then, the Union’s position has been that "only the Union speaks for employees" on the matter of "changes to AWS."
CONCLUSIONS
Having examined the evidence and arguments presented, we shall order the parties to adopt the earlier agreed-upon provision, modified to: (1) require that employees be represented by the Union when requesting to work AWS, and (2) eliminate employee voting on AWS proposals. Since the Union now opposes the voting procedure, its use would undermine the Union’s statutory rights as the exclusive representative of unit employees. Otherwise, in our view, neither party has demonstrated why the earlier agreed-upon provision should not be imposed. Specifically, the parties have not cited any significant problems or changes that have occurred since on or about June 1995 which justify the modifications they have proposed. In this regard, the documents cited by the Union do not establish any additional rights that were not previously in existence. We are also unpersuaded that the parties’ earlier oversight in incorporating a procedure which permits employees to change their work schedules provides good cause for adopting the Employer’s proposal.
C. Provisions Which Were Settled Prior to the Filing of Case No. 94 FSIP 111 and Disapproved on Agency Head Review.
1. Article 31, § 31.5 -- Credit Card Program
a. The Union’s Position
The Union’s proposal is as follows:
Participation of bargaining-unit employees in the approved credit card program is voluntary. Employees not participating in the approved credit card program are entitled to the appropriate advance authorized.
This is the same provision which was disapproved by the agency head. It would allow "employees not wishing to use Government-issued credit cards or travelers’ checks [to] get a travel advance of 80 percent of the portion of travel expenses that would be expected to be paid in cash, such as taxi fares, meal expenses, tolls and ‘cash transaction expenses’." Contrary to the Employer’s argument, Authority case law supports its view that the proposal does not "interfere" with the Federal Travel Regulations (FTR).(4)
b. The Employer’s Position
The Employer proposes the following:
Participation of bargaining-unit employees in the approved credit card program will be in accordance with all applicable policies, regulations, directives, instructions, etc. Bargaining-unit employees not eligible to participate in the credit card program will be entitled to the appropriate advance authorized.
The Panel should adopt its proposal because the Union’s conflicts with FTR §§ 301-10.3(b)(1) and (c)(4) and, therefore, is nonnegotiable.(5) If the Union is convinced that its proposal is negotiable, it should have filed a negotiability appeal after it was disapproved on agency head review. The adoption of its proposal at this time would unfairly give the Union a second opportunity to file such an appeal.
CONCLUSIONS
On the basis of the evidence and arguments provided, we are persuaded that the Employer’s proposal should be adopted. In this regard, the Union’s proposal, as written and explained, appears to be inconsistent with the FTR.(6) Under FTR §§ 301-10.3(b)(1) and (c)(4), employees who elect not to use a Government credit card, are not eligible for travel advances. The Employer’s proposal, on the other hand, simply modifies the earlier agreed-upon provision to comply with the FTR. We shall, therefore, order its adoption, but will modify it to delete the word "etc." which appears to be superfluous.
2. Article 34, § 34.1.b. -- Health & Safety (General)
a. The Union’s Position
The Union proposes the following wording:
The Employer will comply with OSHA and AFOSH requirements in providing sanitary conditions, equipment, adequate space, and other environmental conditions.
This proposal is essentially the same as the one earlier agreed upon; it simply deletes the sentence that the Employer found objectionable on agency head review.(7) To ensure that all employees will have a safe work environment, the Employer must be made to comply with OSHA and AFOSH standards.
b. The Employer’s Position
The Employer’s proposal is as follows:
The Employer will make reasonable efforts to maintain safe working conditions, within OSHA and AFOSH requirements, at all times. Supervisors should consider employee concerns regarding the safety of work assignments.
This proposal reflects the parties’ intent all along which was to "address" safety issues rather than "sanitary concerns." Moreover, OSHA and AFOSH standards address safety, not sanitation matters.
CONCLUSIONS
Upon careful review of the record presented, we find that the Union’s proposal simply modifies the earlier agreed-upon provision to cure the negotiability problem raised on agency head review. The Employer’s proposal, on the other hand, is a "watered down" version of the earlier provision; in this regard, it does not require the Employer to comply with OSHA and AFOSH standards, but rather to make a reasonable effort to do so. Moreover, we are not persuaded by the Employer’s argument that the use of the word "sanitary" is inappropriate; if such is the case, we question why it was agreed to previously. Accordingly, we shall order the parties to adopt the Union’s proposal.
3. Article 34, § 34.3 -- Health & Safety (Inspections)
a. The Union’s Position
The Union proposes to modify the earlier agreed-upon provision to require: (1) OSHA inspectors, rather than "qualified facility inspectors," to perform the annual safety and health inspections; (2) such inspections to be conducted at facilities "maintained," in addition to those "regularly used," by unit employees; and (3) the Employer to issue inspection notices to "the Union president or designee," rather than "the Union."
Preliminarily, contrary to the Employer’s argument, its proposal is negotiable. To avoid "conflicts of interest," which may lead to safety and health problems being "overlooked," inspections should not be conducted by "in-house personnel." When it comes to employees’ safety and health, it should make no difference whether they regularly work in or provide maintenance service to the building; in either case, the building should pose no safety or health risk to the employee. With regard to inspection notices, the proposal simply clarifies that the Union always intended the phrase "the Union" to mean its "president or designee." The Union president is the only person authorized to bind the Union and has the "best knowledge" of its representatives’ experience in "dealing with specific matters or conditions of employment;" therefore, he must be the "official point of contact" on matters of notification to "insure" that the Union representative handling the matter is one to whom "proper authority" to bind the Union has been delegated.
b. The Employer’s Position
The following is proposed by the Employer:
The Employer will ensure that the required safety and health inspections are conducted. If an inspection schedule is prepared, the Union will be furnished a copy. A designated Union representative may accompany the inspector or inspection team. The Employer will make available to the Union, upon request, appropriate reports concerning such inspections.
The Panel should not adopt the Union’s proposal because it infringes on management’s right to assign work and is, therefore, nonnegotiable. Also, unit employees’ providing maintenance service to a building does not impact on their "working conditions."
CONCLUSIONS
In our view, this issue should be resolved on the basis of the Employer’s proposal, because it cures the negotiability problem with the earlier provision while retaining the Employer’s commitment to complying with safety and health inspection requirements. It also retains the wording from the earlier provision which provides for a designated Union representative to accompany inspectors on inspections and to get copies of inspection schedules and reports. We are not persuaded that the Employer should be required to assign inspection work to OSHA, as the Union proposes; in effect, this would commit the resources of another agency not a party to these negotiations. Nor is such requirement likely to be negotiable; in this regard, we note that the Union has not cited any Authority cases in support of the negotiability of its proposal. Accordingly, we shall order the parties to adopt the Employer’s proposal.
II. New Matters
A. Article 2, § 2.3 -- Official Notifications
1. The Union’s Position
The Union proposes that all "official notifications" to the Union "be in writing and given only to the Union president or designee." This proposal simply adopts what has always been the Union’s "interpretation" of the phrase "the Union," which is "the Union president or designee." Such a notice requirement is necessary because, on "several occasions" in the recent past, the Employer has "attempted" to give notice to Union members, which could have been detrimental to the Union because not all members are "trained in the proper procedures to handle notices." It is the "correct approach" to provide for one point of contact, the Union president; in this regard, its proposal is consistent with the procedure established by management for its receipt of Union notices and correspondence sometime after June 1995. It also follows the negotiated policy concerning Union notification of solicitations for Equal Employment Opportunity counselors, which has improved the parties’ communication and, overall, worked well since implementation. Finally, to ensure that the "best qualified representative" is delegated "proper authority," notices must be given to the Union president because only he (1) knows the experience of each representative on representational matters and (2) can delegate authority to bind the Union.
2. The Employer’s Position
The Employer would have the Panel order the Union to withdraw its proposal. Its adoption would be "detrimental to an effective and efficient relationship." It would also be an "impractical administrative requirement," and is contrary to the process "historically" used by the parties. In this regard, the parties have allowed immediate supervisors to notify employees and shop stewards of "‘minor impact’ situations such as changes in desk assignments/locations, carpeting, use of revised forms, scheduling and conducting shop or office meetings or discussions, etc.," and not necessarily in writing. Moreover, in other earlier agreed-upon provisions and memoranda of agreement, the parties identified "certain situations" where written notice and/or specific notice to the Union president is required.
CONCLUSIONS
We shall order the Union to withdraw its proposal because the parties have already addressed Union notice requirements, where appropriate. In our view, the Union has not demonstrated a need to change these provisions or past practice to require that all notices to the Union be made in writing and directed to its president.
B. Article 42, §§ 42.10, 42.11, and 42.12 -- Supply Account, Office Equipment, and Vehicles
1. The Union’s Position
The Union proposes that the Employer: (1) establish a supply account at the base Service Store which will not exceed $500 per year for the Union to purchase office supplies; (2) provide the Union a 486 computer with operating and application systems which are LAN (local area network) capable and a laser printer and connect the computer to the LAN system, when functional; (3) allow the Union to use a Government-owned (GOV) or leased vehicle to perform representational functions when (a) such a vehicle is available, (b) the representative has made a reasonable effort to resolve the matter by telephone or mail, and (c) a more economical and efficient method of transportation is not available; and (4) pay the Union representative’s mileage for use of his or her privately-owned vehicle (POV) if a GOV or leased vehicle cannot be provided within a reasonable amount of time.
Since it is responsible for "the upkeep and cleaning" of the Government-provided office and equipment it uses to perform representational duties, it should be authorized to purchase, at Government expense, office and cleaning supplies at the base Service store, as are other "offices and organizations on base with similar responsibilities." The availability of a computer with LAN capability would allow the Union to function more efficiently and communicate better with unit employees. Its present system has "limit[ed] use and functions" and is "very slow." As a result, the Union spends an "excessive" amount of time "waiting," which is a "waste of official time, costing the Agency money." The printer it now has is "obsolete;" it needs a new one to be able to "generate quality [and] professional products" like "other base-wide offices." Finally, it is appropriate to permit Union representatives to use GOVs and get reimbursement for use of their POVs because representational duties are an "assignment of work."
2. The Employer’s Position
In essence, the Employer believes that the Panel should order the Union to withdraw its proposals so that the status quo (i.e., no supply account, no 486 computer, and no use of GOVs or leased vehicles or mileage for use of POVs to perform representational functions) is maintained. It would not be appropriate for the Panel to order the adoption of the Union’s proposals because they were discussed in earlier successor agreement negotiations, as well as other negotiations, but dropped by the Union. On the specific matter of upgrading the Union’s computer system, it already provides "a system with adequate word processing capabilities." With regard to the Union’s representational functions, they are "voluntary tasks" and not "assigned official duties," as argued by the Union.
CONCLUSIONS
Having reviewed the arguments presented, we are persuaded that the Union should be ordered to withdraw its proposals. In our view, the Union has not demonstrated a need for the items or privileges sought. In this regard, the Union has provided no evidence to show that: (1) it has ever expended $500 in purchasing office supplies and materials to maintain the Union office and equipment or that it cannot afford to pay for such things out of its own treasury; (2) the computer it now has does not meet its needs; and (3) it is not in a financial position to reimburse Union representatives for their travel in the performance of representational duties.
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 pursuant to 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:
1. Provisions Which Were Resolved Prior to the Filing of Case No. 94 FSIP 111 and Approved on Agency Head Review.
The parties shall adopt the provisions earlier agreed upon.
2. Article 10, § 10.6 (Grievance Procedure).
The parties shall adopt the provision earlier agreed upon.
3. Article 24, § 24.5 (Alternative Work Schedules).
The parties shall adopt the earlier agreed-upon provision modified as follows:
c. An AWS may be proposed on behalf of squadrons, flights or elements/shops. Employees will be represented by the Union in presenting AWS proposals. d. AWS proposals must be in writing, be presented to the immediate supervisor, and will include the following: 1. The type of AWS; and 2. The proposed work schedule to include breaks and lunch periods.
4. Article 31, § 31.5 (Credit Card Program).
The parties shall adopt the Employer’s proposal modified to delete the word "etc."
5. Article 31, § 34.1.b. (Health and Safety (General)).
The parties shall adopt the Union’s proposal.
6. Article 31, § 34.3 (Health and Safety (Inspections)).
The parties shall adopt the Employer’s proposal.
7. Article 2, § 2.3 (Official Notifications).
The Union shall withdraw its proposal.
8. Article 42, §§ 42.10, 42.11, and 42.11 (Supply Account, Office Equipment, and Vehicles).
The Union shall withdraw its proposals.
By direction of the Panel.
Linda A. Lafferty
Executive Director
July 26, 1996
Washington, D.C.
1.The issues were: (1) career ladder promotions; (2) specific notices for reductions in force; (3) time periods for retaining letters of discipline in employees’ personnel files; and (4) employees’ right to representation during investigatory interviews.
2.These 19 provisions are: Article (Art.) 2, § 2.1 and 2.1.f; Art. 3, § 3.2.a; Art. 4, § 4.13; Art. 5, §§ 5.1 and 5.3.b; Art. 6, § 6.3; Art. 7, § 7.2; Art. 9, §§ 9.2.a and 9.3; Art. 11, §§ 11.4 and 11.5; Art. 15, § 15.4; Art. 16, § 16.2.c; Art. 27, § 27.2; Art. 34, §§ 34.6 and 34.11.a; Art. 41, § 41.1; and Art. 42, § 42.4.
3.For example, the Office of Personnel Management, Labor-Management Relations Guidance Bulletin, entitled “Negotiating Flexible and Compressed Work Schedules,” dated July 1995 (OPM Bulletin); and President Clinton’s Memorandum For The Heads of Executive Departments and Agencies, entitled “Expanding Family-Friendly Work Arrangements in the Executive Branch,” dated July 11, 1994.
4.National Association of Government Employees, Local R12-40 and Federal Union of Scientists and Engineers, Local R12-198 and U.S. Department of the Navy, Naval Ship Weapon Systems Engineering Station, Port Hueneme,
California, 36 FLRA 168 (1990)(Proposals 1 and 2)(Navy); and Department of the Interior, Washington, D.C. and Bureau of Reclamation, Washington, D.C. and Bureau of Reclamation Mid-Pacific Region and National Federation of Federal Employees, Local
951, 25 FLRA 91 (1987).
5.International Federation of Professional and Technical Engineers, Local 25 and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo,
California, 43 FLRA 374, 375-377 (1991)(Mare Island Naval Shipyard).
6.See, e.g., Mare Island Naval Shipyard and
Navy.