United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|
In the Matter of DEPARTMENT OF THE AIR FORCE AIR FORCE FLIGHT TEST CENTER EDWARDS AFB, CALIFORNIA |
|
|
AND LOCAL 1406, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO |
Case No. 96 FSIP 95 |
DECISION AND ORDER
The Department of the Air Force, Air Force Flight Test Center, Edwards AFB, California (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 Local 1406, American Federation of Government Employees, AFL-CIO (Union).
After the investigation of the request for assistance, the Panel determined that the impasse should be resolved through an informal conference between a Panel representative and the parties. If no settlement were reached, the Panel representative was to notify the Panel of the status of the dispute; the notification would include the final offers of the parties and the representative's recommendations for resolving the matter. Following consideration of this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.
Pursuant to the Panel's determination, Panel Representative (Staff Attorney) Gladys M. Hernandez met with the parties on August 15 and 16, 1996, at Edwards AFB, California. With her assistance, the parties resolved 10 of the 15 issues at impasse in successor agreement negotiations. Ms. Hernandez has reported to the Panel, and it has now considered the entire record.
BACKGROUND
The Employer is responsible for research and development of aerospace technologies as well as testing and evaluating several aircraft, including the F-15 and F-16 fighter jets and the B-2 bomber. The Union represents approximately 665 Wage Grade (WG) and Wage Leader (WL) employees, in pay grades WG/WL-1 through WG/WL-15. They principally work as aircraft mechanics, aircraft engine mechanics, tools and parts attendants, and materials handlers. The parties’ collective-bargaining agreement (CBA) was to have expired in November 1993, but remains in effect until a successor is implemented.
ISSUES AT IMPASSE
The parties disagree over: (1) the amount of official time to be granted to Union representatives, and various other issues related to the use of official time; (2) Union office space; (3) telecommunications equipment for the Union office; (4) future bargaining over "new technology" for the Union office; and (5) the use of supplemental promotion certificates.
POSITIONS OF THE PARTIES
1. Official Time(1)
a. The Employer's Position
Essentially, the Employer’s proposal provides for: (1) a Union president on 100-percent official time; (2) an annual bank of 2080 hours of official time (without rollover of "excess" to succeeding years) for use by other Union representatives; (3) the bank hours to be reduced to 1040 if the number of bargaining-unit employees drops below 350; (4) Union representatives to use bank hours to perform specific representational duties and excludes certain duties from counting against the bank, e.g., third-party hearings, negotiations, various committee meetings, wage surveys, etc.;(2) (5) the Union president to report to his work site at the beginning of each workday and not take official time "off-station" without first submitting a written request to do so to the Labor Relations Office; (6) Union representatives to complete a proposed "record of official time" form prior to leaving their workstations on official time; (7) Union representatives to get supervisory approval to leave work areas "workload permitting" and, if they cannot be released when requested, to be advised when "release would be appropriate;" (8) Union representatives who receive "rollover ratings" (i.e., the individual is not actually rated, but given the preceding year’s rating as a matter of course) not to receive "dollar awards;" and (9) unit employees to be provided a "reasonable amount of duty time" to prepare and meet with a Union representative on grievances and to present them to management.
One full-time Union representative on official time is "more than generous" when compared to what is allowed unions at certain other Air Force bases. The number of bank hours is sufficient given the many representational duties that would not be counted against the bank. In fact, the "bulk of official time" to be used by the Union would not be deducted from the bank. Contrary to the Union’s argument, therefore, this proposal would not curtail its ability to perform its representational duties. In the current downsizing environment, the size of the bargaining unit could be reduced by half. Thus, it is appropriate to reduce bank hours if this happens so that official time is not excessive. With regard to official time for unit employees to prepare and present personal grievances, the proposal maintains the status quo, which the Union admits has never been a problem. Since Union representatives do not get "rollover" ratings for performing the duties in their position descriptions, it is fair not to grant them monetary awards which are linked to the performance of such duties. Doing so would also be inconsistent with an existing ULP settlement agreement. The proposed record-keeping form is necessary to ensure that bank time is used for the purposes designated and to collect data to facilitate future negotiations on the matter. Although there have been no problems with allowing the current Union president to report to his supervisor by telephone from the Union office, the practice should be changed because another person may be elected Union president who is "not as responsible." Also, supervisors are accountable for ensuring that timecards are accurate; therefore, it is advisable that the Union president’s supervisor see that he has reported to work.
The Union’s proposal, on the other hand, is excessive in that it would provide at least five full-time representatives, and "an open-ended ability" to increase the use of official time to an "unlimited amount" for a bargaining unit of only 665 employees. In fact, the Union admits that the same five individuals now on 100-percent official time are likely to remain full-time Union representatives. It has not shown, however, why it needs so much official time. In this regard, while the use of official time increased during the last 3 years, this was due in great part to successor negotiations, which have now concluded. Reference by the Union to the amount of official time allowed the president of another union on base is inappropriate to support its official time proposal. The amount allowed that union president is in a 1-year CBA that will be renegotiated shortly. Moreover, the proposal is not acceptable because it does not provide for "an accurate accounting" of official time use.
b. The Union's Position
In summary, the Union’s proposal provides for: (1) two Union representatives on 100-percent official time to be designated by the Union president; (2) an annual bank of 4160 hours of official time for other Union representatives; (3) "reasonable time" for Union representatives when bank hours are depleted, to be mutually determined by them and their supervisors; (4) Union representatives to use bank hours and "reasonable time" to perform specific representational duties, with certain duties excluded from counting against the bank, e.g., meetings initiated by management, preparation for third-party hearings and the hearings themselves, negotiations, wage surveys, etc.; (5) Union representatives not on 100-percent official time to complete a "record of official time" use;(3) (6) Union representatives and other unit employees not to be assigned "menial tasks" solely to impede a Union representative’s use of official time; (7) Union representatives and their supervisors to "mutually determine" when they can be released on official time, if not possible when release is requested; (8) Union representatives who are given "rollover ratings" to "receive all entitlements and emoluments in conjunction with those ratings;" and (9) unit employees to get a "reasonable amount of official time" to prepare and present grievances, as mutually determined with their supervisors.
The amount of official time it proposes is necessary because its use of official time during the preceding 3 years has increased to approximately 10,000 hours, albeit for the most part as a result of successor agreement negotiations. It also is reasonable when compared to the 50-percent official time allowed the president of another union at the installation which represents only 18 employees all of whom are in the same job series and located in the same building. Often in the past, supervisors have assigned "menial tasks" to employees or Union representatives simply to prevent their use of official time; its proposal would preclude this from happening in the future. Although unit employees have never had difficulty obtaining official time to prepare and present grievances, its proposed change to the existing contract provision on this matter is necessary to avoid "potential problems." Furthermore, unit employees should not have to "beg the boss" for official time to present grievances; rather, they and their supervisors should mutually determine what is a reasonable amount of official time for the employee to use to present a grievance based upon the employee’s "current" workload. The proposal, contrary to the Employer’s argument, also provides management with a process to track the use of official time. As for monetary awards, it would be unfair not to give them to Union representatives for "rollover" performance ratings.
The Employer’s proposal does not provide the Union with a reasonable amount of official time to perform representational duties; for example, it would limit the amount of time the Union would have to prepare for grievances and third-party hearings, while management has no such limitation. It also would not be appropriate to decrease the bank if the size of the bargaining unit is reduced by half, because such action would likely occur through a reduction in force (RIF); this would generate more work for the Union and, therefore, a greater, not lesser, need for official time. The problem with the Employer’s proposed form to track the use of official time is that it would require more information than is necessary for payroll purposes. Moreover, the proposal "discriminates" against Union representatives because it would prevent them from getting monetary awards based solely on their Union status. The ULP settlement agreement disallowing monetary awards for "rollover" performance ratings should not be considered by the Panel because it is not precedent setting. Finally, the proposed reporting procedure for the Union president is contrary to what has been the parties’ practice for the last 3 years, i.e., he reports to the Union office and requests official time by telephone; the practice should not be changed because no evidence of "abuse" was provided by the Employer.
CONCLUSIONS
Having considered the evidence and arguments presented on this issue, we shall order the parties to adopt a slightly modified version of the Employer's proposal. The amount of official time the Employer proposes, in our view, is reasonable given the size of the bargaining unit and that a number of time-consuming representational duties are specifically excluded from counting against the bank hours. The Union has not demonstrated that it should continue to have four or five full-time representatives now that successor negotiations have concluded. Nor has the Union demonstrated a need to change the current provision concerning official time for unit employees to prepare and present personal grievances. Moreover, while the Employer’s proposal continues to require that Union representatives get permission from their supervisors to use official time, it addresses any concerns they may have about not being released when requested by specifying that supervisors must let them know when such time may be taken. The Employer’s form should permit the parties to keep more detailed records on official time use; we believe that this should facilitate future negotiations over the matter. In addition, requiring representatives to complete the form when they request official time is more likely to ensure its accuracy and would avoid any misunderstanding over the amount of official time that has been approved. It also should not be burdensome on Union representatives to complete the form before leaving their work areas, and the Union does not argue otherwise. Leaving to a later date negotiations over such a form, on the other hand, is unacceptable because the Union had the opportunity to offer its own form during these negotiations, but chose not to do so. At this point, further negotiations over the matter would simply serve to delay implementation of the official time provision. We shall, however, modify the Employer’s proposal to allow the Union president to continue to report to his supervisor by telephone from the Union office. The Employer has not shown that this privilege has been abused and, therefore, should be discontinued.
2. Union Office Space
a. The Employer's Position
The Employer proposes that the Union continue to occupy the approximately 157-square-foot office in Building 3700, with utility services to be included. In the alternative, it offers the motorcycle safety training (MST) room for the Union office.(4) It also proposes that, if management "finds it necessary" to relocate the office from Building 3700, the Union be given "at least 90 days’ notice" and provided with other "suitable accommodations at another location within the same central area." The space currently occupied by the Union would reasonably accommodate one full-time Union representative and others on a temporary basis, consistent with the Employer’s official time proposal. The fact that current office space is "overcrowded" is not a valid reason to provide the Union with more space; it was the Union that caused this situation by not planning its acquisition of equipment and furniture "according to the allotted office space." Nonetheless, it is willing to address the Union’s concerns by offering the approximately 600-square-foot MST room in place of the current office; this would provide three times the office space the Union has now, and accommodate its office equipment and furniture and two representatives. Its offer of the MST room, however, is conditional upon the Union relinquishing its current office for use by "another organization." This is necessary because of the lack of available office space on base. Contrary to the Union’s argument, comparison with another union at the facility is inappropriate; in this regard, the other union’s office must be in the same building as the employees it represents, as their work does not permit them to leave that location.
b. The Union's Position
Under the Union’s proposal, it would be provided "exclusive use" of the office space it presently occupies and the MST room, both located in Building 3700. In addition, it proposes that the Employer continue to "provide ‘Contract Services’ for the cleaning of the [U]nion office space, at the Agency’s expense." This proposal allocates enough space for Union representatives to meet with employees with some degree of privacy and to accommodate its furniture, equipment, and files. The MST room "is available and not needed by the Agency." The Union, in fact, already has use of that space.(5) Moreover, the proposed amount of space is comparable to the 400 square feet allocated to a different union which represents only 18 employees, and whose president is on official time only half of the workweek. Finally, there is no shortage of available office space on base, as the Employer argues; on the contrary, space is available given the number of employees that have been lost through recent RIFs.
CONCLUSIONS
After carefully evaluating the arguments and evidence presented on this issue, we conclude that the parties should adopt the Union's proposal which, in essence, maintains the status quo. In this regard, it is undisputed that, since the cancellation of the MST course, the Union has had unlimited use of the MST room. In the absence of any empirical evidence to support the Employer’s contention that there is a shortage of office space on base, or that the MST course will resume any time in the near future, we are persuaded that the Union should continue to have the use of both rooms. Moreover, the Employer’s proposal does not address the Union’s privacy concerns.
3. Telecommunications Equipment for the Union Office
a. The Employer's Position
The Employer proposes to continue to provide the Union with one Wide Area Telephone Service (WATS) and two commercial telephone lines, and for the Union to be "responsible for all costs associated with the purchase, installation, and monthly service of all equipment." This represents the status quo, which provides the Union with the same "quality" of telephone service as the other organizations on Edwards AFB. Together with the other telecommunications equipment and service the Union already has,(6) the Union can continue to perform effectively its representational functions, nor does it argue otherwise. In addition, through these negotiations, it gained access to the internal base mail and numerous bulletin boards which should further facilitate communications with the bargaining unit. For these reasons, the Union does not require access to LAN. The problem with giving the Union LAN access is that it is likely to communicate directly with base commanders on labor relations and other matters, rather than going through the appropriate channels. It is also likely that unit employees will spend their time at work reading messages from the Union rather than working.
b. The Union's Position
The Union’s proposal is as follows:
The Agency shall provide the Union office one WATS phone service and two commercial phone lines. Should the back room be made available to the Union, in addition to the present office the existing phone line in the back room will be made available to the Union. The Union may apply for additional commercial telephone lines. The Union will be responsible for all arrangements and costs associated with the commercial telephone services. The Union shall be provided LAN service.
Access to LAN would put it at an "equal level with the Agency." In this regard, the Union would be able to communicate quickly with all unit employees without knowing their e-mail addresses, and have direct access to Government regulations that are current. By comparison, through the commercial service, which costs between $20 and $30 per month, it can communicate only with unit employees for whom it has e-mail addresses.
CONCLUSIONS
We have considered the evidence and arguments presented on this issue and find that the Union’s proposal, modified to delete the last sentence, should be ordered. Preliminarily, the dispute over this issue centers on whether the Union should have access to LAN. In our view, it has not demonstrated a need for such access; it already has e-mail through a commercial service, and does not argue that this is unaffordable or that it would discontinue such service if access to LAN is provided. Finally, no arguments to the contrary having been made by the Employer, we believe it is reasonable for the Union to get the telephone line in the MST room and to be able to apply for additional commercial lines with the appropriate authority on base.
4. Future Bargaining Over "New Technology" for the Union Office
a. The Employer's Position
In essence, the Employer would have the Panel order the Union to withdraw its proposal, which would preclude negotiations over "new technology" for the Union office during the term of the successor agreement. The Union’s proposal should not be adopted for three reasons. First, the Union’s inability to define what it means by "new technology" would lead to future litigation over its meaning; in this regard, every time the Employer updates current technology used by employees, it would get into a dispute with the Union over whether it is a "new technology" subject to bargaining. Second, it is unlikely that changes in office technology on base would be so significant during the term of the agreement that the Union would be at a disadvantage if it is denied the opportunity to negotiate. Finally, the Union already has enough equipment available to perform effectively its representational duties.
b. The Union's Position
The Union’s proposal would allow for either party to initiate bargaining over "new technology" that is introduced on base, provided it meets the following criteria: (1) it is "used throughout the base;" (2) it "impacts bargaining-unit employees;" and (3) unit employees are "required to learn to use," and actually use it. It is unable to give precise meaning to the term "new technology" because what now does not exist cannot be defined. These limited negotiations are necessary to ensure that the Union’s office equipment "remain[s] equal" to the Employer’s so that it would not be disadvantaged in representing unit employees.
CONCLUSIONS
Upon careful review of the arguments presented by the parties, we shall order the Union to withdraw its proposal. In our view, the office equipment and services now available are sufficient to allow it to perform effectively its representational functions during the term of the agreement. We are not persuaded that the Union would be at a disadvantage in representing employees if it is not provided the opportunity to negotiate over the acquisition of "new technology," however defined. Moreover, it would be unwise to adopt a provision where the party offering it cannot define its critical term; doing so would welcome future litigation.
5. Promotion Certificates(7)
a. The Employer's Position
The Employer proposes the following:
One additional name will be certified for each additional vacancy. No additional names will be certified to the selecting official except that one additional name may be added to the certificate each time an employee on the certificate declines consideration.(8)
This represents the policy in place since at least 1989.(9) It "ensures that the maximum number of employees receive an opportunity for consideration" for promotion; this is of greater importance now that promotion opportunities are on the decline because of downsizing. Moreover, the absence of any employee grievances or complaints to the Office of Special Counsel (OSC) shows that over the years the use of supplemental certificates has not been a problem. Contrary to the Union’s argument, supervisors have not been "manipulating the system" to select their friends for promotion. In this regard, during the last 2 fiscal years (FYs), out of 47 WG/WL positions filled through merit promotion, a supplemental certificate was issued only when filling 4 of those positions; only on 3 occasions was the selection made from the supplemental certificate.
The Union’s proposal is unacceptable because, if half of the employees on an original certificate do not decline consideration, the supervisor would have to select for the position from the original certificate or go outside the Edwards AFB candidate pool to hire for the position; therefore, it unnecessarily limits bargaining-unit employees’ opportunities for promotion. Moreover, the Union’s proposal would "create two different referral systems" at the base, one for unit employees and another for non-unit employees who are much greater in number. This would be burdensome to administer and "confusing to employees" because the names of both unit and non-unit employees could appear on a certificate for promotion.
b. The Union's Position
Under the Union’s proposal, "[n]o additional names w[ould] be certified to the selecting official except when 50 percent of the original certificate declines consideration. Afterwards, the Agency may select from other appropriate source[s]."(10) The proposed limitations on when and how often supplemental certificates may be requested are intended to stop supervisors from encouraging or coercing employees on original certificates to decline consideration, so as to allow supervisors to get additional names to select their friends for promotions. These limitations would ensure that all employees on the original certificate are "treat[ed] ... with the same sensitivity." They would encourage a supervisor to ask all employees whether they want to be considered for the position and not just those he or she knows will decline consideration. The "only way to protect employees" from supervisors’ continuing to abuse the selection process is by imposing these limitations. The reason that unit employees have not filed grievances over nonselection for promotion is because it is not a grievable matter under the CBA; similarly, complaints have not been filed with the OSC because they fear losing any chance for promotion in the future.
The Employer’s proposal allowing for unlimited use of supplemental certificates "demoralizes" employees whose names appear on original certificates who are the most "highly qualified" for the positions. Also, it allows supervisors to continue to abuse the selection process by calling only those unit employees on original certificates that they know will decline consideration. In this regard, the Employer submitted no proof to support its claim that only four supplemental certificates were issued during the last 2 FYs, and provided no evidence concerning their use from 1989 to 1994 to permit independent evaluation of their extensive use. If, however, only four supplemental certificates were issued during the last 2 FYs as the Employer contends, there is no need for an unlimited number of them.
CONCLUSIONS
After thorough consideration of the evidence and arguments on this issue, we find that the Employer’s proposal, which represents the longstanding policy at Edwards AFB, should be adopted. The Union, in our view, has not demonstrated a need to change it after so many years. Its evidence of abuse is anecdotal at best, and unsupported by the record. In all the time the selection process has been in place, the Employer has received no complaints from employees that supervisors have been abusing the use of supplemental certificates, for example, by coercing employees to remove their names from consideration to allow them to get additional names, as alleged by the Union. Nor have any complaints of prohibited personnel practices been filed with the OSC under 5 U.S.C. § 1214(a) relating to the use of supplemental certificates.(11) Rather, the contrary appears to be true; in this regard, the figures submitted by the Employer reveal that, at least during the last 2 FYs, supplemental certificates were rarely used. Finally, we are persuaded that allowing supplemental certificates to be used each time a candidate declines consideration provides greater opportunity for promotion to unit employees.
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. Official Time
The parties shall adopt the Employer's proposal modified to delete the following sentence from section 3.: "The President will report to his/her work site at the beginning of each workday."
2. Union Office Space
The parties shall adopt the Union's proposal.
3. Telecommunications Equipment for the Union Office
The parties shall adopt the Union's proposal modified to delete the following sentence: "The Union shall be provided LAN service."
4. Future Bargaining over "New Technology" for the Union Office
The Union shall withdraw its proposal.
5. Promotion Certificates
The parties shall adopt the Employer’s proposal.
By direction of the Panel.
H. Joseph Schimansky
Acting Executive Director
October 10, 1996
Washington, D.C.
1.By way of background, while the current CBA (Art. 33, § 2) provides for all Union stewards and officials to get a “reasonable amount of official time,” for the last 3 years, the Union has had five representatives on 100-percent official time. In part, this was because from November 1993 to February 1996, the parties were negotiating over a successor agreement under ground rules that allowed the Union five negotiators; apparently, it evolved that between negotiations and other representational duties, the five negotiators were on 100-percent official time. When negotiations concluded, however, the same five employees remained on 100-percent official time; the Employer contends that it allowed this practice to continue rather than litigate because the matter would be resolved by Panel in this case.
2.The Employer indicated that it interprets its exclusion (a) in section 2 of its proposal to cover grievance meetings.
3.Unlike the Employer, the Union does not propose a specific form to record or request official time; rather, it intends that such a form be negotiated at a later date.
4.While this room has no door to the outside or windows, the Employer indicated to the Panel’s representative that it would cut out space for a door and install a glass door to allow natural light to enter the office space.
5.Pursuant to a memorandum of understanding, the Union uses the MST room when classes are not being conducted and with the prior approval of the Ground Safety Chief; however, because classes have not been conducted in the last few years, the Union has had the exclusive use of the room for some time.
6.The Union now also has a pager, a facsimile machine, and e-mail through a commercial network service. Through the commercial network service, it can tie into the base’s local area network (LAN) and communicate with unit employees for whom it has e-mail addresses.
7.Only the disputed wording in each party’s proposal is set forth.
8.A list of additional names is also referred to as a supplemental certificate.
9.AFR 40-335/AFTC SUP. 1, ATCH. 1, paragraph 11, dated 27 November 1989.
10.In effect, the proposal allows for only one supplemental certificate to be issued and then only after 50 percent of those on the original certificate decline consideration.
11.It is a prohibited personnel practice for a selecting official to “deceive or willfully obstruct any person with respect to such person’s right to compete for employment” and “influence any person to withdraw from competition for any position for the purpose of improving or injuring the prospects of any other person for employment.” 5 U.S.C. § 2302(b)(4) and (5).