| In the Matter of
DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C.
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Case No. 96 FSIP 146 |
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and LOCAL R3-10, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, SEIU, AFL-CIO
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ARBITRATOR’S OPINION AND DECISION
Local R3-10, National Association of Government Employees, SEIU, AFL-CIO (Union) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under section 7119 of the Federal Service Labor-Management Relations Statute (Statute) between it and the Department of Transportation, Federal Aviation Administration (FAA), Washington, D.C. (Employer or Agency). After investigation of the request for assistance, which concerns an initial collective bargaining agreement (CBA), the Panel declined to assert jurisdiction over a number of issues which currently are the subject of a negotiability appeal before the Federal Labor Relations Authority (FLRA).(1) In addition, the Panel asserted jurisdiction over those remaining issues with respect to which no duty-to-bargain questions were raised, and directed the parties to mediation-arbitration before the undersigned.
From February 11 through 13, 1997, I met with representatives of the parties in Atlanta, Georgia. For the first 2 days, we engaged in intensive mediation efforts which failed to result in the settlement of any of the issues at impasse. Accordingly, on February 13, an arbitration hearing was conducted during which the parties presented their final offers and supporting arguments. The parties also submitted post-hearing briefs. The record is now closed.
BACKGROUND
The Employer’s primary mission is to regulate air commerce. The Union was certified as the exclusive representative of air traffic assistants (ATAs) at FAA in 1993. ATAs are GS-7 employees located in approximately 22 flight data centers, and in numerous flight towers at high-traffic airports throughout the country, whose main function is to assist air traffic controllers (ATCs)in the performance of the Employer’s mission. There currently are about 365 ATAs in the bargaining unit. The parties have been engaged in negotiations over their initial CBA since October 1995. The Employer also has bargaining relationships with a number of other unions, among them, the National Air Traffic Controllers Association (NATCA) and the National Association of Air Traffic Specialists (NAATS).
ISSUES AT IMPASSE
The parties disagree over parts or all of the following articles: (1) Preamble (Employer)/Parties to the Agreement (Union); (2) Employer Rights; (3) Employee Rights; (4) Union Representation; (5) Negotiations; (6) Holidays; (7) Leave; (8) Downsizing; (9) Use of the Employer’s Facilities by the Union; and (10) the Critical Incident Stress Program (CISP). Finally, they also contest whether a partial agreement, consisting of those articles which were agreed to during previous negotiations and those listed above to be imposed through this decision, should be implemented while the Union’s negotiability appeals are pending before the FLRA.
1. Preamble/Parties to the Agreement
a. The Employer’s Position
The Employer proposes that the CBA begin with an article entitled "Preamble," which would contain the following wording:
The following Articles constitute the sole agreement between the Federal Aviation Administration (FAA), or the "Employer", "Agency" and the National Association of Government Employees (NAGE), the "Union," and collectively referred to as the "Parties." Any and all agreements (oral or written), memoranda of understanding or past practices, unless incorporated herein, are null and void with the ratification of this Agreement.
The Union’s decision to withdraw its initial "Preamble" proposal leaves "the Agency’s proposal unchallenged in its present form." It should be adopted because it "delineates the Parties and clarifies that the overall purpose of the laborious task of negotiating a term Agreement is to raise and negotiate all relevant issues and memorialize them into one document." Moreover, the Preamble "declares the tone which the parties set and followed during the negotiations process," and can gain importance during contract interpretation disputes. If the parties had operated in "an atmosphere of mutual trust and cooperation," the Preamble would reflect this. Therefore, "the absence of such a declaration" is just as instructive, "and the Union’s attempt to insert a different interpretation, by the article’s omission, would be inappropriate."
The Union’s latest proposal, entitled "Parties to the Agreement," was first offered during the arbitration hearing, and differs from any article previously submitted. The Agency did not have an opportunity properly to consider and counter it, and the manner of its introduction "demonstrates bad faith on the part of the Union to bypass and thwart proper procedure." In addition to not being properly before the Panel, Section 2 of the proposal is nonnegotiable because it interferes with its right to assign work "to specific management officials by title." Such titles "change too frequently to have any meaning in this context." The proposal also fails to define "the Employee" and the "Union." In summary, the article "is unnecessary, in addition to being incomplete in its content and not being properly before the Panel."
b. The Union’s Position
The Union prefers that the introductory article of the CBA be entitled "Parties to the Agreement," and contain the following wording:
Section 1. This agreement is made by and between the National Association of Government Employees, SEIU/AFL-CIO (hereinafter) "the Union" and the Federal Aviation Administration, Department of Transportation ("the Employer"). The Union and the Employer are referred to collectively as "the Parties."
Section 2. For the purposes of this agreement, the Employer is identified as any element of Management who exercises direct or indirect supervision over members of the bargaining unit. This includes, but is not limited to the following officials or their designees: the Administrator, the Executive Director for Systems Operations, Associate Administrator for Air Traffic, Regional Administrators, Regional Air Traffic Division and Branch Managers, hub and facility Air Traffic Managers, Assistant Air Traffic Managers, Assistant Managers, facility Area Managers and Area Supervisors.
Its initial proposal, entitled "Preamble," was withdrawn when the Employer "resisted" recognizing 5 U.S.C. Chapter 71, and Executive Order 12871. Because the Employer "insisted that the contract contain an introduction that identified the parties to the agreement," the Union changed the title of its proposed article, which "mirrors" wording in the NATCA contract, to reflect the parties’ intent. But the Employer’s proposal goes "well beyond" this intention by attempting "to void existing agreements and practices," some of which are currently subjects of negotiability appeals. Some of the agreements also "are not covered by issues before the Panel, or are provisions previously agreed to by the parties to be included in the contract." By its language, "the Employer is attempting to undermine existing agreements subject to litigation."
CONCLUSION
Preliminarily, the Employer’s contention that the Union’s proposal is not properly within my jurisdiction, and that its own proposal, therefore, is "unchallenged" in its present form, must be rejected.(2) In this regard, a comparison between the proposed introductory articles at the time the Panel asserted jurisdiction over this case, and their final offers at this stage of their impasse, reveals that both parties have made significant changes in their initial positions. Alterations in the parties’ positions, particularly where, as here, the final offers are integrally related to earlier versions, are part of the give and take which is an essential feature of the collective bargaining process. Therefore, in light of the exchanges that occurred throughout the mediation-arbitration proceeding on this article, I am persuaded that the Union’s actions in changing the title and content of its final offer were well within the boundaries of acceptable practice, and did not prejudice the Employer.
Turning to the merits of the issue, in my view neither final offer provides an adequate basis for resolving the dispute. The Employer’s proposal would nullify all existing agreements, some of which are currently in litigation. It is one thing if the parties are able to agree mutually to a preamble which essentially waives the Union’s right to continue existing agreements and practices, but quite another for a third party to impose a waiver in the absence of such agreement. With regard to the Union’s proposal, the Employer’s argument that Section 2 interferes with its right to assign work leaves unanswered why substantively identical wording appears in both the NAATS and NATCA contracts. Nevertheless, it appears unnecessary and unwise to refer to specific management titles because they are subject to frequent changes, particularly in the current era of Government downsizing. Accordingly, given the defects in their final offers, I shall order the parties to adopt the Union’s suggested title (i.e., "Parties to the Agreement"), and its proposed Section 1, to resolve the impasse over this article. In this regard, some wording introducing the parties to the agreement would appear to be appropriate, and both the NAATS and NATCA contracts contain articles with that title.
2. Employer Rights
a. The Employer’s Position
The Employer proposes that this article consist of two sections. Section 1 would begin with the following wording: "Nothing in this Agreement shall affect the authority of the Employer," and then continue with a word-for-word restatement of the rights reserved to management under § 7106(a)(1) and (2) of the Statute. Section 2 would indicate that "the Employer retains all mandatory and discretionary rights set forth in 5 U.S.C. 7106."
The Union’s proposal "is improper in content, negotiable only at the election of the Agency and not properly before the Panel" because it "seeks to integrate an executive declaration of the reservation of the authority of its management rights from the FAAPMS into the negotiations process." It is outside the Panel’s jurisdiction "in accordance with Federal Deposit Insurance Corporation and NTEU, 81 FSIP 60." The proposal also is unacceptable "since it potentially subjects labor conflicts to administrative and judicial proceedings rather than to internal management remedies." As such, it directly contradicts Executive Order 12871, and is inconsistent with decisions of the FLRA and its Administrative Law Judges essentially establishing that the Executive Order was not intended to be enforceable. In addition, Executive Order 12871 refers to the negotiation of 7106(b)(1) issues in the context of partnership. Adoption of the Union’s wording is particularly ill-advised at this time when "the Union has been rejecting moves toward partnership."
b. The Union’s Position
The following wording is proposed by the Union: "Consistent with 5 U.S.C. Section 7106 and Executive Order 12871, the FAA reserves the authority of its management officials." This is identical to wording currently contained in the FAA Personnel Management System (FAAPMS), and would do nothing more than ensure that the Union retains bargaining rights granted by the Statute and the Executive Order. The Employer’s proposal, on the other hand, "omits that management 7106(a) rights are subject to Subsection 7106(b)," and could be "interpreted by a third party as a waiver by the Union of its statutory bargaining rights." The Union’s suspicions in this regard are buttressed by the fact that similar wording cannot be found in either the NATCA or NAATS contracts.
CONCLUSION
The parties’ dispute over this article involves one of the most contentious issues in the Federal sector labor relations program at the present time, i.e., whether Executive Order 12871 is "enforceable." Contrary to the assertions of the Employer, in my view the FLRA has yet to issue a definitive decision squarely addressing the matter. It is precisely because the enforceability of the Executive Order is not well settled as a matter of law that including the Union’s proposed wording in the parties’ CBA would be premature. In addition, placing the issue within the purview of private arbitrators under the parties’ negotiated grievance procedure in such circumstances would encourage additional disputes and litigation, a result which would be inconsistent with the concept of partnership. For these reasons, the fact that wording identical to the Union’s is currently contained in the FAAPMS is insufficient to demonstrate that it should also be part of the parties’ CBA.
Adoption of the Employer’s proposal, in my view, would also be inappropriate. In this regard, the Employer’s introductory phrase (i.e., "Nothing in this Agreement shall affect the authority of the Employer") conspicuously omits wording at the beginning of section 7106(a) of the Statute, and could be interpreted to waive the Union’s statutory rights, as set forth in section 7106(b). It is also inconsistent with parallel provisions in both the NAATS and NATCA contracts. Therefore, I shall order the parties to include section 7106 of the Statute in its entirety as their "Employer Rights" article, which is precisely the wording contained in the "Management Rights" article of the NAATS agreement.
3. Employee Rights(3)
a. The Employer’s Position
The Employer proposes the following wording:
Section 5. Any bargaining-unit employee authorized to attend any meeting scheduled by the Employer away from the facility, shall be entitled to official time, travel and per diem allowances, if applicable. This provision is intended to cover only bargaining-unit members and meetings which are not part of representational functions, and does not address witnesses/advocates at grievance/arbitration proceedings or hearings. [Only the highlighted wording is in dispute.]
In addition, it opposes the Union’s proposed Section 6. With respect to the latter, "the last-minute addition of the provision . . . makes the Union’s proposed article nonnegotiable in its present form and improperly before the Panel." This is because the Panel has previously declined jurisdiction over the Union’s proposals on Pay and Benefits, which "already contains extensive language on Backpay," and is currently before the FLRA on a negotiability appeal.
The highlighted wording is "essential to clarify" that the immediately preceding sentence is not intended to provide official time or the payment of travel and per diem expenses to Union representatives for participation in arbitration proceedings by virtue of the fact that they are bargaining-unit employees. The need for such clarification, in turn, is demonstrated by the Union’s recent attempts in two grievance arbitration cases to require it to provide such benefits. In this regard, "the FAA does not authorize official time to any official of NAGE, NATCA, or NAATS for travel time or travel/per diem for arbitration proceedings," nor has the Union demonstrated why its financial obligations "should be shifted to the Agency." Overall, then, the Union’s proposal "is improperly before the Panel and is nonnegotiable since it forces the expenditure of Government funds without any demonstration of availability, need or legitimacy."
b. The Union’s Position
Basically, the Union opposes the inclusion of the second sentence of Section 5, as proposed by the Employer. The Union also proposes to add another section (Section 6) to the article which would state the following: "Backpay will be in accordance with 5 U.S.C. 5596." With respect to its differences with the Employer in Section 1, "it is important that the Statute be specifically identified in that an employee will have a cite to research and to review if a question arises" concerning his or her rights. In Section 5, the Union is merely agreeing to wording initially proposed by the Employer which "is verbatim from the NATCA agreement." The Employer’s newly-proposed Section 5 is a backward step "tantamount to bad faith bargaining" which would place "further restrictions on employee entitlements to official time, travel and per diem allowances."
The Union’s Section 6 is needed as a result of statutory changes which have occurred since the parties agreed to wording for certain articles in prior negotiations. In those articles, the parties excluded from the grievance procedure matters appealable to the Merit Systems Protection Board (MSPB). The statutory changes now limit the access of FAA employees to MSPB, and adverse action appeals must be taken through the grievance procedure. Based on the Union’s history with FAA, if the Backpay Act is not specifically referenced in the contract "it may be a problem before an arbitrator."
CONCLUSION
With respect to the parties’ dispute over Section 5, it is understandable why the Employer strongly believes that its additional wording is needed, given the Union’s recent attempts to persuade third parties to require management to provide Union representatives with official time and travel and per diem allowances in connection with arbitration proceedings. Nevertheless, these attempts did not involve the interpretation of the first part of Section 5, where the parties are both proposing wording which is identical to what is contained in the NATCA contract. In my view, the meaning of the first part of this section is clear on its face, i.e., it applies to bargaining-unit employees authorized to attend meetings scheduled by the Employer under an article entitled "Employee Rights." For this reason, I am convinced that additional wording specifying that the provision does not apply to bargaining-unit employees acting as Union representatives is unnecessary.
As to the Union’s newly-introduced Section 6, its concerns regarding the necessity of referring to the Backpay Act in the contract notwithstanding, it is clear that the issue is currently a part of the Union’s negotiability appeal before the FLRA. Accordingly, it would be premature for me to impose such a section on the parties as a part of this decision before the Employer’s bargaining obligations have been determined. Finally, concerning the parties’ minor disagreement as to whether Section 1 should refer to the Civil Service Reform Act or the Statute, I agree with the Union that specifically identifying the latter would be more helpful to employees.
4. Union Representation(4)
a. The Employer’s Position
The Employer’s proposal on the sections in dispute are as follows:
Section 2. Official time means time necessary for Union officials to perform the representational duties of the office. For the purpose of this agreement, official time does not include participation in the arbitration process. A block of official time in the amount of 4,200 hours per calendar year shall be granted to the Union. This time is intended for representational duties exclusive of specific appointment to management committees or as otherwise specified in this Agreement. The approval of the use of official time is subject to the operational needs of the Employer.
Section 3. Each representative will request official time in writing from the appropriate management individual. Such requests for the use of official time shall provide sufficient information for the management official to approve the request and record its use in accordance with FAA Order 3710.15.
In addition, the Employer opposes the inclusion of the Union’s proposed Section 8.
Its "conditional offer of an all-inclusive bank of 4,200 hours" of official time per year "would provide more than enough available time for all required activities." In this regard, it would entitle the Union to 13 hours of official time per year for each bargaining-unit member (exclusive of time permitted under other statutes and for participation in management committees and other specific exclusions found elsewhere in the contract), an amount that is "more than double or four times the proportion" of official time hours granted to other unions representing FAA employees. The generosity of its proposal is further demonstrated by the fact that the Union has filed few administrative grievances since it was certified in 1993, and unit members are rarely affected by the sorts of technology changes and related issues, which have much greater impact on employees represented by NATCA and NAATS.
The Employer’s proposal is comparable to what the Panel ordered in a previous decision involving official time,(5) as well as an agreement negotiated by NAGE in 1995 on behalf of employees it represents in another Department of Transportation (DOT) activity, the Volpe National Transportation Systems Center. Significantly, in that agreement NAGE included in the bank of hours official time for mid-term negotiations, something it objected to during the instant impasse proceedings. The Union has "not demonstrated any legitimate reason" for excluding time spent in negotiations from the bank of hours, and treating it differently from the other FAA unions; excluding such hours would give the Union "carte blanche" to use as much time as it wants "with no obligation to manage it or account for it." Its proposal is also comparable to what exists in its contracts with other FAA unions in that "at least three agreed-upon articles" already provide specific grants of official time and travel and per diem for specific functions. Thus, not all activities for which official time may be used would come out of its proposed bank of hours.
Permitting the Union "unfettered utilization of official time without any justification or demonstrated need specific to its bargaining unit" would be irresponsible and inconsistent with a Congressional mandate requiring the FAA and its unions to "use every reasonable effort to find cost savings and to increase productivity within each of the affected bargaining units."(6) The need to ensure accountability is particularly important in the current climate, where FAA and the Government as a whole "have come under increasing scrutiny" by Congress, the DOT’s Inspector General, and the Government Accounting Office, for allowing unions "such unfettered access" to official time and for failure to keep records on its use. Nor is the Union without the resources to provide supportive services to its representatives. At 71.6 percent, it has the highest percentage of union membership at FAA. NAGE also uses a private attorney to adjudicate unfair labor practice charges and to conduct arbitration hearings, and National Representatives to do much of its negotiating and litigating.
In addition to not defining official time and providing "no procedure for the approval of and accounting for" its use, the Union’s proposal "is nonnegotiable by being overly restrictive of management since the denial of an official time request is prohibited in the absence of demonstrated ‘operational requirement’ (undefined)." In contrast, its proposal provides, among other things, "a universal definition of official time" which should be included "as a point of clarification," and a "necessary procedure in the event of abuse of official time" which ensures that management officials have enough information to enable them to complete "the required official time reports." Merely having a Union representative estimate the time of return, as the Union proposes, would not permit management officials "to properly plan for the absence." Moreover, since nearly half of the 51 locations represented by the Union have 5 or fewer ATAs, even one absence could place an unacceptable burden on the facility.
Section 2 of the Union’s proposal contains "unclear and vague language" which would open the provision "to disputes and varying interpretations." The Union also has not shown why time spent in negotiations should be excluded from the bank of hours "since NAGE has never been prevented from negotiating on any issues to date." Finally, Section 8 of the Union’s proposal regarding the payment of travel and per diem expenses to one Union representative "would preclude the Agency from making an individual determination of payment based upon whether or not it would serve the convenience of the Agency or is otherwise in the primary interest of the Government." Elimination of this section, therefore, would be in accordance with the decision of the Supreme Court in Bureau of Alcohol, Tobacco and Firearms v. FLRA, 104 S.Ct. 439 (1983), which reversed a previous order of the FLRA "requiring an agency to pay travel and per diem expenses of a union negotiator."
b. The Union’s Position
The Union proposes wording as follows:
Section 2. The Union is authorized a block of 4,200 hours official time for representational functions. Additional official time is authorized for negotiations, including travel and FMCS proceedings, and participation in contractual or Employer committees and functions, including associated travel.
Section3. Unless prohibited by operational requirements, each Representative shall, on request, be granted official time. If the time requested cannot be granted, an alternative time will be arranged. Each request for official time will provide the supervisor with the general purpose of the request and the estimated time of return.
Section 8. One (1) Union Representative is authorized travel and per diem to participate in negotiations including FMCS and FSIP proceedings.
In its final offer on this article, Sections 1 and 4 through 7, in essence, are the Employer’s initial proposals before the Panel. Had the Employer agreed to its own initial wording, the parties’ main disputes would be over the issues of reasonable official time and travel and per diem allowances. Instead, the Employer has now modified its final offer on all the sections. The Employer should not be permitted to "renege" on its previous offers.
Section 2 of its proposal defines reasonable time for representational functions as a block of 4,200 hours. Official time necessary for authorized negotiations, including travel and FMCS and FSIP proceedings, and participation in contractual or Employer committees, and functions, including associated travel, would not be deducted from the bank. This "protects the Union representatives’ statutory entitlements" and "provides equity to all in attendance at negotiations including impasse proceedings." The Employer’s proposal, on the other hand, "is absurd" because it would "deny official time to participate in the arbitration process and require bank time to be used for negotiations, including travel and FMCS and FSIP proceedings." Thus, it would penalize the Union for invoking arbitration by requiring its representatives to take leave to participate, and could deprive Union representatives "of their statutory entitlement to official time" under section 7131 of the Statute. Moreover, the Employer’s actions during current negotiations, including the impasse procedure, where it denied the Union’s representatives official time to travel to the site of negotiations, "have been unfair to employees representing the Union."
Section 3 of its proposal addresses an issue raised by the Employer "subsequent to impasse proceedings," and "is derived from other Federal sector contracts." While ensuring that official time would be granted "subject to operational requirements," it also provides for an alternative release time when operations prevent immediate release, and protects individual privacy rights by requiring Union representatives to state only the general purpose of the official time request. The Employer’s belated requirement that all requests be in writing "would place an unreasonable burden" on Union representatives, a burden which is not required of NATCA representatives.
Finally, Section 8 of the Union’s final offer, which would authorize the payment of travel and per diem expenses for one Union representative to attend negotiations (including FMCS and FSIP proceedings), is consistent with past Panel decisions on the subject, as well as with numerous provisions found in the NATCA contract. It is also justified by the Employer’s documented "dilatory bargaining tactics" during current negotiations, where it caused the Union to spend resources for travel and per diem expenses unnecessarily.
CONCLUSION
The parties’ impasse over Section 2 of this article centers primarily on the appropriate number of hours to be included in the bank, and whether the official time used in connection with negotiations and impasse proceedings should be deducted from the bank. On the first issue, the 4,200 hours which appear in the final offers of both parties was arrived at during mediation more or less arbitrarily, in the absence of any data regarding past official time use. On the second issue, the Employer’s proposal would require the bank to cover all official time used in connection with representational duties "exclusive of specific appointment to management committees or as otherwise specified" in the CBA. Because its final offer does not exclude official time for negotiations, however, in my view it is seriously defective. In this regard, section 7131(a) of the Statute entitles "any employee representing an exclusive representative in the negotiation of a collective bargaining agreement" to official time for such purposes. Thus, should the Union exhaust its bank of hours prior to the end of the calendar year, it would be prohibited from engaging in negotiations on official time until the start of the next calendar year. The imposition of such a requirement on the Union would amount to the waiving of its statutory entitlement to official time. As indicated in connection with a previous article, it is one thing for a union voluntarily to agree to a waiver of its rights, but quite another thing for such a waiver to be imposed by a third party. For this reason, the Employer’s reference to an instance where NAGE voluntarily agreed to a provision similar to the one it is proposing here is unavailing.
In accordance with the discussion above, I shall order the adoption of compromise wording on Section 2 involving elements of both final offers which, among other things, excludes time spent in negotiations (including impasse proceedings) from the bank of hours. As the Employer’s proposal of 4,200 hours was conditional upon including time spent in negotiations, however, I also find it appropriate to reduce the total number of hours in the bank from 4,200 to 3,500. I cannot pretend that this final figure was arrived at scientifically; it appears reasonable on the basis of the size of the bargaining unit and the Union’s previous level of representational activity. If the number proves unworkable, the parties have already agreed on an 18-month contract which should permit them to address the situation in light of actual experience before the passing of too much time.
Turning to Section 3, I am fully cognizant of the current climate under which "unfettered access" to official time is receiving intense scrutiny. The Union’s proposed wording, however, does not provide unfettered access. In this regard, the Employer appears to have forgotten that during mediation the Union acceded to its desire for a bank of hours, rather than insisting on a reasonable time standard. In my view, a reduced bank of hours in itself will appropriately require the Union to manage and account for the official time it uses. Moreover, neither the NAATS or NATCA contracts require union representatives to request official time in writing, and there is nothing in the record to demonstrate that NAGE should be held to a higher standard. Nevertheless, I shall impose wording in Section 3 to ensure that management officials are provided with enough information to approve individual requests for official time and to track its use. In response to the Employer’s contention that the Union’s proposal is nonnegotiable because it restricts management’s right to deny official time requests "in the absence of demonstrated operational requirements," its own proposal appears to contain indistinguishable wording. In addition, the FLRA has recently concluded that section 7131(d) of the Statute "permits negotiations over the scheduling of official time, including the ability to use official time without advance scheduling or permission from the supervisor, absent emergency situations or other special circumstances."(7) Accordingly, as the Union’s proposal on this issue is much more restrictive than it needs to be under current case law, I find there to be no merit in the Employer’s nonnegotiability allegations.
Finally, the Employer’s reference to Bureau of Alcohol, Tobacco and Firearms v. FLRA in connection with the Union’s proposed Section 8 appears misplaced because that case dealt with whether union negotiators are statutorily entitled to receive travel and per diem expenses. It is now well settled that proposals such as the Union’s in this case are fully negotiable, and the Panel and interest arbitrators routinely rule on their merits. Hence, with respect to the Union’s proposed Section 8, I am persuaded on the basis of the parties’ recent history that they should share equally in the payment of the travel and per diem expenses of one Union representative to participate in negotiations, including FMCS and FSIP proceedings.
5. Negotiations
a. The Employer’s Position
The following article is proposed by the Employer:
Section 1. The Parties may enter into written agreements at the local, regional, and national levels which do not conflict with this Agreement. Such agreements must be approved in accordance with 5 U.S.C. 7114(c). However, specific provisions of this Agreement may be reopened by the Parties at the national level, at any time within its duration, by mutual consent.
Section 2. Should the Employer at the national, regional, or local level propose a change affecting personnel policies, practices, and working conditions, the Union at the corresponding level will be given as much advance notice of this change as possible. The Union may request a meeting within fifteen (15) days of this official notice. This meeting regarding the change should normally be held within fifteen (15) days of the Union’s request, subject to mutual scheduling considerations. The Union must submit any written proposals within fifteen (15) days of the meeting, or if no meeting is requested, within fifteen (15) days of the notification.
Section 3. Any negotiations shall begin within fifteen (15) days of the meeting, at a mutually agreed upon time and place. The parties recognize their obligations and shall meet and negotiate in good faith for the purpose of arriving at an agreement, as expeditiously as possible. Neither party may raise unrelated issues during negotiations and there will be no publicity regarding negotiations by either party.
Section 4. Any mid-term agreements reached on changes to personnel policies, practices, and matters affecting working conditions shall amend this Agreement and shall remain in effect for the term of this Agreement, unless mutually agreed otherwise by the Parties.
Section 5. If, after a good faith effort, the Parties are unable to reach an agreement, the Parties may seek the services of the appropriate impasse procedure. Prior to seeking the services of a third party, both Parties agree that an opportunity, not to exceed fifteen (15) days, will be provided to amend the language in an effort to settle the negotiability issue. During this period, the Employer will maintain the status quo until the dispute is resolved, unless the conditions meet the requirements for the Employer to implement prior to the completion of negotiations.
Section 6. By mutual agreement on a case-by-case basis, the Parties may extend or waive any time limits referenced in this Article.
Overall, its proposed wording should be adopted because it: (1) provides shorter, standardized time frames; (2) permits provisions to be reopened by mutual consent; and (3) provides a cooling-off period to attempt to settle negotiability disputes.
The Union’s proposal "is too restrictive and leaves too many issues for interpretation." In this regard, it contains definitions which are "unnecessary and arbitrary," and overlapping time frames which "permit the process to be extended" for each of the various activities it identifies. Its reference in Section 2.d. to the Employer’s timely submission of "data" should be dropped because its meaning is unclear in this context. Section 3 could be interpreted as a deliberate effort by the parties not to include certain issues, and fails to recognize that both parties presented extensive proposals which were to be all-inclusive of matters currently at issue. The Union, therefore, could gain an unfair advantage by raising issues in the future which it should have addressed during the current negotiations, or by attempting to revive issues and articles which it has willingly withdrawn. Section 4, which would require the Agency to notify the Union "at multiple levels" when it wants to initiate changes "is cumbersome and unnecessary," and would make the Agency responsible for the dissemination of information which involves "an internal Union matter." Finally, Section 2.g. regarding Union-initiated changes "is improper since it is overly broad and such negotiations can only be initiated in very restricted situations, especially under reform."
b. The Union’s Position
The Union’s proposal is as follows:
Section 1. Definitions. For the purpose of this Agreement and all amendments and supplements hereto, the following terms are defined:
a. Mid-Term Bargaining. All negotiations which take place during the life of this Agreement concerning changes to conditions of employment not covered by the terms of this Agreement, or conditions of employment covered by the Agreement pursuant to Article __, Duration and Amendments.
b. Impact-and-Implementation Bargaining. All negotiations regarding procedures Management will follow in implementing decisions resulting from the exercise of its reserved rights under Section 7106 of the Federal Service Labor-Management Relations Statute and appropriate arrangements for employees adversely affected by those decisions when such decisions concern changes to conditions of employment.
Section 2. Procedure for Bargaining. This procedure is applicable to Mid-Term and Impact-and-Implementation Bargaining as defined in Section 1 above:
a. The Employer shall notify the Union, as provided for in Section 4 of this Article, prior to the planned implementation of a proposed change to conditions of employment. A written notice will be provided the Union of the proposed change, the reason for the change, and the proposed effective date of the change.
b. The Union shall have thirty (30) calendar days from the date of notification to request bargaining and to forward written proposals to the Employer.
c. If the Union desires a meeting to discuss the employer’s proposal prior to submission of its comments or proposals, the Union must request such a meeting within fifteen (15) days of the notice informing the Union in a timely manner, and the Union shall provide its written comments or proposals within fifteen (15) days of this meeting.
d. If the Union desires information regarding the proposed change prior to submission of its comments or proposals, the Union must submit a written request within fifteen (15) days of the notice informing the Union of the proposed change. The Employer will provide the data to the Union in a timely manner, and the Union shall provide its written comments or proposals within fifteen (15) days of receipt of the requested information.
e. If the Union does not request bargaining within the time limit, the Employer may implement the proposed change(s).
f. Upon timely request by the Union, bargaining will commence within ten (10) calendar days, unless otherwise agreed upon by the Parties.
g. The Employer shall have thirty (30) calendar days from the date of receipt of Union-initiated proposed changes to conditions of employment to forward written proposals to the Union. Bargaining will commence within ten (10) calendar days, unless otherwise agreed upon by the Parties.
Section 3. It is recognized that this Agreement is not all inclusive, and the fact that certain working conditions have not been specifically covered in the Agreement does not lessen the responsibility of either party to meet with the other for discussion and exchange of views and/or negotiations in an effort to find mutually satisfactory solutions of matters related to policies, practices, procedures, and conditions of employment not covered by this Agreement.
Section 4. Notice of proposed changes to conditions of employment at the local level shall be forwarded in writing to the facility representative and respective Regional Director. Changes initiated at the Regional level shall be forwarded in writing to the respective Regional Director and Union President. Changes proposed by the FAA at the National level shall be forwarded in writing to the Union President.
Section 5. The Parties at the facility or regional levels may enter into written agreements on local and regional issues that do not conflict with this Agreement. Such agreements must be approved in accordance with 5 U.S.C. 7114(c).
Its final offer on this issue incorporates certain sections of prior Employer proposals. The resulting compromise "should have resulted in an agreement on a comprehensive negotiations article that addressed both parties issues and interests." Instead, once again the Employer’s movement has been "backwards," reducing time frames in Section 2 of its latest offer, and introducing a new issue in Section 5 concerning unilateral implementation by the Employer prior to the completion of negotiations. The latter is unacceptable because it would permit the Employer to make unilateral changes "at will" regardless of current FLRA case law which requires parties to maintain the status quo to the maximum extent possible after an impasse in negotiations has been invoked.
CONCLUSION
After carefully considering the parties’ final offers on this article, I shall order the adoption of a modified version of the Union’s proposal to resolve their dispute. In my view, the Employer has provided insufficient grounds for shortening the time frames for mid-term and impact-and-implementation negotiations from 30 to 15 days, particularly when the parties had little discussion on the matter, and the NAATS and NATCA contracts provide for the longer period. Other significant differences between its offer and the provisions in the other two contracts relate to the Employer’s desire to prohibit publicity regarding negotiations (Section 3), efforts to settle negotiability issues prior to seeking the services of third parties (Section 5), and the specific circumstances under which it may implement proposed changes prior to the completion of negotiations (Section 5). While there may be merit to some of its proposals, particularly regarding a cooling-off period to attempt to settle negotiability disputes prior to submitting them to a formal process, in general the Employer has not demonstrated why they should be adopted. For example, its wording on the implementation of changes prior to the completion of bargaining appears to be unnecessary because it is adequately governed by the Statute and FLRA case law.
The Union’s final offer is preferable overall because it is more consistent with the parties’ previous offers on the issues. In response to valid Employer criticisms, however, Section 2.d. will be eliminated, wording will be added to Section 3 to make it clear that it applies only to matters not covered by or contained in the agreement, or otherwise waived by the parties during bargaining, and Section 4 will be modified so that notification to the Union of proposed changes need not be made at multiple levels. On Section 2.d., the Union has failed to demonstrate why it needs wording which exceeds what is provided under section 7114(b)(4) of the Statute; the additional wording in Section 3 addresses the Employer’s concern that the Union may gain an unfair advantage in the future by attempting to revive issues which it has willingly withdrawn, and is in accordance with current FLRA case law on the issue of mid-term bargaining; and it seems reasonable in Section 4 to require the Employer to notify only the Facility Representative at the local level, the Regional Director at the regional level, or the Union President at the national level, of proposed changes in conditions of employment.
6. Holidays
a. The Employer’s Position
The Employer believes that Section 2 of this article, which lists the day that a holiday will be observed, in lieu of the actual holiday, when it falls on an employee’s regular day off, should not include the heading "Scheduled Five-Day Work Week." This is necessary to clarify that the chart on that page covers all work schedules. The Union objects to this because it would like individual employees to be able to negotiate with their supervisors for a different day off. Such "hybrid" schedules would deplete management’s limited resources, given the small size of the unit and the limited number of employees on duty at any one time.
b. The Union’s Position
The Union proposes that Section 2 should be headed by the phrase "Scheduled Five-Day Work Week." The Employer’s changes to the last sentence of Section 1 and the deletion of the Section 2 heading are "not justified." In this regard, the Union has some bargaining-unit employees on compressed work schedules that could interpret the deletion of the heading as a change of day observed in lieu of the actual holiday when a holiday falls during their 4-day workweek. Therefore, its proposal should be adopted "to prevent confusion," and because it is consistent with the NATCA and NAATS contracts.
CONCLUSION
The parties’ inability to reach a voluntary agreement on this article is the clearest indication that their relationship is dysfunctional. They appeared to articulate their positions for the first time during the arbitration proceeding. In my view, finding an acceptable solution to their disagreement over this issue is relatively simple: To resolve their dispute over Section 1, the parties will be ordered to adopt wording identical to what is contained in Article 28, Section 1, of the NATCA contract; to resolve their dispute over Section 2, they will be ordered to adopt wording identical to what is contained in Article 26, Section 26-02, of the NAATS contract. Assuming that this covers all of the employees’ options with respect to work schedules, there should be no confusion over what happens when a holiday falls on an employee’s regular day off. A far more daunting challenge is the one the parties face if they are to begin to repair their fractured relationship.
7. Downsizing (RIF)
a. The Employer’s Position
The Employer proposes the following wording:
Section 1. Downsizing actions will be conducted in accordance with the FAA Personnel Management System and implementing policies and procedures.
Its proposed article should be adopted "since it is the only proposal properly before the Panel at impasse." In this regard, the Union withdrew its proposed RIF article during the arbitration hearing, arguing that a previous 1993 RIF agreement between the parties "should thereby continue."
The Union’s position should be rejected for a number of reasons. Management has never agreed to continue the 1993 RIF agreement, which itself clearly states that it will remain in effect until superseded by a CBA. The RIF agreement also contains numerous sections which are now outdated and nonnegotiable as a result of recently enacted FAA personnel reform legislation. In addition, it was never placed before the Panel as a matter at impasse and, therefore, is "outside of its jurisdiction."
b. The Union’s Position
The Employer should be ordered to withdraw its proposal because it "is attempting to incorporate into the agreement provisions that would prevent the Union from negotiating downsizing actions." In fact, RIF policies and procedures "have not been established under the [FAAPMS]," and Union proposals concerning the FAAPMS and implementing policies and procedures are currently the subject of two negotiability appeals before the FLRA. For this reason, an article covering downsizing should be omitted from the agreement.
CONCLUSION
Of all the articles in dispute, this is perhaps the most difficult and perplexing. A review of the parties’ bargaining history on the issue of downsizing indicates that the Panel originally asserted jurisdiction over Section 7 of an article proposed by the Union entitled "ATA/FDCS Staffing," which would have required the formation of a national level study group in the event the Employer designated a level 4 terminal facility to be downgraded, and another article entitled "Realignment of Workforce" which, among other things, contained a proposed section integrally related to Union proposals on staffing requirements that are currently before the FLRA on a negotiability appeal. During the mediation-arbitration proceeding, the Union withdrew Section 7 of its "ATA/FDCS Staffing" article, and its entire "Realignment of Workforce" article. In its written post-hearing brief, it requests that in addition to ordering that its own proposals be withdrawn, the Employer also should be ordered to withdraw its proposed article entitled "ATA/FDCS Distribution of Positions."
The Panel also asserted jurisdiction over two Employer-proposed articles, respectively entitled "ATA/FDCS Distribution of Positions" and "Downsizing." The Employer withdrew the former article during the mediation-arbitration proceeding, as well as most of its "Downsizing" article. The Employer now contends that its final offer should be adopted because it is the only proposal properly before the Panel at impasse. Before addressing the merits of the parties’ positions, the Employer’s view that only its proposal is properly before the Panel must be rejected. In this regard, it is not uncommon for a party to a bargaining impasse to request a Panel-designated arbitrator to order the other side to withdraw its proposal, and this is precisely what the Union is suggesting here. Doing so, however, would leave the parties without a contract article addressing the issue of reductions in force (RIFs). In my view, such an outcome is unacceptable, particularly in the present circumstances where the Employer has previously questioned whether ATA positions are necessary at all, and where one of the first acts the parties performed after the Union’s certification as exclusive representative was to negotiate a RIF agreement. For these reasons, the Union’s position that a Downsizing/RIF article should be omitted from the CBA also must be rejected.
This leads to a consideration of the Employer’s final offer. It is clear that if its proposal is adopted to resolve the parties’ dispute over the article, it would be relieved of all future bargaining obligations concerning RIFs during the term of the agreement. As the Union points out, however, RIF policies and procedures have not been established under the FAAPMS, nor have the negotiability of related proposals concerning staffing levels been determined. Imposing its final offer on the Union, therefore, would basically give the Employer free reign to conduct future RIFs without requiring it to negotiate specific downsizing actions. The Employer would argue that such an outcome is justified because the parties have already expended considerable time and effort negotiating this matter, only to have the Union withdraw its proposals. My experience with the parties during the mediation-arbitration proceeding, however, leads me to conclude that they spent almost no time in hard negotiations over this most difficult of issues, and were content to leave it to a third party for a decision.
Given the importance of this issue and the circumstances surrounding its negotiation, I am simply not prepared to impose the Employer’s final offer to resolve the dispute. Instead, I look once again to the NATCA and NAATS contracts for guidance. They contain similar provisions concerning RIFs, the most significant of which provides that the parties will negotiate the procedures that management will follow once the Employer decides that a RIF action is necessary within the unit. Other than its understandable desire to avoid future RIF negotiations, the Employer has not articulated why this bargaining unit should be treated any differently than those represented by its other larger unions. For these reasons, I will order the adoption of a downsizing article based on the provisions the Employer has previously agreed to in the NAATS and NATCA contracts.
8. Leave(8)
a. The Employer’s Position
The Employer’s proposed Sections 4, 5, and 11, are as follows:
Section 4. Sick leave, if available, will be granted to employees when they are medically incapacitated for the performance of their duties by sickness, injury, or pregnancy and confinement; for medical, dental, or optical examination or treatment; or when exposed to contagious disease, as determined by local health authorities, and the presence of the employee at his/her work would jeopardize the health of co-workers. Request for sick leave for medical, dental, or optical examination or treatment shall be submitted for approval in advance of the appointment. The request must contain information as to the time, place, and date of the appointment. [Only highlighted wording is in dispute.]
Section 5. When any absence due to illness extends from one workweek to another, the employee will notify his/her supervisor on the first workday of each biweekly period until his/her return to duty, unless specifically required otherwise by the Employer. [Only highlighted wording is in dispute.]
Section 11. The Employer may grant sick leave only when supported by evidence administratively acceptable. Regardless of the duration of the absence, the Employer may consider an employee’s certification as to the reason for his/her absence as evidence administratively acceptable. An employee shall be required to furnish administratively acceptable medical documentation for absences of more than three (3) workdays, except that this requirement may be waived by the Employer in individual cases.
The Employer’s use of "medically" to modify "incapacitated" (Section 4) "clarifies and adds to the intention of the provision." The proposed wording in Section 5 would enable it "to vary the frequency of notification from employees, as needed, on an individual basis." Its proposal in Section 11 to rely on "evidence administratively acceptable" should be adopted because it is consistent with 5 C.F.R. 630.403.
The Union’s proposed Section 5 interferes with management’s right "to manage and discipline" by preventing FAA from requiring employees to provide notification of absence due to illness, which extends from one workweek to another, more frequently than on the first workday of each biweekly period until the employee’s return. Section 11 "is also nonnegotiable." It is inconsistent with DOT Order 3600.4 and 5 C.F.R. 630.403. In addition, permitting employees to submit signed statements explaining the nature of their illness when it is unreasonable to require the services of a physician "is overly restrictive since it prevents management’s judgment in requiring other documentation absent a showing of ‘unreasonable’." Finally, the last sentence of the Union’s proposal for Section 11 is also "overly restrictive" and "vague."
b. The Union’s Position
The Union opposes the inclusion of the additional phrases proposed by the Employer in Sections 4 and 5. In addition, it proposes the following wording regarding Section 11:
Section 11. Periods of absence on sick leave in excess of three (3) workdays should be supported by a medical certificate. This certificate should be furnished to the Employer upon return to duty. Signed statements by employees explaining the nature of their illness will be accepted when it is unreasonable to require a medical certificate because the illness does not require the services of a physician. In cases of extended or extensive absence(s), the employee may be required to submit a medical statement. Normally, the diagnosis, prognosis, and appropriate applicable restrictions on activities should be sufficient.
The only difference between the parties on Section 4 is the Employer’s use of the term "medically" in the first sentence. The Union is unclear about what this is intended to accomplish, and the term is not used in either the NATCA or NAATS contracts. With respect to their differences over Section 5, the use of the phrase "unless specifically required otherwise by the Employer" could render the section meaningless. In this regard, the wording is "unnecessary and not justifiable" since employees on extended absences could be required to notify the supervisor on a daily basis even though "the Employer knows up front the absence is for a period of weeks." The Union’s proposal on Section 11 should be adopted because, unlike the Employer’s, it is consistent with 5 C.F.R. 630.403, and could not be used to require "unnecessary and costly visits to a doctor merely to obtain a medical certificate." It is also taken from a recently approved Department of Defense agreement.
CONCLUSION
With regard to Section 4, I am not persuaded that including the word "medically" in the first sentence would add to its clarity, so I will order the adoption of the Union’s proposal. Moreover, such wording cannot be found in the parallel provisions of the NAATS and NATCA contracts, and the Employer provided no evidence to show why this bargaining unit merits different treatment. Regarding the parties’ disagreement over Section 5, I will adopt the Employer’s proposed wording because it is similar to what is contained in the NATCA contract, and would provide supervisors with appropriate flexibility to require certain employees to provide more frequent notification where circumstances warrant. Finally, in my view a compromise should be adopted to resolve the dispute over Section 11. In this regard, the first two sentences of the Employer’s proposal are identical to the first two sentences of 5 C.F.R. § 630.403. The last sentence of the proposal is similar to provisions in both the NAATS and NATCA contracts, but inexplicably deviates from them by requiring administratively acceptable medical documentation for absences of more than 3, rather than 4, workdays. The Union, on the other hand, primarily wishes to avoid requiring employees to visit doctors merely to obtain a medical certificate. Both the NAATS and NATCA contracts have identical wording that addresses the Union’s concern. Accordingly, I will order the adoption of the first two sentences of the Employer’s proposal, and a slightly modified version of the wording contained in both the NAATS and NATCA contracts to settle the dispute with respect to these other matters. This should meet the legitimate interests of both parties.
9. Union Use of Employer’s Facilities and Support(9)
a. The Employer’s Position
The Employer’s proposed wording regarding Sections 2 and 3 are as follows:
Section 2. In offices where suitable space is available in nonwork areas, the Union shall be permitted to use such space for the placement of file cabinets or other similar equipment. The Employer shall make a reasonable effort to provide excess desks, chairs, file cabinets, or other similar equipment for Union use. Any Union supplied equipment shall be subject to approval of the Employer. The Employer reserves the right to withdraw from such arrangements whenever the space is required.
Section 3. Union representatives shall be given reasonable access to FAA telephone lines and copy machines for the purpose of conducting official labor relations business regarding grievances and other representational matters, provided there is no additional cost to the Government. Government facilities shall not be used to conduct internal Union business.
With respect to Section 2, its proposal is reasonable and consistent with the limited amount of space available at the facilities where bargaining-unit employees are located. The parties’ chief area of disagreement in Section 3 concerns the Union’s use of the Agency’s fax machines. In this regard, the Union "has presented no evidence that their inability to use the Agency’s fax equipment" since 1993 "has delayed or impaired their ability to act." The current fax policy is also consistent with FAA’s practice with respect to its other unions. The practice is in effect because of the "huge demands" placed upon the limited number of fax machines at the Agency’s disposal. For this reason, the Agency "cannot support additional demands of unknown duration and quantity" being placed on its "already taxed resources." The cost of long-distance transmissions is also an issue. In addition, the Union’s proposal does not provide a procedure in the event of abuse. Finally, providing such an "improper Union subsidy" and unjustified benefit "would also encourage the other unions to open this issue to demand parity with NAGE."
b. The Union’s Position
The wording proposed by the Union in Sections 2 and 3 is the following:
Section 2. In offices where suitable space is available in nonwork areas, the Union shall be permitted to use such space for the placement of file cabinets or other similar equipment. The Employer shall make a reasonable effort to provide excess desks, chairs, file cabinets, or other similar equipment for Union use. Any Union supplied equipment shall be subject to approval of the Employer. The Employer reserves the right to withdraw from such arrangements whenever the space is required. The Employer shall provide space at the work facilities of the Union President, Vice President, and National Facility Representative for the use of the Union.
Section 3. Union representatives shall be given reasonable access to FAA telephone lines, fax machines, and copy machines for the purpose of conducting official labor relations business regarding grievances and other representational matters. Government telephone lines, fax machines, and copy machines shall not be used to conduct internal Union business.
Its proposal identifies "the minimal use of Employer’s facilities and support necessary to effectively represent bargaining-unit employees," i.e., a Union representative on official time needs a place at the facility to perform representational duties and a means of communicating with other off-site representatives. Also, during the impasse proceeding the Employer for the first time implied that access to telephones and copy machines was to be at no cost to the FAA. This is contrary to previous Employer representations of intent. Thus, in addition to adopting the Union’s final offer, the arbitrator should clarify that the use of telephones, and fax and copy machines, are at the Employer’s expense.
CONCLUSION
Unlike some of the other issues at impasse, I am persuaded with respect to the parties’ differences on this article that deviations from current practices governing the relationships between FAA and its two largest unions are warranted. In this regard, the bargaining unit is small and geographically dispersed, and the Union’s resources are far more limited. For these reasons, fairness dictates that the level of assistance provided by the Employer should be greater. Accordingly, regarding the parties’ dispute over Section 2, I will order that permanent space be made available at the work facility of the Union President. Because space is already being provided to the current Union President, this decision should have no immediate impact. With respect to Section 3, I will order the Employer to provide the Union with reasonable access to facsimile machines for representational matters which, along with its access to other equipment, will be without charge. In recognition of the Employer’s legitimate concerns regarding the adverse impact that the use of fax machines could have on its limited resources, wording will be added requiring Union representatives to request prior approval from their supervisors before sending or receiving documents using FAA fax machines, and specifying that such requests will not be unreasonably denied. In my view, permanent union office space and access to fax machines by unions, while prevalent throughout the Federal government, is particularly justified in the instant circumstances.
10. Critical Incident Stress Program (CISP)
a. The Employer’s Position
The Employer’s proposed contract article regarding this subject is as follows:
Section 1. A Critical Incident can be identified as an accident/incident (such as an aviation disaster with loss of life), acts of terrorism, bomb threats, exposure to toxic materials, coworker loss of life while at work and natural disasters, such as earthquakes and hurricanes.
Section 2. The CISP is an educational process designed to minimize the impact of a critical incident on employees.
Section 3. This program has been established by the Federal Aviation Administration and, as long as it remains in effect, will be made available to bargaining-unit employees and administered in accordance with applicable Agency directives and policy.
Section 4. The Employer will determine when to implement the formal CISP for affected bargaining-unit employees after consulting with the appropriate office(s), such as the Office of Air Traffic Program Management, the jurisdiction’s Human Resource Management Division, and the Union at the national level.
The current CISP is an "outgrowth" of the Agency’s Employee Assistance Program (EAP) which is available to all bargaining-unit employees, and an "ongoing program on CISP may not be needed." Its definition of the program in Section 1 is "more universal" than the Union’s. The Union’s proposal also would mandate the existence of such a program, which was intended to be a "one-time training program" and "is not union specific." Its adoption, therefore, would prevent the Employer from incorporating it under the EAP "as a Critical Incident Stress Management Program." More fundamentally, Sections 3, 4, 5, and 7 of the Union’s proposal, for a variety of reasons, "all involve the assignment of work and restrict the Agency’s ability to manage a workforce which has very limited personnel." In particular, Section 5 mandates the release of a Union CISP designee "without consideration of the workload or operation of the Agency," while Section 7 refers to a "CISP professional," when there is no such individual presently, "nor is the creation of such a position contemplated." Therefore, the Union’s proposal is nonnegotiable.
b. The Union’s Position
The Union proposes the following CISP wording:
Section 1. The Employer agrees to establish a Critical Incident Stress Program (CISP) which is designed to manage the common descriptive physical, mental, and emotional factors that an employee may experience after a critical incident (i.e., accident/incidents, death of co-workers, acts of terrorism, exposure to toxic materials, bomb threats, natural disasters such as hurricanes and earthquakes). Upon request, an employee involved in or witnessing a critical incident shall be relieved from duties as soon as possible.
Section 2. The CISP is an educational process designed to minimize the impact of critical situations on employees. The program shall not evaluate employees in terms of gathering factual information about employee performance or as a mechanism for psychological assessment.
Section 3. The Union at the National level may designate one (1) bargaining-unit employee to receive formal training to serve as member of the CISP team.
Section 4. CISP training will be provided to the Union designees referenced in Section 3 of this Article, on official time, if otherwise in a duty status, and shall entitle the participants to travel and per diem allowances. The Employer agrees to adjust the schedule(s) of participants to allow them to participate in a duty status.
Section 5. Whenever the Employer determines that a CISP team is to be used at a bargaining-unit location, the Union designee shall be relieved as soon as possible from his/her normal duties to proceed to the designated location. The Employer shall adjust the Union designee’s schedule to allow for travel and participation in CISP activities. Official time, travel, and per diem shall be authorized for the CISP team member.
Section 6. The Principal Facility Representative or his/her designee will be notified in advance whenever employees will be required to attend mandatory critical incident stress debriefings and will be provided the opportunity to attend.
Section 7. When a determination is made to implement the formal CISP briefing, all affected employees will be notified and will be required to attend. Upon completion of the briefing, the CISP professional will notify the employees that a licensed counselor from the Employee Assistance Program (EAP) contractor will be available for bargaining-unit employees who desire additional CISP services.
The Union’s final offer on this article is taken from the NATCA contract. Unit employees’ need for the CISP is identical to those of ATCs because ATAs "interface" with them continuously. Except for the list of critical incident examples in Section 1, and the requirement in Section 3 that the Union may designate one bargaining-unit employee to receive formal training to serve as a member of the CISP team, its proposal is essentially the same as the initial position of the Employer before the Panel. By eliminating any Union involvement on the CISP team, the Employer’s final offer represents yet another "reverse direction" by the Agency, demonstrating "a disregard for the bargaining process and lack of good faith" which should not be condoned.
CONCLUSION
The Employer has raised a jurisdictional argument concerning the negotiability of the Union’s final offer, contending that various sections interfere with management’s right to assign work. It is well established that a party may raise a jurisdictional argument at any point during the impasse resolution process, even where, as here, substantively identical wording is contained in a current agreement between FAA and one of its other unions. In the face of such arguments, the Panel and Federal sector interest arbitrators are bound by the precedent established by the FLRA, unless it reverses itself, or is reversed by the U.S. Supreme Court. In such circumstances, guidance is provided in the FLRA’s Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988)(Carswell) decision, when it determined that the Panel and interest arbitrators may apply existing case law to resolve an impasse when a duty-to-bargain issue arises. In practical terms, this means that if the FLRA has previously found negotiable a "substantively identical" proposal, the Panel and interest arbitrators may apply such precedent to resolve the duty-to-bargain issue without requiring the FLRA to consider the proposal.
Applying the principles of Carswell to this case, I am persuaded that I should relinquish jurisdiction over the parties dispute on this article so that the Union may, at its discretion, request a formal written allegation of nonnegotiability from the Employer. I regret that the Employer’s allegation was raised for the first time in its post-hearing brief because the Union was not afforded an opportunity to respond. In my own considerable research on the negotiability of the Union’s final offer, however, I was unable to uncover a case where the FLRA has found a substantively identical proposal to be negotiable.(10) Finally, in addition to being consistent with the guidance provided by the FLRA in Carswell, relinquishing jurisdiction is also appropriate because it would be pointless to order the adoption of provisions only to have them disapproved later under section 7114(c) of the Statute.
11. Implementation of a Partial Agreement
a. The Employer’s Position
The issue over whether a partial agreement should be imposed on the parties while they are awaiting the FLRA’s negotiability decisions over related Union proposals was raised by the Union for the first time at the conclusion of the arbitration hearing. At that time, the Union alleged that at some point during the negotiations process the parties had verbally agreed to the implementation of such a partial agreement. The Panel "has no jurisdiction over this matter since it was never referred to impasse by the parties, and the Panel has never asserted jurisdiction over it." Such implementation would also conflict with a provision in their ground rules which states: "It is understood that the initialed proposals are not effective until all articles have been resolved and initialed and the agreement in its entirety is signed by both parties." Imposition of a partial agreement would be politically advantageous to the Union because it would provide a negotiated grievance procedure, but would be of no benefit to the Employer. The Union "has already attempted this tactic" and been "spurned." In this regard, the FLRA dismissed two recent unfair labor practice charges, sustaining the legality of the FAA’s actions in refusing to negotiate over a grievance procedure outside the scope of the parties’ negotiations over a CBA. Thus, raising this issue before the Panel "is yet another attempt by the Union to relitigate the same issue in another forum," and should be rejected for this reason as well.
b. The Union’s Position
In essence, the Union proposes that the arbitrator "order the parties to execute the agreement pursuant to 5 U.S.C. 7114(b((5), in a specified period of time, and to effect the agreement pursuant to 5 U.S.C. 7114(c)." The Employer stated for the first time during the impasse proceeding that it did not intend to implement the contract until all negotiability issues had been resolved. This "is contrary to the direction the parties had undertaken prior to impasse proceedings." In this regard, the parties’ actions during previous negotiations, where a number of articles were withdrawn and it was agreed that the CBA would have an 18-month duration, were taken to "expedite" an agreement while uncertainties surrounding the FAAPMS and bargaining obligations were resolved. At this point, the bargaining unit has been without a contract since certification. The Employer has refused to implement grievance and arbitration procedures in advance of a complete agreement, recent changes in the law have deprived unit employees of MSPB appeal rights, and the Employer has unilaterally effected changes to the FAA disciplinary, grievance and appeal procedures without bargaining with the Union. Because the Employer made implementation an issue during the impasse proceedings, the matter is within the Panel’s jurisdiction, and "it is not in the best interest of the Federal Service . . . to deny the Union bargaining unit a contract." Finally, "Panel time and funds are not best used in conducting impasse proceedings (mediation/arbitration) that result in no agreement being effected."
CONCLUSION
The authority of a mediator-arbitrator designated by the Panel is limited to the issues over which jurisdiction was initially asserted. In this case, partial implementation of the parties’ agreement was not one of those issues. Accordingly, I am constrained to order the Union to withdraw its proposal.
DECISION
1. Preamble/Parties to the Agreement
The parties introductory article shall be entitled "Parties to the Agreement." It shall contain the following wording:
This agreement is made by and between the National Association of Government Employees, SEIU/AFL-CIO (hereinafter) "the Union" and the Federal Aviation Administration, Department of Transportation ("the Employer"). The Union and the Employer are referred to collectively as "the Parties."
2. Employer Rights
The parties’ "Employer Rights" article shall consist of 5 U.S.C. 7106 in its entirety.
3. Employee Rights
The parties shall adopt the Union’s final offer on Sections 1 and 5 of this article. The Union final offer on Section 6 shall be withdrawn.
4. Union Representation
The parties shall adopt the following wording to resolve their dispute over Sections 2, 3, and 8 of this article:
Section 2. Official time means time necessary for Union officials to perform the representational duties of the office. The Union is authorized a block of 3,500 hours official time for representational functions. Additional official time is authorized for: (1) negotiations, including FMCS and FSIP proceedings, and (2) participation in contractual or Employer committees and functions, including associated travel.
Section 3. Unless prohibited by operational requirements, each Representative shall, on request, be granted official time. If the time requested cannot be granted, an alternative time will be arranged. Each request for official time will provide the estimated time of return, and enough information for the appropriate management official to approve the request and record its use.
Section 8. The parties shall share equally in paying the travel and per diem expenses of one Union Representative to participate in negotiations, including FMCS and FSIP proceedings.
5. Negotiations
The parties shall adopt the Union’s final offer, modified as follows:
The Union shall withdraw Section 2.d.
Section 3 shall read as follows:
Section 3. It is recognized that this Agreement is not all inclusive, and the fact that certain working conditions have not been specifically covered in the Agreement does not lessen the responsibility of either party to meet with the other for discussion and exchange of views and/or negotiations in an effort to find mutually satisfactory solutions of matters related to policies, practices, procedures, and conditions of employment not covered by or contained in this Agreement, or otherwise waived by the parties during negotiations.
Section 4 shall read as follows:
Section 4. Notice of proposed changes to conditions of employment at the local level shall be forwarded in writing to the facility representative. Changes initiated at the Regional level shall be forwarded in writing to the respective Regional Director. Changes proposed by the FAA at the National level shall be forwarded in writing to the Union President.
6. Holidays
The parties shall resolve their dispute over Section 1 by adopting wording identical to what is contained in Article 28, Section 1, of the current NATCA contract; to resolve their dispute over Section 2, they shall adopt wording identical to what is contained in Article 26, Section 26-02, of the current NAATS contract.
7. Downsizing (RIF)
The parties shall adopt the following wording:
Section 1. The Employer agrees to avoid or minimize a RIF by taking such actions as restricting recruitment and promotions, by meeting ceiling limitations through normal attrition, and by reassignment of qualified surplus employees to vacant positions.
Section 2. The Employer agrees to notify the Union when it is determined that a RIF action will be necessary within the unit. The Union will be notified as to the number of positions to be reduced and the vacant positions that the Employer has authorized for staffing. At this time, the Employer and the Union will negotiate the procedures that the Employer will follow in the implementation of the RIF. This notification shall be made at least 90 days before implementation.
Section 3. In the event of a RIF, the affected employee and the Union representative will be provided access to master retention registers relative to his/her involvement, upon request.
Section 4. At the end of the RIF, the Union will be provided a list of all vacancies filled during the RIF.
8. Leave
The parties shall adopt the Union’s final offers on Sections 2 and 4, and the Employer’s final offer on Section 5. With respect to Section 11, the parties shall adopt the following wording:
Section 11. The Employer may grant sick leave only when supported by evidence administratively acceptable. Regardless of the duration of the absence, the Employer may consider an employee’s certification as to the reason for his/her absence as evidence administratively acceptable. An employee shall be required to furnish administratively acceptable medical documentation for absences of more than 4 consecutive workdays, except that this requirement may be waived by the Employer in individual cases. If a physician was not consulted, a signed statement from the employee giving the facts about the absence, the treatment used, and the reasons for not having a physician’s statement shall be accepted as supporting evidence by the supervisor.
9. Union Use of Employer’s Facilities and Support
The parties shall adopt the following wording to resolve their dispute over Sections 2 and 3 of this article:
Section 2. In offices where suitable space is available in nonwork areas, the Union shall be permitted to use such space for the placement of file cabinets or other similar equipment. The Employer shall make a reasonable effort to provide excess desks, chairs, file cabinets, or other similar equipment for Union use. Any Union supplied equipment shall be subject to the approval of the Employer. The Employer reserves the right to withdraw from the preceding arrangements whenever the space is required. The Employer shall provide space at the work facility of the Union President for the use of the Union.
Section 3. Union representatives shall be given reasonable access to FAA telephone lines, fax machines, and copy machines for the purpose of conducting official labor relations business regarding grievances and other representational matters, at no cost to the Union. Union representatives will request approval from their supervisors to send or receive documents using FAA fax machines. Such requests for approval will not be unreasonably denied. Government telephone lines, fax machines, and copy machines shall not be used to conduct internal Union business.
10. Critical Incident Stress Program
Jurisdiction over this article is relinquished to permit the Union, at its discretion, to request a declaration of nonnegotiability from the Employer.
11. Implementation of a Partial Agreement
The Union shall withdraw its proposal.
H. Joseph Schimansky
Arbitrator
April 15, 1997
Washington, D.C.
1.The Panel declined to assert jurisdiction over the Union’s proposals on the following articles: (1) Pay and Benefits (entire article), (2) Holidays (last sentence, § 2), (3) Leave (§§ 1 and 2), (4) Staffing (§§ 1 through 6), and (5) Medical Exams (entire article).
2.While the parties’ reciprocal allegations of bad faith are indicative of the sad state of their relationship, they are reminded that it is not the proper function of a Panel-designated arbitrator to decide unfair labor practice charges.
3.A review of the parties’ final offers on this issue indicates that, except for a minor difference over whether Section 1 should refer to the Civil Service Reform Act of 1978 (Employer) or Chapter 71 of Title 5 of the United States Code (Union), they are in essential agreement on the first four sections of this article. Accordingly, the following narrative focuses primarily on their disagreements concerning Sections 5 and 6.
4.A review of the parties’ final offers on this issue indicates that they are essentially in agreement on Sections 1 and 4-7 of this article. Accordingly, the following narrative focuses only on their disagreements concerning Sections 2, 3, and 8.
5.Department of the Army, Presidio of San Francisco, San Francisco, California and Local 1457, American Federation of Government Employees, AFL-CIO, Case No. 91 FSIP 85 (December 30, 1991), Panel Release No. 322.
6.The Employer cites “S.1994, the Federal Aviation Reauthorization Act of 1996, 104 P.L. 264,” in support of this contention.
7.National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office, 52 FLRA No. 117 at 23 (March 15, 1997).
8.Because the parties’ proposed wording for Sections 1-3, and 6-10, are virtually identical (the parties’ versions of Section 2 differ only in that the Employer would end the last sentence with the phrase “in accordance with applicable regulations and policies”), the following narrative focuses only on their disagreements with respect to Sections 4, 5, and 11.
9.Because the parties’ proposals on Sections 1, 4, and 5, are virtually identical, these sections will not be considered further herein.
10.In this regard, there is reason to believe that the opposite may be the case. Ironically, in U.S. Department of Transportation and Federal Aviation Administration and Professional Airways Systems Specialists, MEBA, AFL-CIO, 40 FLRA 690, 713-716 (May 3, 1991), the FLRA found negotiable a proposal allowing employees functioning as representatives of the union to attend agency-sponsored training purely in their representational capacity and for purposes of being better able to represent bargaining-unit employees under the Statute. In reaching its conclusion, however, the FLRA stated that the proposal was negotiable because it did not involve training employees who have responsibilities or duties in the drug program itself in how to accomplish those responsibilities nor did it, otherwise, require the agency to provide instruction to employees on aspects of their jobs or other performance-related matters.