United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of DEPARTMENT OF THE AIR FORCE LANGLEY AIR FORCE BASE LANGLEY AFB, VIRGINIA
and LOCAL R4-26, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, SEIU, AFL-CIO	Case No. 98 FSIP 146

DECISION AND ORDER

    Local R4-26, National Association of Government Employees (NAGE), SEIU, AFL-CIO (Union), and Department of the Air Force, Langley Air Force Base (AFB), Langley AFB, Virginia (Employer) filed a joint 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.

    After the investigation of the request for assistance, the Panel determined that the dispute, which concerns parts of four articles arising from negotiations over a successor agreement, should be resolved through an informal conference between a Panel representative and the parties. If no settlement was 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 (Labor Relations Specialist) Bridget Sisson held an informal conference with the parties on October 16, 1998, at Langley AFB, Virginia. Although the parties explored settlement possibilities during the informal conference and resolved part of one of the four open articles, the rest of the dispute remained unresolved. The parties submitted their final offers to Ms. Sisson who reported to the Panel, and it has now considered the entire record.

BACKGROUND

    The mission of the Nonappropriated Fund Instrumentalities (NAFI’s) at Langley AFB is to provide a variety of services and recreational facilities for military personnel and their dependents. The bargaining unit that the Union represents consists of approximately 200 to 250 nonappropriated fund employees who work in various food service, recreational, administrative, technical, and craft and trade occupations. The parties’ collective bargaining agreement (CBA) remains in effect pending completion of the successor agreement.

ISSUES AT IMPASSE

    The parties disagree over parts of the following articles: Article 4, Employer Rights; Article 10, Matters Appropriate for Consultation and Negotiation; Article 26, Performance Evaluation; and Article 40, Grievance Procedure.

I. Article 4. Employer Rights

    a. The Employer’s Position⁽¹⁾

    The Employer proposes that Section 2 read as follows:

Nothing in this Article shall preclude the Employer and the Union from negotiating:

a. at the election of the agency, on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of preforming work.

b. procedures which management officials will observe in exercising any authority under this Article; or

c. appropriate arrangements for employees adversely affected by the exercise of any authority under this Article by such management officials.

With respect to this article, the Union’s expressed intent at the bargaining table and in its submission to the Panel was to negotiate over the Employer’s section 7106(b)(1) rights. As the Employer has no duty to bargain over that matter, the Panel should decline jurisdiction and advise the parties to seek resolution of the duty-to-bargain question in an appropriate forum.⁽²⁾ The Union can rely on wording in Article 54 of the proposed successor agreement to reopen the issue in the event that litigation, now pending, produces a change in the FLRA’s position on the enforceability of E.O. 12871. Specifically, Article 54 includes a provision for reopening the agreement when "new or revised laws [or] regulations of appropriate authority require changes to the provisions of the Agreement."

    Since the Union’s proposal would eliminate a provision from the parties’ current CBA, its adoption by the Panel might cause confusion. Unlike the circumstances involved in the Panel’s Decision and Order in Department of the Air Force, Air Force Materiel Command, Air Force Flight Test Center, Edwards Air Force Base, California and Sport Air Traffic Controllers Organization, Case No. 98 FSIP 107 (September 23, 1998) (Edwards Air Force Base), Panel Release No. 413, Article 4 is to be included in a term agreement.⁽³⁾ Term agreements should be self-contained documents that set forth the management rights governing the agreement.

    b. The Union’s Position⁽⁴⁾

    The Union’s final offer is to "pull Article 4 in its entirety off the table until the courts rule on the issue of whether E.O. 12871 is enforceable under the Statute." In view of the existing legal challenge to the FLRA’s decisions on the enforceability of E.O. 12871, the Union’s options should be preserved until the courts can rule on the issue. The provisions of Article 54 would not, as the Employer contends, meet its needs in that regard. Permitting it to negotiate over matters encompassed by section 7106(b)(1) will promote partnership efforts and reduce grievances. Incorporating the requirements of E.O. 12871 in the agreement will help to ensure that the parties are aware of and abide by their obligations. At least one other Air Force installation, Seymour Johnson Air Force Base, has entered into an agreement that deletes the phrase "at the election of the agency" from the restatement of section 7106(b)(1).

CONCLUSIONS

    Preliminarily, it is unnecessary to address the Employer’s jurisdictional arguments regarding the nonnegotiability of the Union’s proposal because we are persuaded on the merits that the Employer’s proposal should be adopted. In this regard, the Employer’s proposal conforms with the common practice in the Federal sector that term CBAs restate or paraphrase the management rights provisions of the Statute. Such a practice provides the parties, individuals who must administer the agreement, and the employees to whom it applies with a self-contained document. The parties’ current agreement contains such a provision, and since recent FLRA case law has clarified that E.O. 12871 is not enforceable under the Statute, we believe that the Union has failed to present a compelling reason to change the status quo.⁽⁵⁾

II. Article 10, Section 7: Matters Appropriate for Consultation and Negotiation

    a. The Employer’s Position

    The following is the Employer’s proposal for Section 7:

It is agreed that matters appropriate for negotiation between the parties shall include personnel policies and working conditions, including but not limited to such matters as safety, training, labor-management relations, employee services, methods of adjusting grievances, granting leave, promotion plans, demotion practices, pay practices, reduction-in-force practices, and hours of work which are within the discretion of the head of the agency. These matters are related to policy determinations, not day-to-day operations. It is agreed that the fact that certain matters appropriate for negotiations have been excluded from this agreement does not relieve either party of its obligation to meet and confer on these not initially covered here. The obligation to meet and confer does not include matters with respect to the Employer’s mission, budget, organization, the number of employees, and the numbers, types, and grades of positions or employees assigned to an organizational unit, work project, or tour of duty, the technology of performing its works or its internal security practices.

(The italicized portion of this proposal constitutes the crux of the parties’ dispute.)

As with Article 4, the Union’s intention is to negotiate over management’s rights. Consequently, the Union’s proposal is not within the duty to bargain and the Panel should direct the parties to seek resolution of the duty-to-bargain issue in an appropriate forum.⁽⁶⁾ In the alternative, on the merits its proposal regarding this Section should be included in the parties’ successor agreement because it mirrors a provision contained in the current CBA.

    b. The Union’s Position

    The Union proposes that Section 7 be deleted. The Section is unnecessary; the parties should instead rely on the Statute and case law to determine what is appropriate for negotiation. That case law would include any new developments arising from the existing legal challenge to the FLRA’s decision regarding the enforceability of E.O. 12871.

CONCLUSIONS

    It is unnecessary to address the Employer’s assertion that the duty-to-bargain issue it raises requires resolution in an appropriate forum. In this regard, we conclude that the Employer is simply mistaken in its contention that the Union’s proposal that the contract remain silent, rather than restate or paraphrase statutory management rights, is an attempt to negotiate over those rights. Instead, the Union’s stated intent is that "the Statute tells us what to bargain for and case law dictates what is negotiable and what is not negotiable."

    On the merits, we are persuaded that the Union’s position should be adopted. In contrast to its proposal for Article 4, the Employer’s proposed Section 7 does not restate statutory management rights as they now exist in section 7106 of the Statute. Rather, the wording at issue is substantively identical to section 11(b) of E.O. 11491, as amended, which preceded the Statute. Thus, the Employer’s proposal is an antiquated and incomplete rendering of current statutory management rights. In our view, therefore, the parties will be better served by relying on the Statute and subsequent FLRA case law for a determination of their bargaining rights and obligations.

III. Article 26, Section 7: Performance Evaluations

    a. The Employer’s Position

    The Employer proposes that:

Each employee, based on their performance, will receive an annual performance award if the agency meets the Air Combat Command (ACC) goal. If management does not meet [the] ACC goal, performance awards will be at the election of the agency.

Based on a decision of the U.S. Court of Appeals for the 4th Circuit in a case to which both the Employer and Union were parties, the Union’s proposal for mandatory performance awards within specified ranges is nonnegotiable.⁽⁷⁾ Therefore, the Panel lacks jurisdiction over the issue of mandatory performance awards. On the merits, it is particularly important that a NAFI, which is a business operation that must generate funding to cover every expense, retain budgetary flexibility. Consequently, the Employer must be able to keep awards expenditures within its available budget resources. The ACC goal, which represents a percentage of net profit and is imposed by higher-level command and the Department of the Air Force, provides a gauge for determining whether the Employer’s profit level in a given year can accommodate a commitment to give performance awards. The Employer has given awards in past years even though it did not meet its ACC goal because it still had sufficient cash flow; however, it cannot be assumed that will always be the case. In addition, the Union’s proposal does not allow supervisors making award determinations the flexibility to weigh such factors as whether an employee has been employed during the entire rating period.

    b. The Union’s Position

    The following wording is proposed by the Union:

Each employee, based on their performance, will receive an annual performance award which will be a lump sum amount of the following percentages:

Satisfactory - 0 percent

Very Good - 1-2 percent

Outstanding - 1.5-4 percent.

With respect to the Employer’s jurisdictional argument, Langley AFB is no longer good law; proposals for mandatory awards are negotiable. The Union’s proposal should be adopted to ensure fairness to employees and prevent favoritism. It is limited to requiring awards of modest amounts for employees whose performance is "above and beyond." The Union’s proposal affords the Employer budgetary flexibility by leaving management the discretion to determine, within the prescribed ranges, the amount of awards.

    The Employer’s proposal, on the other hand, does not guarantee that deserving employees will be recognized; the Employer should commit to rewarding the contributions of employees whose work generates the funds that support the Employer’s operations, and whose pay is modest. In recent years, awards have been provided notwithstanding the fact that the ACC goal has never been met.

CONCLUSIONS

    Preliminarily, it is necessary to address the Employer’s duty-to-bargain claims. Subsequent to the court’s decision in Langley AFB, the FLRA issued a decision in which it rejected a claim that a proposal requiring mandatory awards and specifying a range of amounts for them, interfered with management’s right under section 7106(a)(1) to determine its budget.⁽⁸⁾ Moreover, other FLRA decisions confirm that it has not acquiesced in the 4th Circuit’s interpretation of the test for determining whether proposals interfere with management’s right to determine budget.⁽⁹⁾ In such circumstances, the Panel follows FLRA decisions until abandoned by the FLRA or reversed by the Supreme Court. Consequently, with respect to the question of whether the Union’s proposal interferes with the right to determine budget, we will follow the FLRA’s decisions rather than that of the 4th Circuit in Langley AFB. Moreover, insofar as Langley AFB holds that a proposal requiring mandatory performance awards contravenes OPM regulations that implement provisions contained in 5 U.S.C. §§ 4301-05, we note that the FLRA has held that NAFI employees within the Department of Defense are excluded from coverage of those statutory provisions.⁽¹⁰⁾ It follows that they are not covered by the implementing regulations.

    When examining disputes involving duty-to-bargain questions, the Panel is guided by Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988)(Carswell),⁽¹¹⁾ and U.S. Department of the Interior, Bureau of Reclamation, Lower Colorado Region, Yuma, Arizona and National Federation of Federal Employees, Local 1487, 41 FLRA 3 (1991) (Bureau of Reclamation),⁽¹²⁾ where the FLRA has established the obligations and limitations relating to the Panel’s authority to resolve impasses which include duty-to-bargain issues. Consistent with Carswell and Bureau of Reclamation, we find that the Employer’s reliance on Langley AFB to establish that the Union’s proposal is nonnegotiable does not preclude us from retaining jurisdiction over the Union’s proposal. In this regard, the Union’s proposal is in material respect substantively identical to Proposal 2 in Norfolk Naval Shipyard, which the FLRA found did not interfere with management’s right to determine its budget.⁽¹³⁾ To the extent that Langley AFB held that such a proposal contravenes OPM regulations, reliance on that portion of the court’s decision is not grounded in statutory or regulatory provisions because, as the FLRA has found, the particular OPM regulations involved do not apply to NAFI employees in the Department of Defense.

    Having carefully considered the evidence and arguments on this issue, we conclude that the parties should adopt a compromise solution to their dispute. In this regard, we are persuaded that mandatory performance awards should be provided to employees who receive ratings of very good or outstanding within the ranges proposed by the Union. The requirement for awards should, however, be subject to budgetary constraints, and allow distinctions among employees based on the portion of the year that they have been employed. For the sake of clarity, the CBA also should identify the basis for computing award amounts, i.e., base pay. Appropriate wording embodying this compromise is included in the Order in this case.

    In our view, this compromise affords employees reasonable assurance that exceptional performance will result in monetary awards, and should encourage high-quality performance and enhance employee morale. Moreover, mandatory performance awards should address concerns that the distribution of awards is based on favoritism. We are also convinced that it is reasonable to allow managers to make distinctions in the amount of the awards given to otherwise eligible employees based on the portion of the year that they have been employed. Finally, we believe that some accommodation should be made for the Employer’s need to meet fiscal contingencies. On this last point, if the Union believes that asserted budgetary constraints do not legitimately support an Employer failure to provide awards within the specified ranges, it has recourse to third-party review through the negotiated grievance procedure.

IV. Article 40, Section 3 k. and l.: Grievance Procedure

    a. The Employer’s Position

    The Employer proposes:

The following matters are specifically excluded from consideration under the Negotiated Grievance Procedure:

k. Termination of a temporary promotion or limited term appointment.

l. Any matter relating to management’s decision to grant or refuse to grant a performance award, an honorary award or any other discretionary award, adopt or refuse to adopt a suggestion.

Concerning subsection k., because employees receiving temporary promotions are aware that their promotion can end at any time, such termination should not be grievable. The Union’s proposal that temporary promotions be grievable will produce unintended consequences: managers may be less inclined to use that method for meeting personnel needs; managers also may feel compelled to take adverse actions against employees who cannot perform at the higher level rather than simply returning the employees to their positions of record.

    As to subsection l., performance awards are discretionary and should not be grievable. The proposal reflects a provision in the parties’ current agreement that excludes disapprovals of "sustained superior performance awards," which are the same thing as performance awards, from the negotiated grievance procedure. The Union’s proposal to allow grievances over performance awards would increase the number of potential grievances and allow an employee effectively to grieve the same matter twice.

    b. The Union’s Position

    The Union’s final offer is:

The following matters are specifically excluded from consideration under the Negotiated Grievance Procedure:

k. Termination of a temporary promotion only for just cause or limited term appointment.

l. Any matter relating to management’s decision to grant or refuse to grant an honorary award or any other discretionary award, adopt or refuse to adopt a suggestion.

With regard to subsection k., an employee whose temporary promotion is terminated because of conduct or performance should be able to challenge the termination through the negotiated grievance procedure. The opportunity to grieve is worth the risk of the consequences that the Employer predicts.

    As to subsection l., a majority of employee grievances relate to performance; as performance awards are an extension of evaluations, it is reasonable to subject them to the grievance procedure as well. This relationship to performance evaluation distinguishes performance awards from other types of awards and justifies their inclusion within the scope of the negotiated grievance procedure. Although "sustained superior performance awards" are excluded from the negotiated grievance procedure in the current CBA, they are not, as the Employer claims, the same thing as performance awards.

CONCLUSIONS

    Having carefully considered the evidence and arguments on this issue, we conclude that the parties should adopt a modified version of the Union’s proposal to resolve their dispute. Initially, we note that under FLRA case law, the party seeking to narrow the scope of the negotiated grievance procedure bears the burden of justifying exceptions.⁽¹⁴⁾ Under section 7121 of the Statute, where impasse is reached in bargaining over the scope of the negotiated grievance procedure, the Panel "is to impose a broad scope grievance procedure unless the limited-scope proponent can persuade it to do otherwise."⁽¹⁵⁾ Here, the Employer is the proponent of the narrower-scoped grievance procedure; consistent with controlling case law, it bears the burden of establishing convincingly that the scope that it proposes is more reasonable than the broader-scoped one the Union proposes. In this case, we find the arguments on both sides of the issue relatively equal in persuasiveness and are unable to conclude that the Employer’s proposal is more reasonable than the Union’s. Consequently, we believe that the Employer has not met its burden of establishing convincingly that its position is the more reasonable one.

    Finally, in our opinion the Union’s proposed reference to just cause in subsection k. is unclear. During the informal conference, the Union indicated that it intended the phrase to mean reasons other than performance or conduct. Therefore, we will modify the Union’s proposal to more clearly state the meaning of the subsection by substituting the phrase "for reasons other than performance or conduct" in lieu of the phrase "only for just cause."

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 U.S.C. § 2471.6(a)(2), the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the following:

I. Article 4. Employer Rights

    The parties shall adopt the Employer’s proposal.

II. Article 10, Section 7: Matters Appropriate for Consultation and Negotiation

    The parties shall adopt the Union’s proposal.

III. Article 26, Section 7: Performance Evaluations

    The parties shall adopt the following wording:

Within budgetary constraints, each employee, based on their performance, will receive an annual performance award which will be a lump sum amount of the following percentages of their base pay earned during the applicable year:

Satisfactory - 0 percent

Very Good - 1-2 percent

Outstanding - 1.5-4 percent.

IV. Article 40, Section 3 k. and l.: Grievance Procedure

    The parties shall adopt the Union’s proposal with subsection k. modified as follows:

k. Termination of a temporary promotion, for reasons other than performance or conduct, or a limited term appointment.

 

By direction of the Panel.

H. Joseph Schimansky

Executive Director

December 4, 1998

Washington, D.C.

1.As presented in the parties’ request for assistance, Article 4, Section 1, would read:

 

Subject to Section 2 of this Article, nothing in this article shall affect the authority of any management official of the Employer:

To determine the mission, budget, organization, number of employees, and internal security practices of the Employer; and in accordance with applicable laws to hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees; to assign work, to make determinations with respect to contracting out, and to determine the personnel by which the Employer’s operations shall be conducted; with respect to filling positions, to make selections for appointments from among properly ranked and certified candidates for promotion or any other appropriate source; and to take whatever actions may be necessary to carry out the Employer’s mission during emergencies.

2.In support of this position, the Employer cites U.S. Department of Commerce, Patent and Trademark Office, 54 FLRA 360 (1998) (PTO), petition for review filed, No. 98-1977 (D.C. Cir. Aug. 17, 1998); Department of the Air Force, 647th Air Base Group, Hanscom Air Force Base, Massachusetts, 54 FLRA 457 (1998), petition for review filed, No. 98-1317 (D.C. Cir. July 16, 1998); and Department of the Army, Headquarters, Fort Carson, Fort Carson, Colorado and Local 1345, American Federation of Government Employees, AFL-CIO, Case No. 97 FSIP 124 (February 3, 1998), Panel Release No. 406.

3.In Edwards Air Force Base, which concerned a ground rule proposal addressing the parties’ obligations with respect to negotiating over permissive subjects of bargaining under section 7106(b)(1), the Panel ordered the parties to withdraw their proposals and abide by the terms of the Statute.

4.Originally, the Union proposed to include wording in the agreement that essentially reiterated section 7106 of the Statute with the phrase “at the election of the agency” that prefaces section 7106(b)(1) deleted.

5.See, e.g., PTO.

6.In support of this position, the Employer relies on the decisions cited supra note 2.

7.Langley Air Force Base v. FLRA, 878 F.2d 1430 (4th Cir. 1989) (per curiam) (unpublished order) (Langley AFB). In that decision, the court reversed an FLRA decision finding a proposal requiring mandatory performance awards negotiable. The court found that such a proposal constrained management’s right to determine its budget and contravened Government-wide regulations issued by the Office of Personnel Management (OPM).

8.See Tidewater Virginia Federal Employees Metal Trades Council and U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 37 FLRA 938, 947-49 (1990) (Norfolk Naval Shipyard).

9.See U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, Council 220, 41 FLRA 1052 (1991), reversed, 983 F.2d 578 (4th Cir. 1992). Cf. National Association of Government Employees, Local R14-52 and U.S. Department of the Army, Red River Depot, Texarkana, Texas, 48 FLRA 1198, 1207 (1993) (in clarifying its test for determining whether a proposal interferes with management’s right to determine its budget, FLRA noted that its view of that right differs from that of 4th Circuit).

10.See, e.g., American Federation of Government Employees, Local 2921 and U.S. Department of Defense, Army and Air Force Exchange Service, Dallas, Texas, 47 FLRA 446, 451 (1993).

11.In Carswell, the FLRA concluded that the Panel and interest arbitrators may apply existing case law to resolve duty-to-bargain questions which arise during impasse proceedings where it has previously addressed a “substantively identical” proposal. The FLRA also stated that its approach “preserves the Panel’s discretion as to whether or not to assert jurisdiction, and, as intended by the Statute, ensures that undecided duty-to-bargain issues will be resolved by the [FLRA].”

12.In Bureau of Reclamation, the FLRA concluded that the Panel and interest arbitrators may apply existing case law even where an agency raises “new” negotiability arguments different from those the FLRA had previously reviewed in addressing a “substantively identical” proposal. The FLRA cited as one relevant factor the extent to which “new” arguments are reasonably based on statutory or regulatory provisions.

13.Like the Union’s proposal in this case, Proposal 2 in Norfolk Naval Shipyard required performance awards and prescribed a range of percentages for them; however, the percentages specified were considerably higher than those proposed by the Union in this case.

14.See Vermont Air National Guard, Burlington, Vermont, 9 FLRA 737, 742 (1982).

15.American Federation of Government Employees v. FLRA, 712 F.2d 640, 649 (D.C. Cir. 1983) (AFGE v. FLRA). In AFGE v. FLRA, the court went on to state:

 

We would expect the Panel . . . to rule against a proponent of a limited scope procedure who fails to establish convincingly that, in the particular setting, its position is the more reasonable one.