ARBITRATORS’ OPINION AND DECISION

            The U.S. Department of Defense, Defense Logistics Agency (Agency) filed this request for assistance over negotiation of a successor Collective Bargaining Agreement (CBA) with the Federal Service Impasses Panel (FSIP or Panel) on May 21, 2021, in accordance with 5 U.S.C. § 7119 of the Federal Service Labor-Management Relations Statute (Statute).  On January 26, 2022, the Panel asserted jurisdiction over the dispute and directed the issues be resolved in the manner described below.

BACKGROUND

            The Agency manages the global supply chain for the Army, Navy, Air Force, Marine Corps, Coast Guard, 10 combatant commands, other Federal agencies, and partners and allied nations.  The Agency is responsible for contracting, purchasing, storing, and distributing most of the consumable, expendable, and reparable items for the Department of Defense.  The Agency’s primary purpose is to meet the logistics requirements of the armed forces for food, clothing, fuel, repair parts, and other items. 

The American Federation of Government Employees, Council 169 (Union) represents approximately 17,000 bargaining unit employees throughout the country that occupy positions in the Agency.  The bargaining unit consists of such positions as Police Officers; Firefighters; Program and Procurement Analysts; Fork Lift Operators; and Distribution Facilities Specialists. 

BARGAINING AND PROCEDURAL HISTORY

            On February 21, 2019, the Agency provided the Union notice that it was reopening the parties’ CBA.  The parties entered into their current CBA on May 19, 2016.  The parties’ CBA expired on May 18, 2019, but remains in effect until they reach agreement over a successor CBA.  The parties negotiated over the successor CBA and then mediated with the assistance of a FMCS Commissioner.  On March 31, 2020, the Agency filed a request for Panel assistance over the fourteen (14) remaining provisions of their successor CBA in Case No. 2020 FSIP 041.  The Panel ordered the parties to resolve their dispute through a Written Submissions procedure, and then issued a Decision and Order in the matter on September 21, 2020. 

            Following the Panel’s Decision and Order, the Union submitted the thirty-seven articles on which the parties had been able to reach agreement during negotiations, to its membership for ratification.  The Union subsequently notified the Agency that its membership voted to not ratify the agreement.  The parties then resumed negotiations over those articles.  The parties then mediated with the assistance of FMCS Commissioners, but were unable to reach agreement on eight of the articles.

            Around this same time, the Agency requested to reopen two articles, which the Panel had issued in its Decision and Order in Case No. 2020 FSIP 041.  Specifically, the Agency sought to renegotiate those articles with the Union in accordance with Executive Order 14003.  The parties bargained and mediated with the assistance of FMCS Commissioners.  Unable to reach agreement, the Agency filed a request for Panel assistance, which included those two articles in addition to the eight articles, which the parties were unable to reach agreement following the failed ratification.

            After investigating the request for assistance, the Panel determined that the dispute should be resolved through Mediation-Arbitration with the undersigned, Panel Members Edward Hartfield and Joseph Slater.  The parties were advised that if they did not reach settlement in mediation, we would issue a binding decision to resolve the dispute.  In accordance with the Panel’s procedural determination, we conducted a virtual mediation-arbitration on March 8 and 9, 2022, with representatives of the parties. 

            During the mediation the parties were able to voluntarily settle three articles, which appear at the end if this Decision as a reference for the parties.  Thus, we moved into the arbitration phase on the remaining matters.  At arbitration the parties offered closing statements and were given the opportunity to files briefs and reply briefs. Those briefs were received on April 8 and 15, 2022, and we have reviewed them.  We are now required to issue a final decision resolving the parties’ remaining issues in accordance with 5 U.S.C. § 7119 and 5 C.F.R. § 2471.11 of the Panel’s Regulations.  We make this decision after carefully having considered the entire record, including the parties’ pre- and post-hearing submissions.

ISSUES AT IMPASSE

The remaining issues for the Panel to address are included within the following articles:  

• Article 3: Union Representation & Official Time
• Article 4: Rights and Responsibilities
• Article 5: Changes During the Term of the Agreement
• Article 6: Use of Official Facilities & Services
• Article 11: Incentive Awards
• Article 38: Local Agreements
• Article 49: Wellness/Fitness Program

Due to their length, some of the parties’ proposals will not be set forth in the body of this Opinion and Order.Rather, they are attached to this document and will be referenced as appropriate.

• Article 3: Union Representation & Official Time

1. Article 3 – Section 1: Council Officers

3273456497473. The Union proposes, consistent with the parties’ current CBA, that official time and travel per diem provisions under the CBA be limited to a maximum of nine Union Executive Board members.The Agency’s proposal does not address per diem and instead limits official time under the CBA to a maximum of nine Union Executive Board members who are Agency employees.

DISCUSSION

            The Union argues that the Agency has not identified any rationale in support of no longer providing per diem for the Union’s Executive Board members.  Also, the Union opposes the Agency’s attempt to restrict the Union’s Executive Board member participation to only Agency employees.  The Agency did not specifically address its rationale regarding not including per diem, consistent with the parties’ current CBA.  However, the Agency did express an interest in different part of the successor CBA that it was an administrative burden to process travel and per diem for an individual who was not a current employee of the Agency.

CONCLUSION

            As will be the case throughout this Decision, a party seeking to make a change to the parties’ current agreement or practice will bear the burden of persuading us that such a change is reasonable, necessary, or otherwise justified.  Although we find the Agency has provided no justification for ceasing to provide travel and/or per diem for the Union’s Executive Board altogether, we find the Agency’s argument regarding the administrative burden to be reasonable.  In order to address the Agency’s concern and ease the identified burden, we find it justified to qualify the Union’s proposal to limit this provision’s application to only Agency employees.

                                                                                                                                                      ORDER

            We hereby order the parties to adopt a modified version of the Union’s proposal as follows:

            The official time and travel/per diem provisions of this MLA are limited to a    maximum of nine Executive Board members, who are active DLA employees.

1. Article 3 – Section 3: Official Time, Part A: General, Part 1

3273456497473. The Union proposes keeping the language for the parties’ current CBA for this section, which specifies how official time will be granted.The Agency proposes a modified version of the parties’ current agreement.

DISCUSSION

The parties agree that official time shall be granted “without charge to leave or loss of pay.”However, the Union proposes the same language as the parties have in their current CBA, which includes the additional provision that official time is “considered hours of work.”The Union also proposes, consistent with its proposal in Section 1 of this article, that except as otherwise restricted in this CBA, “representational functions performed while on official time include travel and per diem.”The Agency proposes language that while similar to the Union’s proposal appears to have a different effect.Specifically, the Agency proposes that, “representational functions performed while on official time include travel.”

CONCLUSION

            Neither party specifically addressed a rationale for their proposals over this provision.  Similar to our finding in the previous section of this article, the Agency has not provided us with any justification to find their proposal to change from the current CBA language and practice is necessary or reasonable.  Accordingly, we will order the parties adopt the language of this provision from their current CBA.

                                                                                                                               ORDER

 

            We hereby order the parties to adopt the Union’s proposal to retain the language from the parties’ current CBA on this matter.

1. Article 3 – Section 3: Official Time - Part B: Use of Official Time - Part 1: Council Officers

PROPOSALS

The Union proposes including language from the parties’ current CBA on participation by the Union’s Executive Board at Agency locations.The Agency has not proposed language that would provide for such participation.

18104564143498. The Union proposes continuing to permit a member of the Union’s Executive Board, in specific instances, to travel to provide labor management functions at other Agency locations.The parties’ current CBA requires the Agency to pay for such travel and per diem in those specific instances.The Agency, in line with its earlier proposals, has not proposed providing for travel and per diem in these instances
18104564143499.  
18104564143498. Again, neither party specifically addressed this provision in their SOPs.Without any justification from the Agency as to why a change from the parties’ current practice is necessary, we will again order the parties to adopt the language from their current CBA.

            We hereby order the parties to adopt the Union’s proposal to retain the language from the parties’ current CBA over this matter.

1. Article 3 - Section 3: Official Time - Part B: Use of Official Time - Part 2: Local Representatives     
2.           The parties are proposing two different approaches to affording official time to local representatives.  The parties’ full proposals are attached but are summarized as follows.  The Union is proposing a similar approach to the one the parties use under their current CBA, which provides for official time for each local bargaining unit in allotments of full-time employees (FTEs). The local bargaining units can utilize the allotted FTEs in 100% or 50% positions, or a combination thereof.  The Union is proposing maintaining this approach but is proposing additional FTE allotments.  In total, the Union is proposing thirteen FTEs be added to the existing allotment from the parties’ current CBA.  The Agency’s proposal does not allocate FTEs for each local bargaining unit and instead provides that all of the local bargaining units will collectively be granted a total of twenty representatives on 100% and sixty representatives on 25% official time.

            The parties are also proposing different procedures for local bargaining unit representatives to request, track, and otherwise account for their use of such official time.  Consistent with the arrangement under the parties’ current CBA, the Union is proposing that local bargaining unit representatives not on 100% or 50% official time, will request official time in advance using a request form found in Appendix A of the parties’ current CBA.  Those local bargaining unit representatives on 100% or 50% official time will submit their official time usage at the end of each pay period using a form found in Appendix B of the parties’ current CBA.  The Agency proposes that any local bargaining unit representative not on 100% official time, will request official time in advance using the Appendix A request form.  The Agency proposes that local bargaining unit representative on 100% time will also submit the Appendix A request form, but will do so at the end of a pay period with their time and attendance.

            Under the parties’ current CBA, there is a yearly cap of 200 hours for official time approved for local bargaining unit representatives granted official time using the Appendix A request form.  The Union proposes increasing this yearly cap to 1,000 hours.  The Agency’s proposal does not contain reference to a similar bank.  Additionally, the Union’s proposal includes an extensive list of activities for which the Union would be granted official time that is reasonable and necessary in addition to the earlier allotments.

DISCUSSION

            The Union submitted in its SOP that its proposal on official time is the same as the parties have agreed to in their previous and current CBA.  However, the Union is actually proposing a substantial increase in the amount of official time the Union would receive.  These increases include thirteen additional full-time employee (FTEs) allotments of official time for the local bargaining units, a 500% increase in official time to be utilized under the Appendix A request form, and an entirely new and separate entitlement of official time for an enumerated list of other representational activities.  The Union did not provide any rationale or evidence in support of its proposed increases in official time, nor did it provide any evidence that the current allotment under the parties’ current CBA has been deficient.  Interestingly, in response to the Agency’s proposal, the Union argues that the Agency has not alleged, through a grievance or ULP, that the Union has abused the official time article in their current CBA and there is no need for the Agency’s proposed changes to their current arrangement.

            The Agency takes the position that its proposal strikes a reasonable balance between providing official time, as required by the Statute, and carrying out its mission to support the Warfighter.  Although the Agency recognizes its proposal is a reduction in the official time provided for under the parties’ current CBA, the Agency provides no rationale or explanation as to why a reduction is necessary.

CONCLUSION

            While the parties have proposed increases and decreases from their current allotment of official time under their current CBA, they have failed to provide us with any rationale that the current allotment is deficient.  Indeed, the parties have failed to provide us with any indication as to how much official time is actually being used under their current allotment.  Faced with no real explanation of why any change, be it an increase or decrease, is necessary, we have no choice but to find that it would be inappropriate to order anything other than the parties’ current allotment.

ORDER

            We hereby order the parties to adopt the language from the parties’ current CBA on this matter.

1. Article 3 – Union Proposed Section 4: Safety

 

3273456497473.  

 

The Union proposes, in addition to the official time already provided for in the earlier sections of this article, it shall receive official time while its representatives participating in VPP boards, safety committees and formal safety activities.  The Agency has not proposed a separate provision on official time for participation in such activities.

DISCUSSION

            Although, the Union proposes this additional allotment of official time, it makes no reference to its proposal in its SOP.  Similarly, the Agency did not address the Union’s proposal in its SOP.

CONCLUSION

            We wholeheartedly appreciate the importance of safety in the workplace and recognize the critical work that is needed to ensure that it is a priority.  However, the Union has not provided any argument that it is otherwise unable to participate in such activities.  Without any justification from the Union for needing to add a separate allotment of additional time for these particular activities, we find no reason to order the parties to adopt this provision.

ORDER

We hereby order the Union to withdraw its proposal on this matter.

1. Article 3 – Union Proposed Section 5 Training

3273456497473. The Union proposes, in addition to the allotment of official time already provided for in the earlier sections of this article, that each Union representative will receive eight hours each month for training on the CBA or representational duties. The Agency has not proposed a separate provision on official time for participation in such activities.

 

18104564143498.  

 

The Union makes no reference to its proposal for a significant amount of additional official time in its SOP.Similarly, the Agency did not address the Union’s proposal in its SOP.

We acknowledge the important role that training can have in supporting productive and effective labor-management partnerships.However, the Union has provided us with nothing on this matter to suggest that it has not be able to provide such training or is otherwise prohibited from doing so without this proposed allotment of official time.Without any justification from the Union for needing a significant amount of additional official time for ongoing training of all Union representatives, we find no reason to order the parties to adopt this provision.

 

 

6698606.  

 

We hereby order the Union to withdraw its proposal on this matter.

 

1. Article 3 – Agency Proposed Section 4: Duty Requirement

 

3273456497473.  

 

The Agency has proposed an additional section in this article, which specifically addresses Union representatives on 100% official time.The Agency proposes that “in mission-critical situations (e.g., pandemic, contingency operations, humanitarian relief, etc.)” all Union representatives, even those on 100% percent official time may be required to perform the duties of their position of record.The Agency proposes that the Site Commander, MSC Director or designee will make such determinations concerning Union representatives on 100% official time.The Agency also proposes that all Union representatives must complete all required training, including training and certifications required for their position of record.The Union has not proposed any such language regarding Union representatives on 100% official time.

 

18104564143498.  

 

In its SOP, the Agency explains that the provision would ensure all Agency employees who are Union representatives will be current with their required training and certification.The Agency reasoned that having these Union representatives ready and able to support the Agency’s mission is important.Specifically, the Agency cited to the need to have all employees available to work during emergencies, such as the COVID-19 pandemic or the war in Ukraine.The Agency also reasons that its proposal, unlike the Union’s, provides a measure of cost certainty while striking a reasonable balance between the Union’s interest in official time against the Agency’s interest in having the necessary resources to support the Warfighter.Inexplicably, the Union did not address the Agency’s proposal in its SOP.

 

13887757782666.  

 

We appreciate the Agency’s interest in being able to support the Warfighter and we note that the Union elected to not even address this proposal in its position.In an effort to ensure a measured and reasonable approach to this important matter, we find certain modifications of the Agency’s proposed language to be necessary.Specifically, the Agency’s proposed reference to “mission-critical situations” is overly broad.We see a need to add qualifying language to ensure that the Agency is not routinely requiring Union representatives on 100% official time to perform the duties of their position of record.We will therefore order the Agency only be permitted to essentially remove Union representatives on 100% official time in circumstances that are unscheduled and unanticipated. Additionally, we find it appropriate to give all Union representatives a period of one year from the execution of the parties’ successor CBA to obtain or otherwise become current on all required training and certifications required for their position of record.

 

6698606.  

 

We hereby order the parties to adopt a modified version of the Agency’s proposal as follows:

 

In recognition that all DLA employees must be ready to support the warfighter at any time, union representatives, including those on 100 percent official time may be required to perform the duties of their position of record in unscheduled and unanticipated mission-critical situations. Additionally, to ensure mission readiness, all union representatives must complete all required training, including training and certifications required for their position of record.Union representatives will have one year from the execution of this LMA to obtain or update any training and certifications required for their position of record.

 

1. Article 3 - Agency Proposed Section 5/ Union Proposed Section 6. Representation

 

3273456497473.  

 

The Union has proposed that the parties keep the language from their current CBA in this section, which involves the number of Union representatives who may participate in meetings with an employee as their designated representative.The parties’ current CBA generally provides for parity between the number of Agency representatives and the employee and his or her Union representatives.These proposals are limited to circumstances where the Agency has three or fewer representatives and notes that advisory staff needed to deal with a matter of mutual concern do not count as representatives.The provision also states that the Agency “will normally and reasonably limit attendance to not more than two (2) supervisory/managerial employees.”The Agency proposes the same language from the parties’ current CBA, but has removed the provision that it will normally and reasonably limit attendance to two Agency representatives.

 

18104564143498.  

 

Neither party supports its proposal with any rationale or justification.We are then left with no rationale or justification from the Agency why removal of this particular sentence is appropriate.

 

13887757782666.  

 

Unconvinced that a change to this language from the parties’ current CBA is justified, we order the parties to adopt this same language.

 

6698606.  

            We hereby order the parties to adopt the Union’s proposal to retain the language from the parties’ current CBA over this matter.

 

• Article 4: Rights and Responsibilities

 

3273456497473.  

 

The Union stated in its SOP that it proposed to keep the language from the parties’ current CBA on this article, which generally covers Union and Management rights, employees’ rights, and employees’ right to representation.The Agency proposes several changes to the existing language, which include notably removing all references to the Statute and the Merit System Principles. Additionally, the Agency’s proposal contains only six sections, whereas there are eleven sections in this article in the parties’ current CBA. Copies of the parties’ full proposals on this article are attached.

 

18104564143498.  

 

The Union supports its proposal to keep the parties’ existing language by arguing that the Agency has not filed a grievance or ULP alleging the Union has abused the provisions of this article during the life of their current CBA.The Union also argues that the Agency’s proposal would strip the Union of its rights under the Statute, but does not explain how the Agency’s proposal would do so.The Agency supports its proposal by arguing that the parties had previously agreed to this article, but the Union membership failed to ratify the agreement.The Agency also argues that its proposal sets out the Union and Agency rights from the Statute.The Agency’s reference to the Statute in its SOP is surprising given the Agency proposes to remove all reference to the Statute from the existing language of this article.

CONCLUSION

            We are, yet again, presented with the Agency proposing changes to the parties’ current CBA and no justification from the Agency as to why such a change is necessary or reasonable. Interestingly, the Agency, in its rebuttal, refutes the Union’s often cited argument that there is no justification to change the language from the parties’ current CBA, stating that having existing language “does not mean that there is not a need” to make a change.  The Agency is correct as far as that goes, but unfortunately, has not provided justification, and we will order the parties to adopt the language from the parties’ current CBA on this article in full.

6698606.  

            We hereby order the parties to adopt the Union’s proposal to retain the language from the parties’ current CBA over this article in full.

 

• Article 5: Changes During the Term of the Agreement

 

1. Article 5 – Section 1: Bargaining at the Council Level on Matters Not Included in this Agreement

            There are multiple parts and subparts within the first section of the parties’ article on changes during the term of the CBA.  While the full text of the parties’ proposals is attached, a summary of this section, which establishes the steps the parties will follow when bargaining changes at the Council Level, appears below. 

            Generally, the Union supports its proposals, which are largely to keep the language from the parties’ current CBA, by claiming that the Agency has not proven any need or reason to make a change.  The Union claims the Agency’s proposals for this article attempt to strip the Union of the rights the parties shared under their previous agreements.  Specifically, the Union claims that the Agency’s proposals attempt to eliminate the Agency’s duty to pay for the Union’s travel for face-to-face negotiations.

The Agency supports its proposals, which are largely to change from the parties’ current practice under their CBA, by stating that their proposals represent the best and most efficient use of Agency resources.That is, the Agency supports its proposed changes by claiming that their streamlined process for negotiations will provide clarity.The Agency specifically refutes the Union’s reluctancy to consider the reality that most federal Government agencies are using virtual platforms, which are efficient and safe, in lieu of physical face-to-face negotiations.

 

• Article 5 – Section 1 – Part A

PROPOSALS & DISCUSSION

            This provision specifies that the section addresses changes ordered by the Agency’s headquarters, with the exception of changes that only affect the Agency’s headquarters. The Union proposes maintaining the language from the parties’ current CBA.  The Agency proposes changing the language of this section so that the section addresses Agency-wide changes, with the exception of changes that only affect the National Capital Region.  

 

CONCLUSION & ORDER

            We find the Agency’s proposal to update the names of the appropriate entities to be reasonable. Therefore, we order the parties to adopt the Agency’s proposal on this provision.

• Article 5 – Section 1 – Part B

PROPOSALS & DISCUSSION

            This provision specifies parameters for Union-initiated bargaining over matters not covered by the CBA.  The Union proposes, in a different section of this article, different parameters for Union-initiated bargaining, including that all bargaining shall be face-to-face.  The Agency proposes parameters for such bargaining, changing the Agency’s time to respond to the Union’s requests from seven to ten days.

CONCLUSION & ORDER

            We find that the Agency has supported its proposed changes to this provision, with the exception of changing the time allotted for the Agency’s response to the Union.  We hereby order the parties to adopt a modified version of the Agency’s proposal, which gives the Agency ten days to respond as is the parties’ current practice.

• Article 5 – Section 1 – Part C

PROPOSALS & DISCUSSION

            This provision specifies that the Agency will not implement or enforce changes in conditions of employment involving mandatory subjects of bargaining until they have completed bargaining with the Union. The Union proposes, in a different section of the article, specifying what the Agency’s duty to bargain in good faith entails.  The Agency proposes that it will meet its bargaining obligations before implementing changes in conditions of employment.

CONCLUSION & ORDER

            We find that neither party has presented a compelling reason to change from the language from the parties’ current agreement. Therefore, we order both parties to withdraw their proposals and adopt the language from the parties’ current agreement on this provision.

• Article 5 – Section 1 – Part D

PROPOSALS & DISCUSSION

            This provision specifies how the Agency shall provide notice of changes in conditions of employment to the Union.  The Union proposes keeping the language from the parties’ current CBA and adding language pertaining to such notices.  The Agency proposes keeping the language from the parties’ current CBA as is.

CONCLUSION & ORDER

            We find that the Union, which is proposing a change to this provision, has not justified why such a change is needed.  We hereby order the parties to adopt the Agency’s proposal to maintain the language from the parties’ current CBA on this provision.

• Article 5 – Section 1 – Part E

PROPOSALS & DISCUSSION

            This provision specifies how long the Union has to respond to the Agency’s notice of a change with a demand to bargain.  The Union wants to keep the language from the parties’ current CBA and add language that the parties will then meet to negotiate “face-to-face.”  The Agency wants to modify the language from the parties’ current agreement to change the length of time the Union has to respond as well as require the Union provide proposals with its demand to bargain.

CONCLUSION & ORDER

            We find that neither party has presented a compelling reason to change from the language from the parties’ current agreement. Therefore, we order both parties to withdraw their proposals and adopt the language from the parties’ current agreement on this provision.

• Article 5 – Section 1 – Part F

PROPOSALS & DISCUSSION

            This provision specifies when the Union will submit proposals following the Agency’s notice of a change.  The parties have proposals implicating the Union’s submission of proposals but do not specifically propose a provision on the matter.

CONCLUSION & ORDER

            We find that neither party has presented a compelling reason to change from the language from the parties’ current agreement. Therefore, we order both parties to withdraw their proposals and adopt the language from the parties’ current agreement on this provision.

• Article 5 – Section 1 – Part G

 

PROPOSALS & DISCUSSION

            This provision specifies how the parties will begin negotiations. The Union has a proposal regarding when the parties will begin negotiations in a separate section of this article.  The Union’s proposal does not include a specific timeframe for negotiations to begin and eliminates the current practice of beginning with telephone/written/virtual communication before face-to-face negotiations.  The Agency’s proposal maintains some of the language from the parties’ current CBA and adds that the parties may engage in face-to-face negotiations in person or virtually.  

CONCLUSION & ORDER

            We find the Agency’s proposal to allow for face-to-face negotiations to be conducted virtually is reasonable and justified given the recent, and still ongoing, COVID-19 pandemic.  We therefore order the parties to adopt the Agency’s proposal for this provision.

• Article 5 – Section 1 – Part G-1

PROPOSALS & DISCUSSION

            This provision specifies that unless the parties mutually agree, they will each have no more than nine members involved in these negotiations.  Neither the Union nor Agency made a specific proposal regarding this provision.  The Agency did propose in this article only to pay travel expenses for active DLA employees on the Union’s bargaining team not to exceed the number of members on the Agency’s bargaining team and proposed paying travel expenses for no more than nine of the Union’s bargaining team who are Agency employees.

 

CONCLUSION & ORDER

 

            Based on the parties’ proposals on this matter, which are included throughout this article, we will order the parties to adopt the language from the parties’ current agreement on this provision and note that we have already ordered language that the Agency will provide travel and per diem for up to nine Union Executive Board representative who are Agency employees.

• Article 5 – Section 1 – Part G-2

PROPOSALS & DISCUSSION

 

            This provision specifies when negotiations shall begin and where the negotiations shall be held. The Union’s proposal on when and where negotiations will occur is in a different section of this article and does not include a timeframe nor a default location.  The Agency proposes changing the requirement of when negotiations must begin from twenty to ten days from when the Agency receives the Union’s proposals.  The Agency also proposes specifying where negotiations will take place (i.e., the National Capital Region, Philadelphia, or Oklahoma City).

 

 

CONCLUSION & ORDER

 

            We find that neither party has presented a compelling reason to change from the language from the parties’ current agreement. Therefore, we order both parties to withdraw their proposals and adopt the language from the parties’ current agreement on this provision. 

• Article 5 – Section 1 – Part G-3

PROPOSALS & DISCUSSION

 

            This provision specifies at what time and on what days negotiations will take place.  The Union proposes in a different section of this article, in accordance with the parties’ current agreement, to continue to restrict travel for the Union’s bargaining team members on weekends and holidays.  The Agency proposes language largely consistent with the parties’ current CBA and proposes that bargaining no longer take place on Mondays.

 

CONCLUSION & ORDER

 

            We find that the Agency’s proposed change to no longer negotiate on Mondays and provide for breaks in negotiations is justified and in line with the Union’s interest in other proposals to limit Union representatives time spent traveling outside the traditional workweek.  We therefore order, the parties to adopt the Agency’s proposal on this matter.

• Article 5 – Section 1 – Part G-4

PROPOSALS & DISCUSSION

            This provision specifies that, upon mutual agreement, the parties may use or extend the Quarterly Labor-Management Meetings to conduct bargaining under this section.  The Union proposes keeping the language from the parties’ current agreement.  The Agency proposes that, when necessary or agreed to, bargaining under this section may be conducted at other scheduled labor-management meetings.

CONCLUSION & ORDER

 

            We find the Agency has justified the proposed change to allow for negotiations to be conducted at scheduled labor-management meetings as it is cost effective and efficient.  We therefore order the parties to adopt the Agency’s proposal for this provision.

• Article 5 – Section 1 – Part H

PROPOSALS & DISCUSSION

            This provision states that if a Department of Defense (DoD) regulation mandates a change in any matter affecting conditions of employment on issues not specifically covered in the CBA, then the parties will use the provisions set forth in this section for such negotiations.  The Union proposes keeping the language from the parties’ current agreement, but the Agency does not propose comparable language.

CONCLUSION & ORDER

            We find that the Agency has not supported its proposed change to the parties’ current practice of following the procedures in this section when a DoD regulation results in changes to conditions of employment.  We order the parties to adopt the Union’s proposal to keep the language from the parties’ current CBA on this provision.

• Article 5 – Section 1 – Agency Proposed Part H

PROPOSALS & DISCUSSION

            The Agency proposes adding a provision to this section that requires all negotiated agreements be reduced to writing, which will have an expiration date.  The Union did not propose comparable language.

CONCLUSION & ORDER

            We find the Agency has justified its proposed change to reduce agreements to writing as it will provide clarity for the parties.  However, we did not find that the Agency provided any reason for requiring expiration dates for such agreements. We, therefore, order the parties to adopt a modified version of the Agency’s proposal for this provision, which omits the second sentence of the Agency’s proposal requiring each agreement to have an expiration date.

1. Section 2: Local Bargaining on Matters Not Included in this Agreement

            There are multiple parts within the second section of the parties’ article on changes during the term of the CBA.  While the full text of the parties’ proposals is attached, a summary of this section, which establishes the steps the parties will follow when bargaining changes at the local Level, is as follows.

• Article 5 – Section 2 – Part A

PROPOSALS & DISCUSSION

            This provision specifies that the section addresses changes proposed by either party and not covered by changes at the local level, as described in Section 1. The Union proposes maintaining the language from the parties’ current CBA.  The Agency proposes that this section will apply to changes to the local level, which are proposed by either party and are approved by the Agency and the Union’s Council.

CONCLUSION & ORDER

            We find that the Agency, which is proposing a change to this provision, has not justified why such a change is needed.  We hereby order the parties to adopt the Union’s proposal to retain the language from the parties’ current CBA on this provision.

• Article 5 – Section 2 – Part B

PROPOSALS & DISCUSSION

            This provision establishes an annual limit on Union-initiated bargaining for each local bargaining unit.  Neither party has proposed a change from this existing language nor a rationale for why the current arrangement is no longer suitable.

CONCLUSION & ORDER

            In the absence of any justification for changing the language of the parties’ current CBA, we order the parties to adopt the existing language pertaining to this provision.

• Article 5 – Section 2 – Part C

PROPOSALS & DISCUSSION

            This provision establishes that procedures for negotiations under this section must be negotiated in Local Agreements, which are established in Article 38.  The Union proposes keeping this existing language.  The Agency proposes no longer permitting procedures for negotiations under this section to be separately negotiated.  Rather, the Agency is proposing that negotiations under this section will follow the procedures established in Section 1 of this article.

CONCLUSION & ORDER

            We find that the Agency, which is proposing a change to this provision, has not justified why such a change is needed.  Specifically, the Agency has provided no rationale as to why the local bargaining units should not be given the opportunity to continue to bargain their own negotiation procedures.  We hereby order the parties to adopt the Union’s proposal to maintain the language from the parties’ current CBA on this provision.

 

 

 

• Article 5 – Section 2 – Part D

PROPOSALS & DISCUSSION

            This provision specifies that the Agency will follow the procedures established in Local Agreements for notifying the Union’s local bargaining units of changes in conditions of employment.  As the Agency proposed no longer having such procedures in Local Agreements, it did not propose comparable language.

CONCLUSION & ORDER

            Similar to our conclusion in Part B of this section, we find that the Agency has not justified a need to change from the parties’ current arrangement.  We hereby order the parties to adopt the Union’s proposal to retain the language from the parties’ current CBA on this provision.

1. Section 3: Bargaining on Matters Included in the Agreement

            There are two parts within the third section of the parties’ article on changes during the term of the CBA.  While the full text of the parties’ proposals is attached, a summary of this section, which establishes the steps the parties will follow when bargaining on matters contained in their CBA, is as follows.

• Article 5 – Section 3 – Part A

PROPOSALS & DISCUSSION

            This provision establishes future changes to the CBA as mandated by future law and the bargaining that would result.  The Union proposes keeping this existing language from the parties’ current CBA.  The Agency has not proposed comparable language.

CONCLUSION & ORDER

            Here, the Agency has not provided any rationale to change from the parties’ current practice of permitting bargaining on matters not covered by the CBA, if future law mandates.  Accordingly, we hereby order the parties to adopt the Union’s proposal to retain the language from the parties’ current CBA.

• Article 5 – Section 3 – Part B

PROPOSALS & DISCUSSION

            This provision specifies that the Agency will not implement or otherwise enforce discretionary aspects of changes under this section which involve mandatory subjects of bargaining, until bargaining is complete.  The Union proposes keeping the existing language from the parties’ current CBA.  The Agency has not proposed comparable language.

CONCLUSION & ORDER

            Similar to Part A in this section, the Agency has not justified its proposal to change the parties’ current practices in regards to such bargaining.  We order the parties to adopt the Union’s proposal to include the language from the parties’ current CBA on this provision.

1. Section 4: General

            There are two parts within the fourth section of the parties’ article on changes during the term of the CBA.  While the full text of the parties’ proposals is attached, a summary of this section, which covers general provisions for the parties’ negotiations, is as follows.

• Article 5 – Section 4 – Part A

PROPOSALS & DISCUSSION

            This provision specifies that, for face-to-face negotiations under this article, the Agency will provide official time and travel and per diem for no more than nine Union Council representatives.  The Union proposes keeping the existing language from the parties’ current agreement.  The Agency has not proposed comparable language for this provision, but in an earlier section in this article it did propose language involving this topic.  Specifically, the Agency proposed limiting the number of Union Council representatives to the same number of Agency representatives and pay for travel and per diem for up to no more than nine Union Council representatives who are active Agency employees.

CONCLUSION & ORDER

            We recognize the Agency’s expressed interest in limiting travel and per diem to only those Union representatives who are active DLA employees and incorporate that interest here. Accordingly, we order the parties to adopt a modified version of the Union’s proposal to retain the language from the parties’ current CBA to add that the Union representatives receiving the travel and per diem will be active DLA employees.

• Article 5 – Section 4 – Part B

PROPOSALS & DISCUSSION

            This provision specifies that the article does not preclude the Agency from implementing changes necessary to carry out the Agency’s mission, nor does it preclude the Union from requesting to bargain post-implementation of such changes.  The Union proposes keeping the existing language from the parties’ current agreement.  The Agency, in a different section of this article, proposes to change this language so that the article does not preclude the Agency from implementing changes “necessary to effectively carry out its mission during emergencies or for it to function.” 

CONCLUSION & ORDER

            We find that the Agency has not provided any justification for its proposed changes, noting that the Agency has neither defined or explained what circumstances would qualify as permitting the Agency to implement changes for the Agency’s “function.”  Without any rationale for the change, we hereby order the parties to adopt the Union’s proposal to keep the language from the parties’ current CBA for this provision.

• Article 6: Use of Official Facilities & Services

PROPOSALS

            The Union proposes keeping the language of this article, which specifies the Union’s use of Agency facilities and services, as it is from the parties’ current CBA.  The Agency’s proposal provides that local bargaining unit Union representatives will maintain the office space they currently have and establishes facilities and access for future Union representatives.

DISCUSSION

            The Union argues in support of keeping the language from the parties’ current CBA by again stating that the Agency has not filed a grievance or ULP against the Union over this article during the life of the CBA. The Agency supported its proposals in its SOP stating that in the interest of internal security, its proposals do not permit access to its network to Union representatives who are not active DLA employees. The Agency argued that internal security demands that non-DLA employee Union representatives be treated in accordance with DLA policies and procedures for entrance to DLA facilities. 

            The Agency also argued that the Union’s proposal would require the Agency to provide system access to all representatives, regardless of whether they are active DLA employees, which is unacceptable. Without limiting access to the Agency’s network to active DLA employees with common access cards (CACs), the Agency claims that it risks exposure of the DLA network to outside entities or the introduction of a virus that could corrupt the system is great. Moreover, the Agency reasoned that the DLA network contains information that could be used by a non-friendly agent to determine critical information such as troop movements, types of hardware being shipped to a particular location which, in the wrong hands, could be catastrophic.

 

 

CONCLUSION

            We find the Agency’s argument to restrict access to the Agency’s network to only Union representatives who are active DLA employees to be convincing and reasonable under the circumstances described by the Agency.  However, we also found that the Agency’s proposed changes to the Union’s office space, including an arbitrary size restriction, is without any reason or rationale.  Accordingly, we will order the parties adopt the language from the parties’ current CBA with modification to restrict access to the Agency’s network to only those Union representatives who are active DLA employees.

ORDER

            We hereby order the parties to adopt a modified version of the Union’s proposal to retain the language from the parties’ current CBA over these provisions with the access to the Agency’s network being limited to Union representatives who are active DLA employees.

• Article 11: Incentive Awards

PROPOSALS

            The parties have not reached agreement over one provision from this article on incentive awards for employee performance.  Specifically, the parties have not been able to agree on a share distribution scheme to be used in conjunction with the Department of Defense Performance Management and Appraisal Program (DPAMP).  Their proposals are as follows:

Union’s Proposal		Agency’s Proposal
Overall Performance Score	Share Distribution	Overall Performance Score	Share Distribution
5.0	7 Shares	5.0	7 Shares
4.30 - 4.99	5 or 6 Shares	4.30 – 4.9	5 or 6 Shares
3.65 - 4.29	3 or 4 Shares	3.7 – 4.2	3 or 4 Shares
3.30 - 3.64	2 Shares	3.0 – 3.6	0, 1, or 2 Shares
3.00 - 3.29	1 share

 

DISCUSSION

            The Agency takes the position that its proposal recognizes there should be differences in award levels for performance.  Specifically, the Agency’s proposed scheme permits a supervisor to determine, on a case-by-case basis, if an employee who receives a Fully Successful rating (i.e., an overall performance score of 3.0) is deserving of a performance award. As an example, the Agency reasoned in its SOP that if an employee was put on a performance improvement plan (PIP) during a performance year for performing at an Unsuccessful rating (i.e., a performance rating less than 3.0) and improved enough to receive a Fully Successful rating at the end of the performance year, they should not necessarily be entitled to a performance award.  That same employee, the Agency reasons, should not necessarily be entitled to the same award as another employee who performed at a Fully Successful level the entire performance year, without being placed on a PIP.  The Agency further disputes the Union’s proposal that employees would be entitled to an automatic award if they receive an overall Fully Successful rating by claiming such a scheme is inconsistent with the premises of the Department of Defense performance provisions or basic theory of performance management.

            Although the Union claims in its SOP that it is proposing the parties keep the language from the parties current CBA for this article, this Share Distribution section is not contained in the parties’ current CBA as DPMAP was not in place at the time of its execution. In absence of a reasoned explanation of its proposal, we are left to assume that the Union is in favor of every employee who receives an overall rating of Fully Successful receiving an award.

CONCLUSION

            Here, we find the Agency’s rationale for permitting a supervisor discretion to decide whether to award an employee who receives an overall Fully Successful rating to be persuasive.  Recognizing that awards are within the Agency’s discretion, we do not find the Union’s proposal to be reasonable.  Accordingly, we find the Agency’s proposal to be the more appropriate method for Share Distribution.

ORDER

            We hereby order the parties to adopt the Agency’s proposal for the DPMAP Share Distribution procedure in this article.

• Article 38: Local Agreements

PROPOSALS

            The parties agree over most of this article, which provides for negotiated agreements at the local level for bargaining units covered under the parties’ nation-wide consolidated unit.  However, as reflected in the attached proposals, the parties are not in agreement over the list identifying those local units for such purposes. 

DISCUSSION

            Both the Agency and Union have proposed numerous edits to the language of this article within the parties’ current CBA, which defines the local bargaining units included under the parties’ nation-wide consolidated unit.  Although both parties allege that their proposals properly clarify the descriptions of these local units, their clarifications are inconsistent.  For example, the Agency has proposed to update the existing description for the local in Battle Creek, Michigan to include “DLA Disposition Services field sites that are not co-located with other DLA Activities.” 

            The Union proposes the same description of the Battle Creek, Michigan local that is in the parties’ current CBA.  In addition to these inconsistencies within the descriptions of the locals, the parties’ proposals do not even agree on the total number of locals included under the CBA.  The Union’s proposal identifies twenty-five locals, while the Agency’s proposal identifies twenty-two locals.  While both parties’ proposals represent an increase in the number of locals from the parties’ current CBA, which identifies eighteen, neither party has presented us with a clear rationale for deviating from the parties’ current CBA. 

CONCLUSION

            It is not clear to us if the parties are attempting to clarify, create, or otherwise modify certified local bargaining units.  Moreover, the Panel recognizes that the FLRA, rather than the parties, has the authority to certify and clarify bargaining units.  As the parties have, again, provided the Panel with no evidence or rationale in support of making their respective changes to the existing language, we will order the parties to maintain the status quo language from their current CBA. 

ORDER

            We hereby Order the parties to withdraw their respective proposals and adopt the language of Article 38, Section 2, Part A from the parties’ current CBA.

• Article 49: Wellness/Fitness Program

PROPOSALS

            The parties agree on a majority of the provisions within this article on Wellness/Fitness Program.  However, they have not been able to agree in Section 1 to the frequency which the Agency will grant employees up to one hour of administrative leave in order to voluntarily participate in wellness/fitness activities during the workday.  The Union proposes that employees be allowed to maintain their current allotment of up to one hour of administrative leave, three days per week.  The Agency proposes reducing that allotment to two days per week.  The Agency has also proposed that employees on telework only be authorized up to thirty-minutes of administrative leave, rather than an hour, for such activities. Finally, the Agency proposes including a provision that current employees with a fitness requirement as part of their job will not be subject to the Agency’s proposed reductions and will still be permitted to participate under the parties’ current allotment (i.e., up to one hour of administrative leave, three days per week).

DISCUSSION

            The Union proposes to maintain the parties’ current arrangement reasoning that the Agency has not alleged misuse or abuse of this arrangement during the life of the parties’ current CBA.  The Union specifically disputes the Agency’s attempt to treat teleworking employees differently by further restricting their allotment.  The Agency supports its proposed changes as being a limited reduction in an area that other Department of Defense agencies have all but done away with.  The Agency argues in its SOP that as sick leave has gone up during the course of the current allotment, the time allotted for wellness/fitness has not resulted in the intended effects of a healthier workforce.  The Agency specifically supports its proposal to limit the allotment of time for teleworking employees by arguing that as these employees are already at home they do not need to travel to participate in such activities.

CONCLUSION

            As has been the case throughout our decision, the party proposing a change to the parties’ current agreement carries the burden of justifying that change.  Here, we are unconvinced by the Agency’s reasoning for needing to make a change to the parties’ existing practice. 

ORDER

            Therefore, we order the parties to adopt the Union’s proposal to retain the parties’ current practice under their current CBA and order the Agency to withdraw its proposals to have include separate provisions for teleworking employees and those with a fitness requirement as part of their job.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ORDER

 

            Pursuant to the authority vested in us by the Federal Service Impasses Panel under the Section 7119 of the Statute, we hereby order the parties to adopt the language outlined herein to resolve their impasse.

 

 

 

 

                                                                                         _________________________________

                                                                                                                     Edward F. Hartfield

Arbitrator

 

 

 

                                                                                          __________ _______________________

Joseph E. Slater

Arbitrator

 

 

May 24, 2022

Washington, D