47:0488(42)AR - - Air Force Logistics Command, Tinker AFB, OK and AFGE Local 916 - - 1993 FLRAdec AR - - v47 p488
[ v47 p488 ]
The decision of the Authority follows:
47 FLRA No. 42
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
AIR FORCE LOGISTICS COMMAND
TINKER AIR FORCE BASE, OKLAHOMA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
April 28, 1993
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Julius Rezler filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed a motion to dismiss the Agency's exceptions.
The Arbitrator sustained a grievance alleging that the Agency improperly terminated the grievant's employment as the result of a reduction-in-force (RIF). The Arbitrator also found that the Agency violated section 7114 of the Statute when it failed to negotiate with the Union over the issuance of an Air Force regulation supplementing Federal Personnel Manual (FPM) Supplement 351-1. For the following reasons, we conclude that the award is deficient insofar as it requires the Agency to rerun the RIF. We will set aside that portion of the award. We will deny the Agency's other exception.
II. Preliminary Matters
We reject the Union's assertion that the Agency's exceptions should be dismissed because they were untimely filed.
Exceptions to an arbitration award must be filed within 30 days of the date of service of the award. 5 C.F.R. &§ 2425.1(b). The date of service is the date the arbitration award is deposited in the U.S. mail or is delivered in person. 5 C.F.R. &§ 2429.27(d). Absent evidence to the contrary, the date of the arbitration award is presumed to be the date of service of the award. If the award is served by mail, 5 days are added to the period for filing exceptions to the award. 5 C.F.R. &§ 2429.22. The time limit may not be extended or waived by the Authority. 5 C.F.R. &§ 2429.23(d). See, for example, U.S. Department of Veterans Affairs Medical Center, Bronx, New York and American Federation of Government Employees, Local 1168, 45 FLRA 789 (1992).
The Arbitrator's award is dated September 22, 1992. Presuming that the award was deposited in the U.S. mail on that date, an exception to the award had to be postmarked by the U.S. Postal Service or received in person at the Authority no later than October 27, 1992. The Agency's exceptions were hand delivered to the Authority on October 23, 1992, and were served on the Union on October 26, 1992. We conclude, therefore, that the Agency's exceptions were timely filed.
III. Background and Arbitrator's Award
The grievant, a retired veteran who was hired by the Agency as a civilian employee approximately 8 years after his retirement from military service, had been employed by the Agency for less than 3 years when the Agency conducted a RIF. In conducting the RIF, the Agency concluded that the grievant was a "career-conditional employee," and placed him in "tenure group II." Exceptions at 7.(1) Subsequently, the grievant was separated because an employee in "tenure group I" displaced him. Id. at 4. The grievant filed a grievance alleging that his separation violated applicable laws, rules, and regulations. The grievance was submitted to arbitration, and, as relevant here, the Arbitrator considered the following issues:
Was [g]rievant separated from the Agency under a RIF . . . in accordance with all governing rules and regulations? If not, what is the proper remedy?
Did the Agency violate [section 7114 of the Statute] when it failed to negotiate [an Agency] supplement to FPM [Supplement] 351 . . . with the Union?
Award at 1-2.
Before the Arbitrator, the Agency argued that, under FPM chapter 315, subchapter 2, the grievant was properly classified as a career-conditional employee, and placed in tenure group II, because he had less than 3 years of creditable civilian service at the time of the RIF. The Union argued that, in determining the grievant's creditable service for placement in the appropriate tenure group, the Agency did not properly credit the grievant's military service. The Union also argued that the Agency violated section 7114 of the Statute when it failed to negotiate with the Union over the implementation of an Agency regulation supplementing FPM Supplement 351-1.
The Arbitrator concluded that the grievant was entitled to have been placed in tenure group I. In particular, the Arbitrator found that, under FPM Supplement 351-1, subchapter S3-8, an employee who retires from a uniformed service "receives credit for RIF purposes for the length of time he spent in a campaign for which a campaign badge is authorized."(2) Award at 7 (emphasis omitted). Based on the grievant's military service record, the Arbitrator found that "[the grievant's] length of service . . . was improperly established." Id. at 8. As his award, the Arbitrator directed the Agency to place the grievant in tenure group I and "on that basis, repeat the RIF procedure" as it pertained to the grievant. Id. at 10. The Arbitrator further directed that, if the rerun of the RIF procedure resulted in the retention of the grievant, the grievant was to be provided backpay "for the period of time he was improperly separated . . . ." Id.
The Arbitrator also concluded that the Agency violated section 7114 of the Statute by failing to give the Union notice of and an obligation to bargain over the Air Force regulation supplementing FPM Supplement 351-1. In this connection, the Arbitrator noted that the Agency's concession that it was "required to . . . and apparently didn't" negotiate over the regulation. Award at 4. According to the Arbitrator, the Agency "repeatedly acknowledged, even stipulated, that the Agency must negotiate [the regulation] with the Union." Id. Relying on the Authority's decision in U.S. Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 38 FLRA 887 (1990) (Wright-Patterson), the Arbitrator concluded that, as the Agency failed to provide the Union with notice of and an opportunity to bargain over the disputed regulation, the Agency violated section 7114 of the Statute. As his award in this matter, the Arbitrator declared the regulation "non-valid for the purpose of this case." Award at 9.
IV. Positions of the Parties
The Agency argues that the award is contrary to a Government-wide regulation. In this regard, the Agency contends that the Arbitrator incorrectly concluded that the Agency was required to credit the grievant's military service in determining the grievant's length of service for placement in the appropriate tenure group. The Agency argues that, under the provisions of FPM chapter 315, prior military service is credited only in certain circumstances, and those circumstances do not apply to the grievant.
The Agency also argues that the award is contrary to section 7114 of the Statute. The Agency contends that it had no obligation to bargain over the Agency's supplemental regulation to FPM Supplement 351-1. In this connection, the Agency asserts that the implementation of the supplemental regulation was "'optional based on [the] local situation.'" Exceptions at 14. The Agency further asserts that no evidence was presented at the hearing to indicate that the Agency elected to implement the supplemental regulation. The Agency also argues that the Union's allegation that the Agency failed to negotiate over the supplemental regulation constitutes an unfair labor practice (ULP) charge. As such, the Agency contends that the charge was untimely filed under the provisions of section 7118(a)(4)(A) of the Statute.(3)
Although, as noted previously, the Union filed a motion to dismiss the Agency's exceptions, the Union did not file an opposition to the Agency's exceptions or otherwise address the exceptions on the merits.
V. Analysis and Conclusions
1. The Award Is Contrary to a Government-Wide Regulation
When a RIF will result in the release of an employee from a competitive level, the agency must establish a "retention register" for that competitive level.(4) Employees are listed on the retention register by tenure group, with tenure group I first. FPM Supplement 351-1, subchapter S3-5. As noted previously, placement in tenure group I or II depends on, among other things, an employee's career tenure status. All employees in tenure group II are released from a competitive level before any employees in tenure group I are released. Id. at subchapter S4-3.b. Within each tenure group, employees are placed in subgroups based on entitlement, if any, to veteran's preference and, within the subgroup, are listed by length of service. Id. at subchapters S3-7.a. and S3-8.a. Service date is based on, among other things, the date an employee entered on duty at an employing agency when an employee has no previous creditable service. If an employee has creditable service, then the creditable service is subtracted from the date the employee last entered on duty to obtain the service date for placement within the subgroup. Id. at subchapter S3-8.b.
In this case, the Arbitrator applied FPM Supplement 351-1, subchapter S3-8 and determined that the grievant was entitled to service credit for the length of time the grievant spent in a military campaign for which a campaign badge was authorized. The Arbitrator concluded that the Agency relied solely on the date on which the grievant began his civilian employment to place the grievant in tenure group II. The Arbitrator further found that, if the Agency had properly credited the grievant with his military service when the Agency determined the grievant's creditable service, then the grievant would have been placed in tenure group I.
FPM Supplement 351-1, subchapter S3-8, entitled "Length of Service," instructs Federal agencies to establish a service date for each competing employee in a RIF. This subchapter provides that the established service date is used to list employees on a retention register, within a veteran preference subgroup, starting with the earliest service date. Subchapter S3-8.c. also provides that a retired veteran receives credit for RIF purposes for, among other things, the length of time served in a campaign for which a campaign badge has been authorized.
It is clear that under subchapter S3-8 of FPM Supplement 351-1, military service may be used to adjust an employee's length of service for placement within a subgroup of a tenure group. See FPM Supplement 351-1, subchapter S3-8.c.(1). It is also clear, however, that military service may be included as creditable service for establishing career tenure status only in accordance with the provisions of FPM Chapter 315, subchapter 2. See FPM Supplement 351-1, subchapter S3-8.c; FPM Supplement 296-33, subchapter S6.(5) Under that provision, military service may be credited for career tenure purposes only if the military service intervened between two periods of Federal employment.
The record in this case reflects that the grievant's military service ended 8 years prior to his civilian employment in the Agency. There is no allegation, or other basis in the record on which to conclude, that the grievant's military service occurred between two periods of Federal employment. Indeed, the Agency's allegation that the grievant's military service did not intervene between two periods of Federal employment is undisputed.
Based on the record before us, we conclude that the grievant's only creditable service which can be counted toward establishing his career tenure is his civilian employment with the Agency. Therefore, we find that the Arbitrator's finding that the Agency improperly placed the grievant in tenure group II and his direction that the RIF be rerun based on a placement of the grievant in tenure group I are inconsistent with FPM Supplement 351-1, subchapter S3-8. FPM Supplement 351-1, subchapter S3-8 is a Government-wide regulation within the meaning of section 7117 of the Statute. For example, American Federation of Government Employees, Local 916 and U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 44 FLRA 247, 250 (1992). Accordingly, the portion of the award directing the Agency to place the grievant in tenure group I and to repeat the RIF is deficient as contrary to a Government-wide regulation and must be aside.
2. The Award Is Not Contrary to Law
At the outset, we reject the Agency's claim that the Union's allegation that the Agency violated section 7114 of the Statute constitutes a ULP charge and is untimely. In this regard, the Agency does not contend that the matter could not properly be raised as a grievance and there is no basis on which to conclude that the time limit applicable to ULP charges is also applicable to grievances. Moreover, insofar as the Agency interprets the award as creating a bargaining obligation, we disagree. As the remedy for his finding that the Agency violated section 7114, the Arbitrator merely declared the supplemental regulation "non-valid for the purpose of this case." Award at 9.
Turning to the Agency's argument that it had no bargaining obligation regarding the disputed regulation, we note that unions are entitled to notice of and an opportunity to bargain over agency-initiated changes in unit employees' conditions of employment. See Ogden Air Logistics Center, Hill Air Force Base, Utah and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 41 FLRA 690, 697 (1991). The obligation to bargain encompasses agency regulations effecting changes in working conditions. See Wright-Patterson, 38 FLRA at 889.
In this case, the Arbitrator found that there was "no evidence that the Union was ever notified about the issuance" of the disputed regulation and that "the Union was not given an opportunity to negotiate [over the] regulation prior to signing the current agreement." Award at 4. Moreover, the Agency conceded to the Arbitrator that it was "required to . . . and apparently didn't" bargain over the issuance of the disputed Air Force supplemental regulation. Id. The Arbitrator stated that the "[a]dvocate for the Agency repeatedly acknowledged, even stipulated, that the Agency must negotiate said document with the Union." Id.
The Agency does not dispute the Arbitrator's findings that the Union was not provided notice or an opportunity to bargain over the disputed regulation. The Agency also does not dispute its concession that it was required to and did not bargain over the regulation.(6)
The Agency argues only that the Arbitrator's conclusion that the Agency violated the Statute was in error because no evidence was presented to the Arbitrator that the Agency had "elected to implement the guidance in" the regulation. Exceptions at 14. However, at the arbitration hearing, the Agency specifically asserted that the regulation was in effect. In this regard, the Agency argued to the Arbitrator that it did not violate section 7114 of the Statute in connection with the regulation because the regulation:
was dated January 24, 1989. The current [master collective bargaining agreement] was signed almost five months later . . . . Since the [supplemental regulation] was not published in secret, the Union had the opportunity to negotiate it as the [regulation] was in force before the negotiation ended.
Award at 4 (emphasis added). The Arbitrator's finding that the Agency violated section 7114 was expressly based on the evidence in the record before him, including the Agency's argument that the regulation was in effect because the Union failed to request bargaining over it. With respect to the latter point, we have no basis in the record on which to conclude that the Union was, in fact, provided with notice of the disputed regulation and, thereafter, failed to timely request or pursue bargaining over it.
In these circumstances, we find no basis on which to conclude that the Arbitrator erred in refusing to apply the disputed regulation in this case. It is undisputed that: (1) the regulation contained changes from the previous regulation; and (2) the Union was not provided notice and an opportunity to bargain over the regulation. Moreover, in view of the Agency's assertion to the Arbitrator that the disputed regulation was in effect, we reject the Agency's argument that the record contained insufficient evidence that the regulation had been implemented. Instead, we conclude that the Agency's argument constitutes mere disagreement with the Arbitrator's evaluation of the evidence. Such disagreement provides no basis on which to find the award deficient. Accordingly, we will deny the Agency's exception to this portion of the award. For example, National Air Traffic Controllers Association, MEBA/NMU and U.S. Department of Transportation, Federal Aviation Administration, 46 FLRA 1367, 1374 (1993).
The portion of the award directing the Agency to place the grievant in tenure group I and to rerun the RIF is set aside. The Agency's remaining exception is denied.
(If blank, the decision does not have footnotes.)
1. "Tenure Groups" are categories of employees ranked in priority order for retention during a RIF. FPM Supplement 296-33, subchapter 35-14.c-9 ("Glossary of Terms Related to the Processing of Personnel Actions"). "Tenure group I" includes, among others, employees serving under "career" appointments and who are not serving probationary periods. Id. "Tenure group II" includes, among others, employees serving under "career-conditional" appointments. Id. "Career-conditional" employees become "career" employees upon completion of 3 years of substantially continuous, creditable service. See FPM chapter 315, subchapter 2-1.b.
2. FPM Supplement 351-1, subchapter S3-8, provides, in pertinent part:
a. Service date. An agency establishes a service date for each competing employee in a
[RIF]. Employees are listed on a retention register within veteran preference subgroups by length of service, in descending order starting with the earliest service date.
b. Determination of service date. An employee's service date for RIF purposes is one of the following:
(1) The date the employee entered on duty if the employee has no previous creditable service;
(2) The date obtained by subtracting the employee's total previous creditable service from the date the employee last entered on duty
. . . .
c. Creditable service. To determine creditable service, compute service dates, and make adjustments for noncreditable service, see FPM supplement 296-33, subchapter S6. A preference eligible employee who is a retired member of a uniformed service receives credit for RIF purposes for:
(1) The length of time in active service in the armed forces during a war, or in a campaign or expedition for which a campaign badge has been authorized . . . .
(emphasis in original.)
3. Section 7118(a)(4)(A) of the Statute provides, in pertinent part:
[N]o complaint shall be issued based on any alleged unfair labor practice which occurred more than 6 months before the filing of the charge with the Authority.
4. A "retention register" is a record of all employees occupying positions in a competitive level arranged by tenure groups and service dates. It is used in a RIF to determine which employees are retained and which are separated or reassigned. FPM Supplement 296-33, subchapter 35-11.c-6.
5. FPM Supplement 296-33, subchapter S6-1.1 provides in pertinent part:
a. This subchapter explains how to determine if a period of Federal civilian or military service is creditable for leave accrual and [RIF] purposes.
b. This subchapter does not explain:
. . . .
(4) how to determine and calculate creditable service for career tenure (see FPM ch. 315, subch. 2)[.]
FPM Chapter 315, subchapter 2-4.e. provides, in pertinent part:
Certain types of service which are not creditable by themselves may be counted in computing an employee's total service for career tenure when they intervene between two periods of creditable service without a single break in service in excess of 30 calendar days. Such service is considered to be a continuation of preceding creditable service. Under these conditions, credit is given for periods of service:
. . . .
(5) In the armed forces[.]
6. We note that, before the Arbitrator, the Agency acknowledged that the disputed regulation contained changes from the previous regulation. The Agency asserted only that "neither change ha[d] an effect on the instant case." Award at 4. In this connection, neither the Union nor the Agency contends that either the disputed or the previous regulation affects the outcome of the case. Indeed, the Union does not allege a violation of, and the Agency does not defend its actions on the