DEPARTMENT OF THE NAVY NAVAL AVIATION DEPOT NORTH ISLAND SAN DIEGO, CALIFORNIA and PROFESSIONAL ENGINEERS AND SCIENTISTS ORGANIZATION, LOCAL 77, IFPTE, AFL-CIO
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
DEPARTMENT OF THE NAVY
NAVAL AVIATION DEPOT
SAN DIEGO, CALIFORNIA
PROFESSIONAL ENGINEERS AND
LOCAL 77, IFPTE, AFL-CIO
Case No. 00 FSIP 20
DECISION AND ORDER
The Professional Engineers and Scientists Organization, Local 77, IFPTE, AFL-CIO (Union or PESO) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the Department of the Navy, Naval Aviation Depot North Island, San Diego, California (Employer or NADEP).
Following an investigation of the request for assistance, arising from bargaining over a successor collective bargaining agreement (CBA), the Panel directed the parties to participate in an informal conference with a Panel representative for the purpose of resolving the outstanding issues.(1) The parties were advised that if no settlement was reached, the representative would report to the Panel on the status of the dispute, including the parties’ final offers and her recommendations for resolving the impasse. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.
Pursuant to this procedural determination, Panel Chair Bonnie Prouty Castrey conducted an informal conference with the parties on February 23, 2000, at the Employer’s facility in San Diego. At the close of the proceeding, the parties remained at impasse over the issue of airplane seat upgrades.(2) Ms. Castrey has reported to the Panel, and it has now considered the entire record, including the parties’ post-conference jurisdictional statements.
The Employer is engaged in a program of aircraft overhaul and repair known as the "Service Life Extension Program." The Employer also repairs crash damage and installs in-service modifications. The customer base is not limited to the Navy, but includes foreign governments (Canada, England, and Australia) who have purchased planes from the United States. The Union represents some 370 professional bargaining-unit employees who work mainly as scientists (physicists, mathematicians, and chemists) and engineers, at grades GS-5 through -13.(3) Employees work on platforms (airplanes) such as the F-14, E-2, and C-2. Among other things, they investigate equipment failures, perform some design work, and apply new technology. The previous CBA expired in 1988, but the parties intend to continue to follow its terms until the successor CBA is implemented.
ISSUE AT IMPASSE
The parties disagree over whether unit employees should be permitted to use frequent flyer miles earned on Government travel for upgrades to first class seats when traveling on official business.POSITIONS OF THE PARTIES
1. The Employer’s Position
The Employer proposes the following:
Bargaining unit employees will be allowed to use Frequent Flyer Benefits earned on official travel to upgrade airline seating on subsequent official travel in accordance with the provisions of the Department of Defense (DoD) Joint Travel Regulations. Employees may not use Frequent Flyer Benefits earned on official business travel for any personal travel or other personal benefit.
As a preliminary matter, the Union’s proposal allowing seating upgrades to first class by using earned Government frequent flyer miles is nonnegotiable because it conflicts with the Federal Travel Regulations (FTRs) at section 301-53.5.(4) Additionally, Office of Management and Budget Bulletin 93-11, issued on April 19, 1993, "is specific in its restrictions on agencies’ use of first class travel." In this regard, the Bulletin states the following:
Policy: Government funds shall not be used to pay for first class travel unless no other commercial service isreasonably available, or such travel is necessary for reasons of disability or medical condition.
Its proposal, on the other hand, would permit business class upgrades only.(5) This is consistent with DoD policy, and with the Employer’s interest in prohibiting engineers from being seated in first class when military officers are in economy class.
2. The Union’s Position
The Union proposes that management "[a]llow seat upgrades to premium class including 1st class while flying by using earned government frequent flyer miles." In its view, "[s]ection 301-53.4 . . . permits employees to use frequent traveller benefits earned on official travel to obtain upgrades to premium class, including first-class airline accommodations." Since the Employer has provided no good reason to deny employees a negotiable benefit, the Panel should adopt its proposal.
Having reviewed the evidence and arguments presented by the parties, we conclude that the Employer’s proposal provides the better resolution to their dispute and shall order its adoption. On the preliminary issue raised by the Employer regarding whether the proposal is negotiable, the Panel is guided by Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988) (Carswell), where the FLRA concluded that the Panel may apply existing case law to resolve duty-to-bargain questions which arise during impasse proceedings. In this case, the Employer argues that the Union’s proposal is contrary to the FTRs. While the Union takes the position that its proposal is consistent with the FTRs, it has failed to identify any FLRA decisions where substantively identical proposals have been found negotiable. In the absence of such precedent, under Carswell, the Panel does not have the authority to adopt the Union’s proposal on the merits.(6) Although the Panel could decline to retain jurisdiction over this matter, such a determination could result in protracted litigation and an indefinite delay in the implementation of a successor CBA. In this regard, the record indicates that the parties’ previous CBA expired in 1988, and negotiations over a successor have taken almost 1 year. Therefore, in the circumstances of this case, we are persuaded that the better course of action is to adopt the Employer’s proposal.
Pursuant to the authority vested in it by the Federal Service Labor-Management Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted under the Panel’s regulations, 5 C.F.R. § 2471.6(a)(2) the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the following:
The parties shall adopt the Employer’s proposal.
By direction of the Panel.
H. Joseph Schimansky
March 15, 2000
1.During the investigation, the Employer alleged that the Union’s proposal regarding a “maxiflex model flexible work schedule” would cause an adverse a