DEPARTMENT OF DEFENSE NATIONAL GUARD BUREAU DELAWARE NATIONAL GUARD WILMINGTON, DELAWARE and DELAWARE CHAPTER ASSOCIATION OF CIVILIAN TECHNICIANS
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
DELAWARE NATIONAL GUARD
ASSOCIATION OF CIVILIAN
Case No. 01 FSIP 47
DECISION AND ORDER
The Department of Defense, National Guard Bureau, Delaware National Guard, Wilmington, Delaware (Employer) 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 Delaware Chapter, Association of Civilian Technicians (Union).
Following an investigation of the request for assistance, arising from negotiations over a successor collective bargaining agreement (CBA), the Panel determined that the dispute should be resolved through the issuance of an Order to Show Cause. In this regard, the parties were directed to show cause why the Panel should not impose the same decision it reached in a similar case.(1) The parties were informed that after considering the entire record, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a Decision and Order. Pursuant to this procedure, the parties submitted their final offers and written responses to the Order to Show Cause. The Panel has now considered the entire record.
The primary mission of the Delaware National Guard is to fight in the nation’s wars, and to respond to emergencies in the state of Delaware. Bargaining-unit employees do aircraft and automotive maintenance, and work in clerical positions, among other things.(2) They range in grade from GS-5 to -13, and WG-5 to -13. The parties’ collective bargaining agreement (CBA) was to have expired in April 2000, but remains in effect pending implementation of a successor agreement.
ISSUE AT IMPASSE
The issue before the Panel is whether suspensions or reductions of employees to a lower grade should be stayed until the appeal procedure has been exhausted and the adverse action upheld in accordance with 32 U.S.C. § 709(f).(3)
POSITIONS OF THE PARTIES
1. The Union’s Position
The Union proposes that a suspension or reduction to lower grade be carried out if there is no appeal of the action or the appeal procedure has been exhausted and the action is upheld in accordance with 32 U.S.C. § 709(f). The proposal in ITC differs significantly from the Union’s in this case because a "[s]tay of technician disciplinary suspensions and grade reductions until decision by the Adjutant General is very different from stays of reductions in force" until completion of arbitration or MSPB appeals. In this regard, employees who lose their jobs through a RIF may contest the decision in an arbitration or in an appeal to the MSPB, but National Guard dual-status technicians, unlike other civilian employees, must appeal adverse actions to the Adjutant General of their state National Guard. Because the Adjutant General is responsible for the state National Guard budget, he may be reluctant to overturn a disciplinary decision if it would mean using the budget to provide a wronged employee with back pay, interest, and attorney’s fees under the Back Pay Act. Moreover, although back pay adequately compensates employees who have been improperly RIF’ed, it can never adequately compensate an employee who has unjustifiably suffered the stigma of discipline.
Additionally, "RIFs are taken for budgetary reasons. They reflect management determinations that, for financial reasons, particular work will no longer be done." Therefore, a stay of a RIF would be financially inefficient. Similar financial inefficiencies are not evident when an employer agrees to stay a suspension or reduction in grade pending appeal. Also, unlike suspended employees or employees reduced in grade, employees in a RIF are not personally stigmatized when a RIF affects them. Finally, the Union’s proposal, or proposals like it, have been adopted in 12 other National Guard collective bargaining agreements.
2. The Employer’s Position
The Panel "should follow its previous decisions" on the issue of stays "and order the Union to withdraw its proposal." The potential for a stay would disrupt the Employer’s efforts to maintain order and stability by disciplining employees as soon as it becomes necessary. In addition, the Employer’s internal regulations provide sufficient safeguards for employees facing suspensions or reductions in grade. In fact, the internal regulations are grounded in Congress’ decision to deny civilian technicians appeal rights to third parties outside the military. Employees who believe that the Adjutant General will not be able to be neutral can request an administrative hearing with National Guard officials from outside the state, who make recommendations to the employee’s Adjutant General. Furthermore, although no suspension or reduction in grade has ever been successfully appealed in the State of Delaware, an employee who does would receive sufficient restitution under the Back Pay Act. Finally, the possibility of staying an adverse action might encourage the filing of frivolous appeals.
After carefully reviewing the record presented by the parties, we are persuaded that the Employer’s position provides the better resolution to the dispute. In our view, the Union has not demonstrated a need to change the status quo, or shown why the Panel should deviate from its previous decisions with respect to stay provisions, including the decision reached in ITC. The Union accurately points out that its proposal does not concern RIFs, as in ITC, and we agree that it is likely that a wrongly-disciplined employee may never adequately be compensated for the injustice under the Back Pay Act. Nevertheless, the Union has failed to identify even one instance in the State of Delaware where it believes disciplinary action was taken unjustly, let alone an instance where an employee’s appeal was successful. In such circumstances, the benefits it cites in favor of its proposal, as well as its contention that financial concerns are likely to influence the Adjutant General when reviewing employee appeals, appear entirely speculative. As in ITC, we also conclude that the Union’s approach would encourage frivolous appeals, a prospect that would be particularly damaging to the order and stability necessary in a military organization. Accordingly, we shall order the Union to withdraw its proposal.
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