DEPARTMENT OF DEFENSE DEFENSE COMMISSARY AGENCY FORT LEE, VIRGINIA and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
DEPARTMENT OF DEFENSE
AMERICAN FEDERATION OF
Case No. 02 FSIP 60
DECISION AND ORDER
The American Federation of Government Employees, AFL-CIO (Union), 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 Defense, Defense Commissary Agency (DeCA), Fort Lee, Virginia (Employer).
Following investigation of the Union’s request for assistance, which arose from negotiations over a successor Master Labor Agreement (MLA), the Panel determined that the dispute should be resolved by: (1) conducting an informal conference with the parties and Panel Member Joseph C. Whitaker on Articles 4, 5, 6, 8, 11, and 24; and (2) directing the parties to provide single written submissions in support of their final offers on Articles 12, 22, 29, 35, 42, 46, and the Union’s newly-proposed "Multi-skilling/Broadbanding and Related Changes" article, with the Panel to select between their final offers on an article-by-article basis, to the extent that they otherwise appear lawful.(1) The parties were advised that if a complete settlement was not reached during the informal conference, Member Whitaker would report to the Panel on the status of the dispute, including the parties’ final offers and his recommendations for resolving the impasse. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, which could include the issuance of a binding decision. With respect to the articles on which they were to provide single written submissions, the parties also were advised that these articles would be resolved through the issuance of a Decision and Order.(2)
to the first portion of the Panel’s procedural determination, Member Whitaker
met with the parties on September 12 and 13, 2002, in Chester, Virginia, and
voluntary agreement was reached on four of the six articles. The parties
subsequently were permitted to submit final offers and supporting statements of
position on Articles 5 and 11, and Member Whitaker has reported to the Panel
concerning those articles. Written submissions also were made pursuant to the
procedural determination regarding Articles 12, 22, 29, 35, 42, 46, and the
Union’s newly-proposed "Multi-skilling/Broadbanding and Related
Changes" article. The Panel has now considered the entire record on all of
the articles which remain in dispute.
The Employer is responsible
for providing an efficient and effective worldwide system of commissaries for
selling groceries and household supplies at low, practical prices to members of
the military services, their families, and other authorized patrons, while
maintaining high standards of quality, facilities, products, and service. The
Union represents approximately 6,000 Wage Grade and General Schedule
nonprofessional employees at over 120 DeCA installations worldwide, who work in
such positions as sales store checker (GS-3); sales store worker (WG-4 and -5);
accounting technician (GS-5); quality assurance evaluator (GS-6); and meat
cutter (WG-5 through -7). There are about 70 AFGE Locals representing employees
that have recently been consolidated into a nationwide bargaining unit.(3) The
parties’ MLA expired on October 26, 2000, and does not provide for the
continuation of its provisions while a successor is negotiated.
ISSUES AT IMPASSE
The parties remain at
impasse over all or parts of the following nine articles: (1) Article 5 - Dues
Withholding; (2) Article 11 - Hours of Work; (3) Article 12 - Safety and Health;
(4) Article 22 - Annual Leave; (5) Article 29 - Employee Assistance Program; (6)
Article 35 - Performance Management; (7) Article 42 - Categories of Employees;
(8) Article 46 - Contracting Out/Competitive Sourcing Program; and (9) the Union’s
newly-proposed article - Multi-skilling/Broadbanding and Related Changes.
POSITIONS OF THE PARTIES
1. Article 5 - Dues Withholding
a. The Employer’s Position
The Employer essentially proposes to modify the dues withholding provisions of the expired MLA by establishing an annual window period, after the first year an employee has joined the Union, during which dues participation through payroll deduction may be cancelled. In such circumstances, an employee "may submit [an] SF 1188 to the EMPLOYER anytime during the six (6) week period immediately preceding July 1. The EMPLOYER must receive requests for cancellation no later than 12:00 noon local time on the last business day of June." The adoption of its proposed wording would make the process of terminating payment of dues less administratively burdensome on management. In this regard, the expired MLA relies on established local practices, which often vary, and require cumbersome monitoring and communications between DeCA personnel specialists and either the payroll office, the employee, or local Union officials. Its adoption also would make the procedure for terminating dues withholding consistent throughout DeCA, as agreements between DeCA and the National Association of Government Employees, the National Federation of Federal Employees, and the Hawaii Council of Defense Commissary Unions amply demonstrate.
b. The Union’s Position
The Union would maintain the status quo regarding the procedure for cancellation of dues withholding, with the addition of the following wording: "If an employee requests revocation of dues, the Local union will, upon request from the Employer, provide the data necessary to terminate the withholding." This would address the Employer’s allegations about the difficulty it has had in establishing the anniversary date of an employee who wants to revoke dues withholding. Nevertheless, the Union does not believe the Employer has demonstrated its claim that processing dues withholding revocations under local procedures "is burdensome, let alone unduly burdensome." In this connection, the number of employees who might come forward with unknown anniversary dates is small, and whatever burden is created is outweighed by the fact that the Statute requires agencies to administer dues withholding requests, including subsequent revocations. Finally, the 6-week period proposed by the Employer is too long, and would concentrate the "pain of lost revenues" in a manner that would "severely impede the Union’s ability to plan its budget."
Having carefully considered the parties’ proposals and positions with respect to this issue, we conclude that the matter should be resolved on the basis of the Employer’s final offer. In our view, the Employer has demonstrated that reliance upon established local practices for the termination of dues withholding has resulted in administrative difficulties which justify a change in the status quo. Although the Union attempts to alleviate these difficulties by proposing to provide the data necessary to terminate the withholding, we do not see the need for Union involvement in a matter that the Statute requires agencies to administer. Moreover, the adverse impact that the Union alleges would result on its ability to plan its budget if the Employer’s window period is adopted does not appear to be substantiated by the experiences of the other unions representing DeCA employees, most of whom have voluntarily agreed to the Employer’s approach. Accordingly, we shall order the adoption of the Employer’s final offer.
2. Article 11 - Hours of Work
a. The Employer’s Position
The Employer’s final offer includes, among other things: (1) definitions of "administrative workweek," "basic workweek," "tour of duty," and "part-time employee," that are consistent with Title 5 of the C.F.R.; (2) subjecting employees’ receipt of 2 consecutive days off within the administrative workweek to "workload requirements;" (3) conditioning the use of fixed schedules for part-time employees on "operational needs;" (4) guaranteeing non-paid meal periods to employees who have worked "more than 6 hours in a workday;" (5) changing wording in the expired MLA regarding when an employee works an "in-lieu of holiday," and specifying that wording in the provision only applies to full-time employees; (6) specifying that the holiday work procedure would only be used when a limited number of employees are needed to work on the holiday, and that volunteers would be selected from employees normally scheduled to work; (7) dropping previous requirements to use "rotating" inverse seniority when an employee is to be scheduled involuntarily, and for planned and unplanned overtime work; and (8) in circumstances where a work schedule change is contemplated, and the Employer decides to assign the schedule noncompetitively to a current employee, a requirement that the Employer select the most senior employee if an examination of a variety of factors results in all candidates being considered equally qualified.
A number of its proposed sections are designed to ensure that the subjects they address are consistent with Government-wide regulations. In addition, subjecting employees’ receipt of 2 consecutive days off within the administrative workweek to "workload requirements," would allow management to maintain the flexibility to meet operational needs, given that the busiest days at the commissaries are Friday, Saturday, and Sunday. The changes it proposes regarding the definition of "fixed schedule" merely clarify current procedures, and should rectify the "great confusion" that arose on the part of managers, employees, and Union representatives over this matter "during the term of the MLA." With respect to its proposal that fixed schedules for part-time employees will be considered where operational needs permit, this change to the status quo is justified because of DeCA’s increasing reliance on a part-time workforce to provide "flexibility to adjust to customer volume and workload."
Limiting the requirement for non-paid meal periods to employees working "more than 6 hours" would eliminate the difficulties that management and employees have had with the provisions of the expired MLA. In this regard, employees who are scheduled to work only 6 hours want to go home, rather than stay an extra 30 minutes to get the unpaid meal period, and "it is difficult for management to schedule meals for this short period." The wording it proposes regarding in-lieu-of holidays is necessary to clarify that the day worked is treated as the holiday for pay administration purposes, not the "legal" holiday, and that the provision only applies to full-time employees. The latter issue "came up several times during the term of the MLA." Similarly, another issue that arose during the term of the MLA requiring clarification concerns holiday work procedures. The Employer’s proposed change is "slight," specifying that the procedure would only be used when a limited number of employees are needed to work, that volunteers would be selected from employees normally scheduled to work, and eliminates the requirement that "rotating" inverse seniority be used when an employee is to be scheduled involuntarily. Its proposed changes to the current overtime work procedures "clarify that volunteers/draftees are selected from employees already on duty." Moreover, the elimination of the use of "rotating seniority" conforms with the Union’s offer in February 2002 to drop that requirement from its proposal on holiday work procedures. Finally, the procedure the Employer proposes in circumstances where a work schedule change is contemplated, and management decides to assign the schedule noncompetitively to a current employee, meets an interest the Union expressed during negotiations.
Portions of the Union’s proposed article, on the other hand, are inconsistent with Government-wide regulations, or are unnecessary because identical wording is already provided for in DeCA directives. In addition, the part of its proposal on meal periods, which would allow employees to determine on a daily basis whether to take a meal break, "is unworkable for the store management," as is the new wording it proposes regarding meal periods for employees called into work. Of even more concern are the constraints the Union proposes on management’s flexibility regarding the use of part-time employees. In this regard, among other things, it would require the use of fixed schedules, and bargaining over changes "in the number of part-time employee hours and changes in starting time by more than 1 hour." With respect to these requirements, "the Union has not demonstrated comparability with similarly-situated employees," either in the Federal or private sectors. In addition, bargaining over changes to individual part-time employee work schedules "will cause a lengthy delay and is counter to the purpose of why part-timers were hired." Finally, the Union has not demonstrated a need for taking away management’s discretion to grant administrative leave where part-time employees are prevented from working because of an in-lieu-of holiday.
b. The Union’s Position
The following are the most significant changes to the status quo proposed by the Union in this article: (1) permitting part-time employees who work 6 hours to forego meal periods, and requiring employees who are not scheduled to work, but come in at the Employer’s request, to receive a meal period under certain conditions; (2) specifying that break periods are in addition to any meal periods authorized under previous sections, and providing 15-minute breaks every 2 hours to, for example, intermittent and on-call employees; (3) adding "permanent" to wording in the expired MLA referring to fixed schedules for full-time employees; (4) requiring local negotiations over changes to the current number of fixed schedules for part-time employees, and changes to individual employee work schedules, "if such change involves days off or impacts premium pay of an employee, or, for a part-time employee, impacts the number of hours of work;" (5) requiring local negotiations or the application of bidding procedures if a schedule change lasts more than 2 weeks or changes a starting time by more than 1 hour; (6) subjecting changes to the work schedules of temporary employees involving days off, or a difference in the number of hours, to the bidding procedure it proposes elsewhere in the article; (7) requiring the Employer to comply with 5 C.F.R. § 340.403(a) regarding the appropriate use of intermittent work schedules; (8) adding reference to an agency-wide regulation to ensure that employees receive proper service credit when work requirements dictate the need for additional hours to be worked on a workday; and (9) requiring negotiations over the granting of administrative leave for part-time employees prevented from working due to an in-lieu-of holiday.
Many of the provisions the Union is proposing are similar, if not identical, to what is contained in the expired MLA article, and the Employer has not demonstrated the need to change them. As to the issue of the scheduling of part-time employees, the Union’s language "is a mechanism that provides the Employer the flexibility to make temporary changes without the administratively burdensome process" proposed by the Employer. It should be adopted because it "provides employees with a degree of stability and ability to know when they will work," and preserves bargaining only in "limited circumstances" where "only the local Parties can adequately address the issues at their work site." The wording the Union would add to the section on meal periods in the expired MLA "addresses a concern raised by the Employer" by providing employees who work 6 hours a day the opportunity to forego the meal period, with supervisory approval. It also proposes new wording "to protect employees who have no work schedules" by granting them a meal period "at approximately what would be the mid-point of a full 8-hour day." The Union would include references consistent with applicable Government-wide regulations and DeCA directives to inform employees and supervisors of what must be done to ensure employees "receive the service credit they are entitled to."
The Employer proposes to
terminate the use of "equitable" processes in the assignment of
holiday work and overtime that "eliminate for certain employees the
opportunity to observe any legal holidays, and would block other employees who
prefer to work holidays from doing so." In neither case has the Employer
shown a programmatic or policy reason to change the status quo. Finally,
the Union is proposing one change to the section on holidays "to provide
options for part-time employees who are prevented from working as they normally
would because of a holiday." Under its approach, there could be
negotiations on a holiday-by-holiday basis to make administrative leave
available. Other available solutions to make employees whole would not require
negotiations, and would allow the Employer to determine what its needs are, and
"whether rescheduling was a viable option or not."
After thoroughly reviewing the parties’ final offers on the Hours of Work article, we find that neither side has fully demonstrated the need for the numerous changes to the status quo being proposed. For this reason, the Panel shall impose compromise wording using the expired MLA article as a foundation, but which adopts those items that are not in dispute, and other minor changes that we believe are justified by the record. On the key issues over which the parties disagree, however, the compromise contains the following: (1) the additional wording proposed by the Employer subjecting employees’ receipt of two consecutive days off to "workload requirements;" (2) a modified version of the Union’s proposal permitting part-time employees who work 6 hours to forego non-paid lunch periods, but which requires that such decisions be made at the start of each pay period, and remain in effect for the entire pay period; and (3) a modified version of the Employer’s proposal regarding the circumstances under which management would be required to negotiate mid-term changes to work schedules.
Although the arguments
raised by the Employer regarding consecutive days off appear to address wording
that the Union has since removed from its final offer, subjecting such
scheduling to workload requirements ensures that the provision is consistent
with Government-wide regulations and management’s right to assign work. On the
issue of non-paid meal periods, our approach addresses the Employer’s concern
that permitting part-time employees who work 6 hours or more to determine on a
daily basis whether to take a meal break would be unduly burdensome on
supervisors. In our view, requiring that such decisions remain in effect for the
entire pay period should meet the interests of employees and supervisors.
Turning to the crucial matter of mid-term schedule changes, we are persuaded
that the Union’s proposals go well beyond preserving bargaining only in
"limited circumstances." If adopted, they would deny management the
flexibility to change individual employee work schedules to meet operational
needs without lengthy, and unwarranted, delay. Modifying the Employer’s
proposal, however, to require that such schedule changes be made only where
necessary, and that the personal needs of employees be considered, should help
to ensure that employees are provided with a degree of stability in their work
3. Article 12 - Safety and Health
a. The Employer’s Position
The Employer proposes to add the following sentence to the "Protective Equipment/Clothing" section of the expired MLA under this article: "The nature of the duties, not the frequency, dictates the requirement for the equipment/clothing." It also proposes to change the "Adverse Weather Conditions" section by: (1) replacing wording that required commissaries to close no later than 1 hour from the time an installation is closed due to inclement weather with: "Installation weather plans are unique to each location and the local installation commander determines installation closure;" and (2) removing "essential/non-essential employees" from the list of topics specifically identified as subject to local negotiations.
The sentence it would add to the "Protective Equipment/Clothing" section, along with the requirement that employees will be furnished such protections in accordance with DeCA and federal directives, adequately addresses the Union’s health and safety concerns in this area. Further, its proposal to remove reference to "essential/non-essential employees" from the list of topics identified as subject to local negotiations is justified because, "in many situations, which employees are needed to stay is dependent upon the timing of the adverse weather and the work requirements." For this reason, the Union’s proposal to use employees’ position descriptions (PD) as the vehicle for identifying if they are weather essential "is both unnecessary and unworkable." Nor has the Union provided evidence to indicate that a problem exists regarding the release of employees during adverse weather situations.
The Union’s proposal to permit employees to contact the Department of Labor’s (DoL) Office of Workers’ Compensation Program (OWCP) directly to submit a claim for workers compensation is "very ambiguous," and "will confuse the situation and not solve the problem." This is because it is unclear concerning "the event that triggers the 30 days-date of alleged injury," DoL requires such claims to be submitted through agencies before it will establish a case file, and the claim forms contain sections that only an employee’s supervisor can fill out. In addition, the Employer "is skeptical" of the wording the Union would add to the "Protective Equipment/Clothing" section, and believes it would "lead to daily challenges and litigation regarding the performance of work in conjunction with the issuance" of personal protective equipment (PPE) generally, "and safety shoes for cashiers, in particular."
b. The Union’s Position
The Union proposes to add the following wording to the "On the Job Injuries" section of the expired MLA: "If the employee does not hear from DeCA management within 30 days that a claim for Workers Compensation has been forwarded to the Department of Labor, Office of Workers Compensation Claims, the employee is not precluded from pursuing the matter directly to that Office." It would add another sentence to the "Protective Equipment/Clothing" section: "Employees will be provided and are required to wear personal protective equipment, such as safety shoes, while performing tasks such as stocking displays, operating equipment, etc., regardless of how infrequently the tasks are performed." Like the Employer, the Union also would modify the "Adverse Weather Conditions" section of the expired MLA. In this regard, it would replace the wording that required commissaries to close no later than 1 hour from the time an installation is closed due to implement weather with the following:
When an installation closure or curtailment of operations is announced during the work day due to adverse weather conditions, the EMPLOYER will notify the commissary UNION Representative of the announced impending installation closure at the time of notification from the installation commander.
The Union also proposes to add a final sentence to the section stating that:
Employees who are designated as essential will be provided a Position Description indicating that status at the beginning of the appraisal cycle or later if the designation is made later, unless they have been provided the PD previously and the designation has not been changed.
Permitting employees to
pursue workers compensation claims directly with the OWCP unless Employer
informs the employee within 30 days that the claim has been forwarded "is
necessary to improve the timeliness of the Employer’s processing" of such
claims. It also would promote "efficient management practices, good
employee relations, and equity." The wording it proposes in the area of PPE
is necessary to protect employees from the affects of the Employer’s
"multi-skilling program," whereby "additional employees will now
be susceptible to performing the more hazardous kinds of duties." The
existence of such a program, and the need for its proposal, is demonstrated by a
new performance plan for the Sales Store Checker position in which management
includes a requirement that employees comply with established safety policies
and practices, including the wearing of PPE, if applicable. Moreover, DeCA’s
"propensity to try to cut short-term costs at the expense of safety"
is established by a copy of a notice from the Occupational Safety and Health
Administration (OSHA) of "serious" violations of safety requirements
at one of its commissaries. Finally, advance knowledge of whether an employee is
essential or non-essential through the use of the PD benefits employees by
allowing them to plan for use of available leave when adverse weather conditions
arise, and provides the Employer with an efficient, low cost way of
communicating the information.
Upon thorough consideration of the parties’ evidence and arguments, we shall order that this article be resolved on the basis of the Employer’s final offer. Among other things, the Union has not provided evidence that OWCP claims currently are not processed in a timely manner, or shown how permitting employees to submit such claims directly to the OWCP would expedite matters. In addition, although the parties vociferously disagree over PPE, without more evidence than the Union provides that the Employer is failing to abide by the requirements of DeCA and federal directives, there is no basis to conclude that the safety of employees is not adequately being protected. Finally, we are persuaded that the mission of the commissaries makes it difficult to designate in advance which employees are non-essential for the purpose of early dismissal when adverse weather conditions arise. Therefore, removing "essential/non-essential employees" from the list of topics specifically identified as subject to local negotiations appears warranted.
4. Article 22 - Annual Leave
The Employer opposes the wording that the Union would add to the "General Provisions" section of the expired MLA article, and proposes the following modified version of the "Advance Annual Leave" section:
Requests for advance annual leave will be submitted in writing to the supervisor. Final approval authority will be made at the appropriate level. When the decision is made, the supervisor will notify the employee within two (2) workdays. Advance leave may be granted up to the number of hours the employee will accrue within the remaining leave year. Employer will consider request for advance annual leave fairly and objectively on a case-by-case basis.
The Employer’s final offer basically retains the wording of the previous MLA in this section, which provides employees with the ability to request advances on the annual leave they are to accumulate during the leave year. Its only addition to the section is highlighted above. Its proposal is consistent with annual leave policies "throughout the federal government." Under the Union’s proposal, employees would be "entitled" to use annual leave before it has been accrued. Among other things, because the number of hours worked by part-time employees may change from pay period to pay period, it would be impossible for management to forecast correctly the amount of annual leave that would accrue during the leave year for such employees. In addition to the "administrative nightmare" that would ensue if the proposal is adopted, the potential cost of recouping advanced annual leave when an employee quits during the leave year would be administratively burdensome, and "greatly increase the Agency’s payroll transaction costs." The Union has failed to demonstrate the need for this "tremendous change" in annual leave accrual procedures, or that its proposal is comparable to what other similarly-situated federal employees receive.
b. The Union’s Position
The Union proposes that
the following sentence be added to the "General Provisions" section of
the expired MLA article: "At any time during the leave year, employees will
be entitled to use the annual leave they will earn during the remainder of the
leave year." It also proposes that the "Advance Annual Leave"
section be dropped from the parties’ successor MLA. Its proposal would benefit
employees by permitting them to request vacations earlier in the year, and
provides the Employer added flexibility to manage the scheduling of annual leave
during non-peak business periods throughout the year. The Employer’s
objections to this "win-win change" are overstated, particularly its
concerns about recoupment of advanced annual leave. In this regard, DeCA has the
ability to withhold from final pay, which occurs 2 weeks after separation, any
overpayments that would be attributable to the adoption of its proposal.
Moreover, the parties have already agreed that the Employer initially decides
how many employees can be on leave at any given time, and may disapprove
previously approved leave for business reasons.
On this issue, we are persuaded that the impasse should be resolved by imposing the Employer’s final offer. In this regard, in agreement with the reasons provided by the Employer, an organization like DeCA, with a high percentage of part-time employees and a high turnover rate, appears to be particularly ill-suited for a provision that would entitle employees to use the annual leave they might earn during the remainder of the leave year prior to when it is actually earned. In any event, in the absence of a voluntary agreement between the parties to try an approach so different from the practices of the vast majority of other federal agencies, we are unwilling to impose it on a reluctant employer.
5. Article 29 - Employee Assistance Program
The Employer would modify the first sentence of section 1 of this article to read: "EMPLOYER will provide an Employee Assistance Program (EAP) to employees who have alcohol and/or drug problems that includes short-term counseling and/or referrals for long-term counseling or treatment." A change in the status quo is justified because EAP services typically are provided through Inter Service Support Agreements (ISSAs) with the military installations where the commissary stores are located. Evidence in the record demonstrates that many of the military EAPs only provide prevention, treatment, and rehabilitation services for alcohol and drug problems, but no additional services for "other personal problems." Continuing the provisions of the previous MLA concerning EAPs in such circumstances could require the Employer to expend additional funds to provide assistance for non-alcohol or drug abuse related problems, or risk violating the MLA. The Employer’s proposal is also consistent with the policy of the federal government, and the federal law currently in effect, which only require establishment of programs to assist employees with alcohol and/or drug problems.
The Union opposes changing
the status quo on this article, which states that the EAP "is
established to help employees with health problems such as alcohol or drug abuse
or with other personal problems that may also result in impaired job performance
or misconduct." This is consistent with Office of Personnel Management (OPM)
guidance provided to supervisors for addressing and resolving poor performance,
issued in 1998, which encourages knowledge of available EAPs for responding to
employees’ "personal problems" that are having an impact on their
work. In view of the fact that the guidance comes from OPM, "the Government’s
human resources management agency," the benefits to employees of having a
broad-scope EAP outweighs DeCA’s inclination to narrow its program.
Continuation of the current EAP program also would provide "consistency to
administration of the EAP, performance management, and discipline," and
allow DeCA to assist all its employees equitably.
Having carefully considered
the parties’ positions on this issue, we shall order the adoption of the
Employer’s final offer to settle their disagreement over the article. In our
view, obtaining EAPs for employees through ISSAs is a prudent use of taxpayer
dollars, and the record substantiates that a significant number of these EAPs
provide prevention, treatment, and rehabilitation services only for alcohol and
drug problems, but not for "other personal problems." Given these
facts, we are persuaded that the Employer has justified the need to change the
provisions of the expired EAP article.
6. Article 35 - Performance Management
a. The Employer’s Position
The Employer would exclude from the parties’ successor MLA on this article the wording that the Union proposes be added as Section 1.d., and its footnote on the intent of Section 4.a. With respect to the former, the Employer has no problem with an employee who believes that he or she has been given conflicting instructions by supervisors calling the conflict to the attention of the supervisor issuing the last instruction. Its difficulty is with the last part of the proposal, which states that once an employee calls such conflict to the supervisor’s attention, "the conflict will not be a basis for action against the employee." Without further clarification as to what this means, an absolute prohibition on the "conflict" being a "basis of action" against the employee could be used to shield him or her from the Employer’s right to discipline for failure/refusal to follow a supervisor’s instructions. Furthermore, the Union has failed to demonstrate a need for this proposal, or its proposed footnote on the intent of Section 4.a., which concerns measures to be provided to an employee during a Performance Improvement Period (PIP).
b. The Union’s Position
The Union proposes that the following wording be added as Section 1.d. in Article 35:
If an employee believes he/she has been given conflicting instructions by supervisors, the employee should call the conflict to the attention of the supervisor issuing the most recent instructions. Once an employee calls a conflict to management’s attention, the conflict won’t be a basis of action against the employee.
It also proposes that a footnote be added to Section 4a of the article, which would state as follows:
The supervisor is the one who makes the decision [on the appropriateness of providing counseling, training, and guidance, as part of a performance improvement plan (PIP)], and it is based on what is appropriate in the circumstances. Appropriate considers the interests of the EMPLOYER and the Employee.
Recent changes in the
"Civilian Performance Plans" prepared by the Employer and distributed
to store checkers includes responsibility for being a "multi-skilled team
member (alternating between departments as required)." An emphasis on
multi-skilling means that employees will be put "into the awkward, and
vulnerable, position of sometimes receiving conflicting orders because they have
multiple supervisors telling them what each supervisor wants done." The
Union’s limited approach attempts to focus on the conflict itself, rather than
trying to shield employees from accountability, by stating that "the
employee would not be subjected to action by the Employer that was based on the
existence of the conflicting orders, as long as the employee spoke up when the
conflicting orders became known."
After carefully considering
the evidence and arguments presented by the parties, we conclude that, on
balance, the Union’s final offer provides the more reasonable basis for
resolving their impasse. On the key issue of employees receiving conflicting
instructions from supervisors, the Employer’s only complaint is with the
portion of the Union’s proposal which provides that, once an employee calls
the conflict to management’s attention, the conflict will not be a basis of
action against the employee. In light of the Union’s clear statement that its
proposal is not intended to prevent employees from being held accountable for
failures to follow instructions, we are persuaded that the Employer’s concern
is without merit. Accordingly, the Union’s final offer shall be imposed to end
the parties’ dispute.
7. Article 42 - Categories of Employees
a. The Employer’s Position
In essence, the Union should be ordered to withdraw its proposals on Sections 1 and 3 of this article. The first sentence of the Union’s proposal on Section 1 concerns personnel actions intended to ensure that part-time employees receive proper service credit when they are required to work a different number of hours for more than two consecutive pay periods. It is unnecessary because the matter is already addressed in an existing Agency-wide directive which the Employer is bound to follow. The last sentence of the section is unclear because it contains wording suggesting that personnel actions are "permanent" unless documentation includes a "not to exceed" date. This implies that the change is permanent, which runs counter to the reason a part-time workforce is used, i.e., to provide the flexibility to change the number of hours worked to conform to mission requirements. Similarly, the Union’s proposal in Section 3 that the parties "negotiate fully" if additional categories of employees are established or current categories are changed, is also unclear. Negotiations over "categories of employees" may involve a permissive subject over which the Employer has elected not to bargain. Moreover, the proposal is unnecessary because the Union has already agreed to limit bargaining to, among other things, existing DeCA directives, and there is a DeCA directive that provides the Agency’s policy on intermittent and temporary employees. Not only is there no need to bargain, "there is certainly no need to bargain at the local level, on a store-by-store basis, regarding the categories of employees."
b. The Union’s Position
The Union proposes that the following wording be added to Article 42:
Section 1: If a part-time employee is required to work a different number of hours for more than two consecutive pay periods, the supervisor must initiate a personnel action to change the employee’s work schedule or to change the tour of duty to reflect the number of hours scheduled to work. When such personnel action is made, the change reflected on it is permanent unless the SF-50 includes a "not to exceed" date.
Section 3: The parties will negotiate fully in the event additional categories of employees are established or current categories are changed.
The purpose of its proposed wording in Section 1 is to provide a permanent record of hours worked so employees receive proper service credit. This is "one of the most fundamental rights an employee has" because it affects retirement and leave benefits, eligibility for health insurance, and retention standing in layoffs. While OPM’s general personnel guidance indicates that an SF-50 is the preferred form for documenting such actions, the proposal also permits the Employer to use "other appropriate equivalent documentation," so long as it becomes an official long-term part of the employee’s Official Personnel File.
Having considered the
parties’ proposals and supporting arguments on this issue, we are persuaded
that the dispute should be resolved on the basis of the Employer’s final
offer. In addition to the ambiguities that the Employer cites in both of the
Union’s newly-proposed sections, the Union has presented no evidence that
commissary management even occasionally, let alone routinely, fails to ensure
that part-time employees receive proper service credit. Hence, the Union has
failed to demonstrate the need for its proposal.
8. Article 46 - Contracting Out/Competitive Sourcing Program
a. The Employer’s Position
Among other things, the Employer proposes to: (1) change the title of this article from "Contracting Out" to "Competitive Sourcing Program;" (2) reflect the wording contained in Circular A-76 regarding the Union’s opportunity to participate in the development of supporting documents and proposals; (3) commit management to taking reduction in force "avoidance actions," rather than maintain the wording in the expired MLA, which specifically identifies the use of attrition and restriction of new hires as the actions it would take to minimize the adverse impact of contracting out decisions; (4) eliminate reference to negotiations over § 7106(b)(1) matters; and (5) include wording stating that: "Disputes over the compliance with the Circular A-76 and its Supplement are not grievable under the negotiated grievance procedure and should be pursued under the Circular A-76 appeal process."
Changing the references in this article from "contracting out" to "competitive sourcing initiatives" more precisely acknowledges that not all management initiatives where Circular A-76 is involved lead to contracting out. Some of its other changes are designed to distinguish between situations involving full A-76 studies or direct conversions, and more accurately reflect where the Union is entitled to participate in the development of supporting documents and proposals. This is intended to address "confusion" on the part of Union officials during the term of the previous MLA regarding which supporting documents they were entitled to participate in the development of in situations involving direct conversions. The Employer also proposes wording to more accurately reflect that the use of attrition and restriction of new hires are but two examples of RIF "avoidance actions." Its elimination of references to further negotiations, including negotiations over § 7106(b)(1) matters, is justified because parties have already agreed to negotiate over specific RIFs in Article 45.
Turning to the Union’s final offer on this article, the first sentence of its proposal on Section 4 is nonnegotiable because it would permit grievances over whether the requirements of Circular A-76 were followed to be pursued under the parties’ negotiated grievance procedure. The first part of the Union’s proposal in Section 7 is unnecessary because the same wording is contained "verbatim" in Circular A-76, and "muddies up the MLA" by also permitting the Union to enforce the provisions of the Circular through the negotiated grievance procedure. Moreover, consistent with the requirements of Circular A-76, DeCA does not develop the documents the Union refers to in portions of its proposal for actions having an impact on 10 or fewer FTEs. The Employer also could not provide the Union with 180 days notice of its intent to change the performance of work because "in most cases" it determines "to initiate a competitive sourcing initiative in less than 180 days." Nor has the Union demonstrated the need for weekly meetings between Union and management to discuss ways to meet the competitive outsourcing criteria that have been predetermined by the Office of Management and Budget, and are "not subject to negotiations." Finally, the Union’s proposal to require work to be performed in-house if the criteria can be met by mutually agreed upon suggestions and ideas is nonnegotiable because it "constitutes a substantive limitation on the Agency’s right to contract out under section 7106(a)(2)(B)" of the Statute, and the Union has not demonstrated that it is an appropriate arrangement under section 7106(b)(3).
b. The Union’s Position
The Union proposes that the title of the article continue to be "Contracting Out," and that all references to "contracting out" in the expired MLA article be retained. It also proposes certain changes to other sections of the expired article so as to make them consistent with its newly-proposed Section 7. In this regard, its proposed wording in Section 7 is as follows:
Activities With 10 or Fewer FTE. Commercial activities involving 10 or fewer FTE may be performed by in-house, contract, or ISSA performance, without cost comparison, if the contracting officer determines that offerors will provide required levels of service quality at fair and reasonable prices, which shall be the criteria for the determination. The following procedures will be followed in making such determination.
a. No less than 180 days prior to the determination, the UNION will be notified that DeCA is considering changing performance of certain work to in-house, contract, or ISSA performance. Notification will include supporting documents and proposals, including any performance standards that will attach to the work; performance work statements or equivalent detailed description of the work; any management plans/management efficiency study; any Milestone Chart governing the determination; in-house, ISSA, and contract cost estimates; and any other information used in the development of the above documents.
b. If the above or other documents related to the determination are developed or requested after the notification, they will be provided to the UNION at the time they are developed.
c. The UNION and DeCA will meet regularly, at least weekly, to discuss ways to meet the criteria and keep the work in-house. During those meetings, they will incorporate into the consideration any suggestions or other ideas that promote the criteria.
d. If the criteria can be met by mutually agreed upon suggestions or ideas, as an appropriate arrangement for employees under section 7106(b)(3) of the Statute, the work will continue to be performed in-house.
Its newly-proposed Section 7 is designed to ensure joint cooperation between Union and management when the requirements of Circular A-76 do not apply (i.e., when the initiative involves 10 or fewer FTEs). For this reason, "there is no conflict between this Section and proposals found nonnegotiable because they would provide alternative methods to determine and enforce such proposals as violations of A-76, which the A-76 does not permit." The adoption of its proposal is warranted because it could lead to finding ways other than contracting out for providing required levels of service quality at fair and reasonable prices, and puts the onus on the Union to demonstrate how the criteria could be met. In addition, the part of the proposal that requires the work to continue to be performed in-house if the Union can find ways to meet the criteria established by DeCA is an appropriate arrangement under section 7106(b)(3) of the Statute because the Employer determines the criteria, and can reject "unilaterally" any suggestions for meeting them.
After carefully reviewing the parties’ final offers on this article, we are persuaded that the Employer’s would provide the better resolution of the impasse. Although both parties propose changes to the expired MLA provisions, the Employer’s final offer appears to involve reasonable adjustments that address real defects in the previous wording. The Union, on the other hand, proposes major changes which are not supported by the record. For example, if the Panel were to adopt Section 7.a. of its proposal, any Employer determination to contract out work involving 10 or fewer FTE could not occur in less than 180 days. During the 180-day period, the Employer would be required to meet with the Union on at least a weekly basis, presumably to give the Union an opportunity to persuade it to permit the work to continue to be performed in-house. While the Union’s goal of preserving the work of unit employees is understandable, mandating joint cooperation in the contentious area of contracting out, in our view, is likely only to delay unnecessarily management’s decision-making process. Accordingly, we shall order the adoption of the Employer’s final offer.
9. New Article - Multi-Skilling/Broadbanding and Related Changes
a. The Employer’s Position
The Union should be ordered to withdraw its proposed new article on "Multi-Skilling/Broadbanding and Related Changes." The Employer "does not see a need for the Union’s proposal," which is why it does not have a counterproposal. Generally, the scope and impact of the Employer’s decision to modify the PDs of the Sales Store Checker and Commissary Contract Monitor positions to include duties performed in other departments has been "completely overblown" by the Union. In particular, numerous subsections within the Union’s proposed article directly and/or excessively interfere with various management rights, and/or are otherwise unnecessary.
b. The Union’s Position
The Union’s newly-proposed article would apply "to any DeCA action that results in changes to employees’ assigned duties that add work not previously part of the employee’s position or unrelated to the employee’s position (from another classification)," and to "employees whose positions are affected by changes covered in this Article." The article does not seek or result in "obstructing management’s choice of how it assigns work under its multi-skilling program," but "protects employees affected by the change by recognizing its impacts on them." Section 2.a. identifies certain types of "appropriate assistance" for employees who have difficulty performing the new work safely, and mandates involvement of the Union, employee, and supervisor in finding a solution. Section 2.b. requires the Employer to approve requests from employees not to perform the work by reason of "harm," "temporary illness or injury," and "similar hardships." Section 2.c. prevents the Employer from opposing a Worker’s Compensation claim on the basis that an employee did not request an exception from work that was added to his/her position under multi-skilling/broad banding. Section 3.a. requires each of the Employer’s worksites to provide the Union with its policy and criteria for the use of multi-skilling/broadbanding. Section 3.b. mandates the use of seniority procedures for selecting employees for such assignments. Section 3.c. requires the Employer to notify employees of whether volunteering for such assignments would provide career-enhancing opportunities, and how. Finally, Section 4 requires joint local Union-Management monitoring of the use of multi-skilling to resolve and clarify problems that emerge regarding its effects. Such "hortatory language" is needed to maximize the use of multi-skilling, and sends a "positive message" to supervisors and employees that it is both "necessary" and "subject to improvement."
Having assessed the parties’ positions on this issue, we shall order the Union to withdraw its newly-proposed article. Aside from the numerous nonnegotiability arguments raised by the Employer regarding various subsections where the Union has failed to provide supporting citations to appropriate FLRA case law, the Union has not established the existence of a "multi-skilling program," let alone that there are adverse affects on employees that need to be addressed. Without evidence of adverse impact, the changes to the PDs that both parties agree have occurred are insufficient to demonstrate the need for its final offer.
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 the proceedings instituted under the Panel’s regulations 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel under 5 C.F.R. § 2471.11(a) of its regulations hereby orders the following:
1. Article 5 - Dues Withholding
The parties shall adopt the Employer’s final offer.
2. Article 11 - Hours of Work
The parties shall adopt the following wording:
HOURS OF WORK
Section 1. Definitions
a. Tour of Duty is the hours of the day and the days within the administrative workweek during which the employee is required to perform service on a regular, repetitive basis. The administrative workweek of employees is the calendar week, 0001 hours Sunday through 2400 hours Saturday. Employees should not be scheduled to work more than 6 of any 7 consecutive days. Although work schedules will be for a minimum of one week, longer work schedules currently in effect may continue unless changed by local negotiations.
b. The Basic Workweek of Full-Time Employees shall consist of five (5) consecutive eight (8) hour days within the administrative workweek and two consecutive days off, subject to workload requirements. Where non-consecutive days off are in effect, that tour of duty may continue unless changed by local negotiations, as outlined in Article 6.
c. The Basic Workweek of Part-Time Employees shall consist of 16 to 32 hours, regular or irregular schedule, within the administrative workweek. The EMPLOYER will attempt to schedule two consecutive days off within the administrative workweek for part-time employees subject workload requirements. The number and sequence of days off to accommodate employee and commissary requirements will be negotiated locally.
d. Seniority is defined as an employee’s Service Computation Date (Leave) date unless otherwise noted.
Section 2. Meal Period
a. Full-Time employees shall be granted, on a non-paid basis, a meal period, scheduled at or near the mid-point of the tour of duty, of at least one-half (½) hour each workday; or, upon an employee’s request and with the supervisor’s approval, a meal period of up to one (1) hour.
b. Part-Time employees who work six (6) hours or more in a workday will be granted on a non-paid basis a one-half (½) hour meal period scheduled at or near the mid-point of the tour of duty, or upon an employee’s request and with the supervisor’s approval, a meal period of up to one (1) hour. A part-time employee who works six (6) hours and does not desire a non-paid lunch will be permitted to forego his/her non-paid lunch period, upon the employee’s request and with the supervisor’s approval. Such decisions will be made at the start of each pay period, and remain in effect for the entire pay period.
c. When a normal, scheduled meal period is not feasible within a shift, a twenty (20) minute working meal period shall be permitted and considered as time worked for pay purposes, as long as the employee is required to remain at the work site. Changes in the working meal condition are subject to local negotiations.
Section 3. Breaks
a. Employees working six (6) hours or less will be authorized a total of fifteen (15) minutes of rest during the workday.
b. Employees working more than six (6) hours will be authorized the above fifteen (15) minutes plus an additional fifteen (15) of rest during the workday.
c. Provisions addressing the number, timing, and sequence of breaks are subject to local negotiations. If rest breaks are in increments of fifteen (15) minutes, the breaks will be taken at or near the midpoint between the start of the employee’s workday and the employee’s meal period, and the midpoint between the employee’s meal period and the end of the tour of duty.
d. Rest periods will not be scheduled to start or end the tour of duty or be a continuation of the meal period and are not cumulative.
Section 4. Notification of Schedules
Employee will be notified of their work schedules one (1) week in advance of the administrative work week. In accordance with 5 code of Federal Regulations, 610.12(a), when the EMPLOYER determines that the EMPLOYER would be seriously handicapped in carrying out its function or that costs would be substantially increased, notification of less than one week will be permitted. A copy of any work schedule changes will be provided to the UNION.
The EMPLOYER recognizes the need for proper rest and recuperation of it’s employees. The EMPLOYER will schedule reasonable time between and individual employee’s shifts.
Section 5. Holiday Work Procedures
A general announcement of intent to have employees work on holidays will be posted on employee bulletin boards two weeks in advance of the holiday, unless the store has less notice. When scheduling employees for work on holidays, the EMPLOYER will first ask for volunteers, and will select the number of needed employees by seniority on a rotating basis. If an employee is to be scheduled involuntarily, rotating inverse seniority will be used. Personal needs exceptions will be considered on an equitable basis. The EMPLOYER will determine whether an employee is qualified to perform the work.
Section 6. Overtime Work
a. Planned Overtime Work Procedures. In the case of planned overtime, notice will be provided as far in advance as possible. When scheduling employees for overtime work, the EMPLOYER will first ask for volunteers, and will select the number of needed employees by seniority on a rotating basis. If an employee is to be scheduled involuntarily, rotating inverse seniority will be used. Personal needs exceptions will be considered on an equitable basis. The EMPLOYER will determine whether an employee is qualified to perform the work.
b. Unplanned Overtime Work Procedures. In the case of unplanned overtime, notice will be provided as far in advance as possible. The EMPLOYER will first ask for volunteers who are on duty, and will select the number of needed employees by seniority on a rotating basis. If an employee is to work overtime involuntarily, rotating inverse seniority will be used. Personal needs exceptions will be considered on an equitable basis. The EMPLOYER will determine whether an employee is qualified to perform the work.
c. Hours worked in excess of 8 hours in a day or 40 hours in a week are overtime. Unless an employee chooses to receive compensatory time, overtime pay must be paid.
Section 7. Extension of Part-Time Employee Workday Before or After Tour of Duty
a. When work requirements dictate the need for additional hours to be worked by employees already scheduled to work on a workday, scheduling decisions will be made by soliciting qualified volunteers first, in seniority order. This provision will not require that an employee be offered additional work resulting in overtime.
b. If there are insufficient volunteers, the decision will be made using inverse seniority. Personal needs exceptions will be considered on an equitable basis.
c. The affected employee will be notified as much in advance as possible of the additional hours needed by the EMPLOYER. Such notice will be provided at the time the EMPLOYER becomes aware of the event that created the need for additional hours, such as when another employee notifies the EMPLOYER of a need to be on unplanned sick leave.
Section 8. Clean-up Time
Where the type of work requires, an employee will be allowed a reasonable time at meal time, break time, and at the end of the workday to perform necessary personal hygiene.
Section 9. Planned Store Closures for Other than Federal Holidays
a. When a planned store closure occurs and there is other work available for affected employees, employees scheduled to work during the closure will have the following options: perform other duties, request annual leave without pay, or have the tour of duty rescheduled to recapture hours otherwise lost for the pay period.
b. When a planned store closure occurs and there is no other work available for affected employees, employees scheduled to work during the closure will have the following option: request annual leave or leave without pay, or to have the tour of duty rescheduled by the EMPLOYER to recapture hours otherwise lost for the pay period. If the employee does not elect to request annual leave and the tour of duty cannot be rescheduled to recapture those hours, the employee will be granted administrative leave. If the full work force is not required, the selection process will be Section 7 (a) & (b) above for all employees.
c. Thirty days’ notice will provided to employees of closures under this section.
Section 10. Federal Holidays
a. In accordance with 5 USC Section 6103(a), the following are legal public holidays recognized by DeCA:
New Years Day, January 1
Birthday of Martin Luther King, Jr. the third Monday
President’s Day, the third Monday in February
Memorial Day, the last Monday in May
Independence Day, July 4
Labor Day, the first Monday in September
Columbus Day, the second Monday in October
Veterans Day, November 11
Thanksgiving Day, the fourth Thursday in November
Christmas Day, December 25
Additional holidays declared by the Congress or the President will also be recognized.
b. For full-time employees whose basic schedule is Monday through Friday, when the legal, public holiday falls on a Saturday, the Friday preceding it is the day treated as the holiday. If the holiday falls on Sunday, the following Monday is the day treated as the holiday.
c. In accordance with 5 USC 6103(b), the following rules apply:
1. Part-Time employees who are scheduled to work on a legal public holiday will be paid for that holiday.
2. Part-Time employees who are not scheduled to work on a legal public holiday will not be entitled to holiday pay.
d. For Part-Time employees prevented from working due to In-Lieu-Of Holiday, the PARTIES are encouraged to discuss and if necessary negotiate the following options:
-- Administrative leave, if approved by the EMPLOYER on a holiday-by-holiday basis;
-- Annual leave, accrued compensatory time, leave without pay, or time off award;
-- Reschedule hours within the same pay period to recapture hours otherwise lost;
-- A combination of the above.
Section 11. Daylight Savings
a. If the employee’s tour of duty coincides with daylight savings time and requires working an additional hour, the employee will be paid for the actual hours worked.
b. If the hours worked are less than normal because of daylight savings time, the employee will be on leave or work the additional hour.
Section 12. Obtaining and Securing Government Property
Reasonable time will be allowed at the beginning of the tour of duty, before meals and breaks, and at the end of their tour to prepare or secure government property and equipment used to perform an employee’s duty.
Section 13. Split Shifts
Split shifts are not permitted and will not be used.
Section 14. Types of Schedules
a. Full-time employees will be given a fixed schedule. Fixed schedules may consist of weekly tours of duty but do not vary from pay period to pay period, and may be rotating or non-rotating.
b. Fixed schedules for part-time employees will remain the same at each Commissary, or be established, only where operational needs permit.
c. It is understood that work schedules are subject to change depending on the operational needs of the Employer and/or availability of employees. Such needs as rotating receivers and accommodating light duty needs may affect scheduling. Such cases will not be subject to the provisions of section 16. The Employer will attempt to keep work schedule changes to a minimum, consistent with operational needs. Personal needs exceptions will be considered on an equitable basis.
Section 15. Alternative Work Schedule
Provisions for AWS may be negotiated at the local level and if negotiated, will include a trial period. Any AWS implementation or modification will be done consistent with the requirements of the Federal Employees Flexible and Compressed Work Schedules Act.
Section 16. Equitable Distribution of Tours of Duty
a. By department, and an employee’s title, series and grade, when a Tour of Duty opening arises, Service Computation Date (leave) will prevail if more than one qualified employee bids on that Tour of Duty. No full-time employee may bid on a part time tour of duty or vice versa nor may bids be made on unequal part time tours of duty. If no individual bids on a needed tour of duty, then inverse seniority will be applied. No employee will be required to bid on a Tour of Duty opening. Whether this provision will apply to encumbered Tours of Duty is an appropriate subject for local negotiations.
b. Notification of Tour of Duty openings will be provided to employees and the UNION.
Section 17. Pagers
In accordance with 5 CFR 551.431(a)(1)(2), an off duty bargaining unit employee who is required to carry and respond to a pager, will be in a standby pay status and will be subject to the following restrictions:
a. The employee is restricted to an agency’s premises, or so close thereto that the employee cannot use the time effectively for his her own purposes; or
b. The employee, although not restricted to the agency’s premises:
1. Is restricted to his or her living quarters or designed post duty;
2. Has his or her activities substantially limited; and
3. Is required to remain in a state of readiness to perform work.
3. Article 12 - Safety and Health
The parties shall adopt the Employer’s final offer.
4. Article 22 - Annual Leave
The parties shall adopt the Employer’s final offer.
5. Article 29 - Employee Assistance Program
The parties shall adopt the Employer’s final offer.
6. Article 35 - Perfo