DEPARTMENT OF THE AIR FORCE SEYMOUR JOHNSON AIR FORCE BASE SEYMOUR JOHNSON AFB, NORTH CAROLINA and LOCAL R5-188, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, SEIU, AFL-CIO
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
DEPARTMENT OF THE AIR FORCE
LOCAL R5-188, NATIONAL
Case No. 02 FSIP 206
DECISION AND ORDER
Local R5-188, National Association of Government Employees (NAGE), SEIU, 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 the Air Force, Seymour Johnson Air Force Base (SJAFB), Seymour Johnson AFB, North Carolina (Employer).
Following investigation of the request for assistance,(1) which arose from negotiations over a successor collective bargaining agreement (CBA), the Panel directed the parties to provide single written submissions in support of their final offers on the portions of the six contract articles that remain in dispute, with the Panel to select between their final offers on an article-by-article basis, insofar as they are otherwise legal. Pursuant to the Panel’s procedural determination, the parties’ submitted written statements in support of their final offers, and the Panel has now considered the entire record.
The Employer supports the 419th Air Refueler Wing (KC-135 aircraft), and the 4th Fighter Wing (F-15E aircraft). The Union represents a bargaining unit consisting of approximately 350 Wage Grade and General Schedule employees, and air reserve technicians (ARTs),(2) who work in such positions as maintenance mechanic, electrician, plumber, and carpenter. The parties’ CBA was executed in 1991, and has been renewed since that time.
ISSUES AT IMPASSE
The parties’ disagree over parts of the following articles: (1) Union Representation; (2) Matters Appropriate for Consultation or Negotiation/Negotiations; (3) Incentive Awards Program/Awards; (4) Travel/Temporary Duty Travel; (5) Negotiated Grievance Procedure; and (6) Miscellaneous.(3)
POSITIONS OF THE PARTIES
1. Union Representation
a. The Employer’s Position
The Employer proposes that Section 2 of the article contain the following wording: ". . . The Union President, or acting President, will be granted four (4) hours per day, 5 days per week, official time for representational functions . . . ." It also would continue the current practice of granting reasonable amounts of official time to other Union representatives. Management’s final offer is "clearly superior" to the Union’s because it increases the daily amount of official time for the Union President by 1 hour per day from what the CBA currently provides, while the Union proposes a "dramatic increase" to 60-percent official time which is unsupported by the evidence. An employee working 60 percent of her time for the Union "would likely have trouble being a productive worker using only the 40 percent" allocated to her career. In addition, the Union’s proposal to provide the Executive Vice President and Vice President each with 25-percent official time is "not necessary." Whenever Union officials, including the Union President, require official time, "it is granted to them."
The Union’s wording is also "somewhat ambiguous" in defining how the 60-percent official time would be "divided among days" and between the Union President and an "acting" president, which could give rise to disputes between the parties. With regard to such disputes, the Union’s argument that the increases in official time it is proposing are justified by "‘well documented’ poor labor relations," is flawed. While it has filed 20 unfair labor practice (ULP) charges during the 18-month period before December 2002, 13 were "without merit" and, "to date, none of the 20 ULPs resulted in a posting." Similarly, of the 13 arbitrations the Union filed during the same period, only 2 were "actually heard," with each side prevailing once.
b. The Union’s Position
The following wording in Section 2 is proposed by the Union:
The Union President or acting President will be granted 60-percent official time for representational functions. The Executive Vice President and Vice President will be authorized 25-percent official time each for representational functions. The President, Executive Vice President, and/or Vice President is authorized additional time for negotiations, Weingarten situations, Third Party Proceedings and Management initiated meetings.
A "modest increase" in the Union President’s official time, and the establishment of fixed percentages of official time for all of the Union officials identified in the proposal, "is justified by the numerous and voluminous changes proposed by the Employer to conditions of employment, policies and instructions," day-to-day representational activities, and because of the "hostile anti-Union conditions" the Union President and other Union officials continually face. With respect to the Union President alone, during the term of the current CBA the Employer has suspended her, lowered her performance evaluation, and placed her on AWOL "while on Union representational functions." The Employer’s final offer should be rejected because it changes the status quo by denying the Union President "official time authorized by statute, 5 U.S.C. § 7131(a)," and is inconsistent with the ground rules for mid-term negotiations that the parties have agreed to which provide for negotiations to be held between the hours of 0830-1530. Moreover, by proposing to restrict the Union President’s official time use to 4 hours per day, 5 days per week, she would be prevented from participating in compressed work schedules available to other bargaining unit employees. Singling out the Union President in this manner "would constitute an unfair labor practice pursuant to 5 U.S.C. § 7116(a)(1),(2), and (4)."
Having carefully considered the parties’ evidence and arguments with respect to this article, we shall adopt a modified version of the Employer’s final offer which ensures that it is not inconsistent with law. Both sides propose to increase the official time granted to the Union President from amounts authorized under the current contract. If the Union’s proposal were adopted, however, its Executive Vice President and Vice President would, for the first time, receive pre-determined percentages of official time. In our view, the evidence provided by the Union does not justify such a significant change in the status quo. For example, it has submitted no data regarding the amount of official time these representatives have been granted under the current reasonable time standard, nor any evidence suggesting that the Employer has been unreasonable in responding to their requests for time to perform representational duties. Overall, therefore, we find the Employer’s final offer more acceptable.
A serious concern with the Employer’s approach, however, involves the Union’s contention that its adoption would deny the Union President official time authorized under the Statute. For instance, restricting the Union President’s use of official time to 4 hours per day would prevent the individual occupying that position from attending any negotiations, including impasse proceedings, that extend beyond that time. We construe the Union’s argument in this connection as a decision on its part to exercise its discretion to decline to negotiate over a permissive subject of bargaining. Viewed in this light, we shall modify the Employer’s final offer to ensure that it does not intrude upon subjects which arguably are permissive in nature and, therefore, are outside the required scope of bargaining.
2. Matters Appropriate for Consultation or Negotiation/Negotiations
a. The Employer’s Position
The parties’ final offers on this article essentially differ only with respect to Section 3. b., c., and e. In this regard, the Employer proposes the following:
b. The Union shall have five (5) calendar days from the date on which notification is signed for by the Union to request bargaining and a clarification meeting. The clarification meeting will be conducted within five (5) calendar days. Written proposals must be received within fifteen (15) calendar days following the clarification meeting. These time limits may be extended by mutual agreement.
c. The Employer shall provide full disclosure of all information relating to the proposed change at the meeting.
e. The Employer shall have twenty-five (25) calendar days from the date of receipt of Union-initiated proposed changes to conditions of employment to forward written proposals to the Union.
By using calendar days instead of work days, its proposal would expedite the initial "clarification" meeting between the parties to discuss Employer-initiated changes affecting unit employees. Expediency in the initial stages of the parties’ interactions is important because it anticipates that many "changes will be implemented without the need for negotiations." The Employer’s final offer also would be less confusing to apply, since it consistently refers to calendar days. Moreover, the use of working days, as the Union proposes, "will even further lengthen the implementation process where there is a holiday or ‘down day’," holding up proposed changes even in circumstances "where there is no need to negotiate."
b. The Union’s Position
The Union proposes the following wording on the subsections at impasse:
b. The Union shall have five (5) work days from the date on which notification is signed for by the Union to request bargaining and a meeting to discuss the Employer proposal. The request shall be in writing, but proposals do not have to be reduced to writing. A meeting will be scheduled within seven (7) work days of the request. These time limits may be extended by mutual agreement.
c. The Employer shall provide full disclosure of all information relating to the proposed change at the meeting. The Union will have twelve (12) work days from the date of the meeting to forward written proposals.
e. The Employer shall have fifteen (15) work days from the date of receipt of Union-initiated proposed changes to conditions of employment to forward written proposals to the Union.
Preliminarily, the title of the article should be changed to "Negotiations" because it is more reflective of the substance discussed therein, which nowhere defines or refers to consultation. The use of work days, rather than calendar days, would ensure that the Union has sufficient opportunity to review Employer-initiated changes, particularly if they involve lengthy documents, because it would not be "penalized the loss of time by weekends and holidays." At the same time that the Employer proposes to give the Union no more than 5 calendar days to request bargaining and a "clarification meeting" in cases of Employer-initiated changes, it unfairly proposes to give itself 25 calendar days to respond to Union-initiated changes. Finally, by not identifying the initial meeting as one involving "clarification," the Union’s final offer would avoid future disagreements between the parties.
After thoroughly reviewing the parties’ proposals regarding this matter, we are persuaded that the Union’s final offer provides the more reasonable approach. The use of work days, rather than calendar days, would ensure that the Union has sufficient opportunity to review Employer-initiated changes. In our view, the Employer’s desire for expediency, even in circumstances where ultimately no bargaining is required, is outweighed by the Union’s interest in having enough time to consider carefully its response to proposed changes in working conditions. The Union’s proposal also appears to avoid potential sources of conflict, which should be encouraged given the parties’ difficult relationship. Accordingly, we shall order the adoption of the Union’s final offer.
3. Incentive Awards Program/Awards
a. The Employer’s Position
The Employer proposes the following wording in the sections of this article where agreement has not been reached:
The civilian awards and recognition program will be conducted in accordance with AFI 36-1004, Managing the Civilian Recognition Program, dated 8 February 2001, as amended by this article. Management recognizes its obligation to provide any subsequent changes to this AFI to the Union and allow appropriate negotiations over it.
Management will identify available funds for civilian monetary awards. Normally, the Wing commander will allocate to each Group commander an amount of money in proportion to their respective share of wing labor costs. The Group commander may further distribute the money to their subordinate squadron commanders.
The existing system regarding awards for civilian employees "has worked well," and is "fair and equitable," while the Union’s proposal "would be difficult and confusing to implement . . . and likely would be unworkable." Among other things, it uses acronyms "not appropriate for application at an Air Force installation." More importantly, the creation of a Squadron Incentive Award Board (SIAB) would be "detrimental to work force relations" because it would permit "peers to be judging each other’s performance." Contrary to the Union’s proposed wording, management often does not know how much money will be available prior to January 1. The proposal also is unworkable because it mandates an incentive awards program "whether money is available or not."
b. The Union’s Position
The following sections are proposed by the Union:
The civilian awards and recognition program will be conducted in accordance with AFI 36-1001, dated July 1, 1999, and AFI 36-1004, dated 8 February 2001, Managing the Civilian Recognition Program, as amended by this article . . . .
Prior to 1 January each year, the Comptroller will recommend and the Commanding Officer (CO) will approve an amount of funds for civilian monetary awards. These funds will be apportioned to Squadron Commanders (SC) in direct proportion to their respective share of command labor costs. A pool of funds proportionally equivalent to their labor costs for employees reporting directly to the CO shall be separated from the general apportionment and managed by the CO for civilian monetary awards.
For those squadrons with 10 or more bargaining unit eligibles, all award recommendations will be reviewed by a Squadron Incentive Award Board (SIAB) prior to their reaching approval authority. Smaller Squadron heads may also elect to establish a SIAB. The board will consist of an equal number of employees, half appointed by the SC and half appointed by the local Union president. The board will advise the SC as to the recommended disposition of award recommendations with the exception of on the spot awards and awards requiring higher authority approval.
Its proposal to incorporate two Air Force Instructions (AFI 36-1001 and AFI 36-1004) into the article "is essential to developing an awards program that employees view as workable and fair." Reference to only AFI 36-1004 is inadequate because the other AFI addresses both Performance Awards and Quality Step Increases, which "are among the most important awards available to bargaining-unit employees." In referencing the instructions by both date and number, the proposal would prevent either side from changing the instructions during the term of the agreement. The Employer’s final offer, on the other hand, "implies that management can initiate" such changes, while overlooking the Union’s statutory right to do the same. The "solution" is to make both AFIs a part of the agreement "with neither party being able to initiate changes during the agreement’s term." Overall, the current awards program omits Union involvement, and "centers around favoritism and inequities." By providing for Union and unit employee input into award recommendations through the establishment of an SIAB, the awards program would be "fair and equitable for all." The committee concept is consistent with AFI 36-104, which authorizes the creation of an Installation Incentive Awards Committee, and provisions found "in other Department of Defense and Federal Activities Agreements."
Upon thorough consideration of the parties’ positions with respect to this article, we shall order that the dispute be resolved on the basis of the Employer’s final offer. Preliminarily, we note that there is little evidence in the record to permit us to assess their diametrically opposed views concerning the fairness and effectiveness of the current incentive awards program. In such circumstances, the side proposing the more dramatic change in the status quo, in this case the Union, bears the initial burden of demonstrating why a change is necessary. In our view, the Union has not met its burden.
4. Travel/Temporary Duty Travel
a. The Employer’s Position
The Employer essentially proposes to maintain the wording which exists in the current CBA on this article. Its only proposed change is the addition of the words "where applicable" to Section 3 of the existing provision to accommodate the relatively recent introduction of a Government Travel Card program, which no longer permits most travelers to receive advance travel pay. The status quo has worked to ensure that employees obtain the required training for their positions, and maintains the necessary flexibility to deploy employees on short notice. Although the current article contains a provision stating that the Employer will make every reasonable effort to accommodate employee hardship, "the mission of the Employer must not be compromised."
The Union’s proposal "makes sweeping changes" that are unnecessary and would "seriously impede the mission of the Employer" if implemented. In this regard, it makes temporary duty (TDY) travel "voluntary and subject to seniority." While such employee interests are legitimate, the Employer’s mission at times requires supervisors to specify that a certain employee receive certain training "regardless of that employee’s seniority and regardless of whether the employee wishes to travel to wherever that training is." The Union’s proposal also would require management to allocate resources to create and maintain a TDY roster for no good reason, and "could seriously" endanger security if the Union must be informed of the numbers and grades of employees sent TDY. Further, it is "counter to the Employer’s interest in good resource management" to provide rental cars to every employee on TDY, regardless of the specific circumstances, and would be "harmful to the work environment" because it would treat civilian employees better than their military co-workers. Finally, the decision as to whether an employee should wear a military uniform when performing TDY travel "is dictated by whether that employee is traveling in civilian or military status," so that part of the Union’s proposal is also "contrary to the Employer’s mission requirements."
b. The Union’s Position
The following are the most significant aspects of the Union’s proposed article. In Section 1, TDY travel would be defined as "assignments outside the commuting area of Seymour Johnson Air Force Base including deployments to non-hostile environments." Sections 3 through 9 essentially would establish a roster of qualified employees for assignments requiring travel, and a rotational procedure for distributing them. Among other things, except in emergencies, employees would be given at least 21 days notice before assignments requiring travel are directed; the Union would be informed in writing prior to the assignments of the number and grades of employees to be assigned; and employees who have been selected for TDY travel could request to be excused from the assignment "under unusual circumstances," with such requests not "unreasonably denied." In Section 10, travel assignments normally would be restricted to the normal workweek; employees required to travel on a holiday, or during time which corresponds to regular work hours when they otherwise would be off, would be paid overtime; and employees would be permitted to determine whether they are in a civilian or military travel status. Finally, while on a TDY assignment, employees would not be required to wear military uniforms (Section 11), and would be provided with rental cars (Section 12).
Its proposal is structured to solve "many issues" which surfaced during the term of the current agreement which were not addressed and became the subject of grievances. The creation of a roster system (Sections 3 through 9) "would ensure fair and equitable distribution of TDY," and strengthen current wording regarding exceptions for hardship. The need for this portion of the proposal was clearly established when a unit employee was disciplined for failing to go on a TDY assignment, even though the employee had a child care hardship and other qualified employees were available. Although the Union prevailed in arbitration, the need for a TDY process became "evident." Part of the wording it proposes in Section 10 addresses the confusion over what constitutes hours worked for overtime pay while in a travel status, and is taken from an agreement previously reached by a another NAGE local with a different employer. Another issue of concern to unit employees, who are also members of the Air Force Reserve unit, is addressed in parts of Section 10, and Section 11. Those sections clarify that such employees may choose their travel status as either civilians or military, and cannot be required to wear a military uniform while on TDY as a civilian. Section 12 would ensure that employees can attend "to personal needs such as obtaining food while on TDY."
On this issue, we are persuaded that the impasse should be resolved by imposing the Employer’s final offer. As indicated in connection with the previous article, the party proposing the more significant changes to the status quo bears the initial burden of justifying its position. In our opinion, the Union once again has failed to establish a record sufficient to support the need for a complete revamping of how TDY assignments are made. Particularly during the current turbulent times, the accomplishment of the Employer’s mission requires flexibility in making such decisions, rather than the rigidity of the roster system the Union is proposing. Moreover, the fact that the Union prevailed in arbitration concerning the one case it cites in support of its final offer suggests that the current contract provision is working as intended, rather than demonstrating that a roster system should be imposed. For these reasons, the parties shall be ordered to adopt the Employer’s final offer with respect to this article.
5. Negotiated Grievance Procedure
a. The Employer’s Position
In essence, in Section 11 the Employer proposes to establish a three-step grievance procedure; in Step 1, an employee would state the basis of his grievance, date of the incident being grieved, and remedy sought to the first-level supervisor, either orally or in writing. First-level supervisors would make a reasonable effort to resolve the grievance. If the response does not resolve the grievance, the matter would be elevated to higher steps and higher level management officials; at the last step, the management official deciding the matter would be the individual designated by the Wing Commander, normally the Mission Support Group Commander (MSGC) or his designee. All stages of the process would require corresponding actions within 7 workdays. Only one representative from either party would attend grievance meetings during any of the three steps "unless previously arranged." With respect to Section 12, only one representative from either party would attend grievance meetings involving Employer-filed grievances "unless previously arranged." Regarding Section 13, Union grievances would be filed in writing with the appropriate squadron commander or chief of staff within 10 workdays of the occurrence of the matter being grieved; subsequent steps would occur in 7-workday periods, culminating in a written decision by the MSGC.
Its proposed Section 11 essentially continues the same three- step grievance procedure for employee grievances found in the parties’ current CBA, which "is far superior" to the Union’s proposal because "it is a reasonable and logical procedure for use in a military organization" where "chain of command" is key. The Union’s proposal, on the other hand, is based only on "unverified assertions," and would give a supervisor only one opportunity to resolve a complaint before the matter goes directly to the Wing Commander, the senior official on the installation. The Employer’s proposal in Section 12 establishes a set number of representatives (one) to be present at grievance meetings, with a notification requirement when more personnel are needed. This is better than the Union’s approach, which states only "that an equal number of representatives from each side will be at these meetings but fails to specify any procedure for this." Finally, in Section 13 involving institutional grievances, the Employer basically proposes the same process which has "worked well for the past 10 years." Consistent with its proposal in Section 11, however, the Union would eliminate the possibility of settling disputes at the lowest level possible by sending all Union-filed grievances "straight to the senior level official on the installation." It also proposes "unrealistic" time limits on management, while eliminating "any time limits on itself for filing a grievance." Overall, the system proposed by the Union is not designed to foster the resolution of disputes, and the current procedure "must be viewed as superior."
b. The Union’s Position
In Section 11, the Union basically proposes the establishment of a 2-step grievance procedure; in Step 1, an employee would state the basis of his grievance, the date of the incident being grieved, and remedy sought, in writing, to the first-level supervisor. The first-level supervisor would make a reasonable effort to resolve the grievance "in collaboration with appropriate management officials." If the response does not resolve the grievance, the matter could be taken directly to the Wing Commander. The Wing Commander or designee would then render a decision, followed by a meeting to discuss the matter. Under both steps, an "equal number of management and Union representatives will attend meetings." Similarly, in Section 12 involving Employer-filed grievances, it also proposes that an "equal number of management and Union representatives will attend the meeting." Under its proposal on Section 13, Union grievances would be filed in writing "with the Wing Commander by an elected officer of the Union." A meeting to discuss the grievance would occur in 5 workdays, with an equal number of management and Union representatives attending the meeting. A written decision by the Wing Commander or designee would be issued within 15 workdays of receipt of the grievance.
Its proposal to eliminate Step 2 for employee grievances would preserve the Union president’s official time, and acknowledges the historical fact that grievances not resolved at Step 1 usually proceed to Step 3. Eliminating Step 1 for Union-filed grievances also preserves official time while acknowledging historical realities, and is consistent with the 1-step procedure both parties are proposing for Employer grievances. The Union also proposes to conduct meetings at each step of each procedure to discuss and attempt to resolve grievances. The Employer, however, makes a Step 3 meeting involving employee grievances discretionary, which denies the grievant the opportunity to present his or her case directly to the deciding official, and prevents the deciding official from gaining a clearer understanding of the matter. The Employer also fails to address the "major concern" of the Union that there be an equal number of representatives from each party in attendance. In this regard, the Employer has a "history of intimidation through overkill at grievance meetings," sometimes bringing several levels of management, as well as others. Since the Statute gives management the right to determine who will represent the Employer, the Union’s only recourse is to propose wording which guarantees that an equal number of Union representatives are in attendance.
After carefully considering the record developed by the parties on this issue, on balance, we are persuaded that the Employer’s final offer provides the more reasonable resolution to their dispute. In our view, even if the Union’s assessment of the inadequacy of the current grievance procedure is accepted at face value, the solutions it proposes would not appreciably improve the situation. For example, elevating every grievance, without regard to its relative importance, immediately to the senior official on the installation if it is not resolved at the first step is likely to exacerbate the parties’ underlying relationship problem. Similarly, by its own admission, its proposal to require "equal numbers" of management and Union representatives to attend grievance meetings would not prevent management from continuing to use such meetings to prepare for arbitration, as it alleges, and could lead to absurd results. Accordingly, we shall order the adoption of the Employer’s final offer.
a. The Employer’s Position
The Employer proposes that Section 3 read as follows: "The Employer will provide the Union, on a monthly basis, a list of all civilian positions on SJAFB. The listing will be by unit, with the number of authorized positions and vacancies." In this connection, the current article does not require the production of the type of list that both parties are proposing. The Union’s proposal "goes much farther" than what the Employer is willing to agree to, and "would be overly burdensome to management," particularly the requirement to list the military grades of ARTs, information which is "not readily available in the Civilian Personnel Office data base."
b. The Union’s Position
The Union proposes the following wording regarding Section 3: "The Employer will provide the Union on a monthly basis a list of all civilian positions of SJAFB by position number, title, civilian grade, military grade (ART), series and status (filled, vacant, full time, part time, term, temporary)." The proposal "clearly identifies specific information necessary to represent bargaining-unit employees," particularly in an Agency that is "constantly" conducting reorganizations and reassignments. The Employer’s proposal would not provide the Union with the title, series, grades, or type of position, among other things, and is of "no value" in determining whether employee statutory and regulatory placement rights have been adhered to.
Having carefully examined the parties’ positions on Section 3 of this article, we conclude that the Union’s final offer should prevail. In our view, the Union has established a need for the information it is requesting which appears to outweigh the burden that would be imposed on management. Moreover, the data the Employer proposes to provide would be of little use to the Union. Therefore, we shall order the adoption of the Union’s final offer to resolve their disagreement.
Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the fai