DEPARTMENT OF DEFENSE NATIONAL GUARD BUREAU RHODE ISLAND NATIONAL GUARD PROVIDENCE, RHODE ISLAND and RHODE ISLAND ASSOCIATION OF CIVILIAN TECHNICIANS
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
RHODE ISLAND NATIONAL GUARD
PROVIDENCE, RHODE ISLAND
RHODE ISLAND ASSOCIATION OF
Case No. 90 FSIP 158
DECISION AND ORDER
The Rhode Island Association of Civilian Technicians (Union), filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under section 7119 of the Federal Service Labor-Management Relations Statute (Statute) between it and the Department of Defense, National Guard Bureau, Rhode Island National Guard, Providence, Rhode Island (Employer).
After investigation of the request for assistance, the Panel determined that the impasse should be resolved through an informal conference between Staff Associate Harry E. Jones and the parties. If there were no settlement, Mr. Jones was to notify the Panel of the status of the dispute, including the final offers of the parties and his recommendations for resolving it. Following consideration of this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.
Mr. Jones met with the parties on August 28, 1990, in Providence, Rhode Island. At that proceeding, the parties were able to reach agreement on only one outstanding issue. Mr. Jones has reported to the Panel, and it has now considered the entire record.
The Rhode Island National Guard is administered by the National Guard Bureau, a joint bureau of the Departments of the Army and Air Force which is located within the Department of Defense at the Pentagon. The mission of the Employer is to provide operational military units to support the United States Army and Air Force. The Union represents approximately 275 employees located at various installations throughout the State. The bargaining unit consists primarily of Wage Grade civilian technicians who perform maintenance work on military aircraft, weapons, and communications systems. The main difference between civilian technicians and other Federal agency employees is that civilian technicians, who fall within the jurisdiction of the National Guard Technicians Act(1), must maintain military membership in a National Guard unit, and their military and civilian jobs must be compatible. The parties' collective-bargaining agreement expired on May 28, 1989, but remains in effect until a new agreement is implemented.
ISSUES AT IMPASSE
The instant impasse arose as a result of negotiations over a successor agreement. The parties disagree over three issues: (1) the wearing of civilian clothing by Union officials and bargaining-unit employees while performing labor-relations activities; (2) grievance procedure exclusions; and (3) flexitime.
1. The Wearing of Civilian Clothing
a. The Union's Position
The Union proposes that n in order not to breach the statutory duty of fair representation to all bargaining-unit employees without regard to union membership," its officers and stewards not be required to wear their military uniforms while: (1) performing representational duties; (2) representing the Union in a third-party proceeding; (3) serving as a member of the Union's negotiating team; (4) appearing as a witness in any third-party proceeding; (5) representing the Union on a committee established by the Employer; or (6) attending a labor-management training session. It also proposes that bargaining-unit employees not be required to wear the military uniform while: (1) processing a grievance under the negotiated grievance procedure; (2) appearing as a grievant or witness in a third-party proceeding; (3) appearing as an observer at contract negotiations; or (4) attending a labor-management session. Moreover, Union officers and stewards, as well as employees, would be allowed "reasonable time" to change clothing under the circumstances described above.
The Union argues that if its representatives are required to wear the military uniform while engaged in labor-relations activities, some may feel intimidated by their higher ranking management counterparts; this, in turn, could undermine the Union's ability to represent its constituents effectively. Labor-management activities should take place on a "level playing field." therefore, this "intimidation factor" needs to be removed. Moreover, the proposal recognizes that individual employees occasionally participate in labor-relations matters and may also need to change clothing under certain circumstances. Finally, its proposal would maintain the integrity of the Union as an institution by not requiring representatives to obtain approval from the Employer before changing clothes.
The Employer's proposal, on the other hand, is too restrictive. It fails to recognize that Union representatives should be on equal footing with their management counterparts whenever they are performing any representational duties. By requiring officers and stewards to obtain management approval before changing into civilian clothing, the Employer's proposal would perpetuate a labor-management relationship based on control and intimidation. Moreover, the proposal ignores the fact that bargaining-unit employees are involved regularly in labor-relations activities and may, on occasion, need to change clothing.
b. The Employer's Position
The Employer proposes that Union officers and stewards not be required to wear the military uniform when: (1) traveling by commercial or private transportation; (2) attending training courses at other than military installations; (3) engaged in labor agreement negotiations as representatives of the Union; (4) serving as a data collector of the Federal Wage System; (5) representing the Union during proceedings for arbitration and collective bargaining; (6) appearing as a witness in any third-party proceeding; (7) observing collective-bargaining sessions; or (8) attending joint labor-management training sessions, provided the wearing of civilian attire is authorized by management. It also proposes that "a reasonable amount of official time may be given officers and stewards for changing to or from the military uniform under the circumstances stated [above].
According to the Employer, its proposal is preferable because it addresses the "intimidation factor" raised by the Union while avoiding undue disruption in the workplace. Moreover, since the proposal would allow only limited exceptions to the uniform requirement, the integrity of the military command structure would be preserved. In contrast, the Union's proposal would have a disruptive effect on the workplace because representatives would be permitted to change clothing to perform even the most minor representational duties. The Union's proposal would also allow officers, stewards, and employees to change clothing without prior approval, thereby threatening the integrity of the military command structure. Finally, the Union's proposal is overly broad as evidenced by the fact that it refers to an irrelevant duty-of-fa representation issue
Having considered the evidence and arguments on this issue, we are of the opinion that neither party's proposal would provide an adequate resolution to the impasse. On the one hand, the Union's proposal would create undue disruption by allowing Union representatives to change clothing to perform even minor representational duties. On the other, the Employer's proposal does not adequately address the "intimidation" issue raised by the Union, nor does it recognize the fact that other bargaining-unit employees are involved in labor-relations activities, and thus, may need to change clothing under certain circumstances.
To address these deficiencies, we shall order the adoption of a compromise allowing Union officers and stewards to change clothing when: (1) performing major representational duties such as the processing of grievances at the third step of the grievance procedure or attending labor-management meetings away from their normal worksites; (2) representing the Union in a third-party proceeding; (3) serving on the Union's negotiating team; or (4) appearing as a witness in any third-party proceeding. We are persuaded that this should remove the "intimidation factor" cited by the Union while minimizing disruption in the workplace.
With respect to other bargaining-unit employees, we agree with the Union that they may also need to change clothing under certain circumstances. Accordingly, we shall order that employees not be required to wear the military uniform when: (1) processing a grievance at the third step of the grievance procedure; or (2) appearing as a grievant or bargaining-unit witness at any third-party proceeding. Adoption of this compromise position should place all parties on an equal footing during certain proceedings while at the same time maintaining the integrity of the military command structure.
Finally, consistent with the above, we believe that employees, as well as Union officers and stewards, should be afforded a reasonable amount of time to change clothing and shall order that the parties adopt such wording as part of the compromise position.
2. Grievance Procedure Exclusions
a. The Union's Position
The Union proposes that the list of exclusions contained in the parties' prior negotiated grievance procedure no longer include: (1) any matter which pertains to a nonbargaining-unit employee or supervisory or management position; and (2) "military matters." It would also exclude matters involving "retirement, life insurance, or health insurance.
The grievance procedure is the "only avenue of redress for the bargaining unit;" therefore, it should have a broad scope. The Union also argues that maintaining matters" matters" as an exclusion could render the grievance procedure meaningless. In this regard, since civilian technicians must maintain membership in a National Guard unit as a condition of employment, any matter pertaining to them could be labeled a "military matter. n This problem arose during a recent arbitration where a grievance filed over a letter of reprimand was found to involve a "military matter. As such it was not arbitrable. The Employer, on the other hand, has not demonstrated any need to expand the list of exclusions, and, therefore, its proposal should not be adopted.
b. The Employer's Position
The Employer proposes that the following be added to the list of exclusions contained in the parties' expired agreement: (1) performance ratings, and (2) matters relating to any employee who participates in a strike in violation of section 7311 of the Federal Service Labor-Management Relations Statute.
Most of the items excluded from the expired agreement, as well as those items which the Employer proposes as additional exclusions, are barred from the grievance procedure by either existing statute or regulation. It points out that the parties agreed to write statutory exclusions into the labor agreement only for informational purposes. Thus, while the Employer acknowledges that its proposal would have no real impact on what could or could not be grieved, it maintains that the proposal provides a more comprehensive list of items excluded by statute from the grievance procedure. The Union's proposal, on the other hand, is deficient because its adoption would create the false impression that military matters, as well as matters involving nonbargaining-unit employees, are now grievable. Thus, adopting the Union's proposal would only create confusion and could lead to increased workplace conflict.
Having considered the evidence and arguments on this issue, we find insufficient support in the record to warrant imposing any alteration to the status quo. Thus, we shall order that the parties adopt the same grievance-procedure exclusions as are contained in the expired collective-bargaining agreement. In this regard, we are not convinced by the Union's argument that retention of "military matters" as an exclusion would undermine the existing grievance procedure. Moreover, we agree that removal of "military matters" and "matters involving nonbargaining-unit employees or supervisors" could create the false impression that these items are grievable even-though they are still excluded by statute.
a. The Union's Position
The Union proposes the following wording:
Within 120 days after the effective date of this agreement, the Employer will implement an alternat[ive] work schedule program. Those employees who are not required by the Employer to work a pre-established work schedule shall be afforded the option of participating in a flexitime program. Under the flexitime program, employees will be required to work a normal basic workweek as defined in Article VI, Section 2, of this Agreement. Employees participating in the flexitime program may elect one of the following schedules: 6:30 a.m. to 3 p.m.; 7 a.m. to 3:30 p.m.; 7:30 a.m. to 4 p.m.; 8 a.m. to 4:30 p.m.; 8:30 a.m. to 5 p.m.; or 9 a.m. to 5:30 p.m. Changes to elected schedules may be made on a 2-month-or-longer basis. Exceptions to this minimum 2-month rule may be granted.
The Union argues that flexitime may be appropriate for some bargaining-unit positions and notes that its proposal would preserve the Employer's right to determine the positions eligible to participate in such a plan. Its proposal would allow the Employer a sufficient amount of time to conduct a study of bargaining-unit positions to develop a viable flexitime program. Moreover, under its proposal, employees would be required to work a "normal basic workweek" and could not use flexitime as a "back door" to a compressed work week. Finally, its proposal is consistent with a Panel Member's arbitration decision in an earlier flexitime case.(2)
The Employer's proposal is nothing more than an attempt to further delay implementation of a flexitime program. The parties had agreed to a similar "study" in 1986, but the Employer never followed through on that agreement. Moreover, even if such a study were to be conducted, it could be concluded in a much shorter time than is proposed by management.
b. The Employer's Position
At the outset, the Employer alleges that the Union's proposal is nonnegotiable. It relies on the Federal Labor Relations Authority's (FLRA) holding in National Association of Government Employees, Local R14-73 and U.S. Department of Defense. National Guard Bureau. Missouri Army National Guard, 37 FLRA 490 (1990) (Missouri National Guard). In that case, the FLRA found that a proposal requiring the Employer to negotiate over the establishment of flexible and alternative work schedules was outside the duty to bargain because it conflicted with section 709(g) of the National Guard Technicians Act.(3) The Employer urges the Panel to apply the holding of Missouri National Guard to the facts of this case and order the Union to withdraw its proposal.
In the alternative, the Employer proposes on the merits that within 30 days of the effective date of the labor agreement, it would initiate a feasibility study to determine whether flexitime is appropriate for any bargaining-unit positions. Within 10 months of the commencement of this study, the Employer would present a flexible work schedule plan to the Union for negotiations.
In examining the nonnegotiability allegation raised by the Employer, the Panel is guided by the FLRA's decision in Commander Carswell Air Force Base. Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988) (Carswell). In that case, the FLRA concluded that the Panel may apply existing case law to resolve an impasse where a duty-to-bargain issue arises. In this regard, the FLRA has found in Missouri National Guard that proposals relating to flexible work schedules for National Guard Civilian Technicians are outside the duty to bargain. Accordingly, we shall order both parties to withdraw their respective proposals on this issue.
Pursuant to the authority vested in it by section 7119 of the Federal Service Labor-Management Relations Statute and because of the failure of the parties to resolve their dispute during the course of proceedings instituted pursuant to section 2471.6(a)(2) of the Panel's regulations, the Federal Service Impasses Panel under section 2471.11(a) of its regulations hereby orders the following:
1. The Wearing of Civilian Clothing
The parties shall adopt the following provision:
A. Officers and stewards will not be required to wear the military uniform while: (1) performing major representational duties such as the processing of grievances at the third step of the grievance procedure or attending labor-management meetings away from their normal worksites; (2) representing the Union in a third-party proceeding; (3) serving as a member of the Union's negotiating team; or (4) appearing as a witness in any third-party proceeding.
B. Employees in the bargaining unit will not be required to wear the military uniform while: (1) processing a grievance at the third step of the grievance procedure; or (2) appearing as a grievant or bar