DEPARTMENT OF COMMERCE NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION NATIONAL WEATHER SERVICE SILVER SPRING, MARYLAND and NATIONAL WEATHER SERVICE EMPLOYEES
In the Matter of )
DEPARTMENT OF COMMERCE )
NATIONAL OCEANIC AND )
NATIONAL WEATHER SERVICE )
SILVER SPRING, MARYLAND )
NATIONAL WEATHER SERVICE )
Case No. 91 FSIP 71
The National Weather Service Employees Organization (Union or NWSEO), 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 Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland (Employer or NWS).
The Panel determined that the impasse concerning competitive areas1/ for reduction-in-force (RIF) purposes should be resolved through an informal conference between a Panel representative and the parties. If there were no settlement, the parties were to submit written statements and rebuttals in support of their final
offers. After considering the entire record, including the recommendations of its representative, the Panel would take whatever action it deemed appropriate to resolve the impasse. On February 12, 1991, Staff Associate Joseph Schimansky met with the parties, but no settlement was reached. Thereafter, written submissions were made pursuant to the Panel's instructions, and it has now considered the entire record.
1/ A competitive area is the geographical and organizational limit within which employees compete for job retention when a RIF is implemented.
The Employer's primary mission is the collection of weather data for the purpose of forecasting and warning the public of weather conditions. There are approximately 3,600 General Schedule employees in the bargaining unit in such jobs as lead forecaster, meteorologist, meteorological and electronics technician, and secretary. They are located in approximately 250 field and headquarters offices throughout the United States and its territories. The parties' collective bargaining agreement expires in July 1991.
The instant impasse arose when the Employer's parent organization, the National Oceanic and Atmospheric Administration (NOAA), issued a new regulation (NOAA Administrative Order 202-351) which would authorize NOAA's Line Offices, including NWS, to distinguish competitive areas of their units from one another, within a commuting area, on the basis of whether those units are headquarters or field units.
ISSUES AT IMPASSE
The parties disagree over: (1) how competitive areas in NWS should be defined both organizationally and geographically, and (2) whether the provision ordered by the Panel resolving the first issue should be incorporated into the successor collective bargaining agreement to be negotiated by the parties in 1991.
1. The Union's Position
The Union essentially proposes that: (1) organizationally, "all NWSEO positions within a given local commuting area" continue to be "in the same competitive area regardless of whether the positions" are in headquarters or field units; (2) geographically, competitive areas be defined in terms of the six regions within NWS rather than by local commuting area; and (3) the provision "take effect immediately" and "be incorporated into the nationwide agreement to be negotiated by the parties in 1991."
In general, its proposal is designed to protect the jobs of more senior bargaining-unit employees should RIFs occur, particularly meteorological technicians who work in isolated NWS field offices. In this regard, because NOAA has announced plans for massive, technology-driven modernization and restructuring within NWS,2/ it appears that a number of 2/ "Strategic Plan for the Modernization and Associated Restructuring of the National Weather Service," Department of Commerce, National Oceanic and Atmospheric Administration, March 1989.
offices will be upgraded and "130 smaller offices will be closed and their functions automated." This could lead to the elimination of as many as 800 positions staffed mainly by meteorological and electronics technicians. Under the Employer's proposed definition of competitive areas, "because all positions in a given office will be abolished when the 130 offices are closed, there will effectively be no bumping or retreating rights" for those affected employees. At the same time, employees with less seniority standing fortunate enough to be stationed at offices scheduled to be upgraded will retain their jobs. "This is inequitable for the employees and will also deprive the agency of its most experienced employees."
The first part of its proposal would maintain the status quo by requiring that headquarters and field units within the same commuting area also be in the same competitive area. The Employer "simply has not demonstrated a need" to place such units in separate competitive areas, nor has it substantiated "its bold assertions" that combining the two would endanger the public's safety. In fact, headquarters and field units in the same commuting area have been in the same competitive area "without incident," and the Employer has failed to produce specific evidence that the practice has impaired its ability to serve the public. Moreover, this aspect of the Union's proposal "should be adopted for equitable reasons." In this regard, in some locations headquarters and field unit meteorologists in the same job series currently "work across the desk from each other," but would be in separate competitive areas under NOAA's newly-proposed regulation.
The second part of its proposal would establish six regional competitive areas based upon the current organizational structure of NWS. While the new regulation would not change the use of local commuting areas for determining competitive areas, the Employer's various contentions that this aspect of the dispute is not appropriately before the Panel are without merit. Among other things, "the Panel is vested with jurisdiction to consider and resolve broad 'matters' that are the subject of impasse, not specifically defined impasse issues." Because this part of its proposal "is well within the subject 'matter' that is at the root of the impasse . . . it is properly within the Panel's jurisdiction."
On the merits of the issue, "it is necessary to expand the competitive area beyond the local commuting area in NWS because, without such an expansion, employees will have no tenure or seniority rights at all." Moreover, the Employer has "exaggerated" the cost of relocating transferred employees should regional competitive areas be implemented for RIF purposes. "Whatever the cost," however "it will be a minuscule portion of the total cost" of the modernization and restructuring plan, "which will approximate $3 billion," and be offset by the retention of more experienced and better performing employees. Finally, the purpose of the last part of its proposal is "to avoid this whole issue being renegotiated, remediated and resubmitted to the Panel" during the parties' negotiations over a successor collective bargaining
agreement, scheduled to begin later this year.
2. The Employer's Position
The Employer basically proposes that the Panel order the
implementation of NOAA Administrative Order 202-351, which would grant components within NOAA, such as NWS, the authority "to distinguish competitive areas of their units from one another, within a commuting area, on the basis of whether those units are headquarters or field units." With respect to the Union's proposal, it contends that it has no duty to bargain over regional competitive areas because the new regulation would not change the current practice of defining competitive areas in terms of local commuting areas. It also contends that the entire matter is before the Panel prematurely because it never had an opportunity to negotiate concerning the Union's revised proposal, which differs materially from those which were previously presented. Finally, because the proposal "deals only with bargaining-unit employees, it is inconsistent with a Government-wide regulation, and, therefore, is nonnegotiable under 5 U.S.C. § 7117(a)(1)."
The Employer's proposal would ensure that RIFs could be conducted "with minimal effect on its ability to perform its mission and would minimize the disruptive effects of a RIF on its employees." The separation of headquarters and field organizational units is consistent with Government-wide regulations. More importantly, the separation is necessary because employees working in these units have different responsibilities and assignments "although their backgrounds and qualifications may appear to be similar on paper." Permitting such employees to compete with each other for retention "would risk having the agency place field employees into headquarter positions for which they do not have appropriate experience or skills." Thus, it should have the latitude to separate the two into different competitive areas to prevent its mission of protecting the public's safety from being jeopardized. The failure to distinguish between these units also would increase the agency's training costs because employees placed in positions which require the performance of work which is new to them "would have to be trained outside their area of expertise to perform in a competent manner."
As to the Union's proposal, defining competitive areas in terms of local commuting areas, as opposed to larger geographical ones, is consistent with Government-wide and Department of Commerce (DOC)
regulations, and "has been a longstanding practice for NOAA." It permits the agency to avoid disruption to its other activities when the RIF is intended to be localized. Conversely, "any increase in the geographical area to be used as the competitive area for a localized RIF" would result in an increase in its impact, adversely affect the agency's operations, and "produce little or no benefit to the affected employees." Moreover, in an agency-wide RIF "the same number of employees would be released," so that "the effect on the bargaining unit would be the same if you defined competitive area by local commuting area or by region." The impact of a larger competitive area on the agency, however, would be more serious, resulting in considerable administrative and relocation costs. In this regard, there would be an increase in the amount of time and
personnel resources required to prepare for and execute a RIF, as well as relocation expenses that "could easily amount to over $50,000 per move."
While management does not contest that a modernization program
exists, the Union has failed to supply "probative evidence that the NWS intends to eliminate jobs through a RIF." In fact, because negotiations will begin in June 1991 for a successor to the parties' current collective bargaining agreement, "it may be appropriate" to leave the issue of competitive areas for the parties to negotiate at that time. Finally, in view of its previous contention that it has never been given the opportunity to negotiate concerning the latest version of the Union's proposal, automatically incorporating the Panel's decision on the issue of competitive areas into the parties' successor agreement would be unfair as "it would prevent the NWS from negotiating over the proposal at all."
We turn first to the Employer's threshold contentions that: (1) it has no duty to bargain over regional competitive areas because NOAA Administrative Order 202-351 would not change the current practice of defining competitive areas in terms of local commuting areas; (2) the entire matter is before the Panel prematurely because it never had an opportunity to negotiate concerning the Union's revised proposal; and (3) the proposal is inconsistent with a Government-wide regulation, and, therefore, nonnegotiable. We note preliminarily that in addressing the Employer's jurisdictional arguments, the Panel is guided by the Federal Labor Relations Authority's (FLRA) decision in Commander, Carswell Air Force Base. Texas and American Federation of Government Employees Local 1364, 31.
FLRA 620 (1988). 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.
It is well settled that when an employer proposes to change employees' conditions of employment, it has a duty to bargain over proposals submitted in connection with and relating to the proposed change even if a particular proposal addresses a situation where no
change or an improvement in preexisting working conditions would
result.3/ Thus, when NOAA issued its new regulation seeking to change only one aspect of the parties' current definition of competitive areas, such action triggered a bargaining obligation on the part of the Employer over Union proposals submitted in connection with and relating to the proposed change, insofar as they are otherwise lawful. As the Union's proposal clearly involves the general issue of competitive areas, we find that the Employer's first threshold contention is without merit. With respect to its second contention, the record in this case demonstrates that the Union's final offer before the Panel is virtually identical to the proposal it presented to the Employer during the informal conference with the Panel's representative. Moreover, the Employer's argument overlooks the fact that the submission of disputes to the Panel is part of the collective bargaining process. This is reflected in the Panel's letter to the parties informing them of its procedural determination which specifically stated that "the parties may seek a voluntary settlement at any time prior to the issuance of the Panel's decision." The Employer clearly has had ample opportunity to engage in negotiations with the Union concerning its revised proposal. That it has not done so provides no support for the view that the dispute is before the Panel prematurely.
Finally, while the FLRA has ruled that proposals concerning the definition of competitive areas generally are negotiable,4/ it appears that the Employer's third jurisdictional contention that the Union's proposal is nonnegotiable because it refers only to bargaining-unit positions is technically correct.5/3/ See, for example, Social Security Administration (Baltimore, Maryland) and Office of Hearings and Appeals. Region II (New York. New York) and Office of Hearings and Appeals (Syracuse and Buffalo. New York),
21 FLRA 546 (1986).
4/ See, for example, American Federation of Government Employees. Local 32. AFL-CIO and Office of Personnel Management, 33 FLRA 335 (1988).
5/ See, for example, National Treasury Employees Union and Department of Health and Human Services Region X, 25 FLRA 546 (1986).
Because the Panel, in the circumstances of this case, may in its
discretion order the adoption of either a modified version of the Union's proposal which cures the defect without changing its basic content, or other appropriate solutions to the workplace concern identified, we see no purpose in delaying the resolution of this dispute by declining to retain jurisdiction.6/ Accordingly, the Panel will address the issue on its merits.
Having fully considered the parties' evidence and arguments in this case, we conclude that a compromise solution should be adopted. On the one hand, we are persuaded that in the event of a RIF, requiring the Employer to continue to combine headquarters and field units within the same competitive areas would handicap the agency unreasonably in its ability to serve the public. In this regard, the missions of these units are different, and employees in the field may not have the appropriate experience or skills to perform the work required in headquarters positions. On the other, the Union has argued convincingly that unless competitive areas within NWS are expanded beyond local commuting areas, certain field unit employees whose offices may be abolished under NOAA's modernization program would be denied seniority rights altogether. For these reasons, the parties shall be ordered to implement a modified version of NOAA Administrative Order 202-351 such that, with respect only to NWS, competitive areas shall be defined geographically by using the Employer's regional field structure.
In our view, this compromise solution reasonably balances the
parties' interests by ensuring the accomplishment of the Employer's
mission, while protecting the jobs of more senior bargaining-unit
employees in field offices whose positions may be eliminated if competitive areas are based solely on local commuting areas. While we are mindful that requiring the Employer to use regional competitive areas for RIF purposes is likely to be more administratively burdensome and costly than the alternative, adopting this part of the Union's proposal is fairer to employees, and should benefit the agency by resulting in the retention of highly qualified senior field unit employees. We note in this connection that current RIF regulations provide performance credit
when determining employees' retention standing. In addition, the solution avoids the negotiability problem raised by the Employer by
6/ In this regard, in Interpretation and Guidance, 11 FLRA 626 (1983), the FLRA stated that "where questions concerning the duty to bargain arise during an impasse in bargaining . . the Panel is to