DEPARTMENT OF THE ARMY HEADQUARTERS, U.S. ARMY GARRISON FORT SAM HOUSTON AND FORT SAM HOUSTON COMMISSARY FORT SAM HOUSTON, TEXAS and LOCAL 28, NATIONAL FEDERATION OF FEDERAL EMPLOYEES

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL



In the Matter of )

)

DEPARTMENT OF THE ARMY )

HEADQUARTERS, U.S. ARMY )

GARRISON )

FORT SAM HOUSTON AND FORT SAM )

HOUSTON COMMISSARY )

FORT SAM HOUSTON, TEXAS )

)

and ) Case No. 91 FSIP 131

)

LOCAL 28, NATIONAL FEDERATION )

OF FEDERAL EMPLOYEES )

)

)



DECISION AND ORDER



Local 28, National Federation of Federal Employees (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 Army, Headquarters, U.S. Army Garrison Fort Sam Houston and Fort Sam Houston Commissary, Fort Sam Houston, Texas (Employer).



After investigation of the request for assistance, which concerned (1) the schedule for negotiating a successor agreement and (2) preparation time for the Union's bargaining team, the Panel determined that the impasse should be resolved through the issuance to the parties of an Order to Show Cause as to why the Panel should not order the adoption of the Panel-mediated settlement reached by the parties on the same issues in Department of the Army. Headquarters, 5th U.S. Army and Fort Sam Houston Commissary. Fort Sam Houston. Texas and Local 28. National Federation of Federal Employees, Case No. 90 FSIP 192 (Fort Sam Houston I).1/ After considering the parties' responses to its Order to Show Cause, the Panel would take whatever action it deemed appropriate to resolve the 1/ The settlement provided that (1) the parties would meet for negotiations 2 workdays per week for ½ days; and (2) for the duration of the negotiations, each Union bargaining team member would receive 2 hours of official time following each negotiation session for preparation purposes.



(Continued)



impasse. The Panel has now considered the entire record.



BACKGROUND AND PRELIMINARY MATTER



The Employer provides operational and functional support, including maintenance, supply, financial, and commissary services, to the numerous tenant activities on the installation. The Union represents 2 bargaining units which include approximately 1,100 General Schedule (GS) and Wage Grade (WG) employees who work at the garrison and commissary.2/ GS employees work as clerk-typists, secretaries, budget analysts, and payroll clerks. Typical jobs held by WG employees are maintenance and warehouse worker, cashier, stocker, laborer, painter, welder, plumber, mechanic, heavy equipment operator, and carpenter. All are covered under a collective-bargaining agreement (CBA) which was to expire in January 1989, but remains in effect until a successor is implemented. It was during the parties' renegotiation of the groundrules for bargaining over the successor agreement that the dispute arose.



During the course of responding to the Panel's Show Cause Order, the Employer, in effect, raises a new issue. In its response, the Employer unilaterally modified the wording of a sentence in groundrules provision 5, which the parties concede they previously had agreed to during bilateral negotiations.3/



(Continued)



Apparently, the settlement unraveled when the parties attempted to

reduce it to writing, because one or the other raised a new issue

concerning the Union's negotiators' use of contractual official time for representational duties during successor negotiations. Thereafter, another request for assistance was submitted which is the subject of the instant case.



2/ Another approximately 1,OOO employees in 3 other bargaining units also are represented by the Union. A sixth unit is represented by another local of the National Federation of Federal Employees (NFFE). Two other unions represent the firefighters and "a small communications unit."



3/ A series of letter exchanges addressing the Employer's proposed wording modification followed the filing of the parties' responses to the Show Cause Order. In addition, the parties filed supplemental submissions on that matter pursuant to a request from the Panel; thereupon, the record was closed.





The sentence, as agreed to by the parties, provides that:



If the FLRA finds the issue is negotiable, the language will be

included in the contract at that time as an amendment.



The Employer now proposes that the underscored wording be changed to the following:



... the parties will resume negotiations on the issue and will include any agreement in the contract as an amendment.



The Union argues that the parties already have agreed to provision 5, offering as evidence a series of letters and proposal exchanges, most notably management's signed proposal of January 30, 1991. The Employer's claim that it did not understand the wording in question, numerous months after agreeing to it, is untimely and disingenuous. If the Panel modifies provision 5, it would be undercutting the parties' agreement. In this regard, the Union

contends that it agreed to the Employer's proposals on other issues, in part, in exchange for the Employer's acceptance of provision 5 as it now reads. It urges the Panel to determine that the dispute over the interpretation of provision 5, is not properly before it for resolution. The Employer, on the other hand, argues that the Panel should proceed to modify the wording of provision 5, as it proposes, because the original wording is "ambiguous" and

"could lead to extensive and expensive litigation." Moreover, the proposed modification simply follows the Federal Labor Relations Authority's long-held position that a finding of negotiability means only that an employer must negotiate over the disputed union proposal. The interpretation the Union gives to the original wording of provision 5, would require the Employer to agree to adopt any of the Union's proposed contract provisions found to be

negotiable without further bargaining.



Based on the record before us, we conclude that this matter concerns a question of interpretation of a groundrules provision previously agreed upon by the parties and, therefore, is inappropriate for resolution by the Panel. Rather, the matter should be resolved through other proceedings, such as, the parties' negotiated grievance and arbitration procedures.4/4/ See, e.g., International Federation of Professional and (Continued)



Moreover, we note that, in prior cases, the Panel has refused to alter contract provisions reached voluntarily by the parties.2/ Accordingly, in accordance with the Panel's regulations, 5 C.F.R. § 2471.6(a)(1), the Panel hereby declines to assert jurisdiction over groundrules provision 5, because no impasse exists within the meaning of § 2470.2(e) of its regulations.



ISSUES AT IMPASSE



Whether the Panel should order the parties to adopt the Panel-mediated settlement they reached concerning (1) the schedule for successor negotiations and (2) preparation time to be allotted the Union's negotiators.



POSITIONS OF THE PARTIES



1. The Union's Position



The Panel should not impose the earlier agreement but rather, the Union's proposal. In essence, under the Union's proposal, (1) the parties would meet for bargaining Tuesdays through Thursdays, from 7:15 a.m. to 3:15 p.m., with an hour for lunch, until an agreement or impasse is reached; (2) the parties would meet with a mediator within 2 weeks after impasse is reached, if possible; and (3) each Union negotiator would receive up to 7 hours of preparation time on Mondays preceding negotiations.



(Continued)



Technical Engineers. Local 11 and Mare Island Naval Shipyard. Vallejo California, 32 FLRA 380 (1988); and American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 2 FLRA 192 (1979).



5/ See, e.g., Deportment of Health and Human Services. Social Security Administration, Baltimore. Maryland and American Federation of Government Employees. AFL-CIO, Case No. 89 FSIP 132 (December 22, 1989), Panel Release No. 288, where the Panel refused to modify parts of a term agreement, which had been negotiated and agreed to by the parties' negotiators, but was not ratified by the union membership. It reasoned that "the negotiators put forth their best efforts in reaching an agreement, engaging in [the] normal, yet difficult, give and take entailed in free collective bargaining, [and the Panel would] not second-guess the results that were reached."

In support of its proposal, the Union points out that it and a sister NFFE local represent all but two of the bargaining units at the installation which are serviced by the Employer's Civilian Personnel Office. In this regard, both locals have agreed to postpone all other contract negotiations during bargaining over the parties' successor agreement, which would cover approximately 1,200 employees or over half of the civilian personnel stationed at the facility. Therefore, contrary to the Employer's assertion, it would not be negotiating other contracts, and could devote a concentrated period of time to successor bargaining. Also, it argues that "[s]ince both parties have rejected the previous settlement, by words and deeds, it should not be imposed in part." Finally, it notes that, following the Panel-mediated settlement, Union members elected representatives who are inexperienced negotiators. Consequently, a staff member from NFFE's national office in Washington, D.C., has been designated as the Union's chief negotiator. The two ½-day bargaining sessions per week provided for under the earlier settlement would not only increase the amount of travel for the chief negotiator during negotiations but, more importantly, the related negotiations expenses. A scattered negotiating schedule and the associated added costs would work to the advantage of the Employer because it "would force the local to settle for less than [it] would h ave otherwise. "



2. The Employer's Position





The Employer proposes that the Panel order the parties to adopt the schedule and amount of preparation time for Union negotiators which the parties agreed to in Fort Sam Houston I.6/ It argues that, since the earlier settlement, with the exception of the Union's appointment of a national office staff member as its chief negotiator, circumstances remain unchanged. Two days of bargaining per week is adequate because "it is not expected that the entire agreement [30 articles] will be renegotiated." Rather, successor negotiations "will primarily [center on] updat[ing] and expand[ing] the [existing contract] provisions." Furthermore, there are other duties that the Employer's Civilian Personnel Director and chief negotiator must perform, i.e., (1) service 49-plus other tenant activities at the installation, (2) negotiate 3 other master contracts, including a second one with the Union, (3) engage in ad hoc negotiations, some related to actions taken as part of the downsizing of the military, and (4) give advice to installation

commanders. In this regard, the previously-agreed-to schedule is "the most reasonable approach to allocating available time in such a manner that productive (6/ See supra note 1.) negotiations can take place at no significant degradation of service to other negotiations and bargaining units." Finally, that schedule also is consistent with the parties' practice in previous negotiations.



CONCLUSIONS



Having considered the arguments presented, we conclude that the Union has shown cause why the dispute should not be resolved on the basis of the settlement in Fort Sam Houston I. Rather, we shall order the parties to adopt the Union's proposal. In reaching this determination, we note that since the earlier settlement was reached, the Union has elected new officers who, because of their limited negotiations experience, have retained the services of a NFFE national staff representative as the Union's chief negotiator. We are persuaded that, under the schedule for successor negotiations as was previously agreed to, the amount of travel for the Union's chief negotiator and the related costs could be substantial. Thus, if that schedule were to be implemente