DEPARTMENT OF DEFENSE DEFENSE COMMISSARY AGENCY MIDWEST REGION FORT HOOD COMMISSARY FORT HOOD, TEXAS and LOCAL 1920, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
DEPARTMENT OF DEFENSE
DEFENSE COMMISSARY AGENCY
FORT HOOD COMMISSARY
FORT HOOD, TEXAS
LOCAL 1920, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Case No. 92 FSIP 119
DECISION AND ORDER
Local 1920, 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. S 7119, between it and the Department of Defense, Defense Commissary Agency, Midwest Region, Fort Hood Commissary, Fort Hood, Texas (Employer or DECA).
After investigation of the request for assistance concerning notification to employees of their right to Union representation during the inspection of hand-carried items, the Panel determined that the dispute should be resolved on the basis of a single written submission from the parties, with the Panel to take whatever action it deemed appropriate to resolve the impasse. The Panel has now considered the entire record.
The Employer runs a commissary which essentially is a grocery store for military employees, dependents, and retirees. Currently, the Union represents 3,000 bargaining-unit employees; approximately 182 will be affected by the outcome of the dispute. The affected employees perform all functions that one would find in a large retail grocery operation. The parties' local agreement expires on February 24, 1993.
The dispute arose during bargaining over the Employer's decision to require commissary employees to sign a statement acknowledging that they have been informed that hand-carried items may be inspected. A practice of conducting spot checks as employees exit at the end of their workday has continued for some time at the facility, but without prior written notification from the Employer and the requirement that employees sign the notification form.
ISSUE AT IMPASSE
The dispute concerns how and when employees would be advised of their right to Union representation, i.e., Weingarten rights,(*) in the context of exit searches of hand-carried items.
THE POSITIONS OF THE PARTIES
1. The Union's Position
The Union proposes:
Management will verbally inform employees of their Weingarten right to Union representation when: A. Purse is to be inspected; B. Employees are asked to empty pockets; C. A body search is to be conducted.
The Union maintains that the Employer goes too far when it conducts body searches or searches employees' purses, especially since such searches are conducted without probable cause. Requiring an oral notice of the right to Union representation at the time of the spot check, therefore, is a minor imposition compared to what the Employer is requiring employees to endure. The oral notice also serves as an important memory jogger for employees leaving at the end of their workday. By contrast, the written notice in the Employer's January newsletter and the initial notification on the Employer's form are soon forgotten. Similarly, the signs that the Employer proposes to post would be unlikely to last for more than a week before being removed or lost.
2. The Employer's Position
Basically, it would: (1) add a statement to the notification form regarding the right to be represented by the Union at spot checks of hand-carried items, and (2) post a large, professionally printed sign at the commissary exit where the search is conducted also informing employees of that right. The Employer opposes telling each employee about the right to representation prior to conducting searches at the exit point, believing that this would be both burdensome and unnecessary. In addition, besides the two reminders it proposes, it provides a written notice of the right to representation annually in the January newsletter.
Having considered the evidence and arguments of the parties, we conclude that they should adopt a modified version of the Employer's proposal which adds a requirement that employees be advised orally of their right to Union representation at spot checks of hand-carried items only after being found to possess allegedly improperly obtained store property. In this regard, we agree that the written notifications proposed by the Employer are generally adequate, while the requirement of an oral notice to each exiting employee would be unduly burdensome and unnecessary. Reciting the information repeatedly would extend the time for conducting spot checks. Moreover, we are troubled by the potential consequences should the individual conducting the search inadvertently forget to provide the proposed oral notification. Nevertheless, when an employee actually is under suspicion or accused of stealing, in our view, an oral notice that assistance from a competent Union representative may be requested is both useful and appropriate. Under such stressful circumstances, with the real possibility that the investigation may lead to disciplinary action, and affect fundamental interests such as continued employment, liberty, and reputation, arguments that the oral notice is burdensome are unpersuasive.
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. S 2471.6(a)(2), the Federal Service Impasses Panel, under § 2471.11(a) of its regulations, hereby orders the following: