DEPARTMENT OF DEFENSE NATIONAL GUARD BUREAU DEPARTMENT OF MILITARY AFFAIRS WISCONSIN AIR NATIONAL GUARD MADISON, WISCONSIN and BADGER STATE AND MAD CITY CHAPTERS, ASSOCIATION OF CIVILIAN TECHNICIANS

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of

DEPARTMENT OF DEFENSE

NATIONAL GUARD BUREAU

DEPARTMENT OF MILITARY AFFAIRS

WISCONSIN AIR NATIONAL GUARD

MADISON, WISCONSIN

and

BADGER STATE AND MAD CITY CHAPTERS,

ASSOCIATION OF CIVILIAN TECHNICIANS

Case No. 92 FSIP 239

DECISION AND ORDER

    Badger State and Mad City Chapters, Association of Civilian Technicians (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 Defense, National Guard Bureau, Department of Military Affairs, Wisconsin Air National Guard, Madison, Wisconsin (Employer).

    After investigation of the request for assistance, the Panel determined that the dispute should be resolved through an informal teleconference  with a Panel representative. The parties were advised that if no settlement were reached, the Panel's representative would notify the Panel of the status of the dispute, including the final offers of the parties, and would make recommendations for resolving the impasse. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.

    Pursuant to the Panel's determination, Senior Legal Advisor Jesse Etelson conducted a telephone conference with the parties on January 28, 1993. During the proceeding, the parties were unable to reach agreement on the outstanding issues. Subsequently, the Panel issued a decision in Department of Defense, National Guard Bureau, Connecticut Army and Air National Guard, Hartford, Connecticut and Local R1-S185, NAGE, 93 FSIP 03 and 07 (February 10, 1993), Panel Release No. 340 (Connecticut Army and Air National Guard), whereupon the Panel invited the parties to submit statements as to why that decision should or should not serve as a resolution to the portion of their impasse concerning reduction-in-force (RIF) procedures. Submissions were received, and Mr. Etelson has reported to the Panel, which has now considered the entire record.(1)

BACKGROUND

    The Employer's mission is to maintain in readiness a flightline of aircraft. The Union represents a unit of approximately 370 civilian technicians. Approximately 12 are located at Volk Field and the rest are evenly divided between National Guard sites in Madison and Milwaukee. These technicians have military grades and titles in addition to their civilian grades and titles. The parties continue to honor an expired agreement between the Employer and the bargaining unit's previous exclusive representative. The dispute arose during negotiations over a new collective-bargaining agreement (CBA).

ISSUES AT IMPASSE

    The parties basically are at impasse over the following issues: (1) Union office space and equipment; (2) reserved parking for Union representatives; (3) competitive areas for RIFs; and (4) technician recognition.

POSITIONS OF THE PARTIES

1. Union Office Space and Equipment

    a. The Employer's Position

    The Employer proposes the following:

The Employer agrees to provide office space to the Union at 3002 Wright St., Madison, Wisconsin, for conducting official Union business. The office space provided will be furnished with one desk, four chairs, and a four-drawer file cabinet. Additional furnishings may be supplied by the Employer or the Union with the Employer's approval. The Union will be responsible for furnishing other equipment and supplies. This office space will be available after the Wright Street facility is vacated by the current occupants on or about March 1, 1994. The Employer also agrees to designate office space for Union representation in grievance cases or other representational duties at each ANG Base, Madison and Milwaukee. Use of this designated office space, as needed, must be coordinated with the Employer. Office space for this purpose will be made available on an as- needed basis. The Employer agrees to provide one four-drawer locking cabinet, at each ANG Base (Madison and Milwaukee) for the exclusive use of the Union. These items will be located in an area agreeable to the Air Commander or his designee.

The Employer does not, and will not, after a projected reorganization, have unused space at the air bases to "dedicate to the Union's purposes." Its proposal, on the other hand, is consistent with the practice under the expired agreement.(2) Furthermore, the Union has filed only 5 to 10 grievances a year, and the existing practice has adequately met its needs. The Employer's offer to provide permanent filing and storage capability would give the Union more in the way of a base of operations than it has now. When it becomes available, the office space on Wright Street, which is only 1 to 2 miles from the Madison base, will give the Union a permanent home convenient at least for that Chapter. Finally, there are only about 170 unit employees at each of the air bases in question, making it unlikely that these employees will generate the need for an office fully dedicated to the Union at each air base.

b. The Union's Position

The Union proposes the following wording:

The Employer will provide the Association at Milwaukee and Madison Air Bases reasonable office space dedicated for the use of the Union. The office will be provided with a desk and two chairs; a four-drawer filing cabinet; a secure storage cabinet; and a telephone. The Union agrees to assume the cost of all toll calls and the usual monthly telephone service charges.

There is currently no adequate place for confidential conversations with employees, "and some conferences must sometimes be held in cars." Union office space is needed at both air bases, which are located about 90 miles apart, not at the Wright Street location 1 to 2 miles away from the Madison base. The existing system of seeking permission for space from supervisors is "unwieldy and inconvenient." It also sometimes places the Union in the position of being responsible for making employees vacate their workplace so that the Union can conduct its business. Lastly, it contests the Employer's implication that there is little representational activity, as the small number of grievances filed does not reflect the extent of employee interviews and discussions that result in resolutions without formal filings.

CONCLUSIONS

    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 may create an undue hardship if the Employer has to provide permanent office space that may or may not be available. On the other hand, the Employer's proposal does not adequately address the fact that nearly half of the bargaining unit works 90 miles from the Employer's proposed office site.

    To address these deficiencies, we shall order the adoption of a compromise in which the Employer will make available to the Union at both air bases suitable office space that, if necessary, may be shared with users who currently occupy this space on less than a full-time basis. Selection of space shall be based on maximizing, to the extent possible, its availability, size, and convenience of location. Equipment and furnishings, as well as telephone service, shall be provided as in the Union's proposal. Moreover, we also shall order wording permitting either party to reopen this provision for further negotiations when additional space becomes available through, for example, downsizing or completion of the headquarters building. Overall, our solution should alleviate the Employer's concerns over the availability of office space, while providing the Union with adequate space to effectuate its representational duties.

2. Reserved Parking

    a. The Employer's Position

    The Employer's proposal is as follows:

The Employer agrees to provide one designated parking space at Truax ANG Base, one at General Mitchell ANG Base, and one at the Wisconsin National Guard facility located at 3002 Wright Street, Madison, Wisconsin, for the specific use of the Union. In addition, the Employer agrees to provide one designated parking space for the Union's Chief Negotiator at whichever location he or she is employed. Each parking space will be at a mutually agreeable location within the immediate work area of each designee. Signage identifying these spaces will be consistent in size, shape, and format with existing signage which designates parking spaces at each facility. Designated Union parking spaces will remain in effect so long as designated parking is made available for management and staff.

    Its proposal, which is interconnected with its proposal on Union office space, provides the Union with a parking space at each base, plus a parking space at the Wright Street location. Signs designating such spaces as reserved for the Union should make them easier to locate.

    b. The Union's Position

    The Union's proposed wording is as follows:

As long as the Employer continues to provide parking for management and staff, the Employer agrees to provide one mutually agreeable parking space, designated for each Chapter President at the Milwaukee and Madison air bases, which shall be in reasonable proximity to the work sites of these officials. Similarly, one parking space will be designated for the Association's Chief Negotiator at the work location where he/she works.

    Its proposal is substantially the same as the Employer's, except that it does not propose a parking space at the Wright Street location.

CONCLUSIONS

    We find the Union's proposal provides a reasonable basis for resolving the matter. In this regard, although the proposals are similar, the Employer's provides a parking space at the Wisconsin National Guard facility located at 3002 Wright Street, Madison, Wisconsin. Given our decision on the previous issue involving Union office space, that part of its proposal is unnecessary. Thus, we shall order adoption of the Union's proposal.

3. Competitive Areas for RIFs

    a. The Employer's Position

    The Employer proposes that:

During a reduction in force, nonbargaining-unit technician employees will be able to compete with bargaining-unit technician employees for bargaining-unit positions. During a reduction in force, nontechnician employees will not compete with bargaining-unit employees for bargaining-unit positions except for those nontechnician employees who have restoration rights under 38 U.S.C. Section 2024(d) and who may exercise at any time, their right to return to their former bargaining-unit positions.

Nonbargaining-unit technicians have the right to compete with bargaining-unit technicians under National Guard regulations, which "constitute" Governmentwide regulations because they are "based on" OPM regulations. Furthermore, its proposal is a more precise version of what the Panel adopted in Connecticut Army and Air National Guard,(3) and also recognizes, in agreement with the Union, the statutory restoration rights of some Active Guard Reserve (AGR) nontechnician employees.

    As to the Union's proposal, it is nonnegotiable because it precludes nonbargaining-unit technicians, (i.e., supervisory technicians) from competing with bargaining-unit employees for bargaining-unit positions. Not only is this inconsistent with National Guard regulations, but also conflicts with the decision of the U.S. Court of Appeals for the District of Columbia Circuit in United States Department of Navy, Naval Aviation Depot, Cherry Point, North Carolina v. Federal Labor Relations Authority, 952 F.2d 1434 (D.C. Cir. 1992) because the proposal does not principally relate to the conditions of employment of bargaining-unit employees. At best, it is "a permissive bargaining proposal." Therefore, the Panel should relinquish jurisdiction over the Union's proposal, or in the alternative, order the adoption of its proposal.

    b. The Union's Position

    The Union proposes that:

When a RIF is deemed necessary, nonbargaining-unit technicians will not compete with bargaining-unit technicians for bargaining-unit positions except for those nonbargaining-unit members who have restoration rights under 38 U.S.C. § 2024 (d) and who may exercise at any time their right to return to their former bargaining-unit positions.

With respect to jurisdiction, the Union contends that the Employer's allegation of nonnegotiability is without merit. In this regard, the Union cites the Federal Labor Relation Authority's (FLRA) holding in Association of Civilian Technicians, Pennsylvania State Council and Pennsylvania Army and Air National Guard, 14 FLRA 38 (1984) in which a proposal similar to the Union's was found to be negotiable. The Panel should exercise its authority under Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, 31 FLRA 620 (1988), (Carswell), and decide the jurisdictional issue in its favor.

    Further, on the merits, this case is distinguishable from the Panel's decision in Connecticut Army and Air National Guard. In this regard, the Employer has not provided "any argument that supervisory employees, because of their functions and background, warrant inclusion in the same RIF area of consideration as technicians." Therefore, Connecticut Army and Air National Guard should not be controlling. Rather, Department of Defense, National Guard Bureau, Michigan Air National Guard, Lansing, Michigan, Case No. 90 FSIP 89 (Release No. 303),(4) (Michigan Air National Guard) should govern the Panel in making its decision. Consistent with Michigan Air National Guard, separate competitive areas for bargaining-unit technicians and nonbargaining-unit technicians would maintain the integrity of the bargaining unit. Moreover, nonbargaining-unit technician supervisors gave up such protections when leaving the bargaining-unit and accepting benefits and pay not available to bargaining-unit employees.

CONCLUSIONS

    We note preliminarily that the only disagreement between the parties at this point concerns whether non-AGR, nonbargaining-unit supervisory technicians should be permitted, in the case of a RIF, to compete with bargaining-unit employees for bargaining-unit positions. In our view, it is unnecessary to address the validity of the arguments raised concerning the negotiability of the Union's proposal because we are persuaded that the Employer's should be adopted. Its proposal closely parallels our decision in Connecticut Army and Air National Guard. In this regard, the Union has presented no affirmative arguments in support of its proposal that were not considered by the Panel in the previous case. Therefore, based on the above, we remain convinced that both nonbargaining- and bargaining-unit technicians, though not AGR personnel, should have the right to compete for bargaining-unit jobs during a RIF.

4. Technician Recognition

    a. The Employer's Position

    The Union's proposal is nonnegotiable, so the Panel should order that it be withdrawn. In this regard, the proposal directly interferes with the agency's right to determine the methods and means of performing work. It cites American Federation of Government Employees, AFL-CIO, Local 3006, and The Adjutant General, State of Idaho, Boise, Idaho, 34 FLRA 816 (1990),(5) to substantiate its claim.

    b. The Union's Position

    The Union proposes that "persons signing documents while performing in a Technician status may use their civilian grade or title, except where military titles and grades are required by applicable directive." The expired collective-bargaining agreement between the Employer and the previous union contained the same wording, and the Employer has not demonstrated a need to change the status quo. Keeping the wording would avoid confusion as to whether bargaining-unit employees are in a civilian or military status when signing documents. Furthermore, its proposal would avoid the possibility of an employee being subjected wrongly to military discipline if forced to sign by military title, as would be required if its proposed wording is not retained in the new term agreement.

CONCLUSIONS

    In examining the nonnegotiability allegation raised by the Employer, the Panel is guided by the FLRA's Carswell decision, where it concluded that the Panel may apply existing case law to resolve an impasse where a duty-to-bargain question arises. In this regard, the Union has not cited, nor are we otherwise aware of, previous FLRA decisions which definitively establish the negotiability of its proposal. We conclude, therefore, in accordance with Carswell, that the Employer's contention that it has no obligation to bargain over the matter at issue has merit and, accordingly, we find that the Union's proposal is not properly before the Panel.

ORDER

    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 proceedings instituted pursuant to the Panel's regulations, 5 C.F.R. § 2471.6 (a)(2), the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the following:

1. Union Office Space and Equipment

    The parties shall adopt the following wording:

The Employer will make available to the Union at Milwaukee and Madison Air Bases suitable office space that, if necessary, may be shared with users who currently occupy this space on less than a full-time basis. Selection of space shall be based on maximizing to the extent possible the factors of availability, size, and convenience of location. The office will be provided with a desk and two chairs; a four-drawer filing cabinet; a secure storage cabinet; and a telephone. The Union agrees to assume the cost of all toll calls and the usual monthly telephone service charges. Either party may reopen this provision for further negotiations when additional space becomes available through, for example, downsizing or completion of the headquarters building.

2. Reserved Parking

    The parties shall adopt the Union's proposal.

3. Competitive Areas for RIFs

    The parties shall adopt the Employer's proposal.

4. Technician Recognition

    The Panel declines to retain jurisdiction over this issue.

 

By direction of the Panel.

Linda A. Lafferty

Executive Director

May 10, 1993

Washington, D.C.

 

1.The Panel has denied the Union's motion that the Employer's follow-up submission, dated March 3, 1993, not be considered. The record shows that while the Employer's submission was unsolicited, the Union also has submitted unsolicited submissions in the case. In these circumstances, fairness dictates that the Employer's submission be considered.

2The expired agreement provides: 

The Employer recognizes the importance of the Union's role in representing bargaining-unit employees. Accordingly, in conjunction with appropriate matters permitted in accordance with Chapter 71 of Title 5 USC, the Employer will make a reasonable effort to provide accommodations for the conduct of authorized representational activities in a confidential atmosphere. Requests for accommodations will be made by the Union representative through his supervisor to the Air Commander or his designated representative. The Union reserves the right to notify the Air Commander if suitable accommodations are not made available.

3In Connecticut Army and Air National Guard the Panel adopted the employer's proposal that in the case of a reduction in force "nonbargaining-unit employees will compete with bargaining-unit employees for bargaining-unit positions" and "non-technician employees will not compete with bargaining-unit employees for bargaining-unit positions." The Panel based its decision in part because supervisory technicians rose thro