DEPARTMENT OF DEFENSE DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS MEDITERRANEAN REGION and OVERSEAS FEDERATION OF TEACHERS, AFT, AFL-CIO
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
DEPARTMENT OF DEFENSE
DEPARTMENT OF DEFENSE
OVERSEAS FEDERATION OF TEACHERS,
Case No. 93 FSIP 22
DECISION AND ORDER
The Overseas Federation of Teachers, AFT, 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, 5 U.S.C. § 7119, between it and the Department of Defense, Department of Defense Dependents Schools (DODDS), Mediterranean Region (Employer).
After investigation of the request for assistance, the Panel determined that the impasse concerning appropriate arrangements for employees involuntarily reassigned from their positions at the Lajes Air Force Base, Azores, Portugal,(1) should be resolved through written submissions from the parties, with the Panel to take whatever action it deemed appropriate to resolve the impasse. Written submissions were made pursuant to this procedure, and the Panel now has considered the entire record.(2)
The Employer provides quality education to the dependent children of Department of Defense civilian and military employees who are stationed in Spain, the Azores (Portugal), Italy, Greece, Turkey, and Bahrain. The Union represents a bargaining unit of approximately 800 employees who work in such professional positions as teacher, psychologist, nurse, and librarian, among others. Under its terms, the parties' collective-bargaining agreement has been automatically renewed on an annual basis since it expired in February 1987.
The dispute arose during impact-and-implementation bargaining over the Employer's decision to comply with the terms of a treaty between Portugal and the U.S. requiring the reassignment of employees after 3 years of service there. This is a change from previous practice, whereby waivers of the 3-year rule were granted routinely by the Portuguese government upon request. According to the Employer, because waiver requests that were submitted during School Year (SY) 1991-92 were "ignored" by the Portuguese government, a decision has been made to discontinue requesting waivers to the treaty.
ISSUE AT IMPASSE
The parties basically disagree over the circumstances, if any, under which reassigned employees should be permitted to return to positions at Lajes.
POSITIONS OF THE PARTIES
1. The Union's Position
The Union proposes the following wording:
Current employees shall be given priority to return to Lajes (the Lajes Air Base Schools) to fill positions for which they qualify as openings occur.
Its proposal was presented on behalf of the 25 teachers who had been at Lajes for more than 3 years and who were reassigned in SY 1991-92 as a result of management's decision to comply fully with the treaty and discontinue the practice of requesting waivers. A survey "identified eight teachers who wished to stay in Lajes." This "right of first refusal" would go into effect only when: (1) a vacancy occurs; (2) a decision is made to fill the vacancy; (3) a reassignment from outside of Lajes must be made to fill the position; and (4) "a fully qualified former Lajes teacher, who is performing satisfactorily is available and wishes to return to Lajes." As such, the proposal is a fully negotiable accommodation, under § 7106(b)(3) of the Statute, for employees adversely affected by the exercise of management's right to reassign employees. Adoption of the proposal also would substantially benefit the Employer. In this regard, "assigning teachers who wish to work in a remote part of the world is a substantial reward to the Agency," which should be "overjoyed that some of its employees wish to return to this harsh environment." It also would "increase morale, reduce costs, and improve the efficiency of the service."
2. The Employer's Position
The Employer's decision to discontinue requests for waivers from the treaty's requirements was necessary "to ensure proper staffing." It contends that the Union's proposal is nonnegotiable because it directly and excessively "interferes with management's right to fill positions and select employees from any appropriate source" under § 7106(a)(2)(c) of the Statute. Moreover, in its discussions concerning the intent of the proposal, the Union indicated that, once employees are reassigned to Lajes, "they would be grandfathered against the treaty requirements," i.e., "they would not be subject to the treaty's requirements limiting service in Lajes." Therefore, the proposal "seeks to invalidate a treaty provision through the collective bargaining process."
The Union's proposal also would result in additional costs "incurred in returning an employee to Lajes when management has a qualified local candidate available for selection." Further, it fails to consider that "all teaching jobs are overseas, and relocation to an overseas area is one of the most basic conditions of employment in DODDS." In this regard, rejection of the proposal would be consistent with a previous Panel decision in which it adopted a private factfinder's recommendation involving the Employer where the factfinder concluded that employees in the DODDS system agree to accept reassignments as one of the aspects of the job, and that "reassignment cannot be treated as a trauma entitling a teacher to unusual benefits.(3) The proposal is also defective in that it "does not consider the employees' current performance ratings at the time a vacancy occurs," and would require the reassignment of employees even if they were currently rated minimally successful or even unacceptable. Finally, the Union's proposal is unnecessary because those employees reassigned at the end of SY 1991-92 who wish to return "may apply and be considered for positions at Lajes under the existing provisions of the Agency's Transfer Program, which provides such opportunities."
We shall turn first to the Employer's threshold contention that, in essence, the Panel should decline to retain jurisdiction over the Union's proposal because it is nonnegotiable. In such circumstances, the Panel is guided by the Federal Labor Relations Authority's decision in Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988) (Carswell), where the FLRA determined that the Panel may apply existing case law to resolve an impasse where a duty-to-bargain issue arises. In this regard, in American Federation of Government Employees, Local 3172 and U.S. Department of Health and Human Services, Social Security Administration, San Jose District, San Jose, California, 46 FLRA No. 28 (October 28, 1992), the FLRA found negotiable a proposal which afforded an involuntarily reassigned employee the right of first refusal to return to the employee's former position, provided a vacancy exists which management decides to fill. Accordingly, we conclude that the Employer's jurisdictional argument is without merit and that the Union's proposal is properly before the Panel.
Having considered the evidence and arguments presented by the parties on the merits of the issue, we shall order the adoption of a modified version of the Union's proposal. Preliminarily, we agree with the Employer that it must be able to ensure that proper staffing levels at Lajes are maintained at all times. In our view, however, the proposal is fully consistent with this vital Employer interest. Moreover, while the Union may have suggested to the Employer that the intent of its proposal was to "grandfather" employees reassigned to Lajes in violation of treaty provisions, there appears to be nothing in the wording of the proposal requiring such a result.
The Employer, however, has raised some legitimate concerns as to whether the proposal would require the reassignment of employees even: (1) where it could select local candidates to fill vacancies, or (2) if their current performance ratings are less than fully successful. Although the Union has indicated that it does not intend its proposal to apply in either of these circumstances, such is not clearly stated in the wording of its proposal. Moreover, the proposal does not specify that it would be restricted to these 25 employees adversely affected by the Employer's actions in SY 1991-92. With modifications to the Union's proposal which rectify these defects, we are persuaded that the parties' dispute should be resolved in a manner which, under the circumstances presented, provides a reasonable accommodation for those employees who were uprooted from their jobs as the result of recent developments at the installation, without unduly burdening the Employer.
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:
The parties shall adopt the following wording:
Current employees who were involuntarily reassigned from the Lajes Air Base Schools at the end of School Year 1991-92 shall be given priority to return to Lajes if: (1) a vacancy occurs; (2) the Employer decides to fill the vacancy; (3) the Employer decides to fill the vacancy through a reassignment of an employee from outside of Lajes; and (4) those employees wishing to return to Lajes are fully qualified and have a current performance rating of at least fully successful.
By direction of the Panel.
Linda A. Lafferty
July 1, 1993
1.Lajes Air Force Base is located on a small island about 1,000 miles west of Portugal in the Atlantic Ocean.
2.After receiving the Employer's written submission, the Union filed a motion that it be disregarded by the Panel because (1) "the type the agency used in its submission is 15 characters per inch (15 pitch)," which is a "definite departure from past practice and normal usage," and a "deliberate attempt . . . to place the Union at a disadvantage;" and (2) the submission attempts to relitigate a procedural issue already rejected by the Panel when it asserted jurisdiction over the dispute. The Union's motion is denied because (1) the Panel did not
specifically set forth type-size requirements in any of its communications with the parties, and (2) jurisdictional issues may be raised at any point during proceedings before the Panel. Nevertheless, the Panel prefers that such issues be raised early in the Panel's processes to foster improved understandings and use
2.After receiving the Employer's written submission, the Union filed a motion that it be disregarded by the Panel because (1) "the type the agency used in its submission is 15 characters per inch (15 pitch)," which is a "definite departure from past practice and normal usage," and a "deliberate attempt . . . to place the Union at a disadvantage;" and (2) the submission attempts to relitigate a procedural issue already rejected by the Panel when it asserted jurisdiction over the dispute. The Union's motion is denied because (1) the Panel did not specifically set forth type-size requirements in any of its communications with the parties, and (2) jurisdictional issues may be raised at any point during proceedings before the Panel. Nevertheless, the Panel prefers that such issues be raised early in the Panel's processes to foster improved understandings and use