DEPARTMENT OF THE ARMY WHITE SANDS MISSILE RANGE WHITE SANDS MISSILE RANGE, NEW MEXICO AND LOCAL 2049, NATIONAL FEDERATION OF FEDERAL EMPLOYEES

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

 

In the Matter of

DEPARTMENT OF THE ARMY

WHITE SANDS MISSILE RANGE

WHITE SANDS MISSILE RANGE,

NEW MEXICO

AND

LOCAL 2049, NATIONAL FEDERATION

OF FEDERAL EMPLOYEES

Case No. 93 FSIP 105

DECISION AND ORDER

    The Department of the Army, White Sands Missile Range, White Sands Missile Range, New Mexico (Employer), 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 Local 2049, National Federation of Federal Employees (Union).

    After investigation of the request for assistance, the Panel directed the parties to participate in an informal conference with Assistant Executive Director Joseph Schimansky for the purpose of resolving the outstanding issues. The parties were advised that if no settlement were reached, Mr. Schimansky would notify the Panel of the status of the dispute, including the final offers of the parties and his recommendations for resolving the issues. Following consideration of this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.

    Mr. Schimansky met with the parties on May 17, 1993, at the Panel's offices in Washington, D.C. As a result of that proceeding, only two of the nine issues initially submitted to the Panel for resolution remain at impasse.(1) Mr. Schimansky has reported to the Panel, and it has now considered the entire record.

BACKGROUND

    White Sands Missile Range is a 4,000 square mile national missile testing facility located in southeastern New Mexico which employs approximately 3,900 civilian employees. The Union represents four separate bargaining units at the facility; all are covered by a single collective-bargaining agreement which is due to expire in June 1993. The parties are at impasse following negotiations over the impact and implementation of a reduction in force (RIF), which is planned for September 29, 1993. Notices are to be sent to affected employees on July 21, 1993; at this point, less than 50 employees are expected to be separated.

ISSUES AT IMPASSE

    The parties basically disagree over: (1) whether the Employer should be required to assist employees potentially impacted by the RIF by improving employment standing through positive affirmative actions, and (2) the circumstances, if any, under which the Employer should provide the Union with comprehensive workload studies and economic analyses when contracting out work functions previously performed in-house.

1. Employer Assistance to Employees Prior to the RIF

    a. The Union's Position

    The Union proposes the following wording:

The Employer will assist potentially impacted employees of a RIF by attempting to improve their employment standing through positive affirmative actions. This may be accomplished by cross training, on-the-job training, counselling, and referral to various educational programs. The Employer will provide to the Union at the time of a RIF a summary of any affirmative actions taken to reduce the adverse affects.

Its intent is "to reduce otherwise adverse impacts on employees within the bargaining unit who may be touched for reductions in force." Through the types of actions indicated, "many employees may be placed in other positions who would otherwise be separated or reduced in grade by the RIF." The proposal is not intended to have an impact on the retention register or the retention standing of employees, which are governed by applicable law and Governmentwide regulations. Rather, it would "increase or improve the 'employment standing' of the employee, not the 'retention standing'."

    The proposed wording is necessary because of its belief that "there has been discrimination in retention and placement actions in the past." In this regard, the Union should be entitled to information showing the actions management has actually taken to reduce the adverse impact on minorities during the current RIF consideration period. The Employer opposes the proposal because "it does not want to take any action that would help minorities," preferring instead to "slide along its current path of discrimination."

    b. The Employer's Position

    The Employer's proposal is as follows:

Five workdays prior to the issuance of [RIF] letters, the Employer will provide the Union with data on the number and percentage of women, minorities, employees over the age of 40, and handicapped employees, at each grade in each major organizational unit, by division. Within 10 workdays after the effective date of the RIF, the Employer will provide similar EEO data to the Union. The Employer also will provide to the Union 5 workdays prior to the issuance of RIF letters a listing of the encumbered positions being abolished, and the EEO data on each incumbent. To the extent practicable, the Employer will attempt to minimize through affirmative measures the adverse impact of the pending RIF on those bargaining-unit employees affected. This will be accomplished through (a) waiver of qualification requirements to increase placement opportunities for RIF'ed employees into vacant positions; (b) provision of training following the RIF to develop the skills needed for the employee to satisfactorily perform the duties and responsibilities of the position into which placed; and (c) restructuring of vacant positions to be filled in the RIF to enhance RIF placement opportunities for affected employees.

Its proposal, which arose out of the Union's interest in monitoring the impact of the RIF on women and minorities, would provide the Union with comprehensive workforce EEO profile data. The EEO data now being offered are the same type requested by the Union and provided by management during the 1992 RIF, and the Union has voiced no objections as to either the accuracy or usefulness.

    In response to the Union's newly-raised concerns, the Employer's proposal also sets forth the affirmative measures it will attempt to take during and after the RIF "to minimize the adverse impact on employees who are actually affected." In this regard, the actions it intends to take both during and after the RIF "are realistic," and emphasize its "commitment to enhance placement opportunities." The Union's proposal, on the other hand, is unrealistic and "overly broad," because it would require that training, counselling, and educational referral be provided "to numerous employees in the limited period of time before RIF letters are to be issued with no Employer expectation that such short-term actions would notably enhance the employment standing of any employee."

CONCLUSIONS

    Having considered the evidence and arguments on this issue, we conclude that the dispute should be resolved on the basis of a modified version of the Employer's proposal. In this regard, the Union's proposal is motivated by the belief that there has been past Employer discrimination against employees on the basis of race and nationality in retention and placement, and that improving "employment standing" would serve to help minorities. Our examination of the record presented, however, does not substantiate such allegations.(2) Accordingly, the Union has not demonstrated a need for the actions its proposal would require. Moreover, the proposal goes beyond the scope of these negotiations, which concern the impact and implementation of the Employer's decision to conduct the current RIF on affected employees, because it would apply to all "potentially impacted employees of a RIF," individuals who cannot be identified with certainty until RIF letters have been issued. The proposed actions are also likely to be ineffectual, given the short period of time between the date of this decision and July 21, 1993, when RIF notices are to be sent.

    The Employer's proposal, on the other hand, should provide the Union with another opportunity to demonstrate the validity of its concerns regarding alleged Employer discrimination in retention and placement actions. It also appropriately focuses on the types of practical, affirmative measures the Employer intends to take to minimize the adverse impact of the RIF on those employees who will actually be affected. We shall order that it be modified, however, to include additional wording requiring the Employer to provide the Union with a post-RIF summary of the measures it has taken. Such a requirement is reasonable, in our view, because it would permit the Union to monitor the Employer's performance to ensure that its actions in this regard are consistent with its stated intentions.

2. Workload and Economic Studies Prior to Contracting Out

    a. The Union's Position

    The Union proposal is as follows:

The Employer agrees with the Union that when an organization is discontinued, and/or when a function(s) or task(s) is reassigned to be performed locally or at another locality by the Government or to be contracted, a detailed explanation will be provided the Union of the resulting assignments. If the function is intended or results in being contracted out the Employer agrees to provide the Union a complete and comprehensive workload study as well as an economic analysis showing the actual unit rate when the function is performed by in-house personnel versus execution of the function by contract.

The proposal attempts to have management provide a "thorough review" before contracting out work performed by in-house personnel. This is necessary because of the Employer's practice of dividing the work function into small job orders, and effectively bypassing the contracting out requirements of Governmentwide (Office of Management and Budget Circular A-76) and agencywide (Army Regulation 5-20) regulations. In this regard, the Union has submitted documents which demonstrate "how unorganized White Sands Missile Range management is in the use of its available labor and financial resources," particularly with respect to the many reorganizations which have occurred in the Directorate of Engineering, Housing, and Logistics. Its documents also show that management (1) has admitted violating Army regulations on contracting issues and (2) will do whatever it has to do to contract out jobs. Its proposal should be adopted, therefore, because it "would help to prevent reorganizations and RIFs being conducted solely for the purpose of setting up the unit for contracting out." Finally, contrary to claims raised by the Employer during the informal conference, nothing in its proposal would require the illegal disclosure of cost study information, nor the release of information prior to a contract decision being made.

    b. The Employer's Position

    The Employer offers the following wording:

The Employer agrees with the Union that when an organization is discontinued, and/or when a function(s) or task(s) is reassigned to be performed locally or at another locality by the Government or to be contracted, a detailed explanation will be provided the Union of the resulting assignments. The Employer agrees that any contracting out after the RIF of work normally performed by bargaining-unit employees will be in accordance with applicable laws and regulations.

By stating for the record that any contracting out after the RIF will be in accordance with applicable laws and regulations, its proposal appropriately addresses the Union's concern that such decisions be made properly. The Union's proposal, on the other hand, "calls for completion of an unknown level of workload study and an unknown level of economic analysis in each and every case in which the Employer elects to, or even considers, contracting out work." This "far exceeds" current regulatory requirements, which recognize that cost and workload studies "can be exceptionally time-consuming and expensive to conduct." The Union's proposal also is problematic in that certain cost comparison data might not be legally "releasable to the Union until a final contracting out decision has been made." Finally, the Union's proposal also should be rejected because it would require workload and economic studies even where the Government workforce "lacks specific skills or equipment to perform" the work or the amount of work required exceeds its capacity.

CONCLUSIONS

    After carefully examining the evidence and arguments presented by the parties on this issue, we conclude that neither proposal would adequately resolve the matter.(3) In this regard, the Union's proposal is not specifically restricted to contracting out decisions which occur as a result of the current RIF and, therefore, goes beyond the scope of these negotiations. We also find that its documentary evidence falls short of establishing its premise that the current RIF is "being conducted solely for the purpose of setting up the unit for a contracting out."(4) In such circumstances, its all-encompassing requirement that workload and economic studies be performed whenever the Employer even considers or elects to contract out work has not been justified.

    The Employer's proposal, on the other hand, would require it to provide no explanation for its contracting-out decisions unless specifically mandated by applicable Governmentwide and agencywide regulations. Although the Union's proposal is far more burdensome than warranted, we are persuaded that its suspicions should be allayed, and the parties' relationship improved, through the exchange of additional information in such circumstances. Accordingly, we shall order the adoption of wording requiring the Employer to provide the Union with economic justification if it decides to contract out work as a result of the current RIF. Finally, in response to the Employer's concern that certain data may not be legally releasable, we shall also include additional wording requiring that any information provided to the Union shall be consistent with the requirements of applicable law.

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 the proceeding instituted under 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. Employer Assistance to Employees Prior to the RIF

    The parties shall adopt the Employer's proposal, modified to include the following wording:

The Employer will provide the Union with a summary of the actions it has taken in its attempt to minimize through affirmative measures the adverse impact of the pending RIF on those bargaining-unit employees affected.

2. Workload and Economic Studies Prior to Contracting Out

    The parties shall adopt the following wording:

The Employer agrees with the Union that when an organization is discontinued, and/or when functions or tasks are reassigned to be performed locally or at another locality by the Government or to be contracted, a detailed explanation will be provided to the Union of the resulting assignments. If the Employer contracts out as a result of this RIF, it agrees to provide the Union with economic justification for contracting out. Any information provided to the Union in connection with this provision shall be consistent with the requirements of applicable law.

 

By direction of the Panel.

Linda A. Lafferty

Executive Director

June 29, 1993

Washington, D.C.

 

1.The Union agreed to withdraw the other seven issues; three of the seven were withdrawn so that it could pursue related matters in other forums.

2.We note that the data provided by the Employer to the Union after the previous RIF, the same EEO profile material it is also offering in the instant case, fails to support the Union's belief.

3.As the parties are not at impasse over the first sentence of the proposals, which is identical in both, it shall be included in the Panel's Order without further comment.

4.In this regard, the documents which the Union w