DEPARTMENT OF LABOR OFFICE OF LABOR-MANAGEMENT STANDARDS WASHINGTON, D.C. AND NATIONAL UNION OF LABOR INVESTIGATORS

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

 

In the Matter of

DEPARTMENT OF LABOR

OFFICE OF LABOR-MANAGEMENT STANDARDS

WASHINGTON, D.C.

AND

NATIONAL UNION OF LABOR

INVESTIGATORS

Case No. 97 FSIP 41

DECISION AND ORDER

    The National Union of Labor Investigators (Union or NULI), 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 Labor, Office of Labor-Management Standards, Washington, D.C. (Employer or OLMS).

    After an investigation of the request for assistance, the Panel determined that the impasse concerning a definition of seniority, the last open item in negotiations over a successor collective bargaining agreement (CBA), should be resolved through an informal conference between a Panel representative and the parties. If no settlement were reached, the Panel representative was to notify the Panel of the status of the dispute; the notification would include the final offers of the parties and the representative's recommendations for resolving the matter. Following notification of this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.

    Accordingly, on March 18, 1997, Supervisory General Attorney Ellen J. Kolansky met with the parties at the Panel’s offices, but they were unable to resolve the issue. Ms. Kolansky has reported to the Panel, and it has now considered the entire record.

BACKGROUND

    The Employer, an activity within the Department of Labor, administers the provisions of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 401 et seq., and other acts which regulate certain internal union procedures, including the handling of union funds, internal elections, and trusteeships. The Union represents 150 to 200 bargaining-unit employees, located throughout the United States, who work as investigators and senior investigators. The parties’ CBA expired on August 31, 1996, but it continues to cover conditions of employment until a successor is implemented.

ISSUE AT IMPASSE

    The sole issue in dispute concerns how seniority is to be defined in the parties’ successor CBA.(1)

POSITIONS OF THE PARTIES

1. The Employer's Position(2)

A. When OLMS proposes to take any action that may affect working conditions, it shall, consistent with the Statute, give notice to NULI and will bargain to conclusion, including impasse procedures, prior to implementation.

B. OLMS and NULI will attempt to devise appropriate solutions to the problems raised in connection with the proposed action in (A) above. If agreement is not reached, seniority shall be the determining factor, consistent with applicable law, rule, and regulation.

C. The parties will mutually agree on a definition of appropriate seniority on a case-by-case basis consistent with applicable law, rule, or regulation.

D. The parties mutually agree to discuss how seniority may apply to the following: temporary duty assignments, office assignments, and training assignments.

The proposal allows parties the flexibility to develop solutions tailored to address particular circumstances within an office or region that by formal agreement or past practice have been decided based on seniority. If, as part of such an approach, parties are unable to reach consensus on the type of seniority to be applied, they would have recourse to impasse procedures under the Statute. While the current contractual wording that defines seniority is nearly impossible to understand, and rarely, if ever, applied since volunteers are solicited first, the clarity of the proposed wording is a needed improvement. Under the Union’s default definition, which uses cumulative, bargaining-unit service to calculate seniority, significant service during periods when employees occupy non-unit and supervisory positions would essentially be ignored. In previous decades when the bargaining unit was relatively stable, its impact would not have been so widely felt even though the career path in OLMS takes employees in and out of bargaining-unit positions. As part of changes initiated in 1993 to reduce the Federal workforce, to decrease supervisor-to-employee ratios, and to emphasize customer service in field locations, some 40 to 50 supervisors and non-unit, headquarters employees are expected to be reassigned shortly to unit positions in the field. Application of the proposed seniority definition would have a negative impact on this group of employees. Moreover, the Union’s definition is unnecessary: Two other contracts covering some 12,000 other Department of Labor employees do not contain seniority definitions, and no problems are apparent relating to the lack of such a definition.

2. The Union’s Position

    The Union’s proposal reads:

Basic seniority shall be defined as years of service in the bargaining unit. Issues which have been subject to considerations of seniority may be resolved through consensus agreements by Reinvention teams or labor/management committees; nationally; regionally; or in local offices. If such committees are unable to resolve an issue, basic seniority shall apply.

While a joint labor-management team or committee would take the first step toward resolving a problem to which seniority may be applied, agreeing in advance to a "default" definition would save time and effort when the team is unable to reach consensus. The Employer has not reported any problems associated with the current contractual provision, which also uses years in the bargaining unit for seniority purposes. The instant proposal, however, is easier to understand than the current contractual provision, and the Employer agrees that total cumulative length of bargaining-unit service can be calculated without much difficulty. More importantly, it represents a fair way to recognize employees who have given the most years of continuous, front-line, field-office service. Such recognition will also enhance morale. Furthermore, the proposal is analogous to previous decisions on merit promotion in which the Panel adopted proposals that give first consideration to bargaining-unit employees. Many private sector and some Federal sector collective bargaining agreements use bargaining-unit service for seniority purposes.(3) Finally, the current era is no more tumultuous, as the Employer argues, than the early 1980's when the parties agreed to the existing contractual seniority provision; therefore, other than simplifying the wording, no need has been demonstrated to diverge from the status quo.

CONCLUSIONS

    Having carefully considered the evidence and arguments presented, we conclude that the dispute should be resolved on the basis of the Employer’s final offer. From their proposals, it is apparent that both parties recognize the advantage of following a collaborative approach to resolving issues to which seniority may be applied. The only significant difference concerns what to do when parties fail to reach consensus: to institute impasse procedures (the Employer’s proposal) or to apply a default definition (the Union’s proposal). Based on the parties’ past experience, we believe that, more often than not, they will be successful in resolving such problems. When that is not the case, however, we are not persuaded that the Union’s definition of seniority should be automatically applied. In our view, its availability may act as an impediment to a joint resolution. In addition, we believe that disregarding years of service within OLMS, albeit in supervisory and non-unit positions, may be divisive, and clearly out of harmony with the partnership climate at OLMS. Ultimately, such a definition might even discourage employees from aspiring to positions of greater responsibility, thereby hampering recruitment efforts. Finally, with respect to the comparability data the Union presents, the overwhelming practice in the Federal sector is to use employees’ service computation dates to calculate seniority, irrespective of the nature of the position held; the Union’s data, therefore, is insufficient to justify the adoption of its proposal.

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:

    The parties shall adopt the Employer’s proposal.

 

By direction of the Panel.

H. Joseph Schimansky

Executive Director

May 2, 1997

Washington, D.C.

 

1.At the outset of the informal conference, the parties agreed that the scope of application for the seniority definition was not in dispute. In addition, the parties clarified that they had already resolved seniority issues pertaining to reductions in force and law enforcement employees.

2.This proposal and the Union’s proposal were developed using an interest-based approach undertaken by the parties during the informal conference; they successfully used such techniques to reach agreement on all other parts of their successor CBA.

3.In four contracts drawn from the private, public, and Federal sectors, seniority is used as follows: (1) To resolve conflicts over scheduling annual leave, the contract between the U.S. Marine Corps and the American Federation of Government Employees applies "individual seniority, based on length of service in the shop/office;" (2) In making decisions about layoffs, promotions, transfers and other actions in which seniority is relevant, the agreement between the National Education Association and National Education Association Staff Organization looks at time spent in bargaining units recognized under the National Labor Relations Act; time spent in positions outside of such bargaining units is not counted; (3) Seniority in the contract between the Mailhandlers and the U.S. Postal Ser