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DEPARTMENT OF THE ARMY HEADQUARTERS, FORT CARSON FORT CARSON, COLORADO and LOCAL 1345, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

 

In the Matter of

DEPARTMENT OF THE ARMY

HEADQUARTERS, FORT CARSON

FORT CARSON, COLORADO

and

LOCAL 1345, AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES, AFL-CIO

 

Case No. 97 FSIP 124

DECISION AND ORDER

    Local 1345, American Federation of Government Employees, AFL-CIO (Union) and the Department of the Army, Headquarters, Fort Carson, Fort Carson, Colorado (Employer) filed a joint 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.

      After investigation of the request for assistance concerning tours of duty and related issues,(1) the Panel directed the parties to participate in an informal conference with a Panel representative for the purpose of resolving the dispute. The parties were advised that if no settlement were reached, the representative would report to the Panel on the status of the impasse, including the parties’ final offers and his recommendations for resolving the matter. 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 this procedural determination, Executive Director H. Joseph Schimansky met with the parties on December 17, 1997, at Fort Carson, Colorado. During the informal conference, the parties were able to resolve all but one issue. Mr. Schimansky has reported to the Panel, and it has now considered the entire record.(2)

BACKGROUND

    Fort Carson is an Army tactical installation which is home to approximately 20,000 active duty military personnel where soldiers receive heavy artillery training for deployment overseas. The bargaining unit consists of approximately 1,200 General Schedule and Wage Grade employees who work in a variety of administrative and technical occupations, such as computer specialist, clerk, heavy mobile equipment mechanic, carpenter, electrician, and target systems mechanic. The parties’ collective bargaining agreement expired in August 1988, but negotiations over a successor agreement were recently completed. The new agreement will become effective after agency head review and ratification by the Union’s membership. Approximately 14 mechanics who maintain and repair target systems on the artillery ranges are affected by this dispute.

ISSUE AT IMPASSE

    The parties essentially disagree over what the tours of duty and lunch periods should be for employees at the artillery ranges when military units are present (i.e., when the ranges are in a "hot status").

POSITIONS OF THE PARTIES

1. The Employer’s Position

    The Employer proposes the following wording:

The constant hours of duty for all employees assigned to range 143, and the hours of duty for employees assigned to ranges 109 or 145 only when there is a military unit on the range, are as follows:

1st shift 0730 - 1600

2nd shift 1530 - 2400

3rd shift 2330 - 0800

Employees are required to take a 30 minute unpaid lunch during each shift in accordance with a staggered schedule established by their supervisor.

By eliminating the overlap between shifts, the Union’s proposal directly interferes with management’s rights to assign work and employees, under section 7106(a)(2)(A) and (B) of the Statute. In this regard, management would be prevented from assigning employees "particular duties that can only be performed at times falling within the overlap period." In addition, establishing 20-minute paid lunch periods would "prevent management from determining not to assign work during what is currently the employee’s meal period." There are numerous decisions by the Federal Labor Relations Authority (FLRA) supporting its position that such requirements make the proposal nonnegotiable under section 7106(a).(3) Nor is it subject to negotiation at the election of the agency, under section 7106(b)(1). As indicated by the FLRA in American Federation of Government Employees, Local 1336 and Social Security Administration, Mid-America Program Service Center, 52 FLRA 794 (1996)(Mid-America), "where, as here, the parties disagree whether the negotiability of a proposal that has two distinguishable requirements is governed by section 7106(a) or section 7106(b)(1)," the "dominant requirement" will determine which section of the Statute governs. Because the dominant requirement of the Union’s proposal, upon which its other requirement depends for its viability, involves the assignment of work under section 7106(a), it "is not within the duty to bargain."

    The Employer’s proposal, on the other hand, "most closely matches the work and lunch hours that employees are currently working, and have been paid for, over the last 6 years." It should be adopted because a 30-minute overlap between shifts is necessary to ensure a "smooth handoff of operations" between employees as they are performing their work assignments. Face-to-face briefings during shift changeover on a wide variety of subjects are crucial to ensure the security and safety of employees and soldiers, particularly given that they are engaged in the dangerous mission of destroying targets with explosive devices. Finally, a 30-minute uninterrupted lunch period would ensure that employees are given time to eat and rest during shifts which are physically demanding.

2. The Union’s Position

    The Union’s proposal is as follows:

The constant hours of duty for all employees assigned to range 143, and the hours of duty for employees assigned to ranges 109 or 145 only when there is a military unit on the range, are as follows:

1st shift 0730 - 1530

2nd shift 1530 - 2330

3rd shift 2330 - 0730

There will be a 20 minute paid lunch period. Employees will be required to remain at their range assignment while consuming food or resting.

Turning first to the jurisdictional question, the Employer’s nonnegotiability argument is "ridiculous." The Union’s proposal involves tours of duty, a subject which the FLRA has found to be negotiable at the election of agencies under section 7106(b)(1) of the Statute. Thus, the Employer’s position is inconsistent with the FLRA’s decision in National Association of Government Employees, SEIU, AFL-CIO, Local R5-184 and U.S. Department of Veterans Affairs Medical Center, Lexington, Kentucky, 51 FLRA 386 (1995)(Lexington), which establishes that proposals involving section 7106(b)(1) are negotiable at the election of management regardless of whether they also involve section 7106(a). It is the analysis in Lexington which applies in the current circumstances, and the "convoluted application of ‘dominant purpose’ described by the Agency" should be rejected. Moreover, the Employer elected to negotiate over such permissive matters "when it expressly and unequivocally declared and agreed to do so in the settlement agreement resolving the ULP which gave rise to these issues before the Panel."

    On the merits, contrary to the Employer’s position, "there has always been a 20-minute paid lunch included in the schedule for the ‘hot’ status for all ranges included in the Union’s proposal." Until the Employer filed its latest written submissions, the need for a 20-minute paid lunch has never been in dispute, nor was the issue of shift overlap a concern. In practice, employees read log books to review the previous events of the day, and are advised by their supervisors of any unusual tasks which may need specific attention. Overlapping shifts, therefore, are normally unnecessary. In those unusual circumstances where face-to-face interaction is required, employees could be directed to attend "a ‘pre-shift’ or ‘post-shift’ information exchange." By comparison, the Employer’s proposal would result in the paying of overtime on a "continual basis" because uninterrupted lunch periods rarely occur when the ranges are in a hot status. Thus, its proposal would be far less expensive than the Employer’s, and should be adopted "as being the more reasonable of the two."

CONCLUSIONS

    Preliminarily, it is necessary to address the Employer’s jurisdictional arguments regarding the nonnegotiability of the Union’s proposal. When examining disputes involving duty-to-bargain questions, the Panel is guided by Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988)(Carswell),(4) and U.S. Department of the Interior, Bureau of Reclamation, Lower Colorado Region, Yuma, Arizona and National Federation of Federal Employees, Local 1487, 41 FLRA 3 (1991)(Bureau of Reclamation),(5) where the FLRA has established the obligations and limitations relating to the Panel’s authority to resolve impasses which include duty-to-bargain issues.

    In its post-conference statement of nonnegotiability, the Employer alleges that the Union’s proposal interferes with management’s rights to assign work and employees. It also cites the FLRA’s Mid-America decision in support of its additional allegation that: (1) the proposal contains distinguishable requirements implicating sections 7106(a) and (b)(1) of the Statute; and (2) the "dominant" requirement of the proposal interferes with section 7106(a), and thus renders the entire proposal nonnegotiable. The Union essentially contends that the Employer’s jurisdictional arguments are without merit because: (1) its proposal concerns tours of duty, a subject the FLRA has previously found negotiable at the election of the agency under section 7106(b)(1); (2) the FLRA’s Lexington decision applies in these circumstances, rather than Mid-America; and (3) the parties’ ULP settlement agreement demonstrates that the Employer has elected to negotiate section 7106(b)(1) matters.

    Having carefully reviewed the cases cited by the parties in support of their respective positions, we conclude that in Point Magu the FLRA found that a substantively identical proposal interfered with management’s rights to determine the numbers, types, and grades of employees assigned to a tour of duty, under section 7106(b)(1), and to assign work, under section 7106(a)(2)(B). Thus, applying only the principles adopted by the FLRA in Lexington, the Union’s proposal presumably would be negotiable at the election of the Employer. Moreover, assuming the Employer exercised its discretion to negotiate over the proposal, and that the Panel was persuaded of its merits, under Carswell the Panel would then have the authority to order its adoption.

    Subsequent to the Point Mugu and Lexington decisions, however, the FLRA issued Mid-America, where it adopted a new test for analyzing the negotiability of proposals which establish two or more requirements that are not severable. Although it is not entirely clear from the Employer’s explanation precisely how the "dominant requirements test" applies to the Union’s proposal, we nevertheless are persuaded that its allegation constitutes a "new" nonfrivolous argument of the type referred to by the FLRA in Bureau of Reclamation.(6) As indicated in that decision (see footnote 5 above), one of the factors for the Panel to consider when faced with such arguments is "whether, or to what extent, previous [FLRA] precedent involving similar proposals and/or similar arguments reasonably may be viewed as viable in light of any changes in applicable law or regulation" (Bureau of Reclamation at 13-14). In our view, given the FLRA’s decision in Mid-America, the Employer’s new argument concerning the Union’s proposal raises a threshold question regarding the continued viability of the FLRA’s rulings in Point Mugu and Lexington which must be addressed by the FLRA in the first instance. Therefore, consistent with the guidance provided by the FLRA in Carswell and Bureau of Reclamation, the underlying duty-to-bargain question must be resolved in the appropriate forum before it can be determined whether the parties are properly at impasse over the matter. Accordingly, we shall order the parties to withdraw their proposals to permit the Union to request a written declaration of nonnegotiability from the Employer. This order is without prejudice to the right of either party to file another request for assistance at such time as the aforementioned threshold question has been resolved and an impasse has been reached on the substantive issue.

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 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:

    The parties shall withdraw their proposals to permit the Union to request a written declaration of nonnegotiability from the Employer.

 

By direction of the Panel.

H. Joseph Schimansky

Executive Director

February 3, 1998

Washington, D.C.

 

1.The parties’ negotiations arose as the result of an unfair labor practice (ULP) settlement agreement. The ULP settlement was reached after the Employer unilaterally changed the tours of duty of certain target system mechanics in June 1996 without notifying or negotiating with the Union. In the settlement agreement, dated November 22, 1996, the Employer agreed to restore the previous tours of duty and provide back pay to make employees whole. It also agreed to negotiate with the Union “over the tours of duty and related issues.”

2.The record includes post-conference statements of position in support of the merits of the parties’ final offers, and jurisdictional statements regarding the negotiability of the Union’s final offer.

3.The Employer cites National Association of Government Employees, Local R12-33 and U.S. Department of the Navy, Pacific Missile Test Center, Point Mugu, California, 40 FLRA 479 (1991)(Point Mugu); National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA 392 (1990); and American Federation of Government Employees, Local 85 and Veterans Administration Medical Center, Leavenworth, Kansas, 32 FLRA 210 (1988), among other cases.

4.In Carswell, the FLRA concluded that the Panel and interest arbitrators may apply existing case law to resolve duty-to-bargain questions which arise during impasse proceedings where it has previously found negotiable a “substantively identical” proposal. The FLRA also stated that its approach “preserves the Panel’s discretion as to whether or not to assert jurisdiction, and, as intended by the Statute, ensures that undecided duty-to-bargain issues will be resolved by the [FLRA].”

5.In Bureau of Reclamation, the FLRA concluded that the Panel and interest arbitrators may apply existing case law even where an agency raises “new” negotiability arguments different from those the FLRA had previously reviewed and rejected in finding negotiable a “substantively identical” proposal. By way of explanation, the FLRA noted that holding that the Panel or interest arbitrators exceed their authority by resolving impasses whenever an agency raises a “new” negotiability argument could encourage agencies “to raise novel, even frivolous, negotiability arguments” which could “undermine the collective bargaining process.” It went on to state that interest arbitrators (and the Panel):

 

and the [FLRA] on review, must make case-by-case determinations regarding the extent to which an agency’s negotiability arguments must, or should, be addressed by the [FLRA] in the first instance. Factors relevant to such determinations would encompass such matters as whether, or to what extent . . . previous [FLRA] precedent involving similar proposals and/or similar arguments reasonably may be viewed as viable in light of any changes in applicable law or regulation.

6.In this regard, the Union’s proposal appears to impose two nonseverable requirements, one which would determine the starting and quitting times of the tours of duty, the other mandating a 20-minute paid lunch period. For this reason, we believe the duty-to-bargain issue raised by the Employer is nonfrivolous and should be resolved by the FLRA and not the Panel.