FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. and CHAPTER 209, NATIONAL TREASURY EMPLOYEES UNION
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
FEDERAL COMMUNICATIONS COMMISSION
CHAPTER 209, NATIONAL TREASURY
Case No. 99 FSIP 168
DECISION AND ORDER
Chapter 209, National Treasury Employees Union (NTEU or 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 Federal Communications Commission, Washington, D.C. (FCC or Employer).
Following an investigation of the request for assistance, which involves negotiations over a mid-term reopener in the parties’ collective bargaining agreement (CBA), the Panel directed the parties to participate in an informal conference with Executive Director H. Joseph Schimansky for the purpose of resolving five of the nine issues in dispute.(1) The parties were advised that if no settlement were reached, Mr. Schimansky would report to the Panel on the status of the dispute, including the parties’ final offers and his recommendations for resolving the issues. After considering the report, 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, Mr. Schimansky met with the parties on January 13, 2000, at the FCC’s headquarters in Washington, D.C. They were able to resolve three issues (competitive areas for merit promotions, the grievability of performance awards, and the duration of the CBA), but failed to reach agreement on reassignments and performance awards. At the close of the informal conference, the parties submitted their final offers; subsequently, statements of position in support of their final offers also were submitted. Mr. Schimansky has reported to the Panel, and it has now considered the entire record.
The Employer regulates interstate and international communications by radio, television, wire, wireless, satellite, and cable. In addition to the headquarters office, where the vast majority of its employees are located, FCC has 3 regional offices (which are collocated with field offices), 16 field offices, and 9 "resident agent" offices. A total of approximately 150 employees are stationed outside Washington, D.C. The Union is the exclusive representative of approximately 1,400 bargaining-unit employees in 2 nationwide consolidated units. Employees in the slightly larger nonprofessional unit work in such jobs as office automation assistant, engineering and accounting technician, communication industry analyst, telecommunications specialist, and paralegal specialist, at GS-2 through -13. Employees in the professional unit work as attorneys, engineers, economists, and accountants, at GS-5 through -15. The parties’ CBA is due to expire on March 17, 2001.(2)
ISSUES AT IMPASSE
The parties essentially disagree over: (1) reassignment selection procedures, and (2) how performance awards should be distributed once a pass/fail performance appraisal system is implemented.
POSITIONS OF THE PARTIES
a. The Union’s Position
The Union proposes that: (1) the Employer be required to provide the Union with 5 workdays advance notice of all positions "which could be filled through reassignment;" unless the Union agrees otherwise, each reassignment opportunity would be announced using the procedures contained in the CBA for merit promotion vacancies; the announcement would specify that it is posted "primarily to seek reassignment eligibles" and that the Employer "will attempt to fill the vacancy from qualified reassignment eligibles, before considering promotion candidates;" (2) reassignments be made on the basis of seniority; if there are no qualified volunteers, the Employer would be required to consider merit promotion applications before turning to other sources of applicants; if involuntary reassignment is necessary, the Employer would select the least senior qualified reassignment eligible; (3) the Employer use the maximum degree of its discretion to provide moving expenses to employees selected via reassignment; and (4) seniority be defined as FCC Entrance on Duty Date (EOD), and by Service Computation Date if two employees have the same EOD.
Its proposal seeks to inject clarity, objectivity, and fairness into reassignment procedures that currently are "unnecessarily secretive and arbitrary." In this regard, there are recent examples in field offices and at headquarters of inconsistencies in the way Bureau Chiefs handle reassignment opportunities which have resulted in unhappiness by employees who were not selected as well as those who were forced to fill such vacancies. In addition, the Union "has negotiated many other reassignment provisions with other Federal agencies similar to those presented by the NTEU to the FCC," and the Panel "has frequently ordered the adoption of proposals in line with those presented by NTEU" which "mirror" those provisions.(3) The Panel’s decisions, while allowing agencies to set qualification standards for reassignments opportunities, nevertheless "contain objective seniority tie-breakers" if there are too many or too few volunteers. They also have required agencies "in the first instant" to make employees aware that such opportunities exist. These cases "make clear that it is in the public interest that such proposals be adopted to avoid the appearance of employer abuse and the appearance of favoritism."
The Employer’s proposal "is designed to maintain the status quo and to continue to allow it unfettered discretion in deciding which employee should be reassigned." In particular, posting announcements of vacancies for only 2 days "would be essentially worthless" for most employees, and requiring them to submit continual expressions of interest would be an "unnecessary administrative nightmare" for employees and supervisors. More importantly, the Employer seeks to exempt most of its employees "from the terms of any reassignment procedures" through the eight exceptions it lists. The result would be to permit the FCC "to continue to decide, without any clarifying standards, which employees to reward by a reassignment, or which employees to subject to an involuntary assignment."
b. The Employer’s Position
Basically, the Employer proposes that: (1) employees interested in reassignment to another organizational unit be allowed to provide that unit with written notice of interest; expressions of interest would be maintained for 90 days; the Employer would consider reassigning employees expressing such interest; (2) vacancies it wishes to fill through lateral reassignment be posted on the intranet for a period of 2 days, unless the position meets one of eight exceptions;(4) employees would contact the organizational unit where the vacancy occurs to express their interest in being reassigned; (3) in effecting such reassignments, it consider such factors as "seniority, experience, job performance, personal attributes, education and other relevant job qualifications, and organizational need;" (4) relocation expenses be paid "as required by applicable law and regulations;" and (5) the Union be provided a listing of all reassignments on an annual basis.
Its proposal "broadens reassignment opportunities" without the "unreasonable restraints" that are contained in the Union’s proposal. It also ensures "for the first time" that seniority will be considered in the selection process. The proposal "leaves intact the thoughtfully negotiated provisions" of the parties’ CBA concerning "concurrent consideration" of candidates for merit promotion, and its wording regarding the payment of relocation expenses will continue to permit employee-initiated reassignments/relocations at the employee’s own expense.
The Union has failed to demonstrate a need to change the status quo, and its proposal suffers from numerous defects. Regarding advance notification to the Union and competitive posting of reassignments, its proposed wording "conflicts with a basic tenet of reassignments" – that such personnel actions "may, and ought to be, processed noncompetitively." In this connection, "employees who are eligible for reassignment have already competed for the grade level and job series in question and should not be required to compete again." The requirements of 5-day advance notice to the Union, the need to gain Union concurrence, the solicitation of applications, etc., also conflict with another basic tenet of reassignments, i.e., "that such actions be used to meet staffing needs quickly, efficiently, and with a minimum of paperwork." Further, the proposal would preclude management from using reassignments to accommodate a host of special circumstances, such as filling a position as the result of a reorganization or transfer of function, or "to address an ‘incompatibility’ between an employee and his or her supervisors or peers."
On the issue of selecting reassignment candidates by seniority, the proposal "does not necessarily get the best or even the right person into the job." Because the FCC has an "extraordinarily large number" of employees with outstanding and unique qualifications, proper placement of employees usually requires a balancing of many factors in addition to seniority. The portion of the proposal that would require all "involuntary" reassignments to be processed solely on the basis of reverse seniority also could result in wasteful relocations at the Government’s expense of employees from vastly different geographical areas. Due to budget constraints, requiring management to pay relocation expenses whenever it is legally permitted to do so could lead to the elimination of reassignments "primarily in employees’ interests" by prohibiting employees who request such reassignments from voluntarily paying their own relocation expenses. Finally, its analysis of 14 NTEU contracts with other Federal agencies establishes that "there is virtually no precedent for the Union’s proposal." Only one requires merit promotion announcement procedures to be followed in the case of reassignments, only three embrace seniority as the sole selection criterion, and none of them include wording requiring management to pay relocation expenses whenever it is legally permitted to do so.
Having carefully considered the evidence and arguments presented by the parties, we conclude that their impasse over the issue of reassignments should be resolved on the basis of a compromise solution. In our view, legitimate interests on both sides of the issue would not be addressed if either parties’ proposal were adopted. Accordingly, the compromise we have crafted attempts to balance the equities by opening up reassignment opportunities for unit employees without unduly delaying or restricting management’s ability to select the best candidates for reassignments.
With respect to notification, wording shall be imposed requiring the Employer to inform the Union of all reassignment opportunities affecting bargaining-unit employees as they arise. If, on a case-by-case basis, there is no objection by the Union that a particular employee be reassigned, no general notification to unit employees regarding the reassignment opportunity would be required. If the Union objects, however, the Employer will post on the intranet for a period of 5 workdays each vacancy to be filled through reassignment and the minimum qualifications employees must possess to volunteer for the vacancy. Qualified employees may volunteer for the reassignment by contacting the appropriate Bureau/Office where the vacancy occurs. This section of the compromise gives management an opportunity to persuade the Union that the reassignment of a particular employee is in the best interests of all concerned parties (for example, reassignments intended to address incompatibilities between employees and supervisors or peers). If the Union objects, however, the general notification requirement would enable interested qualified unit employees to volunteer for the reassignment opportunity. In this regard, a 5-workday general notification period appears sufficient to provide employees enough time to express interest without excessively delaying management’s ability to meet operational needs.
Turning to the criteria to be used to select among minimally qualified volunteers, wording shall be imposed requiring management to consider volunteers based on such factors as experience, job performance, personal attributes, education and other relevant job qualifications, and organizational need. If, in management’s judgement, the qualifications and suitability of candidates are equal, the most senior qualified volunteer would be selected. If there are no qualified volunteers, management would select from among eligible employees based on the same set of criteria stated above. If the qualifications and suitability of candidates are equal, the least senior qualified employee would be selected. The use of these criteria addresses the Employer’s stated interest in ensuring that the best candidate for the vacancy is selected, while requiring that seniority be applied in situations where employees appear equally well-qualified. To permit the Union to monitor management’s selections with respect to favoritism and arbitrariness, however, additional wording shall be imposed specifically subjecting the Employer’s decisions to challenge through the parties’ negotiated grievance and arbitration procedure.(5)
Turning to some of the other matters separating the parties, we are persuaded that the Employer’s wording on relocation expenses would provide the better resolution on this aspect of the dispute. Among other things, its adoption should continue to permit management to effect reassignments made primarily in the interests of employees who volunteer to pay their own relocation expenses. We shall also impose the Union’s definition of seniority. In this regard, the Employer has raised no objections to its inclusion in the reassignments article, and it could serve to prevent future disagreements over the matter. Finally, while always preferring that disputes be settled voluntarily, when necessary the Panel must use its best judgement in imposing resolutions. In the current circumstances, we recognize that the compromise leaves a number of details to be worked out by the parties. They are urged to test its efficacy and to make any necessary improvements to the procedures outlined during the 12-month period between the date of this decision and the renegotiation of their successor CBA.
a. The Union’s Position
The Union’s performance awards proposal would cover all monetary awards provided to unit employees, and require the Employer to establish an awards pool for unit employees that is equal, on a percentage basis, to that of non-unit employees. In addition, if there is a "significant difference" between the pool made available to any subgroup of non-unit employees (e.g., managers v. confidential employees), the unit pool would equal, on a percent-of-total-salary basis, the amount of the most generous pool. Employees could nominate themselves, or be nominated by a co-worker, a manager, or other FCC official. Nominations would go before a joint committee "composed of three representatives of each party" who would decide whether an award is granted and, if so, whether in the amount of $500, $1,000, or $1,500. Employees receiving awards would not be eligible to receive another award for at least two calendar quarters, decisions would be made by a simple majority of committee members, and management would distribute all available awards money by the end of the fiscal year. Joint awards committees would be established at the Bureau/Office level, with the exception of the Office of Workplace Diversity and the Office of Communications and Business Opportunities, which would share one such committee. The award committees would meet twice a year to evaluate nominations on the basis of established criteria. The Employer would be permitted to allocate up to 10 percent of the unit award pool for on-the-spot awards. Decisions of the awards committees could be grieved by employees. The parties would develop data on a semi-annual basis to ensure reasonably equal distribution of award money, on a percent-of-total-salary basis, among all FCC subdivisions, as well as by race, gender, age, and disability status. Finally, Section 2 (cash suggestion awards) and Section 3 (awards delivered as soon as administratively feasible) of the current CBA would remain in effect, and Section 4 (establishment of an awards working group) would be deleted.
Establishing equal award pools based upon a percentage of unit and non-unit salaries recognizes that unit and non-unit employees "provide equal value" in meeting FCC’s mission. In this regard, the Union has reached agreements on equal unit/non-unit awards pools with four other Federal agencies. Additionally, "it is shameful" for the Employer to maintain, as it did during bargaining, that non-unit employees are more valuable. If the Panel adopts the Employer’s reasoning, "it will deal a severe blow to employee morale." The Employer’s fallback position, that the awards pools should be unequal because managers are supervising employees of the same grade level, should also be rejected. There is "no evidence in the record" to support this rationale; employees decide to compete for supervisory positions for reasons other than the size of their performance awards and, even if true, management could remedy such a situation because "it has total discretion in how to divide the award monies devoted to non-unit employees." In any event, unit employees should not be punished because management’s own classification decisions "result in first level supervisors supervising some employees of equal grades."
Data from FY 1997-99 substantiate that non-unit employees have received more lucrative awards, as a percentage of salary, than unit employees. The Employer’s "attempt at equality," while giving the appearance of providing equal awards pools, "is severely misleading." Its final offer of proposing comparable awards pools applies only to long-term performance awards, which would allow management to manipulate the total amount of award money earmarked for unit employees in a variety of ways. For related reasons, the Union is "not interested" in the Employer’s "Employee of the Year Award concept;" it would "disproportionately reward a few employees" while "severely depleting" funding for other deserving unit employees.
With respect to the award nominations and approval process, under the Union’s wording "employees are an integral part in deciding which employees are deserving of an award." The Union has more or less comparable provisions in contracts with four other Federal agencies. Under the Employer’s final offer, by and large, all award nominations would be decided solely by managers and supervisors, and unit employees "would have no input into award decisions." Although it appears that the Panel has not yet addressed proposals on the issuance of awards in the context of a pass/fail performance appraisal system, it has "repeatedly rejected attempts by agencies, as proposed by the FCC herein, to allow management unfettered control over the issuance of awards."(6) The concerns expressed by the Panel in these decisions are the same ones which underlie the Union’s proposal for joint union-management awards committees in the instant case: that the awards nomination and approval system be fair and objective. Adoption of the Employer’s proposal, on the other hand, "would guarantee that award decisions would be seen as unfair and subjective while also sending a clear message that [unit employees] cannot be trusted."
b. The Employer’s Position
The Employer’s proposed awards article begins by specifying, among other things, that there is no entitlement to an award, and that all awards are subject to budgetary limitations and made at the discretion of the Employer. The awards program would involve cash awards, other than on-the-spot awards, defined as (1) long-term achievements within the preceding 12-month rating cycle, or (2) special act or service awards, which reward specific, relatively short-term, non-recurring achievements of an individual or group. While funding for all awards would be within the Employer’s discretion, it pledges to establish an award pool for unit employees, based on a percentage of salary, "comparable to the award pool for supervisors and managers," derived as follows: (1) the Employer would allocate funding for long-term awards at the start of each fiscal year to individual Bureaus/Offices; (2) each Bureau/Office would set aside award pool amounts for unit employees "in proportion to the total salaries of unit employees in the Bureau/Office at the start of the fiscal year; and (3) distribution of funds from each award pool "may vary plus or minus 5 percent of the amount originally funded." Nominations for awards would have to be supported by a written justification, and the nominating or recommending official would have to refer to eligibility pre-established criteria. Employees could be nominated at any time for performance that occurred during the 12-month period prior to the nomination. An Employee of the Year Award also would be established, funded at a minimum level of $10,000, using the same eligibility criteria as for the other types of performance awards; nominations would be made by an employee’s peers, immediate supervisor, or other management representative, and reviewed by an awards committee, which would allocate available funds among those employees it wishes to recognize as an Employee of the Year; nominations would have to be approved by consensus of the committee, or no award would be made; recommendations of the committee would be transmitted to the FCC Chairman (or designee) for final approval. Finally, the Employer would supply award data to the Union on an annual basis which shows the performance funding levels for all awards within each Bureau/Office, and how awards were distributed on a race and national origin basis.
Its proposal is a reasonable "first step" in adopting a pool concept, particularly given that during the past 3 years, approximately 75 percent of the money allocated to awards at the FCC has been for long-term performance awards. Moreover, the FCC, which is challenged with the task of developing and implementing policies affecting "cutting-edge" broadband technologies, requires flexibility in its ability to reward and retain staff. Thus, it must be able to issue other awards "without applying the pool concept." Significantly, it is "common" for immediate supervisors at the FCC to be at the same grade level as one or more of their subordinates. In such circumstances, granting supervisors larger cash awards than unit employees "is one of the few administrative tools available" to motivate employees to become managers. The Union’s approach of equal funding of all performance awards would eliminate management’s ability to distinguish, "from a total remuneration standpoint," between supervisory/managerial and bargaining-unit positions. It also "fails to recognize" that supervisors and managers "should receive greater financial recognition and reward for outstanding performance than the rank and file unit employees they supervise" because of their broader duties, responsibilities, and accountability. Contrary to the Union’s assertions, none of the 14 NTEU contracts surveyed provide for equal funding of award monies, so its proposal "is clearly out of the mainstream of negotiated agreements."
On the matter of the awards nomination and approval process, awards decisions are a "core management responsibility, basic to the supervision and management of the workforce." In this regard, line supervisors and managers are in the best position to evaluate the contributions of unit employees and to determine who is deserving of a monetary award. Its proposal maintains this practice, while the Union’s places award authority "in the hands of award committees whose members would not be in the position to know the extent or true value of an employee’s contributions." Moreover, the Union has provided no evidence to substantiate its claims of a "perception" that awards are given to management "favorites." Also, as in the area of equal funding of award monies, "none of the 14 NTEU agreements surveyed establish joint labor-management committees with final decisional authority on employee performance awards."
The Union’s proposal contains a number of questionable administrative aspects, none of which would occur under the Employer’s proposed awards article. For example, unit employees would be permitted to grieve the decisions of the awards committees on which the Union has representatives. This is a clear conflict of interest because the Union "will be called upon to represent" employees in grievances where the Union is one of the parties in the decision being grieved. Similarly, allowing unit employees to nominate themselves or others for awards, and then to grieve the matter if awards do not result, "is fraught with the opportunity for mischief." The Union’s cash award limits are drawn "out of thin air" and place "unnecessary and ill-advised restraints on the awards program," and the requirement that awards committees meet only every 6 months "results in employees being recognized well after the fact." Requiring all awards funds to be spent by the end of the fiscal year could result in money being distributed "to all employees whether or not they deserve an award." The Union’s proposal also would destroy the existing On-the-Spot Awards program, which has been "successful and well-received," by eliminating $50 and $100 awards, and precluding immediate recognition of employees’ contributions. Finally, its mandate that certain data be developed and provided to the Union on a semi-annual basis "is unjustified and burdensome," in that the Union "has not suggested, much less substantiated, that the FCC’s awards program has been administered in a discriminatory manner." Overall, given the pending implementation of a new and untested pass/fail performance appraisal system which will no longer be directly linked to the awards program, the Employer’s proposal "is a more complete and manageable program than that proposed by the Union."
After careful consideration of the parties’ final offers on the issue of awards, we are persuaded that the Employer’s proposal should serve as the basis for resolving the dispute. Preliminarily, we note that the parties have agreed to implement a pass/fail performance appraisal system which severs the previously existing relationship between performance ratings and performance awards. In the context of such a fundamental change, overall, the Employer’s more conservative approach to awards appears to be appropriate. The Union’s proposed awards program, on the other hand, appears experimental in nature, and contains potential procedural defects identified by the Employer which cause us to question its suitability in the circumstances presented.(7)
Focusing on some of the more significant aspects of the parties’ impasse, we agree with the Union that, as a general principle, the establishment of equal awards pools for unit and non-unit employees appears reasonable. The record in this case, however, convinces us that the Employer has provided a legitimate reason for deviating from this general principle. In this regard, it is clear that the grade levels of supervisors and their subordinates at the FCC are frequently the same.(8) Thus, we believe that the Employer has substantiated its need to provide proportionately greater performance awards to managers and supervisors than to unit employees. In our view, the appropriateness of providing comparable, though not necessarily equal, awards pools, can be recognized without denigrating the contributions of unit employees to the overall mission of the agency. Further, the Employer’s proposal guarantees that the actual distribution of funds from the bargaining-unit pool will be within 5 percent of the awards pool for supervisors and managers at the end of the fiscal year.
With respect to the Employer’s insistence that the awards pool concept apply only to long-term performance awards, the record indicates that during the past 3 years, approximately 75 percent of the money allocated to awards has been for those of the long-term variety. In addition, the Union has provided no evidence that the Employer’s previous practices in the funding and general administration of the awards program have been inadequate or unfair. Therefore, the Union’s concern that management will manipulate funding levels appears to be speculative. In any case, the parties should have an opportunity to evaluate the Employer’s administration of the awards program to determine whether the Union’s concerns are substantiated prior to renegotiating their successor CBA. Moreover, because management agreed during the informal conference to subject awards decisions to the grievance procedure, the Union should be able to monitor any perception that personal favoritism is involved in awards decisions through meaningful third-party review. Accordingly, for the reasons specified more fully above, we shall order the adoption of the Employer’s proposal.
Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because ofthe 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 adopt the following wording:
Section 1 - Notification
The Employer will notify the Union of lateral (non-competitive) reassignment opportunities affecting bargaining-unit employees as they arise. If, on a case-by-case basis, there is no objection by the Union that a particular employee be reassigned, no general notification to unit employees regarding the reassignment opportunity is required. If the Union objects, the Employer will post on the intranet for a period of 5 workdays each vacancy to be filled through reassignment and the minimum qualifications employees must possess to volunteer for the vacancy. Qualified employees may volunteer for the reassignment by contacting the appropriate Bureau/Office where the vacancy occurs.
Section 2 - Selection Criteria
Management will consider volunteers based on such factors as experience, job performance, personal attributes, education and other relevant job qualifications, and organizational need. If the qualifications and suitability of candidates are equal, the most senior qualified volunteer will be selected. If there are no qualified volunteers, management will select from among eligible employees based on such factors as experience, job performance, personal attributes, education and other relevant job qualifications, and organizational need. If the qualifications and suitability of