PROGRAM HIGHLIGHTS
THE AUTHORITY
INITIATIVES
Throughout FY 1998, the Authority continued its efforts to streamline and strengthen operations. These efforts were aimed at increasing the timeliness of Authority decisions, issuing high-quality decisions that provide clear guidance to the Federal labor-management relations community, and offering parties opportunities through revised regulations to resolve their disputes through interest based problem-solving. To achieve these goals, the Authority began a number of new initiatives and continued several existing initiatives, including the following:
Increasing the Quality and Timeliness of Authority Decisions: The Authority had a productive year in FY 1998, with 216 merits closings, a 15 percent increase over FY 1997. During FY 1998, the Authority modified its decision making process by instituting a central team pilot project focused on improving case processing. The Authority also expanded professional development opportunities for staff; accelerated its review processes; expanded the case screening mechanism to identify cases for streamlined processing; tailored predecisional work products to more efficiently meet the needs of individual cases; and used temporary teams of staff writers to work on larger cases. In addition, the Authority continued several initiatives, including techniques to identify relevant case law, issues, and potential problems prior to case drafting and convening regular forums in which Authority staff discuss recent case precedent and other issues of particular importance.
Due in part to the Authority’s continuing emphasis on issuing quality decisions, close to 77 percent of Authority merits decisions reviewed by Courts of Appeal in FY 1998 were sustained, in whole or prominent part. Recognizing that win/loss and remand records may not, by themselves, fully
measure the quality of its decisions, the Authority continued to develop methods to more accurately and comprehensively assess the quality of its work.
Promulgation of Presidential and Executive Office Accountability Act (EOAA) Regulations: The EOAA makes certain laws, including the Federal Service Labor-Management Relations Statute, applicable to the Executive Office of the President. In late FY 1998, the Authority issued regulations implementing those provisions of the law that are within its jurisdiction. These regulations became effective October 1, 1998.
Implementation of ULP Litigation Regulations: Revised Unfair Labor Practice Litigation Regulations took effect on October 1, 1997. The Regulations provide parties with numerous opportunities to resolve their dispute, including through the use of a Settlement Judge Program. The Regulations also require parties to participate in a pre-hearing conference and to exchange information prior to hearing. The implementation of these regulations included extensive training for FLRA staff and customers, new systems and protocols, and monitoring the effect of the new processes on cases.
Revision of Negotiability Regulations: The Authority began the process of revising its negotiability regulations in FY 1998 by soliciting input from customers at a May 1998 meeting and
a Federal Register Notice requesting comments. As a result of customer comments, the Authority issued a Notice of Proposed Rulemaking in September 1998 and then conducted three additional customer meetings across the country. The proposed revisions are aimed at improving and expediting negotiability proceedings. Major aspects of the proposed regulations include implementation of procedures and conferences designed to narrow and clarify issues to be resolved; revised processing procedures that will enable the Authority, where appropriate, to resolve all aspects of a dispute in a single forum; and clarification of the responsibilities of each party. Following public comment and forums, the Authority will promulgate final regulations in FY99.
AUTHORITY DECISIONS
During FY 1998 the Authority received 228 cases and closed 297, leaving a year-end pending inventory of 191 cases. The Authority closed approximately 15 percent more cases than in FY 1997. In addition, for the second consecutive year the Authority lowered the median age of its caseload. The following are descriptions of some of the significant cases decided by the Authority in FY 1998. The term “Statute” used throughout these decisions refers to the Federal Service Labor-Management Relations Statute sections 7101-7135.
Representation Cases
In U.S. Department of Veterans Affairs, Hunter Holmes McGuire Medical Center and American Federation of Government Employees, Local 2145, 54 FLRA 471 (1998), the Authority held that the Union may not represent individuals participating in the Compensated Work Therapy (CWT) Program, which is a rehabilitative work program. The Authority explained that 38 U.S.C. § 1718(a), the statutory section governing CWT participation, states that CWT participants are not to be considered Federal employees for any purpose. Because the participants are not Federal employees, the Authority concluded that the Statute does not apply to them, and thus that the participants may not be represented by a union under the Statute. In reaching this conclusion, the Authority rejected the Union's reliance on private sector precedent that states the circumstances in which individuals in rehabilitative programs are not employees. According to the Authority, that precedent is not applicable in this case, where there is a specific statutory statement that the participants are not employees. The Authority also rejected the Union's argument that not permitting the participants to certify the Union as their exclusive representative violates the participants' First Amendment right to free association. The Authority noted that the Supreme Court has held that the First Amendment permits government workers to associate with each other, but that it does not require that the Government recognize the association or bargain with it.
In Phoenix Area Indian Health Service, Sacaton Service Unit, Hu Hu Kam Memorial Hospital, Sacaton, Arizona and Southwest Native American Health Care Employees, Local 1386, Liuna, AFL-CIO, 53 FLRA 1200, the Authority held that employees detailed from their agency to a Tribal Corporation under the Intergovernmental Personnel Act, 5 U.S.C. § 3373, remained “employed in an agency” pursuant to section 7103(a)(2) of the Statute. Specifically, the Authority determined that the Tribal Corporation was not an “executive agency” within the meaning of 5 U.S.C. § 105 and that the detailed employees remained employees of the agency from which they were detailed, in this case, the Indian Health Service. With respect to the employees’ bargaining rights under the
Statute, the Authority stated that the Agency was obligated to bargain with the Union concerning conditions of employment over which it retained control. In addition, the Authority found that the employees’ bargaining unit remained an “appropriate unit” because there was a community of interest among the employees in the unit, the unit promoted effective dealings with the agency, and the unit promoted efficient operations within the agency.
In Department of the Army, Headquarters, Fort Dix, Fort Dix, New Jersey and International Brotherhood of Police Officers, National Association of Government Employees, Service Employees International Union, AFL-CIO, 53 FLRA 287, the Authority held that where new employees’ positions fall within the express terms of an existing union certification and where their inclusion does not render the bargaining unit inappropriate, those new employees are automatically included in the unit, and a petition to clarify is unnecessary. The Authority determined that the fact that employees have job duties different from those of previously-hired employees does not affect their status as members of the exiting unit. The Authority stated that a bargaining unit certification does not become stale with the passage of time if it continues to accurately describe the organization and the employees within its scope. Further, the Authority stated that the “accretion doctrine” does not apply to cases where the positions sought to be included in a unit were never “outside” of the bargaining unit.
Unfair Labor Practice Cases
In U.S. Department of Commerce, Patent and Trademark Office and Patent Office Professional Association, 54 FLRA 360 (1998) (Member Wasserman dissenting in part), aff’d, Patent Office Professional Association v. FLRA, No. 98-1377 (D.C. Cir. June 25, 1999). The Authority affirmed its holding in National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 51 FLRA 386 (1995), that section 7106(b) of the Statute constitutes an exception to section 7106(a). In addition, the Authority determined that section 2(d) of Executive Order 12871 does not constitute an election under the Statute to bargain over section 7106(b)(1) subjects, and therefore cannot be enforced in an unfair labor practice proceeding. The Authority pointed out that section 2(d) of the Executive Order “unambiguously states [that it is] a direction by the President to agency officials to engage in bargaining over the subjects defined in the Statute.” The Authority also pointed out that Section 3 of the Executive Order provides that the Order is not enforceable in judicial or administrative proceedings. The Authority stated that the fact that the nature of the direction in section 2(d) is mandatory does not render it a statutory election enforceable in an unfair labor practice proceeding, and statutory enforcement is not necessary to render the Executive Order meaningful.
In Luke Air Force Base, Arizona and American Federation of Government Employees, Local 1547, 54 FLRA 716 (1998), appeal docketed, Luke Air Force Base, Arizona v. FLRA, No. 98-71173 (9th Cir. Oct. 9, 1998), the Authority found that the Respondent committed an unfair labor practice under section 7116(a)(1) and (8) of the Statute by holding a formal discussion with a bargaining unit employee, without affording the Union adequate notice and an opportunity to be represented. The Authority concluded that a mediation/investigation session, which was arranged by the Respondent to discuss an employee’s formal Equal Employment Opportunity complaints, was a formal discussion of a grievance that the Union should have been permitted to attend. In reaching this conclusion, the Authority expressly overruled Social Security Administration and Social Security Administration, Field Operations, New York Region, 16 FLRA 1021 (1984), to the extent it implies that a facilitated discussion in general, or a mediated negotiation in particular, can never be “formal” under section 7114(a)(2)(A) of the Statute. The Authority explained that a union’s statutory right to notice and an opportunity to be present during a discussion is not diminished when the discussion between employees and agency representatives is conducted in a nonconfrontational manner through a neutral third party. The Authority further stated that it would continue to look at the totality of the circumstances in determining whether a particular discussion is formal.
In addition, the Authority determined that the Respondent failed to establish that the presence of a representative at the mediation/investigation session would conflict with Equal Employment Opportunity Commission regulations such as 29 C.F.R. Part 1614 and the Federal Sector Complaints Processing Manual, EEO Management Directive 110. The Authority similarly determined that the presence of the Union representative at the session would not conflict with section 574 of the Alternative Dispute Resolution Act (5 U.S.C. § 571, et seq.), pertaining to confidentiality.
In U.S. Geological Survey, Caribbean District Office, San Juan, Puerto Rico and American Federation of Government Employees, AFL-CIO, Local 1503, 53 FLRA 1006, the Authority found that the Respondent committed an unfair labor practice under section 7116(a)(1) and (5) of the Statute, by refusing to bargain over a grievance and arbitration procedure and by engaging in unlawful conduct that precluded the completion of negotiations for a collective bargaining agreement before the expiration of the 1-year period following the Union’s certification.
In addressing the remedy for this violation, the Authority acknowledged that it had never issued a remedial order in which the length of a union’s certification year period had been extended as a result of agency misconduct. The Authority examined private sector precedent concerning violations of section 9(c)(3) of the National Labor Relations Act (NLRA), which bars a representation petition filed within 12 months from the date of the last election. Noting that section 7111(f)(4) of the Statute and section 9(c)(3) of the NLRA are substantially similar, the Authority determined that private sector precedent provided an appropriate guide in fashioning a Federal sector remedy. Thus, the Authority adopted the National Labor Relations Board’s rule that a union’s majority status, which is presumed for one year following its certification, may be extended beyond one year where an employer’s misconduct serves to deprive the union of a full year of actual bargaining. Having found that the Respondent’s conduct was sufficiently egregious and pervasive throughout the entire certification year, the Authority decided that the Respondent’s conduct warranted a complete renewal of the Union’s certification year.
Negotiability Cases
In American Federation of Government Employees, Local 3807 and U.S. Department of Energy, Western Area Power Administration, Golden, Colorado, 54 FLRA 642 (1998), the Authority addressed the negotiability of four proposals that concerned the Agency’s use of two low-flying helicopters, and two pilots, to inspect its high-voltage electric power lines for equipment deterioration and damage. The Agency, pursuant to a planned reorganization, determined that its mission could be better served by employing one long-range helicopter, operated by one pilot. Two of the Union’s proposals would have required the Agency to retain the two low-flying helicopters, and two would have required the Agency to retain both pilot positions. The Authority found that the “helicopter” proposals affected management’s right to determine the Agency’s organization under section 7106(a)(1) of the Statute, because they affected the Agency’s right to determine the geographic locations in which it would conduct its operations. The Authority also concluded, relying on it prior finding with respect to a similar proposal in another case, that the helicopter proposals concerned the methods and means of performing work within the meaning of section 7106(b)(1) of the Statute, and therefore, were negotiable at the Agency’s election. With regard to the “pilot” proposals, the Authority determined that those proposals affected management’s right to assign work, within the meaning of section 7106(a) of the Statute, because they effectively required the Agency to assign its aviation work to two employees, rather than one. The Authority found that the pilot proposals concerned the numbers, types, and grades of employees, within the meaning of section 7106(b)(1) of the Statute, and therefore, that the pilot proposals were negotiable at the Agency’s election. Consistent with § 2424.10 of the Authority’s Regulations, the Authority dismissed the Union’s petition for review with regard to all four proposals.
In National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut, 54 FLRA 521 (1998), the Authority addressed the negotiability of six proposals relating to the Agency’s use of contract employees to perform some of the Agency’s functions. The Authority dismissed the petition for review as to two of the proposals as moot. With respect to the remaining four proposals, the Authority found that the proposals were outside the duty to bargain. The Authority determined that the proposals affected management’s right under section 7106(a)(2)(B) of the Statute, to make determinations regarding contracting out. Because the Union offered no arguments or authority to support its bare assertions, the Authority rejected the Union’s claim that the proposals were appropriate arrangements or negotiable procedures. Having resolved the Union’s claims regarding section 7106(a) and 7106(b)(2) and (3), the Authority addressed the Union’s contention that the proposals were nonetheless electively negotiable under section 7106(b)(1). The Authority rejected the Union’s claim because, other than its bare assertion, the Union offered no basis for finding that the proposals concerned a matter within the subjects set forth in section 7106(b)(1).
In American Federation of Government Employees, HUD Council of Locals 222, Local 2910 and U.S. Department of Housing and Urban Development, 54 FLRA 171, the Authority addressed the negotiability of one proposal. After the Agency notified the Union that it intended to achieve a reduction in headquarters staff by making available only to headquarters staff certain vacant positions in the Agency's field offices, the Union submitted a proposal stating that field office employees could also apply for the vacant positions. The Authority concluded that the proposal did not affect management's right to make selections under section 7106(a)(2)(c) of the Statute because it did not limit the Agency’s selection options.
In the course of reaching this conclusion, the Authority addressed the test set forth in National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 51 FLRA 386 (1995) (VAMC, Lexington) for resolving conflicting claims that a proposal is outside the duty to bargain under section 7106(a) of the Statute and electively bargainable under section 7106(b)(1). The Authority stated that this case made evident an anomaly not present in VAMC, Lexington: that adhering to the sequence of analysis in VAMC, Lexington could result in dismissal of a negotiability petition in a case, such as this one, where the disputed proposal would be found within the duty to bargain if the parties' dispute over section 7106(a) were resolved. Thus, the Authority determined that where an agency asserts that a provision affects a management right or rights under section 7106(a) of the Statute and a union disputes such an assertion, the Authority will address and resolve this claim even though the union also asserts that the provision is electively bargainable under section 7106(b)(1).
In National Federation of Federal Employees, Local 2148 and U.S. Department of the Interior, Office of Surface Mining, Reclamation and Enforcement, Albuquerque, New Mexico, 53 FLRA 427, the Authority examined the negotiability of four proposals. The Authority determined that the first three proposals, which addressed increasing the number of positions and the filling of vacancies, concerned the numbers of employees or positions assigned to an organizational subdivision. Thus, the Authority concluded that the proposals were negotiable at the election of the Agency under section 7106(b)(1) of the Statute and dismissed the petition as to the three proposals. The Authority also dismissed the petition as to the fourth proposal, concluding that the meaning of the proposal was not sufficiently clear to permit disposition.
Arbitration Cases
In U.S. Department of Health and Human Services and National Treasury Employees Union, 54 FLRA 1210 (1998), the Authority denied exceptions to an arbitration award that sustained, in part, a grievance alleging that the Agency’s Regional Offices violated the parties’ collective bargaining agreement by failing to offer public transit subsidies to the extent permitted by law and by failing to notify the Union that funds were not available. The Arbitrator found that the Regional Offices violated the parties’ collective bargaining agreement because certain components did not take reasonable actions to identify and allocate excess funds and did not provide sufficient documentation to support the claim that funds were not available. To remedy the violation, the award directed the Agency to make bargaining unit employees who were eligible for the transit subsidies whole for the monies they lost.
The Authority found that the Federal Employees Clean Air Incentives Act, Pub. L. No. 103-172, 107 Stat. 1995 (1993), codified at 5 U.S.C. § 7905, grants agencies the discretion to establish a program to encourage employees to use means other than single occupancy vehicles to commute to or from work. The Authority then discussed the test for determining if an award satisfies the requirements of the Back Pay Act. The Authority clarified that the “but for” requirement, previously referred to as the third part of a three-part test, is not a separate, independent element of the Back Pay Act; rather, this requirement amplifies the statutory language of the Back Pay Act that back pay is authorized only if an unjustified or unwarranted personnel action “has resulted in” the withdrawal or reduction of an employees’s pay, allowances, or differentials. 5 U.S.C. § 5596(b)(1). The Authority emphasized that an arbitrator’s “but for” finding must be supported by the arbitrator’s factual findings. The Authority found that: (1) employees were affected by an unjustified or unwarranted personnel action; (2) the contractual violation found by the Arbitrator resulted in employees’ loss of transit subsidies; and (3) transit subsidies constituted pay, allowances or differentials. As the award satisfied the requirements of the Back Pay Act, the Authority denied the exceptions.
In National Treasury Employees Union and Federal Deposit Insurance Company, 53 FLRA 1469 (1998), appeal dismissed, Federal Deposit Insurance Company v. FLRA, No. 98-1221 (D.C. Cir. Aug. 3, 1998), the Authority reviewed an arbitration award that sustained, in part, a grievance alleging that an Agency’s classification of certain employees as exempt from the coverage of the Fair Labor Standards Act (FLSA) violated law and regulation. The arbitration award denied the grievance as to GG-11 examiners because the arbitrator determined that GG-11 examiners were properly classified as professional employees. The award did provide other employees, whose improper classification the agency later acknowledged, partial back pay. The Union filed exceptions claiming that the GG-11 examiners were not professional employees and that the Arbitrator erred in failing to provide liquidated damages to those employees who were improperly classified.
Denying the exceptions in part, the Authority first determined that the GG-11 examiners were “professional” employees within the meaning of 5 C.F.R. § 551.206(a) and, thereby, were exempt from the overtime provisions of the FLSA. Second, the Authority held that the portion of the award denying liquidated damages to those employees wrongly classified as exempt was contrary to section 260 of the FLSA, because the Agency’s denial of overtime was not based on a good faith belief that it was in compliance with the FLSA. Finally, the Authority held that the award was contrary to the statute of limitations contained in section 255(a) of the FLSA with respect to the calculation of back pay. In reaching the latter holding, the Authority expressly overruled U.S. Department of Health and Human Services Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, 47 FLRA 819 (1993) and its progeny. The Authority explained that the FLSA provides an independent statutory basis for an award of back pay and, therefore, a violation of the FLSA is remedied under the FLSA and not the Back Pay Act. The Authority also explained that, although nothing in the Back Pay Act limits the period of recovery, the FLSA expressly limits the period of time an employee may recover back pay for a violation. The Authority reasoned that, as the statute of limitations is an integral part of the substantive rights afforded by the FLSA, it cannot be disregarded in the negotiated grievance procedure. Thus, the Authority concluded that the FLSA limits an arbitrator’s latitude to fashion remedies.
The Authority modified the award to include the payment of liquidated damages to those examiners and liquidators who were wrongfully classified as exempt under the FLSA and remanded the award to the parties for submission to the arbitrator for a determination as to the appropriate statute of limitations under the FLSA to be applied in calculating the award of back pay.
In U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California and Federal Employees Metal Trades Council, Local 127, 53 FLRA 390, the Authority examined an arbitration award that sustained a grievance challenging an employee’s separation during a reduction-in-force on grounds that the Agency improperly applied RIF laws and regulations and the Agency discriminated against the grievant during the RIF on the basis of a handicapping condition. The arbitration award provided back pay and travel expenses to the employee and granted attorney fees and costs to the Union. First, the Authority determined that the Agency’s failure to participate in the hearing did not preclude it from filing exceptions with the Authority. However, the Authority stated that, consistent with its regulation, 5 C.F.R. § 2429.5, it would not consider any evidence that had not been before the Arbitrator. On the merits, the Authority rejected exceptions challenging the award on fair hearing, nonfact, and essence grounds. With respect to the Agency’s claim that the travel and per diem expenses awarded by the arbitrator exceeded the allowable amount under 5 U.S.C. § 5724a, the Authority stated that 5 U.S.C. § 5724a does not address such expenses and that the Agency’s reliance on that statute was misplaced. Finally, with respect to the Agency’s claim that the Federal Employees’ Compensation Act, 5 U.S.C. §§ 8101 et seq., precludes an employee from receiving both workers’ compensation and back pay during the same period of time, the Authority noted that no exception to this rule exists for awards of back pay under the Rehabilitation Act. Because the Authority was unable to determine whether, in whole or in part, the back pay award was based on a finding of unlawful discrimination, the Authority remanded the case to the parties for clarification on this issue.
In U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut and National Association of Government Employees, Local R1-109, 53 FLRA 440, the Authority declined to assert jurisdiction over the Agency’s exception to an arbitration award. The Authority noted that under section 7122(a) of the Statute, it lacks jurisdiction to resolve arbitration awards that relate to matters described in section 7121(f) of the Statute, including matters covered under 5 U.S.C. §§ 4303 and 7512. In this case, the Authority found that the grievant’s AWOL charge was inextricably intertwined with his removal, a matter covered under section 7512. Because the Authority determined that the AWOL charge could not be separated from the ultimate determination to remove the grievant, the Authority decided that it did not have jurisdiction to review the matter. In reaching this determination, the Authority acknowledged that its refusal to assert jurisdiction could leave the Agency without a forum to challenge the arbitration award. However, the Authority stated that the Agency could have avoided this result by addressing the AWOL charge as part of the MSPB settlement or by refusing to enter into the settlement agreement unless the union agreed to waive its right to seek review of the award. Moreover, the Authority concluded that, although there may be cases where no forum has jurisdiction to review an arbitration award, the advancement of Congressional policies of uniformity, discouragement of forum shopping, and avoidance of multiple litigation, as well as the need for clarity and predictability with respect to questions concerning jurisdiction, overrode any potential for unreviewable awards.
OFFICE OF ADMINISTRATIVE LAW JUDGES
The FLRA’s Administrative Law Judges, who are appointed by the Authority to hear unfair labor charges prosecuted by the FLRA’s General Counsel, resolved more cases more quickly during this past fiscal year than in the prior fiscal year.
The Office of the Administrative Law Judges (OALJ) continued its Unfair Labor Practice Settlement Judge Project, dedicated to promoting effective voluntary settlement of unfair labor practice complaints. Under the project, the Chief Administrative Law Judge assigns a judge (other than the trial judge) or a settlement attorney to conduct settlement conference negotiations with the parties before trial. During FY 1998, of the 179 cases in which parties requested assistance, 140 cases, or more than 78 percent, were resolved before trial under the Settlement Judge Program.
The OALJ also continued its aggressive efforts to reduce its pending unfair labor practice cases. During FY 1998, OALJ received 286 unfair labor practice cases, closed 291 cases and ended the year with 46 cases pending, a decrease of almost 10 percent in cases pending from FY 1997. Of the cases closed, 246 were settled, withdrawn or stipulated directly to the Authority and 46 cases resulted in decisions. The percentage of administrative law judge decisions that were accepted by the parties without appeal to the Authority remained high with 51 percent of the decisions issued by the OALJ becoming final and binding on the parties.
OFFICE OF THE GENERAL COUNSEL
INITIATIVES
Revision of Unfair Labor Practice Investigatory Regulations: The OGC issued a Federal Register notice of proposed rule making on August 24, 1998, to revise the regulations regarding prevention, resolution, and investigation of unfair labor practice (ULP) disputes. The purpose of these proposed regulations was to facilitate dispute resolution and to simplify, clarify, and improve the processing of ULP charges. The proposed revisions implement the FLRA’s agency-wide collaboration and alternative dispute resolution initiative to assist labor and management in developing collaborative relationships and to provide dispute resolution services. In addition to providing an opportunity for interested persons to participate in the rule making prior to adoption of the final rules, a series of meetings was conducted across the country to solicit input from FLRA’s customers. After consideration of all comments received, the OGC plans to issue final regulations early in FY 1999.
Unfair Labor Practice Manual: The OGC during FY 1998 developed an Unfair Labor Practice (ULP) Case Handling Manual to implement the revised regulations regarding the prevention, resolution, and investigation of ULP disputes. The ULP Case Handling Manual provides operational and procedural guidance to OGC staff and the parties. The Manual will be issued in FY 1999 and a training program is planned for May 1999 to train OGC staff on the Manual’s new requirements.
Litigation Manual: The OGC completed development of its first ever Litigation Manual and issued it to all OGC attorneys in March 1998. The issuance of this Manual will assist the OGC in the implementation of its litigation strategy by ensuring that all trial attorneys have comprehensive guidance in the prosecution of ULP cases. The Manual incorporates and references the changes to the ULP litigation regulations issued July 31, 1997. In addition, the Manual contains guidance on new pre-hearing procedures and requirements, which cover topics such as pre-hearing disclosure and pre-hearing conferences. The OGC plans to update this Manual annually to incorporate new OGC policies, new case law, and new forms and examples. The OGC plans to release the Manual to the public in the fall of 1998.
Guidance Memoranda: In order to improve the quantity, quality and timeliness of the work performed and the services provided, the OGC continued to issue policy and guidance memoranda to its Regional Directors and the parties.
Processing § 7111(f) Claims of Corrupt Influences -- This guidance provided information to Regional Directors on the processing of claims of corrupt influences in light of prior Authority decisions.
The Impact of Trusteeships on Representation Petitions -- This guidance provided information to Regional Directors on the relationship between trusteeships and representation petitions seeking a change in affiliation.
Scope of Bargaining -- This guidance provided information to the Regional Directors and the parties and explained the proper use of a pre-decisional involvement process and interest-based problem solving techniques to limit negotiability disputes. The guidance also addressed the differences between the duty to bargain and scope of bargaining, what constitutes good faith bargaining, what the concept of negotiability means and discusses the concept of “appropriate arrangements.”
In addition, employee and customer training was conducted at the national and regional levels on the above topics.
Management and Strategic Planning Initiatives: In the technology area, the OGC continued to work with other FLRA components to improve automated capabilities. For example, improvements in the OGC’s Case Tracking System will better enable the OGC to focus its attention on parties that might benefit from using Collaboration and Alternative Dispute Resolution services and will strengthen case processing by identifying earlier cases for transfer in order to improve the timeliness of customer service. The improved case tracking will better enable the OGC to accurately measure progress in accomplishing strategic planning initiatives.
In addition, training programs were conducted to enhance the dispute resolution and interest based problem-solving skills of OGC employees.
Collaboration and Alternative Dispute Resolution Activities: During the past fiscal year, the OGC continued to use innovative approaches to resolving labor-management disputes in the Federal sector instead of resorting to costly, time-consuming litigation which often fails to address the real problems giving rise to a dispute. These approaches, which focus on improving the parties’ relationship, include facilitation, intervention, training and education services delivered jointly to both management and union representatives on the Statute, interest-based bargaining, alternative dispute resolution and relationship building and intervention. These alternative approaches to resolving cases -- which are praised by management and union representatives alike -- have provided another tool for OGC employees to use in trying to resolve the parties’ disputes, as well as helping the parties to work toward resolving their own disputes. During FY 1998, the OGC conducted 399 facilitation, training, intervention or education activities. To assist employees in the delivery of these services, training materials were developed and disseminated to employees on numerous topics.
As part of the CADR program, the OGC has helped the parties to improve their knowledge and understanding of the Statute, which has resulted in the parties filing fewer unfair labor practice charges and enabled the parties to resolve many of their issues themselves, thus avoiding litigation. During this past fiscal year the OGC engaged in several major relationship building initiatives with a significant number of the Immigration and Naturalization Service’s District Offices and Border Patrol Sectors nationwide to more effectively deal with the issues of their workforce composition, with the Air Force Material Command in the downsizing of depots nationwide, and with the Department of Defense Education Activity’s efforts to reform its schools worldwide in order to enhance the ability of management and union representatives to address current issues and problems facing their organizations. Additionally, the OGC worked with the Department of Agriculture to facilitate a labor-management group concerning the implementation of the Secretary’s initiative to create one service entity from among their Farm Service Agency, Rural Development Office and Natural Resources and Conservation Service, as well as facilitating a labor-management steering group at the Department of Veterans Affairs on their Pay for Applied Skills demonstration project. The OGC also worked with the American Federation of Government Employees Council 216 and the Air Force Material Command in enhancing their relationship building skills which culminated in the OGC’s facilitation of their agreement on a successor contract following more than six years of litigation and impasse proceedings over the matter.
CASE HIGHLIGHTS
UNFAIR LABOR PRACTICE CASES
Cases Received: The OGC continued to make significant strides in the processing of ULP cases. For example, the OGC reduced overage ULP cases from 36% in early FY 1998 to 25% by the end of FY 1998. Similarly, the OGC reduced its overage Appeals cases from 25% to 19% by the end of FY 1998.
Initial Dispositive Actions: After a charge is filed, the OGC staff tries to resolve the dispute. In FY 1998, 5,715 initial dispositive actions were taken by the OGC. Of these actions, 30% were pre- complaint settlements achieved by OGC and the parties; 24% of the charges were dismissed; 41% of the charges were withdrawn; and 5% of the charges resulted in the issuance of an unfair labor practice complaint.
Unfair Labor Practice Appeals: At the beginning of FY 1997, the OGC implemented a new appeals process to speed up decisions on appeals by decentralizing the process and integrating the process with the previously issued Quality and Scope of Investigation Policies. As a result of this initiative, the OGC closed 495 appeals cases, while receiving 455 appeals during FY 1998. These figures are indicative of the OGC’s efforts to improve its responsiveness to the concerns raised in these cases by agencies, unions and individuals.
Post-Complaint Actions: In those small number of cases where the OGC is unable to resolve an unfair labor practice charge, the OGC issues an unfair labor practice complaint. The OGC issued 293 such complaints in FY 1998. However, the OGC was able to resolve 223 of these complaints without litigation. This accomplishment is consistent with the OGC’s Settlement Policy, which was implemented in FY 1994 and which will be an important part of the new ULP Manual to be issued in FY 1999. The OGC litigated 23 cases before FLRA’s Administrative Law Judges during the fiscal year.
REPRESENTATION PETITIONS
The OGC received 456 new representation petitions in FY 1998 and closed 391 cases. As in the ULP area, the OGC is continuing to emphasize timely case processing. For example, a slight reduction from 43% to 41% was made in the pending representation caseload more than 90 days old without issuance of a notice of hearing.
The OGC continued to take actions to improve its handling of representation cases through issuing quality standards and time goals designed to ensure the fair, timely and complete processing of representation cases. A Representation Case Handling Manual, which was issued in March 1997 and is available for purchase from the Government Printing Office, provides procedural and operational guidance to OGC staff and the parties. The Manual has assisted the parties in understanding the representation process and the regulatory requirements pertaining to this process.
FEDERAL SERVICE IMPASSES PANEL
PROGRAM HIGHLIGHTS
Voluntary Resolution of Disputes
The Panel strongly believes that voluntary settlements of Federal sector bargaining impasses are in the best interests of the parties and the public. In this regard, it has been the Panel’s consistent experience that the best way to promote voluntary settlements is by providing face-to-face assistance to the parties. In FY 1998, the Panel provided such assistance in 46 cases, and 22 complete settlements were achieved. The Panel supplements its face-to-face efforts through the frequent use of telephone conferences. Overall, voluntary settlements occurred in 47 cases, which represents 27 percent of the cases closed during this period. Many of the voluntary settlements occurred as a result of the direct involvement of individual Panel Members who provided assistance through informal conferences and mediation-arbitration.
In those cases in which face-to-face assistance was provided but which ultimately required a formal Panel decision, the number of issues in dispute was frequently reduced, and the Panel reached a better understanding of the underlying workplace problem. The success of the Panel Members and Staff in the voluntary resolution of disputes, many of which are extraordinarily complex and contentious, is attributable to their expert mediation and problem-solving skills.
During FY 1998, the Panel continued its collaboration with FMCS by experimenting with new ways of providing the parties with added incentive to reach voluntary agreements. In addition to directing the parties to return to the bargaining table for concentrated efforts with FMCS assistance, the Panel sought to include mediators in selected cases in its prejurisdictional investigative process. While it is too early to evaluate the effectiveness of this new approach in providing mediators with additional tools to assist their efforts, this illustrates the Panel’s constant search for innovative methods of responding to the challenges of Federal sector impasse resolution.
The Panel also continued in its collaboration with the FLRA’s CADR Program. In this regard, in one case the Panel recognized the specific expertise of the CADR staff where the parties were at impasse over an alternative dispute resolution procedure in the EEO area. The case was referred to the CADR Office, and although a settlement was not reached, the parties’ proposals and positions were sharpened as a result of its involvement. As in previous collaborative efforts, the parties’ use of interest-based principles led to a narrowing of their impasse.
Formal Panel Action
While voluntary settlement is the Panel’s preferred dispute resolution outcome, there are cases that require the Panel to impose terms on the parties. During FY 1998, the Panel resolved 33 cases through written decisions. The length of such decisions varied depending on the nature of the case and the number of issues involved. Regardless of the case, the Panel provided finality to the collective bargaining process by issuing prompt decisions based on clear rationale.
Customer Feedback and Education
The Panel conducted its first customer survey in September 1995. It continued to gather information from its customers by holding “round table” discussions throughout the country, and taking advantage of the invitations from labor, management, and professional organizations to participate in training seminars, conferences, and symposia. This allows the Panel to hear from users of its services how it can better address the needs of its customers. The Panel’s FY 1998 round table discussion was held in Atlanta, Georgia. In addition, informational presentations at conferences and training seminars are crucial in the current era of downsizing and government reorganizations for educating the growing number of new labor-management relations practitioners. The Panel participated in ten such events during the fiscal year.
Issues
The predominant issues presented to the Panel included: (1) personnel matters such as reassignments, reductions-in-force, merit promotion, reorganizations, performance evaluations, and details; (2) facilities (such as parking, office design including barrier walls, equipment, and furniture); (3) hours of work (particularly the establishment and termination of CWS, flexitime, shifts, leave, and flexible workplace); (4) institutional matters, such as union and management rights, union facilities, and travel and per diem for negotiations; and (5) compensation, primarily involving salary increases for Department of Defense (DOD) teachers employed at stateside schools and DOD nonappropriated fund instrumentalities, and overtime. Other significant issues included safety inspections, smoking policies, and medical examinations.
Procedures Used to Resolve Impasses
The Panel is the last step in Federal sector collective bargaining -- the substitute for the strike and lockout in the private sector. The wide variety of procedures it uses to resolve impasses in negotiations includes mediation, fact finding, written submissions, and arbitration. The quick, fair, and voluntary resolution of disputes is the Panel’s ultimate goal -- flexibility and diversity of procedures is the means used to achieve it.
These objectives are achieved in a number of ways, including the flexible selection of a dispute resolution procedure designed with the specific intent of moving the parties towards voluntary accommodation and, ultimately, the resolution of the impasse.
CASE HIGHLIGHTS
Decision and Order Following Written Submissions
Department of the Air Force, Nellis Air Force Base, Nellis AFB, Nevada and Local 1199, American Federation of Government Employees, AFL-CIO, Case No. 97 FSIP 79 (October 9, 1997), Panel Release No. 402 (Decision and Order). The Panel directed the parties to participate in an informal conference to resolve a dispute over two issues. Through the conference, the parties resolved an issue related to performance awards; however, they were unable to reach agreement concerning the leave status of employees during a 2-day celebration of the Air Force’s 50th anniversary. The Panel ordered the parties to adopt a compromise proposal requiring the employer to grant administrative leave to bargaining-unit employees for the two days to the extent that those days were within the employees’ regular tours of duty and they otherwise would have worked.
Decision and Order Following Concentrated Efforts with FMCS Assistance and Written Submissions (Final-Offer Selection)
Department of the Army, Headquarters, 10th Mountain Home Division and Fort Drum, New York and Local 400, American Federation of Government Employees, AFL-CIO, Case No. 97 FSIP 94 (January 2, 1998), Panel Release No. 405 (Decision and Order). The Panel asserted jurisdiction and directed the parties to resume negotiations, on a concentrated schedule, over all issues remaining in dispute in their negotiation over a successor collective bargaining agreement, with the assistance of the Federal Mediation and Conciliation Service; if those negotiations proved unsuccessful, the Panel would select between the parties’ final offers on an article-by-article basis to resolve the matters, to the extent that they were otherwise legal. When the parties’ concentrated efforts failed to resolve the dispute, the Panel directed them to present written submissions and rebuttal statements. After consideration of the parties’ evidence and arguments, the Panel ordered the adoption of the following: (1) the employer’s final offer stating a smoking policy that generally prohibited smoking in Government vehicles and buildings, but providing for outdoor smoking areas, smoking breaks, and attendance at smoking cessation classes; (2) the employer’s final offer, modified to eliminate certain permissive subjects of bargaining, specifying amounts, allocation, and administration of official time; (3) the employer’s final offer permitting the use of leave without pay, advanced annual leave, and sick leave in the event of the death of an immediate family member; (4) a modified version of the union’s final offer (which avoids potential interference with management’s right to require employees to undergo fitness-for-duty exams), relating to notification by employees of on-duty injury, medical testing of employees, procedures for employee grievances alleging unsafe or unhealthful working conditions, and establishment of Health and Safety Committees; (5) the employer’s final offer regarding the provision of training and development opportunities that would promote effective employees performance; (6) the employer’s final offer specifying actions that it would take to assist employees in improving their performance in order that they may demonstrate acceptable performance; (7) the employer’s final offer requiring preparation of an SF-50 for employees who are detailed to a higher-graded position for more than 30 days; and (8) the employer’s final offer relating to accommodations for employees in adverse environmental conditions and designation of emergency-essential personnel.
Decision and Order Following Informal Conference
Department of the Treasury, Internal Revenue Service, Fresno Service Center, Fresno, California and Chapter 97, National Treasury Employees Union, Case No. 97 FSIP 102 (November 18, 1997), Panel Release No. 403 (Decision and Order). The Panel directed the parties to participate in an informal conference with Panel Member Dolly M. Gee to resolve two issues relating to Compressed Work Schedules (CWS). Although they resolved one of the issues, the other, which concerned the procedure for restricting employees’ choice of scheduled off days under a 5-4/9 CWS, remained in dispute. After considering the report and recommendations, the Panel ordered the parties to adopt a modified version of the union’s proposal. That modified proposal provided: (1) where more than 25 percent of employees on the CWS option choose a particular Monday or Friday as their off day, the least senior employee would be scheduled for a Monday or Friday off day in accordance with past practice; (2) should such scheduling result in fewer employees than needed to perform necessary work, the parties would maintain the status quo pending resolution of the scheduling dispute; (3) if the parties cannot achieve informal resolution of the dispute, they would invoke expedited arbitration under their master collective bargaining agreement; and (4) employees could voluntarily select as their off day a Tuesday, Wednesday, or Thursday that is not identified as a critical cycle day.
Arbitrator’s Decision Following Face-to-Face “Med-Arb” Procedure
Department of the Navy, Naval Aviation Depot, Naval Air Station, Jacksonville, Florida and Local 22, International Federation of Professional and Technical Engineers, AFL-CIO; Local 512, International Brotherhood of Teamsters, AFL-CIO; Local 1943, National Federation of Federal Employees; Local 3, National Association of Aeronautical Employees; Local 1, National Association of Government Inspectors and Quality Assurance Personnel, Case No. 97 FSIP 100 (October 16, 1997), Panel Release No. 402, (Opinion and Decision). The Panel directed the parties to mediation-arbitration with Panel Member Gilbert Carrillo. Mediation failed to resolve the parties’ dispute regarding the number of parking spaces to be designated as reserved and the schedule for shuttle-bus service between employee work sites and the parking lot. The arbitrator conditionally ordered adoption of the employer’s proposal to decrease the number of reserved parking spaces and maintain the status quo of providing shuttle-bus service to the parking lot only during the hours of 0600 to 0730 and 1500 to 1630. His award was conditioned upon the accomplishment of several measures to increase the number of “open-parking” spaces and alleviate parking difficulties for employees. The arbitrator ordered that if the employer failed to provide 500 additional “open parking” spaces within a designated period of time, as it indicated it could during mediation, it would be required to expand shuttle-bus service.
Arbitrator’s Decision Following Face-to-Face “Med-Arb” Procedure on Selected Issues (Final-Offer Selection, Article-by-Article); Private “Med-Arb” on Remaining Articles Following Resumed Negotiations
Department of the Air Force, Peterson Air Force Base, Colorado and Local 1867, American Federation of Government Employees, AFL-CIO, Case No. 98 FSIP 72 (September 4, 1998), Panel Release No. 412 (Opinion and Decision). The Panel determined that the parties should submit 7 of 14 articles (as selected by the parties) in a dispute stemming from successor collective bargaining agreement negotiations to Panel Member Mary E. Jacksteit for mediation-arbitration. The Panel granted her the authority to (1) mediate with respect to the outstanding issues and (2) issue a binding decision on any that remained unresolved on a final-offer selection, article-by-article basis insofar as the proposals were otherwise legal. Following the outcome of mediation-arbitration efforts, the parties were to revisit the other seven articles and, if they remained unresolved, submit them to private mediation-arbitration. Following the mediation portion of the procedure, the parties remained at an impasse over only two issues: outside employment and official time. Member Jacksteit conducted an arbitration hearing and later ordered the parties to adopt the union’s proposals on both subjects. Concerning whether employees should be required to report outside employment, the arbitrator found no information or evidence of problems arising from outside employment that would demonstrate a need to change the status quo, because the union’s official time proposal provided sufficient safeguards to meet the employer’s accountability and operational concerns while encouraging mutual efforts to address any problems that may arise.
Settlement During Pre-Hearing Conference Call Prior to Informal Conference
Department of the Air Force, Westover Air Reserve Base, Chicopee, Massachusetts and Local 3707, American Federation of Government Employees, AFL-CIO, Case No. 98 FSIP 58 (closed May 5, 1998). After an investigation of the dispute concerning the employer’s planned implementation of a dress code policy for one component at the base, the Panel determined that the parties’ dispute should be resolved through an informal conference with Panel Member Stanley M. Fisher. Prior to the informal conference Member Stanley M. Fisher conducted a pre-conference call with the parties during which he mediated the dispute; the parties then reached an agreement on the dress code policy, making the informal conference unnecessary.
Settlement During Informal Conference Procedure
Department of the Treasury, U.S. Customs Service, John F. Kennedy Airport Area, Jamaica,
NY and Chapter 153, National Treasury Employees Union, Case No. 98 FSIP 124 (closed September 4, 1998). After the parties reached impasse over changes to the Local Inspectional Assignment Policy agreement, which involved tours of duty, selection procedures, and staffing levels, the Panel determined that the dispute should be resolved through an informal conference with Chair Betty Bolden. The parties resolved all of the disputed issues and the case was closed.
Settlement During Face-to-Face Panel Med-Arb Proceeding
Federal Deposit Insurance Corporation, Dallas, Texas and Chapter 275, National Treasury Employees Union, Case No. 98 FSIP 29 (closed January 26, 1998). The parties’ dispute over office space allocations, credit hours, and certain commuting expenses arose from bargaining over a field office relocation and consolidation. The Panel directed the parties to mediation-arbitration with Panel Member Bonnie Castrey. Under this procedure, she would first mediate with respect to the dispute and, should the issues remain unresolved, conduct an arbitration hearing and issue an award. During the mediation phase, the parties were able to settle the entire dispute, making the issuance of an award unnecessary.
Settlement During Expedited Arbitration Proceeding
Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and Chapter 201, National Treasury Employees Union, Case No. 98 FSIP 16 (closed December 16, 1997). After the parties reached an impasse over ground rules for their successor master collective bargaining agreement, the Panel directed the parties to submit the matters to Panel Member Edward F. Hartfield for an expedited arbitration by telephone, with an arbitration hearing and a binding decision issued within two work days of the end of the hearing. Because of the procedure’s expedited nature, the parties were informed that post-hearing briefs would not be permitted. The parties settled all of the disputed issues during the telephone conference, thus eliminating the need for an arbitration award.
FLEXIBLE AND COMPRESSED WORK SCHEDULES
Requests for assistance filed under the Compressed Work Schedules Act, 5 U.S.C. § 6131, require an agency head to determine that the establishment of a CWS would result in an adverse agency impact, as defined therein. In addition, to terminate an existing CWS, an agency head must demonstrate that the schedule has, in fact, caused an adverse agency impact. The Panel issued Decisions and Orders in three such cases during the fiscal year. One example of this type of decision is Department of Transportation, Federal Aviation Administration (FAA), Kansas City, Missouri and Local ZKC, National Air Traffic Controllers Association, Case No. 98 FSIP 19 (January 30, 1998), Panel Release No. 406 (Decision and Order), where the Panel addressed an agency determination to terminate a 5-4/9 CWS for air traffic controllers. Following a face-to-face informal conference with a member of the Panel’s staff, and consideration of the entire record including the parties’ written submissions, the Panel found that the employer had not met its statutory burden and ordered the continuation of the schedule.