United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
DEPARTMENT OF THE ARMY
LOCAL 738, AMERICAN FEDERATION
Case No. 03 FSIP 44
DECISION AND ORDER
Local 738, American Federation of Government Employees, AFL-CIO (Union) and the Department of the Army, Combined Arms Center & Fort Leavenworth, Fort Leavenworth, Kansas (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.
Following investigation of the request for assistance, which arose from negotiations over a proposed reduction in force(RIF)/business based action (BBA) in the Fort Leavenworth Lodging Non-Appropriated Fund Instrumentality,(1) the Panel determined that the dispute should be resolved through single written submissions from the parties. The parties were informed that after receiving their submissions, the Panel would take whatever action it deemed appropriate to resolve the impasse, which could include the issuance of a Decision and Order. Written submissions were made pursuant to this procedure, and the Panel has now considered the entire record.
The mission of the Combined Arms Center is to educate officers in the art of command and staff functions of the combined arms at the tactical level, and to educate officers in the operational art of war. The Union represents approximately 300-350 non-appropriated fund employees who work in various food service, recreation, and housing facilities. About 138 unit employees work in the Fort Leavenworth Lodging Non-Appropriated Fund Instrumentality. The parties are abiding by the terms and conditions of a collective bargaining agreement last negotiated in 1980, but which has been renewed for 2-year periods since that time. The parties’ latest 2-year renewal period was to have expired in June 2003.
ISSUE AT IMPASSE
In essence, the parties disagree over whether the Employer should be permitted to conduct its proposed BBA in accordance with its last best offer, or should be required to negotiate over revised Department of the Army Regulation (AR) 215-3, dated August 26, 2002, before the BBA is implemented.
POSITIONS OF THE PARTIES
1. The Employer’s Position
The Employer’s final offer, among other things, would provide: (1) 32-hour workweeks for the 14 employees whose employment status would change from regular full-time to regular part-time; (2) information to the Union on all lodging positions and the records and documents used to decide the positions/employees to be affected by the action; (3) severance pay to separated employees in accordance with AR 215-3, dated August 26, 2002; (4) written notice to each affected employee stating the reason for the action; and (5) various other rights to which affected employees are entitled.
Management is guaranteed the right to layoff employees under section 7106(a) of the Statute, and on November 5, 1993, the parties agreed to implementation of a business based system which "provides a sound basis" for reducing the members of the Fort Leavenworth non-appropriated fund workforce. The Employer is "in no way barred" from exercising its authority to conduct the BBA, which it initially intended to implement on October 1, 2002, in accordance with the previously negotiated policy. Moreover, nothing prevented the Union from proposing the use of any provision contained in the revised regulation and, in fact, it "made such proposals on the first day of mediation" (October 21, 2002). The Employer’s final offer "essentially matches the proposals submitted by the Union to the Employer" on that date. It should be adopted by the Panel in its entirety to resolve the dispute "since it responsibly and meritoriously responds to all proposals advanced by the Union" directly pertaining to the impact and implementation of the BBA.
The Union’s proposal, on the other hand, "has no merit." It is basically the same one the Union submitted during the second day of mediation (October 22, 2002), after it discovered the existence of the revised regulation. Rather than agreeing to bargain over the revised regulation as a separate matter, as the Employer proposed on November 15, 2002, it is insisting on a process that would further delay the BBA, which has already cost management "$108,070 more than would have otherwise been expended had the reduction been effected as planned." Additional support for its position that the Union’s proposal should be rejected comes from the fact that the Union filed "an unfounded" unfair labor practice charge with the Federal Labor Relations Authority on April 9, 2003, alleging unlawful implementation of the revised regulation, that it subsequently unilaterally withdrew.
2. The Union’s Position
The Union basically proposes that the parties be ordered to negotiate over the changes in AR 215-3, dated August 26, 2002, as a prerequisite to implementing the proposed BBA. The "existing regulation" then would "be the guidance" that management uses "to conduct the reduction in force action." The Employer was obligated to notify the Union about the revised regulation, which outlines procedures for conducting a RIF, but it only did so during the second day of mediation. As a result of the Employer’s neglect, "the Union was not afforded the opportunity" to negotiate the impact and implementation of the changes "that may have a negative effect on the bargaining unit employees." While "not attempting to prevent management from exercising its rights," it is the Union’s position that returning to the table to bargain the revised AR 215-3 would afford the affected employees "their due process."
Having carefully considered the evidence and arguments presented by the parties’ in support of their positions, we conclude that the impasse should be resolved on the basis of the Employer’s final offer. The record demonstrates that the parties have had ample opportunity to negotiate over both the proposed BBA and the revised regulation, and that the Employer has been prevented from implementing its decision even though it’s proposal essentially meets the interests expressed by the Union during the first day of mediation. In our view, the Union has failed to show that any additional delay is warranted.
Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of the proceedings instituted under the Panel’s regulations 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel under 5 C.F.R. § 2471.11(a) of its regulations hereby orders the following:
The parties shall adopt the Employer’s final offer.
By direction of the Panel.
H. Joseph Schimansky
August 5, 2003
1. The BBA would affect 16 full-time employees, mainly by reducing the number of work hours for most of them, with the prospect that up to three employees may be separated.