In United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
DEPARTMENT OF THE ARMY
LOCAL 777, NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, FEDERAL DISTRICT
1, IAMAW, AFL-CIO
Case No. 04 FSIP 56
DECISION AND ORDER
The Department of the Army, Army Corps of Engineers, Los Angeles District, Los Angeles, California (Employer) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and Local 777, National Federation of Federal Employees, Federal District 1, IAMAW, AFL-CIO (Union).
Following an investigation of the request for assistance, the Panel determined that the impasse concerning five articles in the parties' successor collective-bargaining agreement (CBA), should be resolved through an informal conference with Panel Member John G. Cruz. The parties were informed that, if a complete settlement were not reached during the informal conference, Member Cruz would notify the Panel of the status of the dispute. The notification would include, among other things, the final offers of the parties and his recommendations to the Panel for resolving the issues. The parties also were informed that, after considering this information, the Panel would impose either party's final offer on an article-by-article basis, to the extent it otherwise appears to be lawful, to resolve the impasse.
In accordance with the Panel's procedural determination, Member Cruz met with representatives of the parties in Irvine, California, on June 16 and 17, 2004. Voluntary settlements were reached on two of the five articles,1/ but the parties were unable to agree to parts of the three remaining articles. Member Cruz has reported to the Panel regarding the issues, and it has now considered the entire record, including the parties' post-conference written submissions and rebuttal statements in support of their final offers.2/
The Los Angeles District of the Corps of Engineers encompasses 226,000 square miles in four states, including 420 miles of Southern California shoreline from Morro Bay to the Mexican border, and nine military bases. It was established in 1898 with a mission of providing flood control, navigation, military construction, emergency operations, engineering design, and environmental restoration. The Union represents approximately 600 professional and nonprofessional employees. The nonprofessional employees work in clerical positions, and as engineering technicians and contracting specialists. The professional employees work as civil engineers, archeologists, environmentalists, etc. The CBA, which covers both groups, was due to expire in June 1998, but remains in effect until a successor is implemented.
ISSUES AT IMPASSE
The parties disagree over: (1) various paragraphs in Article 9, Grievance Procedure; (2) paragraph 19.5 of Article 19, Hours of Work; and (3) various paragraphs in Article 30, Midterm Negotiations.
POSITIONS OF THE PARTIES
1. Article 9 - Grievance Procedure
a. The Employer's Position
There are numerous differences between the parties' final offers on the grievance article, including whether a new employee grievance tracking form should be used. The most significant area of disagreement, however, occurs in the paragraph titled "Employee Grievance Procedure." The Employer proposes the following wording regarding this issue:
9.5 Employee Grievance Procedure: In accordance with the CSRA Section 7121, this procedure shall be the exclusive procedure for resolving employee grievances that fall within its coverage. Employees and/or their representatives are encouraged to discuss issues of concern to them informally with their supervisors at anytime. Likewise employees and/or their representatives may request to talk with other appropriate officials about items of concern without filing a formal grievance if they choose.
a. Step 1 Grievance. The grievance shall first be taken up informally by the grievant (and a Union Representative if desired by the employee) orally or in writing, with the grievant's supervisor. The parties should meet and discuss the grievance in an attempt to resolve the matter. If not settled informally, the grievance must be submitted to the grievant's immediate supervisor in writing within 15 days of the day the incident occurred that gave rise to the grievance or within 15 days of the day the grievant should have reasonably been expected to be aware of the incident that gave rise to the grievance. An on-going event that may give rise to a grievance may be grieved any time, provided that at the time the grievance is filed the event complained of must have last occurred no more than 15 days before the grievance is filed. The written grievance and the remedy requested may not be altered in any subsequent step and arbitration. A decision will be issued to the grievant within 7 days after presentation of the grievance.
b. Step 2 Grievance. If the grievant is dissatisfied with the decision given at Step 1, or if no decision is received within 7 days, and the grievant decides to advance the grievance, the grievant and/or Union representative, if any, shall present the Step 2 grievance to the next level supervisor within 10 days after receipt of the decision given at Step 1, or within 10 days after the deadline for the supervisor to issue a written decision, if none was issued. Upon receipt of the Step 2 grievance, the next level supervisor (or designee) will meet with the grievant and/or the grievant's Union representative, if any, discuss the grievance, and render a written decision within 7 days.
c. Step 3 Grievance. If the grievant is dissatisfied with the decision given at Step 2 or if no decision is received within 7 days, the grievance may be elevated to the Step 3. The grievance must be presented to the Employer's Spokesperson within 10 days after receipt of the decision at Step 2 or the deadline for issuing a decision, if none is issued. The Employer's Spokesperson, or designee, will be the Employer's final authority for review of the grievance. The Step 3 deciding official will meet with the grievant and/or the Union representative, if necessary, and issue a written decision within fourteen (14) days after receipt of the grievance.
d. Referral to Arbitration. If the grievance is not satisfactorily resolved at Step 3, the Union may refer the matter to arbitration in accordance with the requirements of Article 10, Arbitration.
The Employer's posits that its proposal sets forth a "traditional, simple, and expeditious three-step grievance process," incorporating elements of the grievance procedure contained in the current CBA with wording that addresses concerns expressed by the Union at the bargaining table. According to the Employer, its primary advantage is that it would reduce the amount of time it takes to process a grievance to a total of 63 days from the current "minimum" of 86 days to complete the process, and because the deadline for completion of step 2 is "open ended to allow for any meetings or the use of an Alternative Disputes process," often "many extra months" are added. In addition, the ad hoc committees established under step 3 of the current CBA have required "frequent time line extensions" to accommodate the needs of committee members "to perform their regular work as well as that of the committee." As the ad hoc committee is only empowered to make recommendations to the District Commander or designee, another independent investigation subsequently is performed. Its recommendations are often split "'along party lines,' which makes its recommendation of little value." While the Union's final offer on this issue differs somewhat from the process in the current article, it nevertheless maintains the use of ad hoc committees, which "will cause the overall process to be lengthy." Overall, "the little value added by the process is greatly outweighed by the labor costs associated with taking two management officials and two union representatives away from their regular duties."
b. The Union's Position
Among other things, the Union proposes: (1) the use of its preferred employee grievance tracking form; (2) wording in paragraph 9.2.c.(3) stating that the negotiated grievance procedure shall apply to any complaint by any employee, the Union, or the Employer concerning "any breach of agreements between the Union and the Employer that are negotiated and signed outside this agreement"; and (3) in paragraph 9.6.c., that:
If a formal grievance does not contain the information required by this Article, it will be returned by the Employer without action for correction, along with a written explanation of the specific reason(s) that the grievance has been returned. The corrected grievance must be resubmitted by the original time limit specified in this Article, extended for the period that the grievance was in the Employer's possession.
On the key issue of the "Employee Grievance Procedure," its proposed paragraph is as follows:
9.9. Employee Grievance Procedure: This procedure shall be the exclusive procedure for resolving employee grievances that fall within its coverage. Employees and/or their representatives are encouraged to discuss issues of concern to them informally with their supervisors at anytime. Likewise employees and/or their representatives may request to talk with other appropriate officials about items of concern without filing a formal grievance if they choose.
Step 1. The issue shall be taken up by the grievant and or Union Representative with the employee's immediate supervisor or the lowest level management official with authority to render a decision. The step one grievance shall be initiated in writing if not settled informally with the supervisors within 15 calendar days of the incident that gave rise to the grievance, unless the grievant could not reasonably be expected to be aware of the incident by such time. In that case, the grievance must be initiated within 15 calendar days of the time grievant became aware of the incident. A grievance concerning a continuing practice of condition may be initiated at any time. In the case of disciplinary or adverse action, a grievance must be initiated within 15 calendar days of receipt of the written decision from the deciding official. A decision shall be given to the grievant in writing within 7 calendar days after presentation of the grievance. Every effort shall be made to insure that the decision is clearly communicated and understood. Included with such decision shall be a written statement indicating the grievant's right to submit a grievance to step 2.
Step 2. If the grievant is still dissatisfied with the solutions proposed by the supervisor, the grievant shall present the grievance in writing to the Division/staff officer Chief of the step 1 grievance, and supporting documentations within 7 working days. Division/staff Chiefs or designee will meet with the grievant, and their Union Representative, if any. The division/Staff office or his designee will then give his/her written decision on the grievance to the grievant, if self represented, and to the Union Representative and furnish a copy to the union if the employee has not elected to have a union representative within 7 calendar days after the close of the grievance meeting.
Step 3. If no mutually satisfactory settlement is reached as a result of second step the grievant and/or the union representative, shall submit the grievance together with supporting documentation to the district commander, or his designee within 7 days of the receipt of the second step decision. The District Commander or designee will contact the Union President to implement an Ad Hoc Committee within 7 days. The Committee will be made up of two management appointees and two Union appointees that are not connected with the grievance. The Committee will meet and appoint a chairperson. The parties will alternate the chair position each grievance. The Committee has the task to research all appropriate laws, regulations, etc.; interview appropriate parties (i.e. grievant, supervisor, witnesses, etc.); and submit a written report summarizing all pertinent findings, procedure, processes utilized and conclusions with their recommendation(s) to the District Commander or designee and Union Representative within 10 days of their assignment. If the Committee cannot agree to a unanimous recommendation, each opposing side will submit a separate recommendation to the District Commander or designee both of which shall be forwarded to the Union Representative. After the District Commander or designee receives the Ad-Hoc Committee recommendation(s), District Commander or designee will schedule to convene a meeting within 7 days and hear argument by the grievance parties. The District Commander or designee shall render a written decision within 7 days of receipt of the Committee's recommendation or the meeting.
If the grievance is not satisfactorily resolved in step 3, the grievance may be referred to arbitration as provided in Article 10. The union may only invoke arbitration.
The Union submits that its proposed grievance procedure is "easy to understand" and ensures that grievances are resolved "in a reasonable time frame." It is similar to the original process in the current contract, but reduces the length of time to reach the point of arbitration to 74 days, as opposed to the Employer's 63 days. The extra 11 days under its proposal would allow for the operation of an ad hoc committee at step 3. The committee, which includes representatives of both sides appointed by the District Commander, researches appropriate laws and regulations, interviews appropriate parties, and submits recommendations. The committee process "has been successful in the past and can be successful in the future" because it gives the parties an opportunity "to work together for a common cause," which is "always beneficial."
Having carefully examined the arguments presented by the parties, we are persuaded that the impasse should be resolved on the basis of the Employer's final offer. Preliminarily, we note that neither side has entered evidence into the record regarding the number of grievances that have been filed in recent years and the average time it has taken to process them, or to substantiate their respective claims concerning the advantages and disadvantages of the ad hoc committees required under the current article. Conceptually, however, it is difficult for us to endorse a proposal such as the Union's that would require mutual cooperation between the parties to be successful where one of the parties opposes its implementation. In addition, based on their proposals, both sides appear to recognize that the current grievance process takes too long. In our view, the 74-day processing time the Union alleges would occur under its proposal appears to be unrealistic, particularly where it includes the formation and operation of ad hoc committees which may require frequent extensions of time. Accordingly, we shall order the adoption of the Employer's final offer on Article 9.
2. Article 19 - Hours of Work
a. The Employer's Position
The following wording is proposed by the Employer on the paragraph in this article that remains at impasse:
19.5 Exclusions From and Changes to Work Schedules. The Employer has the right to exclude individual employees or groups of employees from using an Alternative Work Schedule, or to change work schedules of individual employees or groups of employees to satisfy operational requirements. In exercising this right, the Employer will meet its bargaining obligations.
a. After a decision has been made by the Employer to change an employee's work schedule, the Employer will furnish the following information to the Union:
1) Names(s) of the employees affected;
2) Title, series and grade of employee(s);
3) Written explanation for the exclusion or change; and
4) The work schedule to which the employee(s) will be assigned.
b. In the case of an emergency situation, the Employer may immediately change an employee's work schedule for the period of the emergency. The Union will be notified of the change to the work schedule(s) and the estimated period of the temporary change as soon as practicable. An emergency is defined as an unexpected serious occurrence or situation urgently requiring prompt action.
In summary, the Employer's position is that the adoption of its final offer, which includes "portions of the Union's last known proposal," would ensure that its operational needs are met by permitting management to exclude individual employees or groups of employees from using alternative work schedules (AWS), or by changing work schedules. In the past, under a similar provision in the current article, such exclusions or changes "have been the exception, rather than the rule." One example is construction representatives whose work requires their schedules to match those of the contractors they monitor. Its proposal also includes wording that "the Employer will meet its bargaining obligations after such decisions have been made." The Union's final offer, on the other hand, is unacceptable because it "indicates that it intends to negotiate the decisions themselves as opposed to the impact and implementation of such decisions." This is inconsistent with management's "ability to make those decisions for its operational needs."
b. The Union's Position
The Union's proposed wording on the disputed paragraph is as follows:
19.5 Exemptions from Alternate Work Schedule Programs: Prior to permanently or temporarily exempting any bargaining unit employee and/or position(s) from participating in any of the Alternate Work Schedules, the following actions must be accomplished:
a. The immediate supervisor or designee will furnish to the Union the following:
(1) Names(s) of the employees affected;
(2) Title, series and grade of employee(s);
(3) Written justification for exemption; and
(4) The work schedule to which the employee(s) will be assigned;
(5) a copy of the written approval by the Division Chief, or his designee.
b. The Union will negotiate to the full extent of the law any changes in the work schedule.
c. In the case of an emergency situation, the Employer may temporarily change the hours of duty for the period of the emergency. The Union will be notified of the action and the estimated period of the temporary change. An emergency is defined as an unexpected serious occurrence or situation urgently requiring prompt action.
The Union does not specifically contest the right of the Employer to exclude certain employees from AWS, but its final offer specifies that "the Employer also has an obligation to negotiate with the Union on any changes in working conditions that effect bargaining unit employees." Moreover, "by working together on AWS issues, the program can be a benefit to both the Union and the Employer."
After careful review of the parties' positions on this article, we shall order the adoption of the Union's final offer to settle the dispute. The parties appear to agree that management may temporarily change employees' hours of duty in emergency circumstances. With respect to permanently or temporarily exempting unit employees from participating in AWS in non-emergency situations, however, the Union's requirement that the immediate supervisor furnish the Union with a copy of the Division Chief's written approval to do so more closely resembles the provisions in the current article, and the Employer has not demonstrated why this is unreasonable. Moreover, we are persuaded that the Union's wording more clearly preserves its statutory rights to negotiate over changes in work schedules than the Employer's. In particular, the Employer's view that the Union is entitled only to negotiate over the "impact and implementation" of management's decisions to exclude groups of employees from AWS could be inconsistent with the requirements of 5 U.S.C. § 6131 of the Federal Employees Flexible and Compressed Work Schedules Act.
3. Article 30 - Midterm Negotiations
a. The Employer's Position
The Employer proposes the following final offer on the issues that remain at impasse in this article:
30.2 Scope. The scope of Midterm Negotiations is as follows:
a. Employer decisions affecting bargaining unit employees or their conditions of employment, subject to non-negotiable exclusions as provided by law;
b. Negotiable proposals by the Union on matters not contained in or covered by this Agreement;
c. Amendments and supplements to this Agreement to reflect legal and regulatory changes, or other negotiable items, as mutually agreed.
30.3 Notification of Employer Decisions Affecting Conditions of Employment of Bargaining Unit Employees.
a. The Employer will notify the Union prior to implementation of decisions affecting conditions of employment of bargaining unit employees. Such notification will be furnished to the Union President or designee.
b. If, after notification from the Employer, the Union chooses to exercise their right to bargain, their demand to bargain will be furnished to the Employer's Spokesperson not later than 10 days after receipt of the notification. Absence of a demand to bargain on or before the 10th day will be accepted as the Union's declination to bargain.
30.4 Procedures For Midterm Negotiations.
a. Negotiations will begin not later than 15 days after receipt of the demand to bargain. Extensions may be granted by mutual agreement. Failure of the Union to commence negotiations will be accepted as the Union's declination to bargain.
b. Normally, the number of Union bargaining team member(s) authorized official time will not exceed the number of individuals designated as representing the Employer at the bargaining session. When more than one individual represents each Party, the lead negotiator for each party will be identified at the commencement of negotiations. The lead negotiators must have the authority to enter into an agreement and bind their respective Party. Agreements will be signed and dated by the lead negotiators.
c. Either Party may have a subject matter expert present information pertinent to the subject being negotiated between the Parties. The subject matter expert may not negotiate for or become a member of either bargaining team.
30.5 Requests for Information. All requests for information made by the Union pursuant to section 7114(b)(4) of the CSRS will be sent in writing to the Employer's Spokesperson. The response to the request, whether approved or denied, will be in writing.
Overall, the Employer's final offer establishes an understandable procedure with time frames for negotiating mid-term issues that are consistent with those in the current CBA and avoid unnecessary delay. Subparagraphs 30.2a and b, which cover Employer decisions affecting conditions of employment and negotiable Union proposals on matters not covered by the agreement, are "in conformance" with the requirements of law, and are "very similar to the current contract language." Subparagraphs 30.3a and b improve on the current contract by giving the Union 10 days to demand to negotiate after being notified of an Employer-initiated change. The current provision is unclear as to when the Union demands bargaining, and has evolved into a practice whereby the Union responds with "successive requests for information" which often delays bargaining and implementation "for several months." Subparagraph 30.4b would grant official time to Union negotiators "normally equal to the same amount of Employer negotiators," consistent with 5 U.S.C. § 7131(a). The current CBA requires a minimum of two negotiators on each side for all mid-term bargaining, whereas actual practice has demonstrated that the parties sometimes have negotiated successfully with only one negotiator on each side. It has included the word "normally" in recognition that "there may be occasions when the Union can justify the need for more."
Subparagraph 30.2a of the Union's final offer contains wording that would require the Employer to negotiate with the Union regarding the "formulation" of policies affecting employees or their conditions of employment. As such decisions are often made and issued by higher authorities, e.g., the Departments of Defense or the Army, the Employer "cannot agree to negotiate the substance of any such matters with the Union, only impact and implementation." Paragraph 30.3 would permit the Union to negotiate ground rules "even on the most routine and simple proposed changes." Past practice has shown that the parties have negotiated successfully without ground rules, and that Union requests to negotiate ground rules have "unnecessarily prolonged negotiations and significantly delayed implementation of Employer decisions." Finally, the last sentence of paragraph 30.3 would permit the Union to implement any mid-term changes that it proposes if the Employer does not request bargaining within the specified time limit. The provision "does not make sense, as the Union does not have the means to implement policies," and could violate the rights granted to management under section 7106(a) of the Statute.
b. The Union's Position
The Union proposes the following wording on the disputed issues in this article:
a. The Employer agrees to respect the rights of the Union and to meet jointly and negotiate with the Union when requested, regarding formulation and implementation of any new policy or change in existing policy affecting employees or their conditions of employment, except as provided by law.
b. The Union, in consonance with its right to represent, has a right to propose new policies, changes in policies or resolutions to problems.
c. Amendments and supplements to this Agreement would be accomplished to reflect legal and regulatory changes only if mutually agreed to reopen.
30.3 Procedures. The party that initiates midterm negotiations will submit, in writing, proposed changes affecting personnel policies, practices or conditions of employment not in conflict with the Labor-Management Agreement. The notification will be delivered to the Commander or his designee or to the Local Union President or his/her designee. Under ordinary circumstances, the receiving party shall have 10 calendar days to request negotiations or agree to the changes. Upon timely request by the receiving party, bargaining will normally commence within (7) calendar days, unless otherwise agreed upon by the parties. Counter proposals will be submitted to the initiating party after ground rules have been negotiated. If the receiving party does not request bargaining within the time limit, the initiating party will implement the proposed change(s).
30.4 Request for Information. All requests for information will be made by Union pursuant to Section 7114 (b)(4) of the CSRS. The request will be sent to Employer's Spokesperson. All responses to the request whether approved or denied will be in writing.
The Union describes its final offer on this article as "concise and easily understood." The Union also asserts that it contains reasonable time frames for the exchange of proposals and the negotiation of ground rules that preserves either party's right to propose mid-term changes. In regard to ground rules, they "should be negotiated each time prior to formal negotiations" because the appropriate number of negotiators, for example, may need to be different depending upon the mid-term issues involved. While there "should never be only one from each party as stated in the Employer proposal," the Union agrees that "there will always be an equal number of negotiators between the Employer and the Union."
Having fully considered the evidence and arguments presented by the parties on this article, we conclude that, on balance, the Employer's final offer provides the better resolution to their dispute. In our view, it more accurately states the legal parameters for mid-term bargaining under the Statute, as established by the Federal Labor Relations Authority, and is more specific than the Union's in a number of areas, such as the use of subject-matter experts. For this reason, it would avoid future disagreements concerning such matters. The Union's final offer, on the other hand, raises a number of concerns. For example, the meaning of its requirement that the Employer negotiate with the Union over the "formulation" of new policies or changes in existing policies, "except as provided by law," is unclear, and appears to be pointless where such decisions are rendered by higher level authorities. Moreover, by permitting the Union to initiate bargaining over proposed changes affecting personnel policies, practices or conditions of employment "not in conflict with the Labor-Management Agreement," its proposed wording in paragraph 30.3 appears to violate the Employer's statutory right to refuse to bargain over any Union-initiated proposal that is covered by or contained in the CBA. Therefore, we shall impose the Employer's final offer to settle the parties' impasse on this article.
Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted under the Panel's regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the parties to adopt the following:
1. Article 9 - Grievance Procedure
The parties shall adopt the Employer's final offer.
2. Article 19 - Hours of Work
The parties shall adopt the Union's final offer.
3. Article 30 - Midterm Negotiations
The parties shall adopt the Employer's final offer.
By direction of the Panel.
H. Joseph Schimansky
October 22, 2004
/ The agreements involved Article 7, Official Time, and Article 24, Employee Health Program.
/ On July 23, 2004, the Union filed a “formal complaint,” alleging that the Employer did not comply with the instructions for the submission of supporting statements provided by Member Cruz at the conclusion of the informal conference. In essence, the Employer provided attachments to both of its submissions, causing them to exceed the specified page limits. The Employer responded on July 27, stating that it did not believe the attachments to its initial statement, which were the parties’ expired CBA articles on the same issues, should count against its page limit because they were already in the record. As to the attachment to its rebuttal, which was a declaration from a management official, the Employer contended that it also should not count against its page limit because, “as in court proceedings,” it was intended “to provide the Panel with a basis for the factual representations” made in the rebuttal. Nevertheless, it stated that, if the Panel believes that the Employer has exceeded its page limits, it requests that they not be considered. After reviewing the parties’ positions on this matter, the Panel decided to disregard the Employer’s attachments. Accordingly, it has not considered either set of attachments in reaching its decision in this case.