In the Matter of
DEPARTMENT OF THE AIR FORCE
HEADQUARTERS AIR FORCE MATERIEL
WRIGHT-PATTERSON AIR FORCE BASE,
Case No. 95 FSIP 23
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFGE COUNCIL NO. 214,
ARBITRATOR'S OPINION AND DECISION
The American Federation of Government Employees, AFGE Council No. 214, AFL-CIO (AFGE or Union), pursuant to the Federal Service labor Relations Statute (Statute) filed a request for assistance with the Federal Service Impasses Panel (FSIP or Panel) to consider a negotiation impasse involving 18 articles in dispute in successor agreement negotiations between it and the Air Force Materiel Command of the Department of the Air Force. Initially, the Panel ordered the parties to resume negotiations using an Interest-Based Bargaining approach with the assistance of the Federal Mediation and Conciliation Service, and to report back to the Panel as to their progress. Four articles were resolved using this approach.
The Panel subsequently ordered the parties to submit the unresolved issues to "med-arb" by the undersigned. The parties were directed to report to the Panel offices on June 12, 1995, for the purpose of engaging in intensive mediation efforts. The parties were advised that any issues not resolved at the end of the mediation process would be decided in arbitration, using the last best offer approach, article by article, with the undersigned serving as an independent arbitrator appointed by the Panel.
Acting in a mediator capacity, the undersigned met with the parties from June 12, 1995 through noon on June 14, 1995. At the conclusion of the last session, the parties were unable to resolve any of the 14 issues during the time available, and were given until July 14, 1995 to submit their "last and best offers", and any arguments and evidence relating to their cases to the Arbitrator. The parties also were encouraged to utilize the time to attempt to resolve as many issues as possible. The Employer withdrew its proposal on proposed Article 41 by letter dated June 31, 1995. The parties were unable to resolve any issues in the additional time, and subsequently complied with the Arbitrator's order to submit their written submissions by July 14, 1995.
ISSUES AT IMPASSE
The parties are at impasse over the following issues and articles: 1) Official Time; 2) Discipline; 3) Grievance Procedure; 4) Arbitration; 5) Total Quality; 6) Employee Performance; 7) Reduction in Force; 8) Details, Loans, and Reassignments to Bargaining Unit Positions; 9) Health and Safety; 10) Employee Disability Compensation; 11) Negotiations During the Term of the Agreement; 12) Unfair Labor Practices.
PARTIES' POSITIONS AND CONCLUSIONS
Article 4: Official Time
The Employer's Last Best Offer on this issue retains the majority of the language in the expired Master Labor Agreement (MLA). The Employer's interest is to propose a comprehensive approach to official time which eliminates the need for official time to be addressed elsewhere in the agreement. While the Employer's evidence illuminates a number of factors which suggest the need for less official time (declining numbers of aircraft and aircraft engines repaired at command facilities, declining bargaining unit size and declining indicators in traditional labor management activity), it's offer nevertheless recognizes that increasing labor relations activities are occurring on the non-traditional side due to partnership and Executive Order 12871. The Employer's proposal therefore increases the number of full-time representatives and retains the existing part-time structure.
The Union's Last Best Offer on this issue also retains the majority of the language in the expired MLA. Their offer deletes the previous 1:80 steward/ employee ratio, and doubles the number of full-time representatives from the existing agreement. Union section 4.09 adds a full-time"floater" that can be used anywhere as needed in the Command. The Union's offer also proposes that local negotiations can result in additional allocations of official time.
Under the current economic climate of a declining bargaining unit and a declining work load, the Employer's offer to retain the existing full-time and part-time structure, and, in fact, to increase the number of full-time representatives is generous. The Union has presented little evidence to support their offer which doubles the number of existing full-time representatives. Nor has the Union substantially addressed or provided any documentation to rebut the Agency's evidence of declining bargaining unit size, workload, and labor relations activity.
Therefore, having carefully considered the evidence and the arguments on this issue, I order the parties to adopt the Employer's last best offer on this issue.
Article 5: Discipline
The Employer's Last Best Offer for this Article is based upon retaining the majority of the language in the existing MLA. The Employer proposes expanding the definition of discipline to include reductions in pay for cause. The Agency also proposes eliminating the 45-day window within which it has to take disciplinary action because it maintains that it is inconsistent with current Federal Labor Relations Authority case law. The Employer cited several cases to support its contention. The Employer's offer also seeks to establish the time periods for maintaining the records of disciplinary actions in the employee's file in the MLA. The Employer also proposes a section on "Last Chance Agreements" which is mistakenly referred to as an Alternative Dispute Resolution procedure.
The Union's Last Best Offer for this Article modifies section 5.02, Timely Discipline, in the existing MLA, in that it imposes on the Employer a burden of disproving harmful error by clear and convincing evidence, if the Employer does not impose discipline on or provide notice of same to the employee within a 45 day period following the alleged offense. The Union's offer also contains a section on Last Chance Agreements (5.12) which seeks to establish certain conditions under which those agreements can be entered into.
Both the Union and the Employer acknowledge their principal differences on this article center on questions of negotiability. In this regard, the Employer cites 5.02 of the MLA which limits the initiation of discipline to 45 days from the infraction. The Employer argues that this limitation violates the Statutory right to discipline and is not consistent with FLRA case law.
Moreover, the Union's Last Best Offer at ¤ 5.02, Timely Discipline, imposes on the Employer a burden of disproving harmful error, if the Employer does not impose discipline on or provide notice of same to the employee within a 45 day period following the alleged offense. This concept states, in effect, that in the event that the Employer does not take the discipline or give notice of same within the appropriate time limit, the Union may conclude that the discipline was the result of a "harmful error," and the Employer has the responsibility to rebut this presumption by clear and convincing evidence.
The dispute in this Article centers on section 5.02. While the Union's proposal for this section does not appear to preclude the Employer from initiating an investigation or taking disciplinary action, as an interest Arbitrator, I am expected to draw upon previous FLRA case law to support any conclusions about negotiability. In the absence of any cases cited by the Union to support its proposal, I am left without any real alternative. The Union's proposal introduces a substantially new concept without any explanation, evidence, or justification to the Arbitrator.
Accordingly, I hereby order the adoption of the Employer's offer on this Article.
Article 6: Grievance Procedure
Management's Last Best Offer seeks to establish an Alternative Dispute Resolution Procedure centering around a grievance mediation process. In addition, the Agency's offer standardizes the time limits that are used throughout the grievance procedure to provide simplicity and consistency. Both parties are in agreement about changing a three step procedure to two steps.
The Union's Last Best Offer on this article attempts to establish that violation of employee's legal rights will be reviewable under the collective bargaining agreement under the same terms that they would be in a court of law. In addition, it also attempts to establish that any matter grievable by law can be raised in the grievance procedure. While the Union recognizes the value of ADR programs, it seeks to have them negotiated at the local level rather than included in the MLA, due to the unique circumstances at each base. Finally, the Union's offer modifies the language in the MLA requiring timely disclosure of grievability defenses to establish that the failure to raise those defenses is prohibited later in the process.
After carefully weighing the arguments and evidence presented by the parties on this article, I order the adoption of the Employer's Last Best Offer. The Union has complained about the number of cases which are dismissed because of timeliness and technicalities. It would appear that the interests of both parties on this matter will be better served through the use of standardized time limits as contained in the Employer's Offer. In addition, the Union's reluctance to agree to a Command-wide Grievance Mediation procedure is not at all clear, especially given the language in 6.07 of the Employer's Offer that makes mediation voluntary. The creation of a Grievance Mediation procedure will provide the parties with a quick, quiet, and effective means of resolving grievances short of arbitration. That process can return the primary responsibility for resolving disputes to the parties, rather than abdicating it to a third party neutral. This arbitrator is compelled to remind the parties of something that they apparently have forgotten: Namely, that any solution that the parties themselves can agree to with the help of a mediator is infinitely better than any award which is imposed upon them by an outside arbitrator.
Finally, given the number of grievances and disputes that already occur in matters arising directly under the collective bargaining agreement, I am not at all persuaded that anyone's interests would be served by establishing that employee's general legal rights should be enforceable under the MLA.
Article 7: Arbitration
While the Employer acknowledges that the parties traditionally make extensive use of this Article in the contract, it also acknowledges that the language of the expired MLA is sound and has been subject to few reviews by third parties. The Employer's Last Best Offer seeks to narrow the focus of the Expedited Arbitration section (7.08) to matters it regards as simple or non-complex, on the grounds that the process does not and has not worked well for threshold and disciplinary matters. In addition, the Employer's Offer modifies the arbitrator fee section of the contract to allow for more variety in the selection of the neutral, and clarifies the "travel expense" language to avoid unnecessary disputes with arbitrators over expenses.
The Union's Last Best Offer seeks to establish a number of procedural changes which it believes will resolve problems which have occurred in previous years. Among the procedural changes that the Union proposes are giving the arbitrator the authority to combine related grievances, empowering the party initiating arbitration to select an arbitrator from the list when the responding party does not participate in arbitrator selection, allowing the Arbitrator the authority to grant reasonable requests for shift changes for witnesses, and expanding the list of issues which may be handled under the Expedited Arbitration section of the Article.
The Union provides very little in the way of evidence or documentation to support their claims of past procedural problems that would justify the changes they propose, including the expansion of the list of items to be handled under the Expedited section of the article. By contrast, the Employer has provided substantial documentation to support its claims of problems with the Expedited Arbitration process and how the AFMC and AFGE have used it to date. Because of the lack of evidence presented by the Union on this matter, I have little choice but to order the adoption of the Employer's Last Best Offer on this Article.
Article 10: Productivity
The Employer's Last Best Offer revolves around a set of four stated interests which it believes are shared by the Union:
1) Timely implementation of changes to work processes;
2) Making the AFMC the most efficient producer of the services to maintain customers;
3) Improving the conditions of employment/ worklife of employees;
4) Avoid bypass of the Union.
In addition, the Agency is attempting to obtain a comprehensive agreement which eliminates the need for further negotiation on this subject both at and below the level of recognition.
The Union's Last Best Offer articulates its commitment to the goals of the National Performance Review and to the principles and practices of Total Quality. In addition, the Union's offer also emphasizes the importance of participation by both parties , and asks for a reasonable amount of official time for its representatives to be allowed to participate in these processes.
After considering the arguments and the evidence on this article, I order the adoption of the Union's Last Best Offer on this article. The Employer's stated commitment to principles of quality and to the Union's participation in the quality effort appears strongly in the accompanying rationale for its offer, but not in its actual proposed contract language. On the other hand, the Union's language in this article is especially clear and meaningful.
Therefore, based upon the above, I order the adoption of the Union's Offer on this article, excluding the wording on Official Time, because I have already decided the issue of official time in Article 4.
Article 15: Employee Performance
The Employer's Last Best Offer does not deviate substantially from the language in the existing MLA. Management maintains that its primary purpose is to update the Article to bring it into compliance with changes to governing directives, such as allowing the documentation of an employee's unacceptable performance to be maintained in the Supervisor's Employee Brief for one year. The Agency also expresses a concern that the Union's provision requiring "a supervisor to maintain a record of all employee input on performance " interferes with management's right to assign work, (29 FLRA 1389.)
The Union's Last Best Offer resembles the Employer's in its preservation of most of the language in the existing MLA. One of the changes that the Union proposes is to clarify that employees can grieve their annual appraisals without having to grieve each progress report that comprised the entire appraisal. In this regard, the Union states that one of their interests is to reduce the number of grievances that would result if this situation is not corrected.
On review of the Authority cases cited by the Employer, it appears that the Union provision requiring a supervisor to "annotate in written form any oral input from the employee," is non-negotiable because it infringes on Management's right to assign work. I note that had the Union not referred to a particular Management official, the provision may have been negotiable.
I am less troubled by this error on the part of the Union than I am by the Employer's language in 15.05 (f), which states:
A within Grade Increase should not be approved whenever doubt exists as to an employee's level of performance. Lack of documentation should not serve as a reason to grant a WGI to an unproductive employee. If adequate documentation to withhold a WGI from a suspected unproductive employee has not been established, then the WGI must be postponed.....
I find this language sanctions the failure of supervisors to undertake a primary responsibility, that of assessing the employee's performance, documenting any deficiencies, and conducting progressive discipline where appropriate. If the Agency is sincerely interested in addressing fiscal waste and inefficiency, and the Agency understands the principles of quality and productivity, then they already understand that a fundamental component of achieving such goals is to make supervisors accountable for their activities. It has been the experience of this Arbitrator that one of the primary causes of disputes among the parties is the failure of supervisors to consistently document problems/deficiencies of their employees, and the subsequent failure of upper management to hold their supervisors accountable for that. Moreover, I also find fault with the Employer's language in this provision that enables them to withhold the increase even if they merely "suspect" that the employee is unproductive.
In view of the above, I order the adoption of the Union's proposal on this Article, deleting the following wording in 15.02 (i) because it violates a management right under the Statute, and I am bound to adopt only language which is legal.
Employee input may be provided in writing, however, the supervisor will annotate in written form any oral input from the employee.
Article 16: Reduction in Force
The Employer's Last Best Offer on this article seeks to establish a comprehensive approach to conducting RIFs that would eliminate the need for any impact and implementation bargaining. The Employer's stated interests are to have minimum disruption to its operations and minimum damage to employee morale. In support of its Offer, the Employer deletes section 16.01c of the expired MLA which reads:
The Union may request negotiations on the impact within 15 days after receipt of notification.
The Employer maintains that the Union has misused this provision in the recent past to delay implementation and cites proposals which allegedly had little to do with the RIF negotiated in 1993 and 94 negotiations . The Employer maintains that it is still in negotiations with the Union over 89 proposals in a 1994 RIF, and it has never reached a meaningful agreement with the Union over any RIF. Management further argues that the Union's desire to conduct RIF negotiations at the local level will further delay and complicate the smooth implementation of a RIF.
The Union's Last Best Offer proposes that all negotiations on the impact and implementation of RIFs be conducted at the local level. It refers to the recent closures recommended by the Base Closure and Realignment Commission which make it even more essential that negotiations occur locally because of the unique circumstances surrounding a particular base or facility.
The Employer has presented evidence that the Union has recently used the provisions of this article to delay implementation of RIFs. The inference by the Employer is that the Union does not demonstrate a sincere desire to negotiate over the impact and implementation of a RIF, but rather seeks merely to block it from occurring and in so doing, substantially increases the cost of effective government and disrupts the Agency's operations.
The Union has not offered a substantial explanation for its desire to completely abandon the provisions of the RIF language in the expired MLA in favor of a new article which provides them the right to negotiate the impact and implementation of RIFs at the local or facility level. However, in light of the increasing likelihood of reduction in force actions, and base closures and realignments, adopting the Employer proposal would be tantamount to giving the Employer the right to conduct RIFS at will without having to enter into any negotiations. Adopting the Employer's proposal would leave the Union unable to represent its members effectively when a RIF is proposed.
In addition, I find the Union argument that local negotiations are critical for RIFs to be compelling, as the situations may vary extensively from base to base. Negotiations over, for example, the competitive area to be affected, may be of great significance for one base but not for another.
If I order the adoption of the Employer's offer, the Union would be left unprotected without the ability to negotiate on the impact and implementation of RIFs. In ordering the adoption of the Union offer, the Employer retains recourse in the future via the unfair labor practice route if it feels that the Union is abusing the negotiation process.
Accordingly , I order the adoption of the Union's Last Best Offer on this Article.
Article 20: Details, Loans, and Reassignments to Bargaining Unit Positions
The parties are in agreement on the concept of combining the articles on Details and Loans in the expired MLA, and both parties submitted offers on reassignments. The Employer's Last Best Offer is intended to provide flexibility in meeting changing workload situations. The Employer's offer draws upon the language of the MLA in reinforcing the determination of a list of employees with the requisite skills and qualifications. In the area of noncompetitive assignments, the Employer proposes to allow the supervisor the right to reassign up to 10 employees without incurring an obligation to bargain over impact and implementation. Finally, the Employer is concerned about the negotiability of the Union's Offer because of its insistence on seniority as the predominant criterion for deciding details and loans, as well as a concern about the desire of the Union to allow for local negotiations on these matters subsequent to the inclusion of this article in the new MLA. The Employer regards local negotiations as a burden which delays implementation and not adding value to the overall improvement process.
As stated above, the Union's Offer agrees with the Agency on consolidating the Detail and Loan Articles and including a section on Reassignments. Although the Union's rationale for this article is terse at best, their interest is in reinforcing the priority of obtaining volunteers for details and loans and the paramount importance of seniority [20.03 (a)]. This proposed section on Reassignments (20.06) provides for negotiations at the local level.
The Union's Offer provides the Arbitrator very little to work with in the way of documentation and rationale. By contrast, the Employer cites current Federal Labor Relations Authority case law to support its contention that the Union's proposal that the selection process should be based strictly on a volunteer and seniority basis without regard for employee skills and qualifications is non-negotiable. I am further persuaded by the Employer's argument that the need for a competitive production facility argues against the requirement of having to engage in negotiation everytime that 10 or fewer employees are reassigned.
Therefore, having carefully considered the evidence and the arguments presented by the parties in this Article, I order the adoption of the Employer's Offer.
Article 25: Health and Safety
The Employer's Last Best Offer for this Article is characterized by the following concerns. First, the deletion of the wording in the existing MLA of a program called the Computerized Occupational Health Surveillance Program (COHS) which it maintains has been inoperational at all AFMC facilities for several years. Second, the consistency of maintaining a comprehensive article on official time which would argue against the Union's proposal for a full-time Union Health and Safety Officer. The Employer's proposal does provide the Union with some representation through the Union's participation on the Health and Safety Committee.
The major difference between the language in the expired MLA and the Union's Last Best Offer on this Article is the inclusion of a full-time Union Health and Safety Officer.
The Union does not provide any arguments or evidence in support of its proposal for a full-time Union Health and Safety Officer, nor against deleting reference to the COHS Program from the expired MLA. In addition, I have already decided on the Official Time issue. Accordingly, I hereby order the adoption of the Employer's Offer.
Article 27: Employee Disability Compensation
The Employer states that this article has not been a subject of frequent disputes between the parties. The essence of the Agency's offer is to update several terms that have changed from the expired MLA, and to distinguish "official time" from the time that any personal representative can assist a claimant in processing a disability claim.
The Union's position is to preserve the language of the expired MLA . The Union shares the Employer's assessment that this article has not been a subject of frequent disputes between the parties.
I note at the outset two observations about the parties' proposals on this Article. First, both parties are in substantial agreement with the terms of the language in the expired MLA. Second, neither the Union nor the Management supply any data about the number of disability claims and the frequency with which employees ask their Union representatives, as opposed to other associates, for assistance in processing disability claims.
The Arbitrator is left to his own devices to conclude that the parties do not view this issue as a serious problem, and that the parties at the local level will be able to resolve their difficulties easily.
Therefore, after careful consideration of the arguments and evidence on this article, and in view of my ruling adopting the Employer's Offer on the issue of Official Time above, I order the adoption of the Employer's Last Best Offer on this Article.
Article 33: Negotiations during the Term of the Agreement
Management's Last Best Offer on Article 33 seeks to eliminate negotiations over ground rules for negotiations during the life of the agreement. The Agency's stated interest is to reduce the adversarial atmosphere that surrounds such bargaining and promote the efficiency of Agency operations. The Agency is also concerned about the Union's desire to negotiate at the local level over the impact and implementation or substance of directives issued above AFMC Headquarters if local activities have not received notification of intent to negotiate at the Command level within 45 days. In addition, the Agency is opposed to the AFGE's desire to negotiate over the full range of contractual articles during the life of the Agreement.
The Union's Last Best Offer on Article 33 aims at protecting the right to bargain over items already discussed in the Agreement. The Union is also concerned with addressing the various past practice and prior mid-term agreements, especially those which have arisen during the life of the agreement.
The Union is viewing the negotiation process as a central process for resolving differences between the parties and essential for the collective bargaining relationship.
This is a particularly difficult issue to decide. On the one hand, I am persuaded by the Union's statement that "...collective bargaining is in the public interest and that on-going negotiations is not something to be feared and avoided, but rather encouraged within the context of a stable and productive relationship."
This Arbitrator, however, is troubled by the contentious and troubled negotiating history of these parties. If the luxury to devote endless time to negotiations without the vision, will, and ability to obtain closure ever existed, it is clear that in the current economic climate, that luxury no longer exists and is not likely to exist again in the foreseeable future.
On the question of the Reduction in Force Article above, I ordered the adoption of the Union's Offer because of my belief that local negotiations were critical to determine the impact and implementation of RIFs that affected local employees. In this particular article, however, I am convinced that the parties are facing and will continue to face external threats and pressures which will require a maximum of collaboration and shared vision. Such collaboration will also require that the parties end their practice of endlessly negotiating without coming to agreements.
While state of the art labor-management relationships like Saturn or Dayton Power & Light provide for an evergreen contract in which the parties negotiate contractual commitments every month of the year, it is eminently clear that the AFMC and the AFGE are far from that ideal.
Therefore, having weighed the evidence and the arguments carefully, I order the adoption of the Employer's Last Best Offer.
Article 38: Unfair Labor Practices
The Employer's Last Best Offer proposes a new article for the MLA. The primary purpose of the new language is to facilitate informal dispute resolution of Unfair Labor Practice charges. In support of their proposed article, the Employer cites a total of 1779 ULPs filed against the AFMC during the 1990-94 period. The Agency also points out that of that number, only 21 or 1.1% went to a hearing. Finally, the Agency refers to a similar procedure at the San Antonio facility which has resulted in significant reduction in the number of ULPs filed, an increase in the number of ULPs resolved through alternative dispute resolution, and a savings of $2 million dollars in a 10 month period.
The Union does not make a Last Best Offer on this article. Their rationale is that this Article is unnecessary because it repeats what is already in the FLRA regulations. They did not make a proposal on this subject during negotiations, and similarly they have chosen not to submit an offer to the Arbitrator.
I order the adoption of the Employer's position on this article. Given the record of ULP filings and resolutions submitted by the Employer, it is obvious that the parties need to do something different than current practice. The Employer's proposed new article may only reiterate the Authority's regulations, but it is clear that the status quo does not represent a healthy, constructive situation from a labor relations perspective.
For the reasons noted above, I order the adoption of:
1. Article 4, Official Time, the Employer's Offer.
2. Article 5, Discipline, the Employer's Offer.
3. Article 6, Grievance Procedure, the Employer's Offer.
4. Article 7, Arbitration, the Employer's Offer.
5. Article 10, Productivity, the Union's Offer, excluding the wording on Official Time.
6. Article 15, Employee Performance, the Union's Offer, deleting the following wording in 15.02 (i):
Employee input may be provided in writing, however, the supervisor will annotate in written form any oral input from the employee.
7. Article 16, Reduction in Force, the Union's Offer.
8. Article 20, Details, Loans, and Reassignments, the Employer's Offer.
9. Article 25, Health & Safety, the Employer's Offer.
10. Article 27, Employee Disability Compensation, the Employer's Offer.
11. Article 33, Negotiations During the Term of the Agreement, the Employer's Offer.
12. Article 38, Unfair Labor Practices, the Employer's Offer.
Edward F. Hartfield,
September 18, 1995