DEPARTMENT OF DEFENSE NATIONAL GUARD BUREAU NEVADA NATIONAL GUARD CARSON CITY, NEVADA and SILVER BARONS AND SILVER SAGE CHAPTERS, ASSOCIATION OF CIVILIAN TECHNICIANS
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
NEVADA NATIONAL GUARD
CARSON CITY, NEVADA
SILVER BARONS AND SILVER SAGE
CHAPTERS, ASSOCIATION OF
Case Nos. 95 FSIP 147
and 95 FSIP 148
DECISION AND ORDER
The Silver Barons and Silver Sage Chapters of the Association of Civilian Technicians (Unions) filed separate requests for assistance with the Federal Service Impasses Panel (Panel) to consider negotiation impasses under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between them and the Department of Defense, National Guard Bureau, Nevada National Guard, Carson City, Nevada (Employer).
After investigation of the requests, which were consolidated because they involved identical issues arising during separate successor collective bargaining agreement (CBA) negotiations, the Panel determined that the disputes should be resolved through written submissions from the parties, with the Panel to take whatever action it deemed appropriate to resolve the impasses. Written submissions were made pursuant to this procedure, and the Panel has now considered the entire record.
The Employer provides operational military units to support the U.S. Army and Air Force. The Silver Barons Chapter represents approximately 160 Air National Guard civilian technicians, mainly Wage Grade aircraft mechanics and General Schedule clerks, located at the Reno-Tahoe Airport and at Carson City, Nevada. The Silver Sage Chapter represents approximately 80 Army National Guard civilian technicians, mainly Wage Grade helicopter mechanics and General Schedule clerks, located in 9 installations throughout the State of Nevada. Each bargaining unit has its own CBA, both of which were to have expired on January 31, 1995. By mutual agreement, the terms of the contracts remain in effect pending implementation of their successor agreements.
ISSUES AT IMPASSE
The parties basically disagree over whether: (1) Union representatives should be granted official time for lobbying elected officials, and (2) unit employees should be permitted the additional option of having appeals of proposed adverse actions taken to private arbitrators for advisory opinions.
1. Official Time for Lobbying
a. The Unions’ Position
The Unions’ essentially propose to add wording to the parties’ CBAs which would provide the following additional example where official time may be granted:
Union officials when representing Federal employees by visiting, phoning, and writing to elected representatives in support or opposition to pending or desired legislation which would impact the working conditions of employees represented by ACT.
Because many of the conditions of employment of unit employees are codified in Federal law, "corresponding with representatives of the Government is the only way for those employees to bring about change in those laws and thereby in their working conditions." This is especially true in the current era of DOD downsizing, where an employee’s continued employment is directly dependent on the actions taken by Congress. The proposal is consistent with § 7102(1) of the Statute which states that employees acting in the capacity of an exclusive representative have the right "to present the views of the labor organization to . . . the Congress, or other appropriate authorities." Moreover, contrary to the Employer’s position, the proposal is fully negotiable under § 7131(d) of the Statute.(1) In this regard, 18 U.S.C. § 1913 states that appropriated funds shall not be used for lobbying Congress unless the Congress expressly authorizes otherwise. By enacting § 7102(1) of the Statute, Congress provided the authorization necessary to permit the use of appropriated funds for the purpose sought by the Union.
b. The Employer’s Position
The Employer "proposes to maintain the status quo because granting the Unions’ request constitutes a violation of Federal law for which management officials could be fined and imprisoned."(2) While it is aware that the Federal Labor Relations Authority (FLRA) required negotiations over the use of official time for lobbying by union representatives in DVA, that decision "was rendered with no consideration, or discussion, of 18 U.S.C. § 1913." Had the FLRA considered those provisions, "management believes the decision would have been far different."(3) In any case, given the criminal sanctions attached to violating 18 U.S.C. § 1913, the Employer "cannot -- and will not -- authorize official time for the purpose of lobbying Congress in the absence of a Court order to do so." In reaching this decision, it fully considered § 7102(1) of the Statute; nowhere does that provision "authorize the use of official time for lobbying activities." Its view is supported by a legal opinion of the Office of the Judge Advocate of the National Guard Bureau.
The Employer’s position on this issue may be interpretable as an argument that the Panel should decline to retain jurisdiction over the Unions’ proposal because it is nonnegotiable. Preliminarily, we note that the Panel is bound by the precedent established by the FLRA, unless it reverses itself, or is reversed by the U.S. Supreme Court. In such circumstances, we are guided by the FLRA’s decision in Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988)(Carswell), where it determined that the Panel may apply existing case law to resolve an impasse where a duty-to-bargain issue arises. Applying the principles of Carswell to this case, supplemented by the additional guidance it provided in Department of the Interior, Bureau of Reclamation, Lower Colorado Region, Yuma, Arizona and National Federation of Federal Employees, Local 1487, 41 FLRA 3 (1991)(Bureau of Reclamation),(4) we find that the FLRA’s previous decisions in DVA and DHHS provide sufficient basis for resolving the duty-to-bargain issue in favor of the negotiability of the Unions’ proposal. In particular, we note that in DHHS the FLRA specifically rejected an argument which appears to be substantively identical to the Employer’s in this case: that granting a union representative official time for lobbying is illegal because it violates 18 U.S.C. Section 1913. Accordingly, we conclude that the matter is properly before the Panel for consideration on the merits, and that the Employer’s contentions are more appropriately made to the FLRA and the courts.
Having considered the arguments and evidence presented by the parties on the merits of the issue, we are persuaded that the Unions’ proposal provides a reasonable basis for resolving the dispute. Although nothing in § 7102(1) of the Statute mandates that official time be granted to union representatives for lobbying activities, in our view the Unions’ proposal is warranted because it would support in a tangible way employees’ efforts to exercise the fundamental statutory rights that Congress provided them. Moreover, there is no evidence in the record, nor does the Employer allege, that there have been any past problems generally in connection with the use of official time by the Unions’ representatives. For these reasons, we shall order the adoption of the Unions’ proposal.
2. Advisory Arbitration in Appeals of Proposed Adverse Actions
a. The Unions’ Position
The Unions would change the appropriate articles and sections of the parties’ CBAs by: (1) including, as a third option for employees against whom an adverse action is proposed (in addition to review by the Adjutant General or an administrative hearing conducted by a National Guard hearing examiner), "advisory arbitration" conducted under the arbitration provisions of the parties’ CBAs; (2) adding wording which specifies that "if an arbitrator is requested, his decision is considered to be completely advisory in nature and in no way binding on the Employer. The Adjutant General will consider the arbitrator’s findings in making his final decision;" and (3) omitting current wording which states that "adverse actions are excluded from arbitration."
Providing affected technicians with a choice from among "three avenues of appeal" offers "a number of advantages." In cases where there are "serious disagreements" between the Union and the Employer concerning the alleged behavior of the technician, the conduct of management officials in handling the case, or countercharges of improper behavior on the part of the Employer’s representatives, review by an independent third party who is "completely disinterested in the outcome of the proceedings would be the more appropriate choice." Because the arbitrator’s opinion would not be binding on the Adjutant General, its proposal is clearly within the limits placed on employees under 32 U.S.C. § 709 of the National Guard Technicians Act.
There is no merit to the Employer’s position that advisory arbitration would delay the discipline process or add unnecessary expense. Appellate review before the Adjutant General is normally handled in a "relatively short amount of time," but arbitration hearings would take approximately the same length of time as cases which go before a hearing examiner. The cost of the proposal to the Employer would also be comparable because it pays the entire expense of a hearing before a hearing examiner, while the parties would share the expense of a private arbitrator. Overall, the Unions’ concern is "for the appellant and his or her due process and not necessarily with expediting the discipline process nor with making that process more cost effective."
b. The Employer’s Position
As in the previous issue, the Employer would have the Panel order the Unions to withdraw their proposal so that the status quo is maintained. In this regard, the Unions’ proposal would add delay and expense to the discipline process without improving it. The two alternative appellate procedures currently available "have proven quite satisfactory to date and there is nothing to be gained by adding an arbitration option to the process." Under such circumstances, adoption of the proposal would be a "disservice to the American taxpayer and a discredit to the professional and knowledgeable hearing examiners currently available to the Union membership." The Unions’ entire argument is based on the groundless presumption that neither the Adjutant General nor an out-of-State hearing examiner can fairly and impartially evaluate an employee’s appeal where there are allegations of wrongdoing against the agency. Quite to the contrary, "common sense" suggests that the National Guard’s own specially appointed and trained hearing examiners are better suited to resolving such serious disputes than arbitrators "ignorant" of the unique employment status and requirements governing National Guard Military Technicians.
After carefully examining the arguments and evidence presented on this issue, we conclude that the parties’ impasse should be resolved on the basis of the Unions’ proposal. From our perspective, the Unions’ interest in providing affected employees with the additional option for a review of the facts and circumstances surrounding allegations of serious misconduct, which is completely independent of the National Guard Bureau, is entirely understandable. We believe that this interest is significant enough to outweigh the lack of evidence in the record that the current mechanisms for handling appeals of adverse actions have been anything but fair and impartial. In addition, we are not persuaded that adoption of the proposal would appreciably increase the costs of appellate review to taxpayers, or decrease its efficiency. In this regard, it appears that whatever additional expenses may accrue as a result of the exercise of this third appellate option wo