U.S. INTERNATIONAL TRADE COMMISSION WASHINGTON, D.C. and LOCAL 2211, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
U.S. INTERNATIONAL TRADE COMMISSION
LOCAL 2211, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Case No. 98 FSIP 18
DECISION AND ORDER
Local 2211, American Federation of Government Employees, AFL-CIO (Union), 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 (the Statute), 5 U.S.C. § 7119, between it and the U.S. International Trade Commission, Washington, D.C. (ITC or Employer).
Following an investigation of the request, which concerns staying reduction-in-force (RIF) actions, the Panel determined that the dispute should be resolved on the basis of single written submissions from the parties. After considering the entire record, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a Decision and Order. The parties filed written submissions pursuant to this procedure, and the Panel has now considered the entire record.
The ITC’s mission is to administer and enforce the international trade laws of the United States, to provide guidance on, and explanations of, trade issues to the executive and legislative branches, and to adjudicate unfair trade practice cases. The Union represents 280 bargaining-unit employees, the majority of whom are attorneys, economists, and international trade analysts. The parties are covered by the terms of a collective bargaining agreement (CBA) that is due to expire in March 1998. The instant impasse arose out of mid-term bargaining over provisions to govern future RIF actions.(1)
ISSUE AT IMPASSE
The sole issue in dispute is whether to allow a stay of RIF actions pending appeal to either the Merit Systems Protection Board (MSPB) or a grievance arbitrator, in the case of institutional grievances.(2)
POSITIONS OF THE PARTIES
1. The Union’s Position
The Union proposes that:
If an individual employee files an appeal with the MSPB on his or her own behalf of a RIF or furlough of 30 days or more, or, if the Union files a grievance concerning a RIF or furlough of 30 days or more, then the RIF or furlough of 30 days or more shall be stayed until an initial decision of the MSPB is issued on the employee appeal, or an arbitrator’s decision on the Union grievance is issued.
This proposal provides a stay, during which the MSPB or an arbitrator could consider the legal and factual issues involved before the employees face "the harsh financial . . . impact" of a RIF. In addition, with respect to MSPB appeals, the stay would last only through the initial appeal stage. The short time frame of "this procedural safeguard should not place a [financial] burden on the Agency that reasonable planning cannot avoid." Furthermore, the Employer exaggerates its budget concerns over the stay proposal. During a RIF in 1996, the Employer imposed a 6-day furlough for budgetary reasons. The Agency later refunded the lost pay to employees, however, after concluding that it overestimated the budget shortfall. The Union’s proposal would also discourage the Employer from delaying the appeal process "in order for the passage of time to alleviate its perceived problem through ‘attrition.’"
2. The Employer’s Position
Essentially, the Employer would maintain the status quo, i.e., RIF actions would not be stayed while employees appeal to either the MSPB or a grievance arbitrator. Currently, "the largest portion of the agency’s budget is devoted to personnel expenses." This means that the extra costs resulting from a stay could lead to the separation of additional employees. Safeguards, such as notice periods, already in the parties’ agreement alleviate the impact on employees, by providing: (1) a 90-day prior notice of the RIF to the Union; (2) a 60-day prior general notice of the RIF to employees; and (3) a 30-day prior specific notice of the pending RIF action to affected employees. Regarding a case resulting from the RIF conducted in 1996, the MSPB found that the Union did not establish that the RIF had a disparate impact on women or minorities.(3)
The Employer contends that the Union’s proposal is nonnegotiable under § 7106(a) of the Statute because it: (1) prevents RIF actions on the designated effective date; (2) increases RIF-related costs; and (3) eliminates its discretion "to conduct a RIF due to budgetary necessity, mostly under emergency circumstances." Furthermore, the Federal Labor Relations Authority (FLRA) did not address, in previous decisions finding certain stay proposals negotiable, the effect of a stay on management’s rights "to retain employees, determine its budget and workforce size, and to respond to emergency budgetary considerations."(4) In this regard, "(t)he agency’s rights, particularly in times of budgetary emergency, to determine the size and essential functions of its workforce and the manner in which it will allocate scarce resources to prevent a budget deficiency outweigh the employees’ rights to ‘peace of mind’ and additional time on the payroll."
Having carefully reviewed the evidence and arguments presented, we shall order the Union to withdraw its proposal. Preliminarily, we note that the parties have recently negotiated provisions which afford employees 3-months’ notice in advance of a RIF. While this may offer little solace to those facing a potentially career threatening situation, it at least provides a window period during which those who are adversely affected may pursue alternative employment options. With respect to the Union’s position, we are persuaded that its speculative concern that the Employer may condu