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U.S. DEPARTMENT OF DEFENSE, DEFENSE LOGISTICS AGENCY AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, COUNCIL 169

DECISION AND ORDER

 

The U.S. Department of Defense, Defense Logistics Agency (Agency or DLA), located in Fort Belvoir, Virginia filed a request for assistance with the Federal Service Impasses Panel (Panel) under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, concerning a dispute from negotiations over a successor collective bargaining agreement (CBA).   The DLA manages the global supply chain – from raw materials to end user to disposition – for the Army, Navy, Air Force, Marine Corps, Coast Guard, 10 combatant commands, other Federal agencies, and partner and allied nations.  The DLA is responsible for contracting, purchasing, storing, and distributing most of the consumable, expendable, and reparable items for the Department of Defense.  Its primary purpose is to meet the logistics requirements of the armed forces for food, clothing, fuel, repair parts, and other items. 

 

The American Federation of Government Employees, Council 169 represents approximately 17,000 bargaining unit employees throughout the country that occupy such positions as Police Officers; Firefighters; Program and Procurement Analysts; Fork Lift Operators; and Distribution Facilities Specialists.  The parties are governed by a collective bargaining agreement (CBA) that became effective on May 19, 2016, and expired on May 18, 2019. 

 

BACKGROUND AND PROCEDURAL HISTORY

 

On February 21, 2019, the Agency provided the Union notice that it was reopening the parties’ CBA, which encompassed 50 articles, and that it was terminating permissive topics included in the current CBA.  On May 8, 2019, the parties agreed to ground rules for negotiating a new CBA.  Pursuant to those ground rules, the parties commenced face-to-face negotiations in July 2019.  The parties bargained for all-day sessions on the following dates: July 9 – 12; July 15 – 18; August 6 – 9; August 12 – 15; September 10 – 12; October 1 – 4; October 7 – 10; October 29 – November 1; and November 4 – 7.  The parties were unable to reach a full agreement over all of the CBA articles; therefore, the parties requested mediation assistance from the Federal Mediation and Conciliation Service (FMCS).

 

FMCS Mediator Louis Faiola provided mediation assistance to the parties on December 3 and 4 2019, and the parties negotiated on their own on December 5.  The parties continued their negotiations from January 22 to 24 and January 27 – 28, 2020.  A second mediator, Vanessa Bullock filled in and provided the parties mediation assistance on January 29.  The parties held seven more mediation sessions from February 19 to 21 and February 24 to 27, 2020, with both mediators present on varying days.  On March 6, 2020, Mediator Faiola released the parties from mediation.  As a result of the 52 negotiation and mediation sessions, the parties reached agreement on 35 articles from the current agreement, five new articles, and a preamble.  The parties, however, could not reach agreement on 14 articles and two memoranda of agreement (MOA).  As a result, on March 31, 2020, the Agency filed the instant request for Panel assistance.

 

On May 20, 2020, the Panel asserted jurisdiction over the 14 articles and two MOAs in dispute.  The Panel ordered the parties to a Written Submissions procedure with an opportunity to submit rebuttal statements.  The parties have timely provided those submissions.  The Union, however, did not abide by the 12-page limitation ordered by the Panel for the parties’ rebuttal statements.  The Union’s rebuttal statement is 13 pages.  The Panel’s May 22, 2020, procedural determination states, “any document received by the Panel that fails to comply with the deadlines and parameters established in this letter may not be considered.”  In accordance with its procedural letter, the Panel will not consider the additional page presented by the Union.

 

ISSUES

 

            There are 14 articles and two MOAs in dispute: Article 3 (Union Representation and Official Time); Article 6 (Use of Facilities and Services); Article 9 (Telework); Article 15 (Safety and Health); Article 18 (Performance Evaluation); Article 21 (Overtime Assignments); Article 29 (Workforce Reshaping); Article 34 (Disciplinary and Adverse Actions); Article 36 (Grievance Procedure); Article 37 (Arbitration); Article 39 (Stays of Suspensions of More Than 14 Days, Removals for Cause, and Demotion); Article 48 (Alternative Dispute Resolution); Article 50 (Duration and Amendments); Article 54 (Smoking and Tobacco Products); Material Handler Equipment MOA; and Lactation Program MOA.  Due to the number of issues contained within each Article, the parties’ proposals are attached to this Decision. 

 

POSITIONS OF THE PARTIES

 

  1. Article 3 – Union Representation and Official Time
  1. Agency’s Position

The Agency’s proposal establishes a bank of official time of 17,000 hours for section 7131(d) activities under the Statute, which is equivalent to a rate of 1 hour per bargaining unit employee.  The Agency’s proposal also limits the amount of official time by each employee to no more than 25 percent of their paid time.  The Agency states that this amount of official time is consistent with Executive Order (EO) 13837, Ensuring Transparency, Accountability, and Efficiency in Taxpayer Funded Union Time Use.  The Agency asserts that this proposal will allow employees to focus more on accomplishing the Agency’s mission.

 

The Agency argues that the Union’s proposal would provide 13 Union representatives 100 percent official time, which would equate to over 27,000 hours of official time.  The Agency states that the Union’s proposal would also permit additional official time for matters such as representation of an employee or the Union at an arbitration hearing.  As a result, the Agency contends that the Union’s proposal has the potential to allow for Union representatives to engage in more than 27,000 hours of official time per year.  The Agency also asserts that the Union’s proposal requires the Agency to pay for the travel and per diem of the Union’s nine Executive Board members. 

 

The Agency argues that there is no provision in the Statute that mandates that the Union receive 100 percent official time and that the Agency pay for the travel and per diem expenses for Union representatives.  The Agency further argues that the Union’s justification for its proposal based on an agreement between a different agency (U.S. Customs and Border Protection) and another AFGE local has no bearing on the amount of official time that the Union’s representatives in this case should receive.  Thus, the Agency states that the Union’s proposal is not supported and should not be adopted by the Panel.

 

  1. Union’s Position

The Union contends that there are approximately 33 local facilities at the DLA where the Union has officers representing the bargaining unit.  The Union states that it has approximately 40 full-time officers, but in an effort to reach an agreement, it reduced its request for 100 percent official time to only 13 of those officers, while the other officers would receive “reasonable” amounts of official time provided on a case-by-case basis.  The Union states that under section 7131 of the Statute, employees representing the Union are entitled to 100 percent official time whenever it is needed for collective bargaining negotiations.  Therefore, the Union states that a limit to its official time proposed by the Agency is in violation of the Statute. 

 

The Union also states that its proposal requires the Agency to pay the travel and per diem for the Union’s Executive Board, which will permit the Union to travel to meet with the Agency head, negotiate over Agency-wide issues, and discuss other important matters that benefit the Agency and the bargaining unit.  The Union states that if the Agency were required to pay for the Union’s travel and per diem, as well as afford the Union’s representatives 100 percent official time, it would provide for a greater incentive to reach agreements and not incur unnecessary expenses.  The Union contends that the FLRA has held that Union representatives are entitled to travel and per diem during negotiations. 

 

In support of its proposal, the Union states that allowing the Union’s representatives to be on 100 percent official time will save on time spent scheduling meetings.  For example, the Union asserts that under the Agency’s proposal, which will not permit any officers 100 percent official time, the Agency representative will first have to inquire whether the Union is available, then the Union will have to seek approval from his or her supervisor, and finally the parties can hold a meeting.  The Union asserts that there has never been an instance of abuse of official time in the past; therefore, there is no evidence to demonstrate a need to limit the Union’s official time use as the Agency proposes. 

 

The Union asserts that if the Agency’s proposal were adopted, that would result in more Union representatives using official time in order to ensure that the Union performs its statutory responsibilities.  The Union states that several representatives (as many as 20) will have to perform the work that one representative could accomplish while on 100 percent official time.  The Union contends that it is much more efficient to have a handful of representatives on 100 percent official time serving the interests of the bargaining unit than dozens of representatives on ad hoc official time.

 

Finally, the Union asserts that other Federal agencies, such as the U.S. Customs and Border Protection permit the union to have 153,920 hours of official time for 74 union positions.  The Union states that this agency is comparable to DLA, since its CBA also encompasses around 17,000 bargaining unit employees.  That union is also permitted 55, 100 percent official time positions.  The Union asserts that this amount of official time is twice as much as being offered by the Agency for the Union’s official time use in this case. 

 

  1. Conclusion

The Panel will adopt the Agency’s proposal, with modification.  The parties’ main disagreement is over the amount of section 7131(d) official time that Union representatives are entitled to receive under the Statute.  Under 5 U.S.C. §7131(d), it provides for official time in any amount that the parties agree to and which is  “reasonable, necessary, and in the public interest.”  The Agency’s proposal is largely the same as the Presidents EO 13837 on federal-sector collective bargaining, which the Panel has consistently stated provides important public policy guidance.[1]  Specifically, section 2(j) of the EO indicates that the total number of hours that an employee engages in official time shall not exceed 1 hour per bargaining unit employee.  In accordance with that guidance, an official time amount in excess of 1 hour per bargaining unit employee should not ordinarily be considered reasonable, necessary, and in the public interest.  Section 4(a)(iii) indicates that “[e]mployees shall spend at least three-quarters of their paid time, each fiscal year, performing agency business or attending necessary training.”  When reviewing official time disputes, the Panel expects the parties to provide sufficient argument and evidence to support their positions. 

 

The Agency did not provide much rationale or evidence to support its proposal.  The Agency did not offer any data to indicate the amount of official time that the Union has used during the term of the parties’ CBA, nor did it indicate the representational activities that the Union has engaged in during that time.  Similarly, the Union did not offer justification for its proposal, which could result in the Union receiving more than 27,000 hours of official time per year.  The Union argues that a limitation on its official time is contrary to the Statute; however, the Union’s argument is without merit.  Under section 7131(d), it states that an employee representing an exclusive representative shall be granted official time in any amount the agency and the exclusive representative involved “agree”  to be  “reasonable, necessary, and in the public interest.”  This includes an amount that can be less than 100 percent official time for Union representatives. 

 

The Union’s remaining arguments are also unconvincing.  The Union contends that if its officers do not receive 100 percent official time then they will need to expend additional time and resources scheduling official time to engage in each representational activity.  Any scheduling that a representative may need to do with management will actually contribute to more effective and efficient Agency operations.  This is consistent with section 5(c) of EO 13837, which requires each agency to develop and implement a procedure governing the authorization of official time.  In furtherance of this goal, the Agency’s section 3, (S)(3)(B)(1) of proposal requires representatives to input official time in the Agency’s time and attendance system, which will keep track of and record official time use.  The Agency’s proposal   will help to make its operations more efficient. 

 

To support its position, the Union argues that another agency permits a union a significant amount of official time.  The fact that representatives of another agency receive official time amounts greater than what this Agency is proposing does not justify the Union’s offer for 100 percent official time here.  The Union provided no explanation of how the terms and conditions of employment at the U.S. Customs and Border Protection are similar to those at DLA.   As previously mentioned, the Panel views the President’s EOs as important public policy that informs its resolution of official time disputes where the  parties have not substantiated their  proposals.  Such is the case here.    Therefore, the Panel will adopt the Agency’s proposal, but with modification.

 

The Agency’s section 3, (S)(3)(A)(5) proposal limits the Union’s section 7131(d) use to four activities; however, the Agency did not provide sufficient justification for this proposal.  The Panel will remove the limiting language proposed by the Agency.  The limit on the amount of official time each year to a 1 hour per one bargaining unit employee will ensure that the Union’s official time use is consistent with the Statute.

 

Finally, the Union argues that the FLRA has held that Union representatives are entitled to the Agency paying for its travel and per diem during negotiations.  While a proposal to cover the Union’s travel expenses may be negotiable, the Union has not provided any justification for the Panel to adopt a proposal that would reimburse the Union for those expenses.  The Panel has consistently taken the position that each party should be responsible for its own travel and per diem when bargaining, to incentivize the parties to negotiate in a timely and efficient manner.[2]  The Agency’s proposal is consistent with the Panel’s approach toward travel.  Therefore, the Panel will adopt the Agency’s Official Time Article with the modification suggested.

 

  1. Article 6 – Use of Official Facilities and Services
  1. Agency’s Position

The Agency asserts that its proposal limits access to its facilities, systems, and equipment.  The Agency states that its language is intended to limit the use of the Agency’s Information Technology (IT) system to employees with common access cards (CACs), which provides security to the Agency’s technological information.  The Agency asserts that to allow some Union representatives who are non-DLA employees access to its IT system without the proper CAC credentials would have a negative effect on the security of the system.  The Agency states that non-DLA employees who are Union representatives will have access to Agency facilities and resources in accordance with DLA policies and procedures, and the Union’s representatives who are employees will be permitted to use Agency resources if it is used in the course of the employees’ duties or required for their position of record.

 

The Agency provides support for its proposal by stating that it is consistent with EO 13837, which does not allow for the free or discounted use of agency equipment or facilities by labor organizations.  The Agency contends that the Union’s proposal would allow non-DLA employees to have unfettered access to the Agency’s IT systems and facilities and require the Agency to expend resources to ensure that its equipment is secure for those representatives.  The Agency states that the Union’s proposal also requires the Agency to notify the Union via U.S. certified mail of any meetings and phone calls between it and management, which the Agency asserts would cause an unnecessary delay to labor-relations at DLA.  The Agency argues that the Union’s proposal is unreasonable considering the electronic nature of communications in the workplace.  

 

  1. Union’s Position

The Union asserts that the Agency’s proposal to restrict the Union’s access to Agency facilities will inhibit the Union from performing representational responsibilities except at their own residence or a Union office, which are not at all Agency locations.  The Union also proposes that all notifications to the Union, including notifications for meetings and changes to conditions of employment must be accomplished via the U.S. Postal Service.  The Union states that the reasoning for its proposal is because if the Agency’s Article 3 proposal is adopted that would mean that the Union representative would have to first obtain approval for official time prior to holding any meetings with the Agency.  If this were the case, the Union would have to expend additional time in order to ensure that the meeting could take place.  If the Union receives the notification via U.S. mail, the Union asserts that it would not have to expend such time.  Finally, the Union asserts that the Agency did not bargain in good faith over this proposal.

 

  1. Conclusion

The Panel will adopt the Agency’s proposal.  The parties’ disagreement surrounds the Union’s access to the Agency’s property and its resources.  Once again, the Agency’s proposal is largely consistent with EO 13837, specifically section 4(a)(iii) of the EO.  That section states, “[n]o employee, when acting on behalf of a union, is permitted the free or discounted use of government property or agency resources if such free/discounted use isn’t generally available for non-agency business by employees when acting on behalf of non-federal organizations.”  The Agency argues that its proposal permits the Union to access its property and resources if such use is generally available for non-Agency business by non-Federal organizations.  The Union has not demonstrated that the Agency’s proposal will interfere with its ability to represent the bargaining unit with the Agency. 

 

The Union’s bad faith bargaining argument is not advanced in the proper forum. 

The Panel’s role is to resolve disputes over their bargaining impasse.  That is, the Panel’s focus is on the current language that the parties could not reach agreement over during their negotiations.  The Panel concluded that the parties satisfied the jurisdictional requirements of an impasse over their successor CBA, which includes this Article as well as the remaining Articles and MOAs.  Therefore, this matter is properly before the Panel. 

 

The Union’s proposal also requires that the Agency serve notices to the Union via the U.S. Postal Service.  This is not an effective and efficient use of Agency resources and taxpayer dollars.  The Agency should be permitted to serve the Union via email, as this will reduce the costs, resources, and time required of the Agency to provide the Union notice and bargaining rights under the Statute.  The Union’s opposition to this method of communication iswithout merit, as the Union will have to take the necessary steps to schedule a meeting regardless of the way that the Agency disseminates information to the Union.  The use of alternative forms of communication, such as email will actually decrease the amount of time that the parties need to expend corresponding with one another, which will provide the parties a more efficient and effective way to communicate and do business. 

 

  1. Agency Article 9 – Telework
  1. Agency’s Position

The Agency asserts that its proposal requires an employee to perform Agency work at his or her duty station 60 percent of their work schedule.  This means that employees would be required to be at their duty station performing Agency work six days per pay period.  The Agency states that requiring employees to be at their duty station more during the workweek will allow the Agency to better serve its customers, particularly those that require in-person assistance.  Furthermore, the Agency argues that more time at the duty location will allow employees to collaborate and communicate with their co-workers, facilitating team building and problem solving.  The Agency asserts that its proposal recognizes the importance of face-to-face interaction, which supports workforce development and contributes to a unified culture. 

           

            The Agency states that the Union’s proposal allows for up to five days of telework per week, or ten days per pay period, with the frequency of telework being determined by the employee, regardless of mission needs or requirements.  Based on this proposal, the Agency states that an employee may never have to report to his or her duty station.  The Agency argues that the Union’s proposal does not further the Agency’s mission and disregards the critical nature of providing in-person, direct service to its customers. 

 

            The Agency states that the Union’s proposal also references remote work, which is separate from telework.  Unlike telework, the Agency contends that remote work occurs when an employee’s official duty station is at the remote location where he or she is approved to work.  Under remote work, there is no requirement for the employee to report to their official duty station.  The Agency states that while the DOD Instruction permits remote telework, there is nothing in the Instruction that requires the Agency to offer it as part of its telework program. 

 

The Agency states that the Union’s proposal for remote work would result in pay discrepancies because employee pay would be based on the remote location.  The Agency contends that the Office of Personnel Management (OPM) stated in its Guide to Telework that “[w]hile ‘remote’ and ‘mobile’ work are also terms that are sometimes used as synonyms for telework, they tend to operate differently than telework…”[3]  The Agency contends that remote work and telework are different and should not be treated the same as the Union proposes.  Finally, the Agency proposes in section 6(c), not to permit grievances over telework determinations regarding eligibility, location, or the number of days an employee may telework.

 

  1. Union’s Position

The Union makes several legal arguments.  The Union asserts that the Agency has implemented its proposal, which restricts employee telework in violation of the parties’ ground rules and the Statute.  The Union further states that the Agency’s proposal, which requires employees to be present at the worksite for at least 60 percent of their work schedule is contrary to the Telework Enhancement Act[4] because it does not allow employees to participate in a telework program to the maximum extent possible.  The Union contends that telework includes remote work, but the Agency refused to negotiate over that topic and include it in the parties’ CBA.  The Union argues that it will not waive its right to negotiate over remote work.  

 

On the merits of its proposal, the Union states that currently employees are permitted up to five days a week of telework and at least a third of the employees telework more than 40 percent of the time.  The Union states that its proposal permits an employee to request up to five days a week to telework, but does not mandate that the employee will telework for five days.  The Union states that it is ultimately within the supervisor’s discretion to approve that request. 

 

Finally, the Union states that on April 1, 2020, the Agency announced that it reduced its operations to only emergency and mission-critical personnel.  The Union asserts during an emergency, such as the Corona Virus 2019 pandemic there are no restrictions to telework.  The Agency will provide the employees one day notification if they are required to return to the office and there is not a limitation on the employees’ ability to work remotely.  The Union states that contrary to this guidance, the Agency’s proposal requires employees to be within a recallable distance (2 hours or 100 miles one-way), which disqualifies many employees that currently work remotely.  The Union asserts that if there are no restrictions in place during a pandemic to the employee’s work location, then there should not be restrictions in place when the Agency is operating normally.  Finally, the Union states that the Agency’s proposal to remove telework determinations regarding eligibility, location, or the number of days an employee may telework from the grievance procedure is not supported.

 

  1. Conclusion

The Panel will adopt the Agency’s proposal, with modification.  The parties’ main disagreement is over the number of days that employees may telework in a pay period.  The current telework arrangement permits employees to telework up to ten days per pay period.  The Union proposes to maintain the status quo, while the Agency proposes to limit the employees’ telework to up to four days per pay period.   

 

As discussed above, the Union’s argument that the Agency has bargained in bad faith is not advanced in the proper forum.  Further, the Union did not provide sufficient explanation over how the Agency violated the Statute or the parties’ ground rules agreement.  Additionally, the Union argues that anything less than the ability to work full-time telework is contrary to the Telework Enhancement Act.  This argument is without merit, as employees do not have a right to telework.  Under the Telework Enhancement Act, it requires each agency to establish a policy under which eligible employees may participate in telework.  The Agency’s proposal permits employees to telework, while also ensuring that its employees are in the office to serve its customers.  The Agency’s proposal conforms with the intent of the Telework Act.

 

The parties also disagree over remote telework.  Remote telework is an arrangement where the employee resides and works at a location beyond the local commuting area of the employing organization’s worksite.[5]  The Union argues that it is not waiving its right to negotiate over remote telework; however, the Agency’s proposal does not waive the Union’s right to negotiate over this topic.  Instead, the Agency is proposing not to include remote telework in the parties’ agreement.  The Agency is not required to advance a proposal over a topic of negotiations because the Union would like it included in the successor CBA. 

 

Currently, there is ongoing pandemic which has required the Agency, like many other Federal agencies to modify the way it operates.  The pandemic has required agencies to take measures that they may not otherwise take.  Therefore, the Union should not rely on the current state of affairs to justify the need for remote telework when the need to participate in that form of telework is not necessary for the Agency to continue functioning as effectively as possible.

 

Finally, the Agency proposes to remove telework determinations regarding eligibility, location, and the number of days an employee may telework from the negotiated grievance procedure but does not provide any justification for doing so.  The parties agreed under Article 36 to remove telework eligibility determinations from the negotiated grievance procedure, but did not agree to exclude determinations over location or number of days an employee may telework.  As will be discussed more fully below, the party proposing to exclude a matter from the grievance procedure bears the burden of establishing the reasonableness of its exclusion.  The Agency did not meet that burden; therefore, the Panel will remove these two exclusions from the Agency’s section 6(S)(6)(C) proposal.

 

  1. Union Article 15 – Safety and Health
  1. Agency’s Position

The Agency’s proposal provides employees $165 for purchasing necessary safety shoes and official time from the bank of hours set forth in Article 3 for safety committee meetings and safety inspections.  The Agency asserts that it surveyed locations where safety shoes are required and purchased, which revealed that $165 is more than sufficient to cover the cost to purchase this item.  Specifically, for Fiscal Year 2018, the Agency states that it provided 1,305 employees with safety shoes, totaling $158,288.  This data yields an average cost for a pair of safety shoes at $121.  The Agency asserts that its offer accounts for any increases in costs that may occur over the course of the parties’ CBA for purchasing shoes.  Despite this data, which was provided to the Union, the Union proposes that the Agency provide employees $175 toward the purchase of safety shoes.  

 

  1. Union’s Position

The Union states that it can agree to the Agency’s $165 proposal for safety shoes if the Agency agrees to the permit the employees two hours of official time to obtain the shoes.  The Union also states the Agency should have at least one Automated External Defibrillator (AED) per building and one AED per 50 employees.  The Union is requesting that the Agency provide training to employees that are on a safety committee to ensure that employees are properly trained on the appropriate safety techniques and procedures.  The Union further states that the Agency’s proposal’s does not demonstrate that it is interested in the safety and well-being of its employees because it does not permit the Union additional official time to perform safety-related duties.

 

  1. Conclusion

The Panel will adopt the Agency’s proposal.  The Agency’s proposal affords employees personal protective equipment without charge or cost when the Agency determines that such equipment is necessary for the work to be done safely.  In furtherance of this commitment to the employees’ safety, the Agency has agreed to provide safety shoes to employees or reimburse the employees up to $165 annually for the purchase of safety shoes when required in the performance of assigned duties.  Based on the survey performed by the Agency, for Fiscal Year 2018, the average cost per pair of safety shoes for employees was $121.  The Agency’s proposal far exceeds this amount.  Further, if the cost of shoes increases during the term of the agreement, the Agency has committed in section 2, (S)(2)(C) to discuss any impact that inflation may have on the purchasing of shoes.  The Agency’s proposal demonstrates a commitment to the employee’s safety and well-being. 

 

The Union asserts that it will agree to the $165 subsidy if the Agency authorizes the employees two hours of official time to obtain and purchase the shoes.  However, the Agency’s proposal already permits the employees “up to two hours of duty time to visit an outside vendor to select and purchase shoes.”  The Union is also requesting that the Agency have at least one AED for every 50 employees.  Based on the Agency’s proposal, which states that it will abide by applicable safety and emergency response guidelines and provide employees the appropriate job-related safety and health training, it appears that the Agency will take the necessary steps to ensure that it is in conformance with the proper protocols and procedures for access to AEDs.

 

Finally, the Union requests that the Agency provide its representatives additional official time to perform safety-related activities; however, the Union did not elaborate on the types of representational activities that the Union has performed under the current contract and will perform moving forward to justify the need for the official time.  The Agency’s proposal permits the Union to utilize official time for these activities under the bank of hours in Article 3.  The official time bank should provide the Union with a sufficient amount of time to adequately represent the bargaining unit for safety-related matters.  Thus, on balance, the Agency provides better support for its proposal, while also ensuring that the employees’ safety and Union’s interests are satisfied.  As such, the Panel adopts the Agency’s Article 15. 

 

  1. Article 18 – Performance Evaluation
  1. Agency’s Position

The Agency states that its proposal is consistent with EO 13839, Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles because it excludes the contents of performance elements or standards from the negotiated grievance procedure.  Conversely, the Agency states that the Union’s proposal allows employees who disagree with their performance appraisals to use the negotiated grievance procedure, which the Agency asserts is inconsistent with the EO.  The Agency states that under section 7121(c) it sets out five mandatory exclusions from the negotiated grievance procedure.[6]  Except for those mandatory exclusions, the Agency asserts that the parties can agree on which topics will be covered by the negotiated grievance procedure and which topics will be excluded.  The Agency states that the employees will still be permitted to grieve performance evaluation disputes through the administrative grievance procedure.  

 

  1. Union’s Position

The Union asserts that the only dispute is over the employee’s ability to grieve performance evaluations.  The Union states that employees should have the ability to seek redress over the Agency’s failure to properly rate an employee, since a negative rating can impact an employee’s promotion and can also lead to termination.  The Union argues that the Agency’s proposal which does not permit employees to grievance performance disputes violates the Statute. 

 

  1. Conclusion

The Panel will adopt the Agency’s proposalThe Agency proposes to exclude the contents of performance elements or standards from the parties’ negotiated grievance procedure.  It appears that the Union is not disputing whether the Agency may exclude the contents of the performance elements or standards from the negotiated grievance procedure.  Instead, the Union in its position statement disputes that the employees should be able to grieve their performance ratings.  However, under Article 36 Grievance Procedure, section 3(GG), the Union offered a proposal in which it agreed to exclude an employee’s performance rating from the parties’ grievance procedure.  The Panel will adopt the Agency’s exclusion here and the Agency’s Article 18 because the Union has not explained this inconsistency and the parties’ proposals appear to be the same from the language that they provided the Panel. 

 

  1. Article 21 – Overtime Assignments
  1. Agency’s Position

The Agency’s proposal provides employees payment for overtime that is scheduled and worked, whereas the Union’s proposal requires the Agency to pay a minimum of two hours of overtime if the employee was scheduled for the overtime even if he or she did not work.  The Agency states that it is not willing to expend additional money for work not performed except in the limited circumstances of call back overtime under 5 C.F.R. §532.503(c).  Under those circumstances, the Agency asserts that the overtime is mandatory.  Finally, the Agency asserts that in the event of a breach of this Article, the Union’s proposal provides an automatic remedy of back pay.  Conversely, the Agency’s proposal permits a third party the flexibility to either award back pay or some other remedy, such as providing the employee the opportunity to work the next available overtime assignment.  

 

  1. Union’s Position

The Union proposes that the parties maintain the status quo, which will continue to provide employees at least two hours of pay at the applicable overtime rate if they are scheduled to work overtime.  The Union asserts that if the employee rearranges their schedule in order to accommodate the Agency to work overtime (e.g., arrange for daycare), then they should receive the compensation that they were originally offered.  Finally, the Union asserts that the appropriate remedy for a violation of this Article is providing the employee back pay because that is the most equitable way to compensate employees based on an Agency breach of this Article.  

 

  1. Conclusion

The Panel will adopt the Agency’s proposalThe parties are in disagreement over two issues: whether employees who are scheduled to work overtime will be provided overtime payment if they do not work the overtime; and whether a violation of the Article will result in a remedy of back pay.  The Union argues that if the employees are scheduled to work the overtime then they should be compensated for the overtime regardless of whether it was worked because they rearranged their schedule to accommodate the Agency.  The Union’s explanation for providing employees payment for overtime that is scheduled, but not worked lacks rationale and would create an unjustified enrichment for employees. 

 

Next, the Union’s proposal in section 3, (S)(3)(F) requires a third-party, such as an Arbitrator to award back pay payment in the event of a breach of this Article is also not supported with sufficient rationale.  Arbitrators have broad authority and latitude to fashion remedies for a violation of a collective bargaining agreement.[7]  There may be instances where awarding back pay may not be an appropriate remedy.  For example, if the Agency improperly bypassed an employee for overtime opportunities, there must be proof that the employee actually suffered a monetary loss stemming from the contract violation in order to receive back pay.[8]  If there is no proof, then the employee would not be entitled to back pay, and under the Union’s proposal would not receive a remedy.  Conversely, under the Agency’s proposal, that same employee could still be made whole by awarding the employee the opportunity to work the next available overtime shift.  Thus, the Agency’s proposal will ensure that the Arbitrator is able to fashion the most appropriate remedy based on the facts and circumstances of each case.  As such, the Panel will adopt the Agency’s Article 21.

 

  1. Article 29 – Workforce Reshaping
  1. Agency’s Position

The Agency asserts that its proposal combines several topics in different articles that are related to reshaping the workforce: reduction-in-force; transfer of functions; reorganizations; details; emergency furloughs; and administrative furloughs.  The Agency states that the rationale for this change was to ensure that all issues related to the shaping of the workforce are in one article rather than several, so it can be easily viewed and referenced by the employees and managers.  The Agency further contends that the Union’s proposal reference a "loan” as a detail, which the Agency states is not a recognized personnel action in the Federal government.  The Agency asserts that simply because the parties have described a “loan” as a detail does not support the proposition that the parties should continue to abide by a practice that is not consistent with law, rule, or regulation.

 

  1. Union’s Position

The Union states that the Agency’s proposal combines Article 29, Reassignments, Details, and Loans; Article 30 Reorganization; Article 31, Reduction-in-Force; and Article 32, Transfer of Function into one article.  The Union asserts that it wishes to maintain the status quo and keep the articles separate.  The Union states that the reason for this is because the contract acts as a guide for employees and if the articles are separate then it will be clearer and easier to understand.  The Union contends that while some of the information in the articles may be repetitive, it serves to assist the employees and management in understanding the complex issues of those articles. 

 

The Union states that the first key difference in the parties’ proposals is in section 3.  In that section, the Union uses the term “loan” to refer to details.  The Union asserts that “loaning” an employee to a different location occurs daily within the Agency.  The Union proposes a limit on the loan time, so that the Agency does not abuse its ability to temporarily use an employee’s skills in another part of the workforce.  The Union also proposes that the Agency provide employees training prior to a management-directed reassignment.  The Union states that this is necessary to ensure that the employees are successful in their reassignment while also benefiting the Agency by ensuring that the employee is qualified to perform the work.

 

Finally, in section 8, the Union states that the Agency’s proposal disregards two things: 1) a MOA signed by the parties in 2011; and 2) seniority.  The Union asserts that its proposal simply protects the concept of seniority.  Similarly, the Union asserts that the Agency’s proposal under section 9 does not adequately address seniority, whereas the Union asserts that its proposal protects the concept of seniority. 

 

  1. Conclusion

The Panel will adopt the Agency’s proposalThe parties disagree over consolidating several articles pertaining to personnel actions into one article in the parties new CBA; whether to continue to refer to details as “loans”; and whether seniority is adequately addressed in the Article.  First, synthesizing several articles into one article will provide for a more effective and efficient way to do business, and will make it easier for employees and managers to review and reference personnel actions on a day-to-day basis.  Second, the Union has not explained the benefit that would ensue by continuing to refer to short term details as “loans.” 

 

In relation to a management-directed reassignment, the Union argues that the Agency should provide employees training for the new position.  However, the Agency’s section 3, (S)(3)(B) ensures that it will provide employees the necessary training so that he or she can sufficiently perform the new job.  The Union contends that in section 8 of the Agency’s proposal it does not properly account for a MOA between the parties; however, the Union did not include that MOA as evidence to support its argument.  The Union also contends that the Agency’s section 8 and 9 proposals do not adequately account for seniority when selecting employees for a detail; yet, the Agency’s section 4, (S)(4)(G) and section 9, (S)(9)(A) proposals actually require the Agency to consider seniority prior to making a selection for a detail and when determining an employee’s status in the event of a furlough.  Thus, the Panel will adopt the Agency’s Article because it demonstrates a commitment to improve efficiency, while also ensuring that the employees’ have adequate arrangements in place in the event of a detail or furlough. 

 

  1. Article 34 – Disciplinary and Adverse Actions
  1. Agency’s Position

The Agency states that its proposal creates a bright line distinction between informal corrective measures such as letters of warning, instruction, and counselings, and formal discipline such as letters of reprimand and suspensions.  The Agency states that this distinction is necessary since informal actions do not result in a loss of grade or pay for the employee and are not recorded in the employee’s official personnel folder.  Instead, the Agency asserts that they serve as notice to the employee that more formal action could result if the conduct or performance does not improve.  Therefore, the Agency states that supervisors should be able to use these informal corrective measures without the concern that their actions will be subject to the negotiated grievance procedure. 

 

The Agency states that the Union’s proposal maintains the status quo, which denotes all actions taken by supervisors as an adverse action whether an oral counseling or a suspension.  The Agency’s concern with maintaining the status quo is that it states that it will result in delay, inefficiency, and unnecessary expenditure of Agency time and resources since grievances and arbitrations will be filed regarding a supervisor’s use of informal measures to correct employee conduct and performance that the Agency will need to defend.  The Agency further argues in its rebuttal statement that because the Union did not address this topic in its statement of position, the Panel should adopt the Agency’s proposal.

 

  1. Union Position

The Union did not provide a position on Article 34.  The Union, however, did address Article 34 in its rebuttal statement.

 

  1. Conclusion

The Panel will adopt Agency’s proposal, with modification.  The Union did not provide its position on this Article in its position statement to the Panel, nor did it provide any explanation for not addressing it.  The Panel will not permit the Union to address its proposals in its rebuttal statement with the Agency’s statement of position in hand, as that would unfairly prejudice the Agency. 

 

On the merits, the Agency proposes to remove from the parties’ negotiated grievance procedure adverse actions and informal corrective actions.  The Panel has now repeatedly written[9] that it will not limit matters that can be grieved in the parties’ negotiated grievance procedure unless the moving party presents persuasive evidence that its proposal is the more “reasonable” proposal under AFGE.[10]  The Agency has not established persuasively that the Panel should exclude these matters from the parties’ negotiated grievance procedure.  Here, the Agency did not provide any data to indicate the time and money it has spent over the course of the parties’ contract processing and litigating informal actions.  Similarly, the Agency did not address or put forth sufficient explanation or rationale for its need to remove adverse actions from the grievance procedure.  As explained by the FLRA in a case enforcing an interest arbitrator’s imposition of a grievance exclusion, and interpreting the AFGE decision, “…the Arbitrator’s factual findings show that he examined the evidence and found the Agency’s arguments as to a limited-scope grievance procedure ‘persuasive’…[t]he Arbitrator’s findings show that he did not unlawfully place the burden on the Union, but properly assessed the persuasive weight of each side’s presentation in reaching his conclusion.  Accordingly, the Union has not established that the award is contrary to AFGE v. FLRA.”[11]  NAGE, Local R3-77 and PBGC, 59 FLRA No. 168 (2004). 

 

Conversely, here the Agency did not present any arguments justifying its proposal to exclude other than the text of the EO.  The Panel does not enforce the Executive Orders referenced.  Rather, the Panel looks to the EOs as a source of public policy where the parties fail to establish their claims persuasively.  Here the Agency did not present any evidence, much less persuasive evidence, to justify its proposal for exclusion.  Therefore, the Panel will permit the employees the ability to grieve these actions. 

 

The Panel will also modify the Agency’s section 7(S)(7)A) proposal as follows: “An employee who is dissatisfied with the Agency's decision to effect an adverse action of a suspension of 15 days or more, removal, furlough of 30 days or less, or reduction in grade and/or pay may elect to either appeal the decision in accordance with 5 U.S.C. 7701 or 7702 as applicable, or use the parties’ negotiated grievance procedure.”  The Panel will adopt the remainder of the Agency’s Article.

 

  1. Article 36 – Grievance Procedure
  1. Agency’s Position

The Agency states that its proposal would increase the number of topics excluded from the negotiated grievance procedure.  The Agency contends that increasing the number of topics excluded from the negotiated grievance procedure would ensure that only the most important matters are eligible for a grievance, which would make for an effective and efficient use of Agency resources.  The Agency again asserts that the negotiated grievance procedure in the current CBA allows employees to grieve oral admonishments and letters of warning, which results in the Agency spending a significant amount of time, manpower, and money litigating these issues that only intend to provide instruction from a supervisor to an employee.  The Agency again proposes to eliminate adverse actions, such as removals from the negotiated grievance procedure because the employees may address these matters before the Merit Systems Protection Board (MSPB).  By using the MSPB to adjudicate removals, the Agency states that the parties are less likely to expend additional resources challenging those decisions since the MSPB is the authority on adverse personnel actions.  The Agency argues that the Union’s proposal, which requires the parties to maintain the status quo is inconsistent with the Agency’s goal of reducing unnecessary resources spent in litigation. 

 

The Agency states that contrary to the Union’s assertion, the Agency’s proposal does not prevent an employee who has left the bargaining unit from filing a claim in the event that they experienced an illegal or prohibited personnel action.  The Agency contends that the employee would have several avenues to pursue the claim, such as the administrative grievance procedure, another statutory forum, the Agency’s Inspector General, among other options.  The Agency states that the Union also incorrectly characterizes the Agency’s proposed timeframe to file a grievance.  The Agency asserts that its proposal imposes restrictions on both parties for missing grievance deadlines, not just the Union with the goal of streamlining and shortening the time periods at every stage of the grievance procedure in order to resolve disputes in an expeditious manner. 

 

  1. Union’s Position

The Union states in section 3, it is opposed to the Agency’s proposal which prohibits employees from filing grievances over informal actions.  The Union asserts that this limits the employees’ due process rights and rights under the Statute to file a grievance and points to Army Corp of Engineers and AFGE, Local 0033, 20 FSIP 019 (May 2020) to support its position.  The Union is also opposed to the Agency’s proposal that prohibits a grievance from proceeding through the grievance procedure if the employee leaves the bargaining unit while the grievance is pending.  In section 6, the Union disagrees with the Agency’s proposal that only requires the supervisor provide a response to an informal grievance and does not require the supervisor to attempt to resolve the matter.  Finally, the Union argues that in section 8, the Agency unfairly permits a grievance to continue through the grievance procedure if the Agency misses a timeframe, but if the Union misses a deadline, it results in a dismissal of the grievance.  

 

  1. Conclusion

The Panel will adopt Agency’s proposal, with modification.  The Agency again reasserts that it wishes to exclude informal corrective actions and adverse actions from the grievance procedure, as it did under the prior Article.  For reasons already addressed, the Agency has not established the reasonableness of this proposal to limit a grievance over these matters in the parties’ negotiated grievance procedure. 

 

The Agency also proposes under section 3 that in the event an employee leaves the bargaining unit while a grievance is pending, the grievance will not proceed through the negotiated grievance procedure.  The Agency does not justify the need for its proposal other than stating that the employee may pursue other available options for relief, such as the Agency’s administrative grievance procedure.  The Union may have an interest in litigating the matter to safeguard the interests of the bargaining unit.  Therefore, the Panel will remove this language from the Agency’s proposal.

 

The Union argues that the Agency should require the supervisor to try and resolve a grievance with the employee to avoid it from proceeding formally though the grievance procedure.  However, under section 6 of the Agency’s proposal it does require the first-level supervisor to counsel the employee if he or she can provide the employee the requested relief in order to resolve the issue.  If the matter is not resolved to the employee’s satisfaction, the employee may continue to seek relief through the grievance procedure. 

 

Finally, the Union argues under section 8 that the Agency’s proposal unfairly penalizes the Union for missing a grievance filing deadline, but does not impose the same penalty on the Agency.  A reading of the Agency’s proposal states that the “[f]ailure of the Union to meet any of the prescribed time limits without mutual consent to extent the same will result in the dismissal of the grievance with prejudice.”   As the Union contends, the Agency’s proposal does not address the penalty that will arise from the Agency’s failure to meet a timeframe if the Agency is the initiating party.   The parties should be on equal footing and both face the same consequences if they miss a deadline.  Therefore, the Panel will modify the language in section 8 as follows: “Failure of the parties to meet any of the prescribed time limits without mutual consent to extend the same will result in the dismissal of the grievance with prejudice.”  The Panel will adopt the remainder of the Agency’s Article, as the parties are in agreement to follow those proposed grievance procedures.

 

  1. Article 37 – Arbitration
  1. Agency’s Position

The Agency asserts that its proposal requires the parties to bifurcate a grievance so that the Arbitrator can make a finding on any procedural issues prior to ruling on the merits of the case.  The Agency contends that this change will result in greater efficiency in the arbitration process, since an Arbitrator would not make a ruling on the merits when he or she does not have jurisdiction over the grievance.  The Agency states that this will also save time and resources that would be spent on unnecessary litigation. 

 

The Agency’s proposal also requires the party moving for arbitration to request from FMCS a list of seven arbitrators within five workdays from the date of the notification that the case has been submitted to arbitration.  It also requires the moving party to pay the fee for the list of arbitrators from FMCS.  The Agency states that this requirement will eliminate the delay it has experienced when making requests for arbitrators.  For example, the Agency asserts that there is a current case where the Union has moved a grievance to arbitration, but has neither requested nor paid for the list of arbitrators from FMCS.  The Agency states that this has resulted in the case languishing for five years with no arbitrator selected or dates set for arbitration.  The Agency argues that its proposal is needed to prevent this situation from happening in the future and moving the case to arbitration in a timely manner. 

 

The Agency’s proposal requires the losing party to pay for the arbitration costs.  The Agency states that this approach will allow for a more effective and efficient prosecution of the case.  Conversely, the Agency states that the Union’s proposal requires the parties to split the cost of arbitration regardless of which party prevails.  The Agency asserts that based on AFGE National’s 2019 financial report filed with the U.S. Department of Labor, it has a budget of $139,997,788.  The Agency contends that AFGE National can afford to support the Union with various costs, including litigation.  Thus, the Agency states that its approach will ensure that the parties will dedicate time and resources to the grievances that are in need of resolution compared to frivolous filings.

 

  1. Union’s Position

The Union states that in most grievances it is the moving party, yet the Agency wants to place restrictive requirements on the arbitration process that may result in the grievance being dismissed prior to the parties receiving a hearing on the merits.  The Union is not in favor of bifurcating the arbitration process and asserts that all issues should be addressed during the hearing.  The Union also asserts that there should be no limits on the parties’ settlement discussions by the Agency imposing a penalty fee if the settlement discussion is initiated after the arbitrator’s fees have been incurred and a settlement is reached.  

                                                    

Finally, the Union argues that it should not have to pay for the travel and per diem of its witnesses as the Agency proposes.  The Union contends that it will incur a significant expense since the Union is the initiating party in a grievance the majority of the time.  The Union states that its budget is separate from AFGE National and it has its own financial obligations.  The Union contends that the Agency’s budget provides it millions of dollars to spend on labor relations matters, while the Union has a very limited budget to allocate to representing its bargaining unit.  To the Agency’s argument that the Union has contributed to the delay in processing grievances, the Union states that the Agency has never mentioned this issue to the Union before and that if this was a “real issue” the Agency would not have waited until now to bring it up. 

 

  1. Conclusion

The Panel will adopt the Agency’s proposal, with modification.  The Agency’s proposal provides for a bifurcated grievance process to allow the Arbitrator to rule on any procedural matters prior to a hearing on the merits of the grievance.  The Union is opposed to this process because it asserts that the grievance may be dismissed prior to a hearing on the merits.  The Union is correct that the Arbitrator may in fact dismiss the grievance on a procedural matter; however, this will serve both parties’ interests because they will not need to expend unnecessary resources litigating a matter that could have been disposed of during a bifurcated process. 

 

The Union argues that the Agency’s proposal to require the moving party to pay for a list of Arbitrators from FMCS unfairly penalizes the Union because the majority of the time the Union is the party moving the matter to arbitration.  The Union also argues that it should not have to pay for its own witnesses to travel to testify at a hearing because it has a limited budget.  The Union’s arguments are unpersuasive. 

 

The Union, just as the Agency should timely prepare and move its grievance throughout the negotiated procedure, up to and including arbitration.  A matter should not be left pending for months on end, let alone five years because of a failure by a party to request and pay for a list of arbitrators to preside over the dispute.  The Agency’s proposal will ensure that the grievance moves through the process in an efficient and effective manner.  Additionally, each party should be responsible for their own witnesses travel expenses, as this will ensure that the parties call on only the most relevant individuals to testify.  Similarly, the Agency’s proposal which requires the losing party to pay for the arbitration will ensure that only the most important grievances are submitted to arbitration. 

 

The Agency’s proposal, which penalizes the party who initiates a settlement discussion after the arbitrator’s fees have been incurred by requiring that party to pay all fees and expenses charged by the arbitrator if the settlement leads to a resolution, will actually encourage the parties to reach a resolution in the matter in a timely fashion.  This proposal will encourage the parties to discuss and resolve issues early on in the grievance procedure, saving both parties the unnecessary expenditure of litigation fees that could have been avoided if the parties initiated those settlement discussions prior to a hearing. 

 

Finally, the Agency proposes to remove the ability of the parties to settle issues involving a “clean 50” and “removal of adverse information from an employee’s Official Personnel Folder” without any explanation for excluding these two actions.  The Panel will strike that language in favor of allowing the parties to address and resolve all issues subject to a grievance.  Thus, the Panel adopts the Agency’s proposal, but will modify it to remove this limiting language.

 

 

 

 

  1. Article 39 – Stays of Suspensions of More than 14 Days, Removals for Cause, and Demotion
  1. Agency’s Position

The Agency proposes to remove this article from the new CBA.  The Agency contends that the Union’s proposal to continue the status quo, which allows an employee to request a stay of a suspension of more than 14 days, removal for cause, or a demotion for a minimum of 45 days does not further the interest of an effective and efficient government.  The Agency states that these actions are proposed for serious employee misconduct or performance deficiencies and actions must be taken in a timely manner.  The Agency argues that permitting employees to delay the imposition of these actions has had an adverse effect on the morale of other employees and has undermined the authority of the supervisors who propose these actions. 

 

To the Union’s argument that the Agency refused to negotiate over its proposal to remove this article, the Agency states that argument is without merit.  The Agency asserts that it explained its rationale to the Union for excluding this article from the parties’ successor CBA during negotiations and the Union rejected the Agency’s explanation.  The Agency further states that proposing to remove an article from the parties’ new CBA is not a refusal to bargain, but instead is bargaining over its position.

 

  1. Union’s Position

The Union’s position is that the Agency’s proposal to remove this article from the new CBA is not good faith bargaining.  The Union argues that the Agency’s proposal states “[n]o Agency proposal” for Article 39.  However, in the Agency’s position statement it stated that it now wishes to “delete this article.”  The Union states that the Agency should have proposed to delete this article in the first place and should not now be able to offer that proposal.

 

  1. Conclusion

The Panel will adopt Agency’s proposal to remove this article from the CBA.  Article 39 in the parties’ current CBA, which the Union proposes to carry over to their successor CBA permits bargaining unit employees to request a stay of a suspension of more than 14 days, removal for cause, or demotion.  The Union did not provide sufficient support for continuing to keep this Article in existence.  Permitting employees to request a stay of an adverse action sets up the expectation that management may grant that request.  Granting a stay of matters that are of significant importance to not only the Agency, but to employees would not result in a timely and expeditious resolution of the action, which does not contribute to an effective and efficient government.  Further, the parties are free to mutually agree to such a stay without an article in the CBA dedicated to such an action.

 

The Union also argued that the Agency did not bargain in good faith and the Agency has changed its proposal.  To the former point, as the Panel previously stated, the Panel is not the proper forum to litigate the Union’s bad faith bargaining argument.  To the latter point, the Union misinterprets the Agency’s proposal.  When the Agency stated “[n]o…proposal” as its offer to the Union during negotiations and then stated in its statement of position it is proposing to delete the Article, the Agency indicated that the meaning of the two proposals are the same.  Further, a party is permitted to modify its proposal as part of the dispute resolution process of the Panel’s proceedings to facilitate a resolution of the matter.  Thus, the Union’s argument is without merit.  As such, the Panel will adopt the Agency’s proposal to remove Article 39 from the parties’ successor CBA.

 

  1. Article 48 – Alternative Dispute Resolution
  1. Agency’s Position

The Agency proposes to remove the parties’ article on Alternative Dispute Resolution (ADR) from the successor CBA because the Agency states that this article, like Article 39 has been used by the Union to delay management from imposing any adverse actions.  The Agency states that the delays have negatively impacted the employees in the bargaining unit, as well as the supervisors’ ability to maintain good order and discipline.  The Agency states that the delays have resulted in an expenditure of time and resources which could be better used in furtherance of the Agency’s mission.  In this respect, the Agency states that the Union has used the ADR procedure to attempt to force the Agency to reach agreements and dictate the outcomes of a resolution.  The Agency asserts that there is nothing to stop the parties from voluntary agreeing to engage in ADR if they choose; however, codifying the process in the new CBA will result in a voluntary process becoming compulsory and subject the parties to binding arbitration. 

 

  1. Union’s Position

The Union states that many federal agencies use ADR as a mechanism to reduce costs associated with litigation.  Therefore, its proposal to maintain the ADR Article is appropriate and will help to develop a collaborative relationship between the parties and reduce the unnecessary costs that result from litigation.  The Union states, as it did under the previous Article, that the Agency initially asserted that it had “[n]o Agency proposal” for this article, but now states that it is proposing to delete this article.  The Union argues that the Agency should not be permitted to alter its proposal.

 

  1. Conclusion

The Panel will adopt the Union’s proposal.  The Union proposes to maintain the parties’ Article on ADR in the successor CBA.  The Agency asserts that this Article has caused significant delay in management’s ability to impose actions, yet it did not provide any evidence or explanation to support its position.  ADR is meant to and should be used to facilitate timely and efficient resolution of issues, while saving the parties significant time and resources that they otherwise would have spent in litigation.  The parties should utilize ADR to their benefit, not to their detriment.  However, as the Union notes in section 2(c) of its proposal, participation in the ADR process is voluntary and may be terminated at any time.  The Panel will impose the Union’s proposal, which will maintain the current ADR Article in the parties’ new CBA, but will caution each party that they should not require the other to participate in a voluntary process. 

 

 

 

  1. Article 50 – Duration and Amendments
  1. Agency’s Position

The Agency proposes a six-year contract with an automatic one-year renewal.  The Agency asserts that a contract of this length will provide the parties stability and result in a significant amount of resources saved.  For example, the Agency asserts that for these successor CBA negotiations, the Agency spent approximately $42,000 to rent space at a local hotel for the eight-month negotiations period.  During the most recent bargaining, the Agency states that its team consisted of one Senior Executive Service employee; three GS-15s; two GS-14s; and one GS-13.  The Agency contends that as a result of its team member’s travel, per diem, and salary, it cost the Agency $271,027 to negotiate a new contract.  The Agency asserts that the Union’s proposal offers the parties no certainty or stability, since it consists of a one-year term with an automatic renewal term of three years unless either party provides notice of its desire to renegotiate prior to the end of the three-year term.  The Agency argues that to require it to spend $313,117 (including the cost to rent space) to potentially renegotiate another CBA in one year does not provide for an effective and efficient government. 

 

  1. Union’s Position

The Union states that a CBA term of one-year is reasonable because this agreement is a drastic departure from the parties’ current agreement and past agreements.  The Union asserts that a one-year contract will permit the parties to reevaluate the terms that they agreed to and whether they work for the parties and the employees.  The Union also states that there should be one effective date that denotes when the agreement will become binding.  Finally, regarding the Agency’s argument over the cost to negotiate a contract, the Union asserts that it was the Agency’s idea to pay for the Union’s travel to Washington D.C. for the current CBA negotiations, so that the Agency did not have to pay for both its team and the Union’s to travel to a different location. 

 

  1. Conclusion

The Panel will adopt the Agency’s proposal.  The parties’ main disagreement is over the term of the successor CBA.  The Agency’s proposal, which provides for a six-year contract will provide the parties stability, will save both parties a significant amount of resources that they could spend renegotiating a new contract under the Union’s proposal.  The Panel has consistently stated that it is in favor of efficiency.  The best way to accomplish this is by securing an agreement with a duration that will not require the parties to be in a perpetual state of bargaining.  The Agency spent over $300,000 negotiating the successor contract.  Requiring the Agency to continually incur these expenses would not be a good use of Agency resources or taxpayer dollars.

 

The Union asserts that there should be one date for when the CBA will go into effect.  However, the Agency’s proposal is consistent with section 7114(c)(1) of the Statute.  It states that the “[a]greement is effective and binding on the parties upon approval by the agency head, or on the 31st day after its execution if the agency head has neither approved nor disapproved the Agreement.”   This language mirrors the statutory requirements that an agreement becomes effective when the Agency head approves the agreement within 30 days from its execution, or on the 31st day if not approved.  As such, Panel adopts the Agency’s Article 50.

 

  1. Article 54 – Smoking and Tobacco Products
  1. Agency’s Position

The Agency asserts that its proposal is consistent with the Department of Defense Instruction 1010.10, which requires all designated smoking areas to be at least 50 feet away from building entrances, exists, and air intake ducts.  The Agency states that the Union’s proposal allows for designated smoking to be 25 feet from building entrances, exits, and air intake ducts.  The Agency argues that not only is this proposal inconsistent with DOD instructions, but it also presents a health risk to anyone who enters and exists a DLA facility, or is in the vicinity of the air intake ducts. 

 

  1. Union’s Position

The Union asserts that its proposal, which permits the use of tobacco products within 25 feet from entrances, exits, and air intake ducts is consistent with the Occupational Safety and Health Administration, the General Service Administration, and with EO 13058, Protecting Federal Employees and the Public from Exposure to Tobacco Smoke in the Federal Workplace. 

 

  1. Conclusion

The Panel will adopt the Agency’s proposal.  The parties’ main disagreement is over the location that employees may use tobacco products.  Specifically, whether the employees must maintain at least 50 feet of distance from entrances, exits, windows, and ventilation systems.  The Union did not explain the harm that would result from requiring employees to be at least 50 feet away from any facility while using tobacco.  The Panel will adopt the Agency’s proposal.

 

  1. Memorandum of Agreement – Material Handler Equipment
  1. Union’s Position

The Union withdrew its proposal for continuing the MOA on Material Handler Equipment. 

 

  1. Agency’s Position

In the Agency’s rebuttal statement, it accepted the Union’s withdrawal of the MOA.

 

  1. Conclusion

The Panel will accept the Union’s withdrawal of this proposal, since the Agency is also in agreement to remove this agreement from the CBA.

 

  1. Memorandum of Agreement – Lactation Agreement
  1. Union’s Position

The Union states that it asked the Agency whether it could provide the Union with specific guidance on the DLA policy over permitting employees time to express milk.  Instead, the Union argues that the Agency provided it with a broad instruction over the lactation program.  The Union states that once the Agency can provide the written guidance for the Union to review, the Union can then determine whether to eliminate the MOA or keep it in existence. 

 

  1. Agency’s Position

The Agency states that Article 2, agreed to by the parties, provides that they will abide by DOD and DLA regulations.  The Agency points to DLA Instruction 6000.01 for employees and managers to follow when an employee would like to express milk.  The Agency states that the parties negotiated the Instruction in 2016, and it is currently in place.  The Agency asserts that the Union’s proposal focuses on a MOA dated 2011, which has been replaced by the Instruction 6000.01. 

 

  1. Conclusion

The Panel will adopt the Union’s proposal.  The parties disagree over whether the MOA on a lactation program will continue once the successor CBA is executed.  The Agency contends that in Article 2, the parties agreed to abide by DOD and DLA regulations; however, the Agency did not provide the Panel the regulation it is referring to support its position, nor did it explain how the MOA conflicts with that those regulations.  The MOA merely indicates that the different DLA locations will permit mothers to express milk during breaks.  This is consistent with the Affordable Care Act, which requires employers to provide nursing mothers with a reasonable break time to express milk for one year after her child’s birth and a private space to do so.[12]  Thus, the Panel will adopt the Union’s proposal which will keep this MOA in place. 

 

ORDER

 

Pursuant to the authority vested in the Federal Service Impasses Panel under 5 U.S.C. §7119, the Panel hereby orders the parties to adopt the provisions as stated above. 

 

 

 

                                                                                                Mark A. Carter

                                                                                                FSIP Chairman

 

September 21, 2020

Washington, D.C.

 

 

ATTACHMENTS

 

  • Parties’ Proposals
 

[1] See, e.g., U.S. Social Security Admin., Office of Hearings Operations and Administrative Law Judges, IFPTE, 20 FSIP 001 at 13 (April 2020).

[2] See, e.g., U.S. Dep’t of VA and NFFE, 2019 FSIP 024 (September 2019).

[4] 5 U.S.C. §§ 6501, et. seq.

[6] The five (5) exclusions are: 1) any claimed violation of subchapter III of chapter 73 of [title 5] (relating to prohibited political activities); 2) retirement, life insurance, or health insurance; 3) a suspension or removal under section 7532 of [title 5] (in the interests of national security); 4) any examination, certification, or appointment; or 5) the classification of any position which does not result in the reduction in grade or pay of an employee.

[7] See NTEU, Chapter 68, 57 FLRA 256, 257 (2001).

[8] See, e.g., AFGE, Local 916, 57 FLRA 715 (2002).

[9] Social Security Administration and AFGE, 2019 FSIP 019 (May 2019).

[10] AFGE Local 225 v. FLRA, 712 F. 2d 640 (D.C. Cir 1983) (AFGE).

[11] NAGE, Local R3-77 and PBGC, 59 FLRA 937 (2004). 

[12] 29 U.S.C. § 207(r).