FLRA Issues Final ULP Regs
Vol. 6 No. 3
June 1, 1997 - September 30, 1997
The FLRA Bulletin
The Federal Labor Relations Authority
607 14th Street, N.W.
Washington, D.C. 20424-0001
- News to Know
- Update on CADR
- Authority Cases
- Court Cases
- FSIP Final Actions
- General Counsel Advice to Regional Directors
- General Counsel's Settlement Corner
FLRA Issues Final ULP Regs
FLRA Issues Final Version of ULP Regs
The FLRA published its final rule containing revisions to its unfair labor practice (ULP) complaint regulations in the Federal Register on July 31. The new regulations, which went into effect on October 1, significantly change the way the FLRA deals with ULP complaints. The revisions are designed to encourage collaborative dispute resolution, sharpen the issues to be litigated, and make the regulations clearer and more user-friendly.
"Encouraging settlements and improving enforcement under the Statute serve as the foundation on which the new regulations are built. The cornerstone is the new obligation for parties to exchange information before the hearing. Parties now will be required to share information 14 days before the trial and, in almost every case, a pre-hearing conference will be held to discuss, narrow, and resolve as much of the dispute as possible," said Chair Phyllis Segal. "Where cases are not settled, this disclosure and discussion will allow more focused hearings and speedier decisions, which should save money for all the parties involved."
The revisions make a number of improvements to the ULP process. To ensure that the new pre-hearing disclosure requirements are met, the regulations give the Administrative Law Judges the authority to sanction parties for their failure to comply. The regulations incorporate the FLRA pilot settlement judge program, which has had considerable success in its first two years of operation. In addition, to make them easier to follow, the regulations are reorganized, with headings that serve as a guide to the user.
FLRA TO SURVEY CUSTOMERS
In November, the FLRA will distribute customer surveys to individuals who, in 1996 and 1997, participated in FLRA cases or received training from the agency. If you receive the survey, please complete and return it. The FLRA wants to be responsive to customer needs and requests your help.
GENERAL COUNSEL ISSUES FACILITATION, INTERVENTION, TRAINING AND EDUCATION POLICY
FLRA General Counsel Joseph Swerdzewski issued a policy to the Regional Directors governing facilitation, intervention, training and education (FITE) services provided by the Office of the General Counsel (OGC). The FITE policy is the OGC's implementation of the FLRA's agency-wide Collaboration and Alternative Dispute Resolution (CADR) initiative to assist labor and management parties develop collaborative relationships, and to provide dispute resolution services in unfair labor practice, representation, negotiability, impasses, and arbitration cases.
"Our FITE services provide Federal employees, unions and agencies with a problem-solving alternative to adversarial litigation and the opportunity to obtain assistance to enhance labor-management relationships that deliver the highest quality services and enhance the quality of work life and well-being of employees and managers," said General Counsel Swerdzewski. "FITE activities allow OGC employees to use their labor law and problem solving expertise to assist Federal employees, unions and agency management in resolving disputes and enhancing labor-management relationships."
The policy describes the services offered by the OGC. Objective criteria, used to determine if FITE services are appropriate, are outlined to ensure that the Regional Directors and the parties have a common understanding of how the Office of the General Counsel concentrates its limited resources where they have the potential to achieve the greatest results.
A FITE program can be initiated by the OGC or by the parties. Requests to participate may be submitted to the OGC National or Regional Offices. In addition, requests for ADR services in unfair labor practice, representation, negotiability, and arbitration cases pending before the Authority may be directed to the CADR office at (202) 482-6503.
A copy of the General Counsel FITE Policy is available at www.flra.gov or by faxing a request to (202) 482-6608.
PRESIDENT CLINTON NOMINATES DALE CABANISS TO BE A MEMBER OF THE AUTHORITY
On September 2, the President nominated Dale Cabaniss to be a Member of the FLRA. Ms. Cabaniss currently serves as a Professional Staff Member for the Senate Labor and Health and Human Services Appropriations Subcommittee, where she is the principal legal advisor to Senator Ted Stevens. She is responsible for the appropriations accounts for the Department of Labor, the national Labor Relations Board, the National Mediation Board, and other agencies. Ms. Cabaniss also served as the Chief Counsel for the Senate Governmental Affairs Subcommittee on Post Office and Civil Service.
THANKS FOR THE WEB SITE FEEDBACK
The FLRA Web site is receiving an increasing number of visitors. In September, the site averaged 343 "hits" a day, up from 193 the previous month. The agency is pleased to be getting favorable feedback from users of our Web Site. The favorite comment so far says in part: "As a customer, I believe that you have struck a near-perfect balance between attractive graphics and quality information." The most common suggestions that have been made are to add a search capability for Authority cases and agency forms which can be downloaded. The feasibility of these suggestions is being explored.
OGC SUBSTANTIALLY REDUCES INVENTORY OF OVER-AGE ULP CASES
General Counsel Joseph Swerdzewski announced that the OGC reduced the number of "over-age" unfair labor practices (ULP) cases in the OGC inventory by 78%. "Over-age" cases are defined as cases that are more than 90 days old from the date of filing to the date of action on the charge. The OGC had 938 "over-age" cases pending on December 31, 1996. Six months later, that number dropped to 201 cases. The "over-age" ULP charges resolved were either settled, withdrawn, dismissed, or moved to the next stage through the issuance of a ULP complaint.
"This is a tremendous accomplishment by the staff of the Office of General Counsel. We set a goal for ourselves to dramatically reduce the number of 'over-age' cases while still processing our new cases in a timely fashion," said General Counsel Swerdzewski. "Our next goal is to reduce the average age of the cases that we have pending in all stages of the process and continue to provide timely customer service."
The focus on improving timely resolution of ULP charges is one facet of the OGC's continuing effort to improve its customer service. The General Counsel has issued a series of memoranda to provide clear guidelines on policy and procedures to the OGC Regional Directors and released those policies to assist OGC customers as well.
RICHARD I. BLOCH NAMED AS A MEMBER OF THE FOREIGN SERVICE LABOR RELATIONS BOARD
Phyllis Segal, FLRA Chair, appointed Richard I. Bloch to a three year term on the Foreign Service Labor Relations Board.
Mr. Bloch is an arbitrator and mediator of labor and commercial disputes, with significant experience in both the public and private sector. He was appointed as a member of the Foreign Service Grievance Board in 1976 and served as Chairman of the Grievance Board from 1978 to 1984. He serves as arbitrator for numerous school systems, municipalities and police and fire departments. Mr. Bloch is currently the permanent umpire for General Dynamics Corporation and ALCOA and serves as arbitrator for major league baseball, football, and hockey. Mr. Bloch lectures and conducts training sessions. He is also an adjunct professor at the Georgetown University Law Center.
The Foreign Service Labor Relations Board administers the labor-management relations program for Foreign Service employees in the U.S. Information Agency, the Agency for International Development, and the Departments of State, Agriculture and Commerce. The Board is responsible for: 1) supervising or conducting elections and determining whether a labor organization has been selected as the exclusive representative; 2) resolving complaints of alleged unfair labor practices; 3) resolving issues relating to the obligation to bargain in good faith; and 4) resolving disputes over the effect or interpretation of a collective bargaining agreement.
The Foreign Service Act provides that the FLRA Chair serves as Chair of the Board and appoints the two other members to three-year terms. The appointees are selected from nominees approved both by the agencies over which the Board has jurisdiction and by the exclusive representative of the employees in each agency. Serving with Mr. Bloch as a Board Member is Tia Denenberg, an arbitrator from Red Hook, New York. The FLRA General Counsel serves as General Counsel for the Board, which receives staff support from the FLRA.
The Collaboration and Alternative Dispute Resolution program (CADR) continued to provide services to labor and management throughout the Federal sector. FLRA staff used a variety of dispute resolution techniques to facilitate the resolution of pending disputes, cultivate skills in interest-based problem-solving and improve labor-management relationships. FLRA staff also presented briefings and workshops at conferences, including the SFLRP Symposium in Virginia Beach, VA, the Association of Labor Relations Agencies and the Federal Dispute Resolution conference.
- OGC Headquarters and Regional Office staff intervened to help the parties resolve several active labor-management disputes in the Detroit area and a negotiation impasse in the Los Angeles area.
- CADR Office Staff provided preventive ADR assistance to parties involved in negotiations over the move of certain agency operations to a new geographical location. The parties reached agreement on key issues involving RIF and the abolishment of agency functions. Other issues were clarified and narrowed to allow the parties to more effectively negotiate over those subjects.
- OALJ Settlement Judge assisted parties to resolve a ULP dispute over parking accommodations for patients and staff at a veterans' hospital.
- CADR Office Staff assisted the parties in resolving a negotiability case that had been appealed to the Authority, by facilitating the parties' discussion of a new performance appraisal system and helping them craft an agreement that minimizes the adverse impact of the new system on unit employees.
- Immigration and Naturalization Service (INS): OGC staff provided partnership, interest based problem solving and ADR training to INS District Offices in Detroit, Phoenix, and Los Angeles as well as the Miami, Laredo, Blaine, and Spokane Border Patrol Sectors.
- National Guard Bureau: OGC staff provided statutory and partnership training to National Guard Bureau Representatives at their national conference.
- Statutory training: OGC staff provided statutory training to: union and management representatives in Anchorage, Alaska ; National Air Traffic Controllers Association; Bureau of Reclamation; Farm Service Agency and NTEU; Defense Commissary Agency and NAGE; and FAA and Professional Airways Systems Specialists.
- Social Security Administration (SSA): OGC Headquarters staff assisted SSA representatives to develop the first national model for evaluating the contribution of the labor-management partnership to service and productivity improvements.
- Veterans Integrated Service Network: OGC Atlanta Regional Office Staff provided relationship building assistance to union and management representatives in North Carolina.
- Maxwell Air Force Base: OGC Atlanta Regional Office staff provided relationship building assistance and statutory training to a group of union and management representatives.
The case summaries were prepared by FLRA staff for guidance and informational purposes only, and may not be used as an official position of, or interpretation by the Authority. The term "Statute" throughout the text refers to the Federal Service Labor-Management Relations Statute §§7101-7135.
- In Division of Military and Naval Affairs (New York National Guard) Latham, New York and National Federation of Civilian Technicians and Association of Civilian Technicians, 53 FLRA No. 17, the Authority faced for the first time a case involving the interpretation of section 7111(f) of the Statute, which denies exclusive recognition to unions that are corrupt or anti-democratic. The Authority affirmed the Regional Director's decision directing an election, despite one union's charge that the other was subject to corrupt and anti-democratic influences. The Authority set forth a test for considering such a charge under section 7111(f). The Authority held that labor organizations are presumed free from corrupt and anti-democratic principles. This presumption may be rebutted if there is reasonable cause to believe that the labor organization's actions constitute corrupt or anti-democratic practices under section 7120(b)(1) and (2). The Authority provided the following guidelines for determining whether reasonable cause has been established under section 7120. If a third party with jurisdiction over the matters alleged to demonstrate corrupt or anti-democratic principles, such as the Department of Labor, finds that allegations of such practices are true, then reasonable cause exists. However, if the third party dismisses the allegations, this establishes an absence of reasonable cause. The Authority will stay representation proceedings if the allegations are already pending before a third party at the time a section 7111(f) claim is filed. When reasonable cause is established, the burden shifts to the accused labor organization to prove to the Regional Director that the allegations are not true.
- In Department of the Navy, Naval Supply Center, Puget Sound, Bremerton, Washington and Bremerton Metal Trades Council, AFL-CIO and Department of the Navy, Fleet and Industrial Supply Center, Puget Sound, Bremerton, Washington and Bremerton Metal Trades Council, AFL-CIO and American Federation of Government Employees, AFL-CIO and American Federation of Government Employees, Local 1931, AFL-CIO, 53 FLRA No. 23, the Authority applied the test it developed in United States Department of the Navy, Fleet and Industrial Supply Center, Norfolk, Virginia, 52 FLRA 950 (1997)(FISC), to determine a representation case involving a reorganization in which both successorship and accretion are claimed to apply to the same employees. Using the FISC test, the Authority held that the employees at issue continued to be the majority of employees in a separate appropriate bargaining unit after the Agency reorganization that triggered the petition. The Authority also found that AFGE had established the remaining elements of the successorship test: that the employees' mission, duties, functions, and working conditions remained the same and that an election was not necessary to determine the employees' representational status.
Unfair Labor Practice Cases
- In U.S. Army Corps of Engineers, Memphis District, Memphis, Tennessee and National Federation of Federal Employees, Local 259, 53 FLRA No. 14, the Authority held that when an agency alleges that a union has waived its statutory right to bargain over a change in conditions of employment, the agency bears the burden of establishing that the exclusive representative received adequate notice of the change. Failure to request bargaining in response to adequate notice of a change in conditions of employment may be construed as the exclusive representative's waiver of the right to bargain. If, as in this case, the agency merely informs the union that the agency will engage in downsizing by offering voluntary separation incentive pay (VSIP) to certain employees, the agency has not provided the union with adequate notice that it would also eliminate particular positions if an employee accepts VSIP. Without notice from the agency, the union does not have an obligation to make a specific bargaining request in order for the General Counsel to establish that the agency failed to bargain.
- In U.S. Department of Transportation, Federal Aviation Administration, Standiford Air Traffic Control Tower, Louisville, Kentucky and National Air Traffic Controllers Association, MEBA/NMU (AFL-CIO) Local SDF, 53 FLRA No. 42, the Authority looked at the totality of the circumstances to determine whether an agreement between the parties reached using a partnership approach was binding, such that the failure of the agency to implement it constituted an unfair labor practice. The Authority examined the following circumstances to conclude that the union president and the agency representative were engaging in collective bargaining: the parties worked together closely for eight months on the proposed design of a new air traffic control tower; the substantial joint involvement of the parties resulted from the union's withdrawal of an unfair labor practice complaint that the agency had been refusing to negotiate; and both sides presented proposals which resulted in agreement at the final meeting. The Authority held that the fact that the parties met in a partnership environment does not mean that the parties were not engaging in collective bargaining. The Authority recommended that parties clarify their intentions at the outset of bargaining with respect to such issues as whether the result of the bargaining will constitute a recommendation or an agreement. Because the parties were engaged in collective bargaining, the Authority found that it was an unfair labor practice under section 7116(a)(1), (5) and (8) when the agency representative refused to sign a Memorandum of Understanding at the parties' final meeting. The Authority ordered the agency to implement the agreement.
- In National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut, 53 FLRA No. 37, the Authority held that a proposal to award extra administrative leave to employees who used less than 4 hours of sick leave in a calendar year was non-negotiable under section 7117(a)(1) of the Statute, which prohibits bargaining over proposals contrary to Federal law or any Government-wide rule or regulation. Both 5 U.S.C. Chapter 45 and 5 C.F.R. Part 451 permit incentive awards, such as time off, to employees in recognition of superior accomplishment or other personal effort that contributes to the quality and efficiency of Government operations. Non-use of sick leave does not, however, fall within the definition of superior accomplishment or personal effort. Thus, the granting of an incentive award for non-use of sick leave would violate the statute and the regulation, and is not negotiable.
- In American Federation of Government Employees, Local 1815 and U.S. Department of the Army, U.S. Army Aviation Center and Fort Rucker, Fort Rucker, Alabama, 53 FLRA No. 60, the Authority addressed the negotiability of thirteen provisions. The Authority concluded that provisions requiring that the agency negotiate with the union before changing any competitive areas, and that it require training for interviewers, are permissive subjects of bargaining. The Authority found proposals concerning the following subjects to be contrary to law: (1) a proposal restricting management's ability to make holiday work assignments; (2) a proposal requiring two consecutive weeks of annual leave; (3) a proposal allowing 4 hours of leave for blood donors; (4) a proposal that the union nominate the Equal Employment Opportunity Counselor; (5) a proposal that raters occupy a specified grade level; (6) a proposal requiring a Union observer at rating-panel meetings; (7) a proposal that prohibited the consideration of outside candidates where there is a highly qualified internal candidate; (8) a proposal precluding management from disciplining employees for refusing to obey orders; (9) a proposal setting the criteria for employees assigned rating duties; (10) a proposal limiting management's ability to make changes in tours of duty; and (11) a proposal requiring a compensated meal break where the employee earned more than 4 hours of overtime.
- In U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA No. 21 (BEP), the Authority rejected exceptions to an arbitrator's award that had ordered the agency to raise the grievant's summary performance appraisal rating. In so doing, the Authority revised the two-prong test previously set forth in U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1122, 34 FLRA 323 (1990) (SSA) for the proper evaluation of whether an arbitrator's award resolving a performance appraisal grievance impermissibly affects management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. This revision was based on the plain wording of section 7106 of the Statute and the Supreme Court's decision in IRS v. FLRA, 494 U.S. 922 (1990), which held that the only external limitations on management rights that could be enforced in the grievance procedure are those contained in "applicable laws."
Under the first prong of the BEP analysis, an arbitrator may cancel a performance rating only if management applied the established performance standards for that job element in violation of either an applicable law or a provision of the parties' collective bargaining agreement concerning a section 7106(b) matter. In addition, the violation must have affected the rating. Under this revised analysis, agency regulations that do not constitute applicable laws, contract provisions that are not enforceable consistent with section 7106, and management's failure to apply established performance standards no longer provide a basis for cancelling a performance rating. Under the second prong of the BEP analysis, which is unchanged from SSA, the remedy awarded must reflect a reconstruction of what management's appraisal of the grievant would have been if management had not violated either an applicable law or a contract provision on a section 7106(b) matter. An arbitrator is permitted to order a revised performance evaluation, rather than remand to the parties for reevaluation, where the record indicates the rating the agency would have given the grievant absent the violation.
Applying the revised framework, the Authority concluded that the Arbitrator properly canceled the grievant's appraisal and ordered the grievant's ratings raised. The Authority held this award was not contrary to section 7106(a) of the Statute because the contract provisions that the arbitrator had relied on to overturn the grievant's rating constituted appropriate arrangements for adversely affected employees. The Authority also rejected the Agency's allegations that the award failed to draw its essence from the collective bargaining agreement, that the award was based on a nonfact, and that the Arbitrator exceeded her authority by resolving an issue not submitted to arbitration.
- In U.S. Department of Defense, Army And Air Force Exchange Service, Dallas, Texas and American Federation of Government Employees, 53 FLRA No. 5, the Authority rejected exceptions to two arbitration awards sustaining grievances concerning the work schedule of the grievant, a union official. The Authority concluded that neither award was contrary to management's right to assign work or governing agency regulations. As to the agency's assignment of work claim, the Authority noted that it has found that the performance of representational activities under section 7131(d) of the Statute does not constitute the "work" of an agency within the meaning of section 7106 of the Statute. Thus, the Authority determined that management's right to assign work under section 7106(a)(2)(B) of the Statute is linked to the performance by employees of their official, prescribed duties and does not include changes in work schedule caused by representational activity. The Authority concluded that the agreement, and not the agency's regulations and directives, governed the work scheduling matters in dispute in both cases. The Authority further concluded that the awards drew their essence from the agreement and that neither award was based on nonfacts.
- American Federation of Government Employees, Local 2366 v. FLRA, 114 F.3d 1214 (D.C. Cir. 1997), reviewing 51 FLRA 768, 51 FLRA 1561 (1996). The D.C. Circuit denied the union local's petition for review of the Authority's determination that the agency had not committed a ULP by refusing to bargain. The Authority's reasoning, upheld by the court, was that an agency is obligated to bargain if: (i) the exclusive representative requests "term negotiations"; (ii) the union requests bargaining consistent with the status quo after expiration of a collective bargaining agreement; or (iii) the request is an appropriate request for mid-term bargaining. The court held that the bargaining request was not made at the level of exclusive recognition, did not request bargaining consistent with the status quo, and could not have been a request for mid-term bargaining inasmuch as the collective bargaining agreement had expired at the time the request was made.
- FLRA v. National Aeronautics and Space Administration, Washington, D.C. and NASA, Office of the Inspector General, 120 F.3d 1208 (11th Cir. 1997), reviewing 50 FLRA 601 (1995). The Eleventh Circuit enforced the Authority's decision that the agency had committed a ULP by preventing the exclusive representative from actively participating in an investigatory examination of a bargaining unit employee. In so holding, the court agreed with the Third Circuit in Defense Criminal Investigative Service v. FLRA, 855 F.2d 93 (3d Cir. 1988), that an Inspector General investigator is a "representative of the agency" within the meaning of section 7114(a)(2)(B) of the Statute, and must respect Weingarten rights when conducting employee interviews.
- FLRA v. U.S. Department of Justice, Washington, D.C.; U.S. Department of Justice, Immigration and Naturalization Service, New York District, New York; and U.S. Department of Justice, Office of the Inspector General, Washington, D.C., ---- F.3d ---, 1997 WL 590140, No. 97-4001 (2d Cir. 1997), reviewing 51 FLRA 1561 (1996). In a case presenting issues similar to FLRA v. National Aeronautics and Space Administration, Washington, D.C. and NASA, Office of the Inspector General, 120 F.3d 1208 (11th Cir. 1997)(above), the Second Circuit denied the Authority's application for summary enforcement of the Authority's cease and desist order. The court concluded that the Office of the Inspector General is only a representative of the agency when interrogating employees about matters within the scope of collective bargaining. Here, enforcement of the Authority's order was denied because the Inspector General's agents questioned the employees about serious criminal offenses and violations of agency firearms policies that the Court found were outside the scope of collective bargaining.
- Ray E. Midder v. FLRA, 120 F.3d 705 (5th Cir. 1997)(TABLE), reviewing 51 FLRA 1014 (1996). In an unpublished opinion, the court upheld the Authority's determination that the agency had not committed a ULP by discharging a probationary employee because of the employee's involvement in protected union activities. In reaching its conclusion, the court upheld the Authority's analysis under Letterkenny Army Depot, 35 FLRA 113 (1990).
The case summaries were prepared by FLRA staff for guidance and informational purposes only, and may not be used as an official position of, or interpretation by the Federal Service Impasses Panel. The term "Statute" throughout the text refers to the Federal Service Labor-Management Relations Statute §§7101-7135.
Number, Types, and Grades of Bargaining-Unit Positions in Branches; Maintaining Staffing Levels; Duration of Agreement and Reopener
- Department of Agriculture, Farm Service Agency, St. Louis, MO and Local 3354, American Federation of Government Employees, AFL-CIO, Case No. 97 FSIP 34 (June 25, 1997), Panel Release No. 399 (Decision and Order). The Panel directed the parties to participate in an informal conference with a Panel staff member. While voluntary agreement was reached over some minor matters, the parties were unable to settle key issues in the dispute over a staffing plan. With respect to the grade levels for positions in six organizational branches, the Panel adopted the Employer's proposal, essentially maintaining the status quo. Regarding the maintenance of current staffing levels, the Panel relinquished jurisdiction over the part of the Union's proposal requiring the Employer to take "whatever actions are necessary to fill/backfill vacancies" because of a duty-to-bargain question. The Panel adopted the part of the Union's proposal requiring the completion of all actions necessary to implement the staffing agreement within 90 days. In addition, the Panel adopted the Employer's proposal that, should the staffing level fall below a minimum of 104 employees, the Partnership Council would hear the issues first. Then, if the Council could not resolve them, those issues would be subject to negotiations.
Welfare Reform and Employment Conditions
- Social Security Administration, Baltimore, MD and General Committee, American Federation of Government Employees, AFL-CIO, Case No. 97 FSIP 17 (June 27, 1997), Panel Release No. 399 (Decision and Order). Initially, the Panel determined that the parties should resume their negotiations on a concentrated schedule, with the assistance of the Federal Mediation and Conciliation Service, to narrow or resolve the dispute arising from negotiations over Welfare Reform Act requirements. The issues included the scope of future bargaining; the number of, and selection procedures for, temporary promotions and details; and health and safety protections at temporary project sites. The resumed negotiations failed to produce a settlement and the Panel ordered the parties to provide written submissions. The Panel selected between the parties' final offers to the extent that they were otherwise legal. The Panel adopted the Employer's final package which: (1) limited future bargaining to new issues; (2) referred to the master collective bargaining agreement (MCBA) sections on promotions; and (3) based temporary promotions on the work performed. The Panel was also persuaded that existing wording in the MCBA addressed extensively such matters as procedures for details, official time, travel, training, work schedules, and leave.
Changing the Basic Workweek
- Department of Agriculture, Animal, and Plant Health Inspection Service, Plant Protection and Quarantine, Detroit, MI and Local 20, National Association of Agriculture Employees, Case No. 97 FSIP 72 (July 29, 1997), Panel Release No. 400 (Decision and Order). The Panel directed the parties to participate in an informal conference with a Panel staff member to resolve a dispute over changing the basic work week from Monday-Friday to Monday-Saturday. When mediation efforts failed to result in a settlement, the Panel adopted a modified version of the Employer's proposal ordering the extension of the phase-in period for the Monday-Saturday work week from 2 to 3 years. This would allow employees to adjust gradually to reductions in overtime. The Panel also adopted proposals by the Employer mitigating the new workweek's adverse effects on employees by, for example, assigning overtime at the Canadian border for 4-hour periods on Saturdays, Sundays, and holidays.
Parking and Voice Mail for Employees
- Department of the Treasury, Internal Revenue Service, Virginia-West Virginia District, Richmond, VA and National Treasury Employees Union, Chapter 48, Case No. 97 FSIP 83 (August 11, 1997), Panel Release No. 400 (Opinion and Decision). The Panel directed the parties to resolve their dispute through mediation-arbitration by a Panel staff member. When the parties were unable to resolve their dispute through mediation, a brief arbitration hearing was conducted on flexitime, parking, and voice mail access for employees. The arbitrator declined to consider the merits of the Union's proposal on flexitime because of a question regarding the Employer's duty to bargain. On the parking issue, a modified version of the Employer's proposal was ordered specifying that after canvassing suitable parking lots, the parties would jointly select a parking facility at which the Employer would negotiate for the most favorable rate. In addition, the arbitrator adopted the portion of the Union's proposal requiring the Employer to provide a $4,320, 1-year "transition subsidy" to ease the burden on eight lower-graded employees. Regarding voice mail access for employees, the arbitrator ordered a modified version of the Union's proposal whereby all affected employees would have access to voice mail, with secured private boxes, within 30 days of the award, or as soon as possible under applicable procurement regulations (the underlined portion is the modification).
Salary Increases for the 1997-1998 School Year
- Department of Defense, Domestic Dependents' Elementary and Secondary Schools, Fort Benning Schools, Fort Benning, GA and Benning Education Association, Federal education Association, NEA, Case No. 97 FSIP 103 (September 11, 1997), Panel Release No. 401 (Decision and Order). The Panel directed the parties to participate in an informal conference with a Panel staff member to assist them in resolving the dispute. During the conference, the parties settled three of the four issues at impasse. The only matter remaining concerned school year 1997-98 pay raises for bargaining-unit employees. The Panel ordered a 3-percent increase to the current salary schedule, reflecting a compromise between the Union and Employer positions. Such a pay increase, the Panel found, maintained the comparability of the compensation of affected teachers with those in other school systems in the area; 3 percent was also comparable to the amount granted to General Schedule employees for calendar year 1998. The Panel essentially concluded that the Union had not provided evidence demonstrating a need for the larger salary increase it had proposed.
Termination of Compressed Work Schedule
- Department of the Air Force, Dover Air Force Base, DE, and Local 1709, American Federation of Government Employees, AFL-CIO, Case No. 97 FSIP 107 (September 16, 1997), Panel Release No. 401 (Decision and Order). The Panel ordered the parties to participate in an informal conference with a Panel staff member to assist them in resolving their dispute. The issue at impasse was the Employer's decision to terminate a 4-10 compressed work schedule (CWS) because, under the Flexible and Compressed Work Schedules Act (the Act), 5 U.S.C. § 6131, the Agency head's designee determined that it was causing an adverse agency impact. After considering the Employer's data, the Panel found that the evidence presented did not establish that the CWS had caused an adverse agency impact under the Act. First, contrary to the Act's requirements, the Employer relied on productivity data generated after it terminated the CWS. Second, the Employer used crew-hours instead of man-hours to compare the productivity achieved on the 4-10 CWS with that of a regular 8-hour schedule. The crew-hour figures did not reveal how many members of a six-man crew were present on a given day. Since the Panel found that the Employer failed to meet its burden of proof under the Act, it ordered restoration of the employees' prior work schedules. It noted, however, that nothing precludes the Employer from attempting to terminate the CWS in the future, provided that it can demonstrate, using perfected data, that it has had an adverse agency impact, as defined under the Act.
Reduction in Force
- Department of the Treasury, Internal Revenue Service, Washington, D.C. and National Treasury Employees Union, Case No. 97 FSIP 31 (August 11, 1997), Panel Release No. 400 (Opinion and Decision). This dispute arose over the Employer's decision to conduct a reduction in force (RIF). Initially, the Panel directed the parties to resume negotiations on a concentrated schedule, with the help of the Federal Mediation and Conciliation Service; if those negotiations proved unsuccessful, the Panel would select between the parties' final offers on an issue-by-issue basis to resolve the matter, to the extent that they were otherwise legal. When the parties' concentrated efforts failed to resolve the dispute, they submitted their final offers to the Panel. The Panel then directed the parties to resolve all of the remaining issues through arbitration before Panel Member Mary E. Jacksteit, requiring the arbitrator to select from between the parties' final offers on an issue-by-issue basis. An extensive Opinion and Decision issued by Ms. Jacksteit resolved the 56 disputed issues, including: (1) on the scope of the agreement, Ms. Jacksteit adopted the Union's proposal that the RIF agreement apply only to the current RIF and not to any future RIFs that the Employer decides are necessary prior to the expiration of the parties' term agreement; (2) regarding the impact of the RIF on women and minorities, the Arbitrator adopted the Union's proposal requiring the Employer to give it data at various points in the RIF process to assess any disparate adverse impact on these groups; and (3) in general, Ms. Jacksteit agreed with the Employer that the RIF should proceed in accordance with the Office of Personnel Management's regulations, 5 C.F.R. Part 351. A copy of the 116-page Opinion and Decision is available at www.flra.gov or by calling (202) 482-6670.
ABOUT THIS COLUMN
The FLRA's General Counsel, Joseph Swerdzewski, has final authority over the issuance of complaints under the Federal Service Labor-Management Relations Statute. The General Counsel's approach in deciding whether to issue a complaint in a particular set of circumstances influences the direction of the law. For that reason, and to keep parties informed of the policies being pursued by the Office of the General Counsel (OGC), the Bulletin highlights selected cases that were considered by the OGC pursuant to requests for case-handling advice from Regional Directors, and summarizes guidance issued on novel legal issues. The interpretations of the Statute relied upon in the advice and guidance represents the OGC's position, and are not an official position of, or interpretation by, the Authority.
Pre-decisional involvement is the process used to include employees in shaping decisions that affect employees and the work they perform. According to the FLRA's General Counsel Joe Swerdzewski, "pre-decisional involvement, used correctly, can greatly enhance a productive relationship. Collaborative problem solving can identify problems and craft solutions by drawing on employees' valuable suggestions on ways to achieve a significant return on the agency's efforts."
To achieve the goal of enhancing a productive relationship whereby agency management employees, through their exclusive representative, are afforded the opportunity to shape decisions in the workplace, General Counsel Swerdzewski issued a policy to the Regional Directors regarding pre-decisional involvement. This policy describes the basic principles that underlie this process and discusses the benefits and risks of engaging in this process, as well as the relationship between pre-decisional involvement and the statutory duty to bargain. The policy also provides a detailed model for collaborative problem solving through pre-decisional involvement.
The guidance and an executive summary are available at www.flra.gov or by faxing a request to (202) 482-6608.
ABOUT THIS COLUMN
In accordance with the OGC's Settlement Policy, parties have entered into numerous novel settlement agreements resolving pending ULP cases. This policy, issued in conjunction with the Prosecutorial Discretion Policy, provides Regional Directors with the flexibility to develop, with the parties, innovative remedies that maximize the purposes and policies of the Statute, resolve the specific issues and meet the needs of the parties. To encourage parties to jointly resolve disputes consistent with principles and objectives set forth in the Settlement Policy, selected provisions of recent settlement agreements follow. The parties are not identified in order to maintain confidentiality.
Agency Agrees to Conduct Mandatory Training for Supervisors and Managers
In a pre-complaint settlement agreement, the parties agreed that the Agency would post a notice to all employees stating that it would conduct mandatory training for supervisors and managers. The Agency further agreed that it would not hold formal discussions with unit employees concerning grievances or any personnel policy or practice without notifying the union and affording the union the opportunity to be represented at the formal discussions.
Agency Agrees to Rescind Activation of a "Hands-Free" Intercom Telephone System and to Abide by Prior Agreement to Disable the System
After issuance of complaint and notice of hearing, the parties agreed that the Agency would post a notice to all employees that the Agency is required to disable the "Hands-Free" intercom system for all telephones in common work areas of the unit which resulted from management's unilateral action. In agreeing to abide by the terms of a prior agreement management deactivated the system except that an occupant of a private office would have the option to have this feature on or off. Management further agreed not to alter the telephone system without first providing the union with notice and the opportunity to negotiate any proposed changes as appropriate under the Statute. Lastly, management agreed to honor all agreements negotiated with the Union for the duration of the agreements or until the parties have mutually agreed to rescind or alter the terms of the agreements.
Agency Posts Notice Agreeing to Rescind Compressed Work Schedule
After issuance of complaint and notice of hearing, the parties agreed that the Agency would post a notice to all employees that the Agency is required to rescind the compressed work schedule unilaterally implemented for bargaining unit employees. The Agency also agreed not to implement changes in conditions of employment without providing the Union with an opportunity to negotiate the impact and implementation of the changes. The Agency further agreed not to hold formal discussions concerning the conditions of employment of bargaining unit employees without first giving notice to the Union.
Agency Agrees Not to Reward Certain Employees on Work Groups with 24-Hour Time-off Awards When Those Employees Represent or are Appointed by the Union
After issuance of complaint and notice of hearing, the parties agreed that the Agency would post a notice to all employees stating that the Agency would not reward employees with 24-hour time-off awards for their participation on a work group or any other team used to implement work procedures or otherwise affect terms and conditions of employment when the employees serving on those teams represent or are appointed by the Union. The Agency further agreed not to encourage or discourage membership in the Union through an award system, working assignment, or any other condition of employment.
Agency Provides Unit Employee with Written Assurance that no Disciplinary Action will be Taken Based on Discussions that took Place During a Weingarten Meeting Where He was Denied the Right to a Union Representative and Unit Employees Notified by E-Mail that Management has been Trained on their Obligations under Section 7114(a)(2)(B)
After issuance of complaint and notice of hearing, the parties agreed that no disciplinary action will be taken against a unit employee who was denied the right to a union representative under section 7114(a)(2)(B) of the Statute. The parties further agreed that the Agency would notify unit employees by E-Mail that management officials were trained regarding their obligations under section 7114(a)(2)(B) of the Statute and that management officials would allow the Union the opportunity to be present at any examination of a unit employee where s/he reasonably believes that disciplinary action may result from the examination and the employee requests representation.
Agency Agrees to Seven Provisions of Settlement Agreement Concerning the Implementation of Changes in a Unit.
The parties in two bargaining units agreed in a consolidated pre-complaint settlement agreement that the Agency would comply with the following seven provisions concerning the implementation of changes in working conditions in an Ambulatory Surgery Observation Unit. In this regard, the Agency will: (1) provide the Unions with available information, including Directives, and any options concerning staffing of the Unit; (2) not bypass the Unions by meeting with unit employees concerning conditions of employment of unit employees without giving the Unions notice of, and an opportunity to be present at, the meeting; (3) fulfill its bargaining obligations before it changes working conditions in the unit; (4) adhere to the provisions of the collective bargaining agreement; (5) upon request, negotiate any proposals and invoke the mediation and impasse provisions of the bargaining agreement where agreement cannot be reached; (6) afford the Unions the opportunity to bargain any changes in the Ambulatory Surgery/Observation Unit; and (7) obtain input from the Unions on the name of any new unit.
UNILATERAL SETTLEMENT AGREEMENTS
The following settlement agreements were approved by a Regional Director applying the OGC's Settlement Policy over the objection of the charging party because the settlement effectuated the purposes and policies of the Statute:
Agency Agrees Not to Suggest or Imply to Unit Employees that their Jobs Could be Contracted Out or that Facility Could be Closed if the Employees Exercise Their Rights Under the Statute
In a pre-complaint settlement agreement, the Agency agreed to post a notice to all employees stating that it would not suggested or imply in any way that unit employees' jobs could be contracted out or that the Facility would be closed if the employees exercised their rights under the Statute to engage in protected activity including the filing of grievances or ULPs.
Agency Agrees to Bargain in Connection with the Implementation of an Alcohol and Drug Testing Program
After issuance of complaint and notice of hearing, the Agency acknowledged that it had an obligation to bargain with the Union concerning the impact and implementation of matters when it exercised management rights under the Statute and that it cannot change working conditions until the bargaining obligation has been fulfilled. Specifically, the Agency agreed to bargain with the Union concerning the impact and implementation of the Alcohol and Drug Testing Program and implement all agreements reached in such negotiations.
Union Agrees to Make Employee Whole for all Dues and Monies that Should Not Have Been Withheld From the Date Employee Filed Dues Revocation Form
In a pre-complaint settlement agreement, the parties agreed that the Union would post a notice to all employees requiring that the Union make a unit employee whole for all dues monies which the employee filed a dues revocation form. The Union further agreed that it would not interfere with its member rights to revoke thei