FLRA EXPEDITES RESOLVING DISPUTES
Vol. 8 No. 3
June 1, 1999 - September 30, 1999
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 Action
- FSIP Settlement Corner
- General Counsel's Advice to Regional Directors
- General Counsel's Settlement Corner
FLRA EXPEDITES RESOLVING DISPUTES
News to Know
TIMELY CUSTOMER SERVICE AT THE FLRA
The end of Fiscal Year 1999 brought welcome news to parties before the Federal Labor Relations Authority (FLRA) three components: the Authority, the Office of the General Counsel and the Federal Service Impasses Panel ("Panel"), as the Agency successfully achieved improvements identified as needed by its customers in a 1998 Customer Survey.
The Survey's respondents voiced concern about the length of time before disputes filed with the FLRA are resolved, while generally according high marks to FLRA's case processing and other services. In FY 1999, all components of the FLRA set ambitious goals, and met the challenge of more quickly delivering high quality decisions and program services to resolve labor-management disputes.
The three-Member Authority significantly reduced the number of cases awaiting merits decisions for more than one year. During Fiscal Year 1999, this inventory was cut by more than half - to only 12 percent of the total caseload. In addition to issuing decisions in the longest-pending cases, the Authority reduced the period of time for all parties awaiting decisions. The median age of all pending cases fell below 100 days – a one-third reduction from the start of the year. Finally, the more expedited issuance of decisions contributed to substantially reducing the number of cases before the Authority to its lowest level in the Agency's history.
Other components of the FLRA were similarly successfully in improving timeliness while adhering to high quality standards:
- The Office of the General Counsel significantly reduced the percentage of overage cases in its inventory. For example, the percentage of unfair labor practice cases pending initial dispositive action over 90 days fell from 25 percent of the caseload to only 16 percent at the end of Fiscal Year 1999. Similarly, the percentage of representation cases pending without issuance of a notice of hearing over 90 days was reduced from 41 percent of the caseload to16 percent.
- The Authority's Office of Administrative Law Judges' services enabled parties to resolve their disputes more quickly. The number of expensive last minute "courthouse steps" settlements (reached after spending time and resources preparing for, and traveling to, the hearing) has been dramatically reduced. In Fiscal Year 1999, these more costly late settlements were just 1.9 percent of all settlements, down from a high of 15 percent in 1996.
- The Federal Service Impasses Panel also achieved faster resolution of bargaining impasses. During Fiscal Year 1999, the median age of impasse cases where labor and management reached a voluntary settlement following the Panel's procedural determination fell from 101 to 91 days.
Similar strategic goals have been set for Fiscal Year 2000 as the Agency remains committed to expediting dispute resolution.
PRESIDENT CLINTON NAME MARVIN E. JOHNSON AND JOHN G. WOFFORD TO THE FEDERAL SERVICE IMPASSES PANEL
President Clinton has appointed Marvin E. Johnson and John G. Wofford as members of the Federal Service Impasses Panel ("Panel").
Mr. Johnson, a native of Rochester, New York, and a resident of Silver Spring, Maryland, is a mediator and arbitrator for public and private disputes. He is the founder of the Center for Alternative Dispute Resolution at Bowie State University where he currently serves as an Associate Professor and Director. He received a B.B.A. degree from Kent State University, a M.S. degree in Industrial Relations from the University of Wisconsin, and a J.D. degree from the Catholic University of America.
Mr. Wofford, of Boston, Massachusetts, is a solo practitioner of mediation and arbitration services. He was co-chair of the Alternative Dispute Resolution Committee of the Labor and Employment Law Section of the Boston Bar Association through August 1999. He received B.A. degrees from Harvard College and Oxford University, where he was a Rhodes Scholar. He also earned an LL.B. degree from Harvard Law School.
These two appointments bring the Panel to its full Statutory complement of seven members.
GENERAL COUNSEL ISSUES GUIDANCE ON DEVELOPING A LABOR RELATIONS STRATEGIC PLAN
FLRA General Counsel, Joseph Swerdzewski, recently issued a Guidance Memorandum to the FLRA's Regional Directors on how to assist union officials and management representatives in developing effective labor relations strategic plans to successfully deal with each other in the work place. Training on the Guidance will be available in early 2000 from the FLRA's regional offices. See related story page 13.
SUSAN McCLUSKEY RECEIVES MERITORIOUS EXECUTIVE AWARD
Susan D. McCluskey, Chief Counsel to the Chair, was selected by President Clinton to receive a 1999 Meritorious Executive Award. The award recognized Ms. McCluskey's "exceptional performance over an extended period of time at the FLRA."
Ms. McCluskey has been a member of the Federal government's elite Senior Executive Service since 1989. The Senior Executive Service's career component is competitively selected and provides the Federal government's top leadership. She has been a member of the FLRA staff for the past twenty years.
The Presidential Rank Award for Meritorious Executives is the second highest possible honor bestowed on a Senior Executive in the Federal government. It is presented to Senior Executives who have demonstrated, over an extended period of time, exceptional performance. The challenging criteria for the 1999 awards focused on executives who demonstrated results-oriented leadership and who embody characteristics that will lead the government into the 21st Century: delivering great service, fostering partnerships to achieve results, and getting the job done more efficiently and effectively. Recipients are chosen through a rigorous selection process, with final selection by President Clinton.
FLRA'S SOLICITOR AWARDED THE DISTINGUISHED SERVICE AWARD
David M. Smith, Solicitor of the Federal Labor Relations Authority, was presented with the FLRA's Distinguished Service Award, the highest form of recognition accorded by the Agency.
Mr. Smith, who has served as the Solicitor since 1992, was recognized for his leadership in dramatically strengthening the quality with which the FLRA is represented in reviewing Courts. This representation included Mr. Smith's advocacy on behalf of the FLRA before the U.S. Supreme Court twice during the past term. In both cases, the Court upheld decisions issued by the Authority and defended Mr. Smith (see related article p. 8). In addition, Mr. Smith's leadership in strengthening FLRA programs, his efforts in rewriting and improving regulations, and his contributions to developing training strengthening initiatives were also recognized by this prestigious Agency award.
Update on CADR
Collaboration and Alternative Dispute Resolution Program (CADR) Ending its Fourth Year
The Federal Labor Relations Authority's CADR program is ending its fourth year. The cross-component program draws on resources across the FLRA and provides facilitation, training, education and intervention services to assist labor and management in developing constructive approaches to handling their relationship.
Since the program's inception, CADR has provided a host of services to the Federal labor management community. These include performing 621 statutory training sessions for 24,009 participants; conducting 330 training sessions on alternative dispute resolution, interest based bargaining, or partnership for 10,254 participants; and convening 461 intervention/relationship building sessions for 13,515 participants. CADR continues to provide parties with a better understanding of the labor relations statute, constructive approaches to labor relations, and fewer disputes on the FLRA docket. In short, CADR fosters labor relations rather than exclusively focusing on labor law.
Below are highlights of recent services delivered by CADR:
In September 1999, the Office of General Counsel successfully used the alternative case-processing procedure in section 2423.7 of the Regulations to resolve a large number of pending unfair labor practice (ULP) charges filed by one union against an agency. The Deputy General Counsel and the Regional Attorney met with the parties who developed and agreed to a memorandum to improve labor-management relations. Their memorandum included a procedure for the parties to follow to avoid ULP disputes concerning bargaining over changes, repudiations, bypasses, formal discussions and information requests. The memorandum also established a process to improve communication between the parties on labor-management relations issues. In a mutual effort to improve labor-management relations and resolve disputes without third-party intervention, the union agreed to withdraw 68 pending ULP charges and the agency agreed to take a series of actions on matters underlying the charges.
The Authority's Office of Administrative Law Judge's (OALJ) voluntary ULP Settlement program continues to set new records. During Fiscal Year 1999, the program had the highest number of cases in which the parties agreed to discuss settlements, (192 as compared with 179 in Fiscal Year 1998 and 102 in Fiscal Year 1997), an unprecedented number of these cases were resolved successfully. Since the program's inception in April 1995, more than 650 cases have been received and more than 500 complaints have been resolved by the parties without resort to expensive and time-consuming litigation. The program's overall settlements exceed 82%.
In October 1999, the OALJ ULP Settlement Program helped parties to resolve 14 separate ULP complaints that had been consolidated for hearing. Under the terms of their settlement agreement, the parties agreed that specified employees who served as union representatives would be reassigned to new offices under changed supervision, and that various notations placed in their personnel files would be deleted.
CADR providers also conduct interest based negotiation training and facilitation services for parties. Recently, CADR worked with a union and management group preparing for difficult contract negotiations. The parties committed to using an interest based approach not only for upcoming contract negotiations, but for future negotiations between union and management.
During the past five years, collaborative and alternative dispute resolution opportunities have been codified in the FLRA's rewritten regulations. The latest of these are revised negotiability regulations, which have proved to be promising. Preliminary numbers show that after FLRA involvement, one third of the cases filed under the new regulations (and not closed for procedural reasons), were quickly resolved by the parties and withdrawn.
In recent cases, the Federal Service Impasses Panel ordered the Employer to maintain the status quo while an impasse was pending, and directed the parties to meet with the Panel Chair to try to resolve the matter informally. By the end of the informal conference, the parties had reached voluntary agreements on all the issues, including competitive areas and a new effective date for a RIF. See, Department of Veterans Affairs, VA Medical Center, Sheridan, Wyoming and Local 1219, AFGE, AFL-CIO, Case No. 99 FSIP 127.
These summaries of selected cases 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 U.S. Department of Defense, National Guard Bureau, 55 FLRA No. 115 (1999), the Authority denied the Union's application for review of the Regional Director's (RD's) decision dismissing its petition to consolidate existing bargaining units of National Guard technicians in 39 states, the District of Columbia, Puerto Rico, and the Virgin Islands. The Authority held that a consolidated national bargaining unit was not appropriate, reasoning that such a unit would not recognize the role of state officials in the administration of the technician program. The Authority noted that National Guard technicians are Federal employees, but that they work under the immediate control of state officers. The Authority affirmed the RD's finding that the Technicians Act provides state officials with considerable authority over the technicians' employment and labor relations matters. The Authority found that the separate authority exercised by each state over its military mission indicated a lack of integration of mission and function across state lines that outweighed any similarity in the duties performed by technicians. Because the Technicians Act granted state officials some policy-making authority, the Authority affirmed the RD's finding that consolidation would not be consistent with the dispersed authority over the technicians' personnel and labor relations policy. The Authority also found that the RD properly applied established law in determining that consolidation would not promote effective dealings or the efficiency of agency operations, because the proposed unit would extend across state lines and would require a structuring of the National Guard inconsistent with the dictates of the Technicians Act. The Authority noted, in this regard, the RD's finding that effective bargaining relationships were already in existence at the state level.
In U.S. Department of Veterans Affairs, 55 FLRA No. 132 (1999), the Authority granted the Union's petition for review of the Regional Director's (RD's) decision dismissing a petition for unit clarification of a vacant position. The Authority found that there was an absence of Authority precedent addressing whether an RD must resolve a representation petition seeking to clarify the unit status of a vacant position where the unit determination is a collateral issue necessary to the resolution of a grievance at arbitration. The Authority concluded that an RD must resolve a petition for unit clarification of a vacant position as long as both parties agree, or an arbitrator decides, that the unit determination is necessary to the resolution of the grievance at arbitration. Where a determination has been made that a unit clarification is needed, the parties must place the grievance in abeyance pending a decision on the unit clarification petition. In so holding, the Authority extended its precedent established in Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 34 FLRA 21 (1990) (Fort Bragg), which required an RD to resolve the unit clarification of a vacant position only where the arbitrability of the grievance was at stake. The Authority found that this extension of Fort Bragg was warranted in light of the Statute's policy favoring the resolution of employee grievances through arbitration and the recognized centrality of arbitration under the Statute.
Unfair Labor Practice Cases
In U.S. Penitentiary, Leavenworth, Kansas, 55 FLRA No. 127 (1999) (Member Cabaniss dissenting in part), the Authority reviewed exceptions to a Judge's decision involving 12 consolidated ULP complaints. The Authority granted the Respondent's exception and dismissed one of the complaints in Case No. DE-CA-60349, finding that the Respondent had demonstrated "special circumstances" warranting its denial to the Union president of access to the penitentiary during a period when the president was on home duty status pending an investigation into certain matters. The Authority denied the Respondent's other exceptions. The Authority noted that management officials, specifically the warden, committed numerous egregious statutory violations, including making anti-Union statements at a mandatory meeting of all employees. Applying the standard for nontraditional remedies set forth in F.E. Warren Air Force Base, Cheyenne, Wyoming, 52 FLRA 149 (1996), the Authority granted the following extraordinary remedies, in addition to the traditional posting of a notice and issuance of a cease-and-desist order: (1) it directed the Respondent to call a mandatory meeting of all employees at the penitentiary, at which the warden (or an Authority representative) would read the notice aloud; (2) it directed the parties to show cause why the Authority should not refer the matter to the Office of Special Counsel, or direct the Respondent to make such a referral, requesting an investigation into whether the warden committed prohibited personnel practices and any action deemed appropriate by the Special Counsel; and (3) it directed the Respondent to distribute copies of the notice to all employees. The Authority declined to issue the other nontraditional remedies requested by the General Counsel and the Charging Party.
In Social Security Administration, Region VII, Kansas City, Missouri, 55 FLRA No. 95 (1999), the Authority adopted the Judge's findings that the Respondent violated section 7116(a)(1) and (5) of the Statute by failing to provide the Union with advance notice of the Respondent's support for elimination of smoking in the cafeteria of the building in which the Respondent was a tenant, and by refusing to bargain over the elimination of smoking in the cafeteria. The Authority clarified that both a "covered by" defense under U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993) (SSA, Baltimore), and a defense under Internal Revenue Service, Washington, D.C., 47 FLRA 1091 (1993) (IRS), may, under appropriate circumstances, be raised in the same case, and that the Judge erred by declining to address both defenses in this case. The Authority held that the Judge properly concluded, under IRS, that the parties' agreement did not permit the Respondent's refusal to bargain, because the provision relied on by the respondent only banned smoking in SSA facilities, not other agencies' facilities where SSA was merely a tenant (such as the cafeteria here). Applying SSA, Baltimore, the Authority also found that the matter of smoking in the cafeteria was not "covered by" the parties' agreement. In this connection, the Authority noted the Judge's finding that the parties had previously agreed, in a memorandum of understanding, that any matter not set forth explicitly and comprehensively in an agreement was not foreclosed from further bargaining. Because the parties' national agreement addressed only SSA facilities, the Authority concluded that the agreement did not foreclose bargaining over smoking in non-SSA facilities. Accordingly, the Authority affirmed the Judge's finding that the respondent violated section 7116(a)(1) and (5) of the Statute by failing to bargain over the change in smoking policy.
In National Association of Government Employees, Local R3-10 and U.S. Department of Transportation, Federal Aviation Administration, Washington, D.C., 55 FLRA No. 146 (1999), the Authority addressed the negotiability of a proposal on remand from the U.S. Court of Appeals for the District of Colombia Circuit. The proposal provided that Air Traffic Assistants (ATAs) be eligible for "familiarization" flights on commercial airlines on non-duty time through the proposed Liaison and Familiarization Travel program (proposed FAM program). The Authority found that, consistent with the Union's modifications in the proposal eliminating any training justification for the proposed FAM program, the program's purpose was to provide ATAs with free travel on non-duty days. The Authority also found that nothing in the record established that providing such free travel to ATAs is a part of, or in furtherance of, the Agency fulfilling its aviation duties and powers within the meaning of the FAA's gift acceptance statute, 49 U.S.C. § 326(a). The Authority concluded that because the proposal requires the Agency to accept a gift from a prohibited source and because, under the specific circumstances presented by the proposal, the Agency could not accept the travel pursuant to its gift acceptance statute, the proposal was inconsistent with 5 C.F.R. § 2635.202. Accordingly, the Authority found that the proposal was outside the duty to bargain under section 7117(a)(1) of the Statute.
In American Federation of Government Employees, Local 3529 and U.S. Department of Defense, Defense Contract Audit Agency, Central Region, Irving, Texas, 55 FLRA No. 143 (1999), the Authority addressed the negotiability of two Union proposals, which were submitted in response to the Agency's plan to transfer to a different location the staffing functions performed for employees graded GS-12 and below. Union Proposal 1 would require the Agency to transfer those functions for all employees, GS-3 through Executive level, including both bargaining unit and non-bargaining unit positions. Union Proposal 2 would require the Agency to transfer those functions only for bargaining unit positions. The Authority held that the proposals affected management's right to determine its organization under section 7106(a)(1) because the proposals would dictate where, organizationally, the Agency's staffing function would be established. The Authority found that the proposals did not concern the numbers, types, and grades of employees assigned to an organizational subdivision, within the meaning of section 7106(b)(1). In this connection, the Authority held that the proposals would transfer personnel work, regardless of the grades of employees performing that work -- i.e., the proposals did not concern the grade of employees who would be transferred. The Authority also determined that the proposals did not concern the methods and means of performing work under section 7106(b)(1), because neither proposal prescribed the way in which the Agency would be required to perform its work. Because the proposals affected management's right to determine its organization, the Authority dismissed the Union's petition.
In U.S. Department of the Air Force, 439th Airlift Wing, Westover Air Reserve Base, Massachusetts and American Federation of Government Employees, Local 3707, 55 FLRA No. 156 (1999), the Authority reviewed an arbitration award in which the Arbitrator found that the Agency violated the parties' collective bargaining agreement by charging employees annual leave for days when they were away from their home station on long distance flights and were engaged in mandatory crew rest periods. The Arbitrator ordered the Agency to restore the annual leave deducted from the employees, and to pay those employees for the time they were engaged in crew rest. The Agency filed an exception claiming that the award was contrary to law because no authority existed to support payment of the employees during the mandatory crew rest periods. The Authority found that the Agency's practice of paying employees for time that they were excused from duty for crew rest was, in essence, a method of granting the employees administrative leave, and that the Authority has long recognized that agencies have discretion to grant such leave. The Authority concluded that the Agency failed to demonstrate that it had no authority to pay the employees, and denied the Agency's exception.
In U.S. Department of Transportation, Federal Aviation Administration and National Air Traffic Controllers Association, 55 FLRA No. 136 (1999), the Authority reviewed an Arbitrator's award that sustained in part a grievance and awarded an asbestos hazardous pay differential to Air Traffic Controller Specialists (ATCSs) for the period of time during which they worked in the control room of the Boston Air Traffic Control Center. The Arbitrator had found that the ATCSs' exposure to asbestos was "directly connected," within the meaning of an Agency regulation, with the performance of their assigned duties. In so finding, the Arbitrator failed to address the Agency's interpretation of its own regulation, which would not support a finding that the exposure was "directly connected," because they were exposed by virtue of a contractor failing to adequately contain asbestos during its removal. The Authority found that the Arbitrator erred by failing to defer to the Agency's interpretation of its own regulation, because that interpretation was not plainly erroneous or inconsistent with the regulation. In so finding, the Authority noted that the Agency's interpretation of the regulation had been public since at least 1993 and reflected the views of the Agency head. Additionally, the Authority found that the record supported a finding that the Agency's interpretation of the regulation was not first developed in the context of the arbitration. As the award was inconsistent with the Agency's regulation, the Authority granted the Agency's exceptions and vacated the award under section 7122(a)(1) of the Statute. Because the underlying award of back pay was vacated, the Authority found that there was no basis for an award of attorney fees under the Back Pay Act.
In U.S. Department of Defense, Hale Koa Hotel and Service Employees International Union, Local 556, 55 FLRA No. 112 (1999), the Authority reviewed an arbitration award that upheld the Agency's imposition of discipline against the grievant, but ordered that the grievant's 5-day suspension be reduced to a 1-day suspension. The grievant had engaged in a heated dispute with his supervisor and was suspended for 5 days for an "insubordinate response to instructions and abusive language" towards a supervisor. The Agency filed exceptions, claiming that the award was deficient under section 7122(a)(1) of the Statute because it conflicted with an Agency regulation, and that it was based on a nonfact because the Arbitrator misapprehended the meaning of "offense" and improperly characterized the grievant's misconduct as a first offense. The Authority described as well-settled the principle that when a collective bargaining agreement incorporates the regulations with which an award allegedly conflicts, the matter becomes one of contract interpretation, and the agreement, rather than the regulation, governs the matter in dispute. The Authority found that the parties' agreement incorporated the Agency's regulation that includes the table of penalties, and therefore the issue before the Authority was whether the award was deficient as failing to draw its essence from the parties' agreement. The Authority concluded that the Arbitrator's interpretation and application of the agreement incorporating the regulation was not unfounded, implausible, or irrational. The Authority also rejected the Agency's argument that the award was based on a nonfact, deferring to the Arbitrator's factual finding that the grievant's misconduct was the "first occurrence of insubordination" and was a different offense than the misconduct that led to the prior suspension.
National Aeronautics & Space Admin., Washington, D.C., & National Aeronautics & Space Admin., Office of the Inspector General v. FLRA & AFGE, AFL-CIO, 119 S. Ct. 1979 (1999), affirming 120 F.3d 1208 (11th Cir. 1997). The Supreme Court affirmed the Authority's and the Eleventh Circuit's decisions that an Office of the Inspector General (OIG) investigator is a "representative of the agency" when examining a bargaining unit employee who reasonably fears that discipline might result from the examination. Relying on the language of the Statute and the Authority's interpretation in 50 FLRA 601 (1995), the Court rejected NASA's argument that "representative" is limited to the entity that collectively bargains with the union. The Court also held that the Authority's decision is consistent with the Inspector General Act, which provides that an agency's OIG investigators are "employed by, act on behalf of, and operate for the benefit of" that agency.
FLRA v. Department of Justice, et al., 119 S. Ct. 2387 (1999), vacating and remanding 137 F.3d 683 (2d Cir. 1998). The Supreme Court granted the Authority's petition for certiorari and vacated the Second Circuit's denial of summary enforcement of an Authority decision that found that the Agency had violated its employees' rights under section 7114(a)(2)(B) of the Statute. The Court directed the Second Circuit to reconsider its ruling in light of the Court's recent decision in NASA v. FLRA, 119 S. Ct. 1979 (1999).
National Association of Government Employees, Inc., National Association of Government Employees, Local R1-8 and Patent Office Professional Association v. FLRA, 179 F.3d 946 (D.C. Cir. 1999), reviewing 54 FLRA 429 (1998), 54 FLRA 457 (1998), and 54 FLRA 360 (1998). The D.C. Circuit denied the Unions' petitions for review of Authority decisions that three Agencies did not commit ULPs when they refused to bargain over matters covered by section 7106(b)(1) of the Statute. The court affirmed the Authority's determination that section 2(d) of Executive Order 12871, which provides that agencies "shall . . . negotiate over the subjects set forth in 5 U.S.C. § 7106(b)(1)," constitutes a direction to agency personnel rather than an election to bargain under section 7106(b)(1).
Georgia State Chapter Association of Civilian Technicians v. FLRA, 184 F.3d 889 (D.C. Cir. 1999), reviewing 54 FLRA 654 (1998). The D.C. Circuit denied the Union's petition for review of an Authority decision dismissing a ULP complaint. The court found that the Union had failed to raise to the Authority the arguments that it was making to the court and that, therefore, the Union's objections were barred by section 7123(c) of the Statute, which prohibits a court from considering objections not first raised to the Authority unless the failure to do so is excused by "extraordinary circumstances." The court rejected the Union's argument that its failure should be excused because there had been simultaneous briefing in the case and the Union could not anticipate the Agency's arguments. The court noted that the Union did not seek to file a reply brief with the Authority nor did it request reconsideration of the Authority's decision.
Arkansas National Guard v. FLRA, Nos. 99-1563 & 99-1974 (8th Cir. Aug. 30, 1999), reviewing 55 FLRA 63 (1999). The Court dismissed the Guard's petition for review for lack of jurisdiction because the appeal had not been authorized by the Department of Justice nor approved by the Solicitor General. The court left pending the Authority's cross-application for enforcement.
National Association of Government Employees, Local R14-23 v. FLRA, No. 98-1520 (D.C. Cir. Sept. 24, 1999), reviewing 54 FLRA 1302 (1998). The D.C. Circuit denied the Union's petition for review of an Authority negotiability decision. The court deferred to the Authority's determination that the subject of the Union's bargaining proposal is not a negotiable "condition of employment" as defined in 5 U.S.C. § 7103(a)(14) because it "relat[es] to the classification of any position."
FSIP Final Actions
These summaries of selected cases 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.
6-Month Pilot of a 4-10 Compressed Work Schedule
— Department of Justice, Federal Bureau of Prisons, Low Security Correctional Institution Allenwood, White Deer, Pennsylvania and Local 0306, AFGE, AFL-CIO, Case No. 99 FSIP 65 (July 28, 1999), Panel Release No. 422 (Decision and Order). The case involved negotiations over the Union's proposal that 20 bargaining-unit employees assigned to 4 unit teams, be placed on a "pilot" 4-10 compressed work schedule for 6 months. The Panel determined the case should be resolved through an informal conference. The Employer proposed that the regular 5-days per week, 8-hours per day schedule be maintained because inmates' access to team members, available under the current schedule, was critical to the maintenance of security. The Union contended that the 4-10 schedule would actually expand inmates' access to team members. The Panel adopted the Union's position, finding the Employer failed to provide sufficient evidence that the 4-10 schedule would hamper the ability of unit members to maintain the necessary level of contact with inmates and compromise the security of the facility.
Reduction in Force/Most Efficient Organization
— Department of Defense, Defense Logistics Agency, Defense Distribution Center, Memphis Caretaker Organization, Memphis, Tennessee and Local 2501, AFGE, AFL-CIO, Case No. 99 FSIP 86 (July 27, 1999), Panel Release No. 422 (Decision and Order). The case arose from bargaining over the Most Efficient Organization (MEO) for the Memphis Caretaker Organization (MCO). The Panel determined the case should be resolved through the issuance of an Order to Show Cause why the Panel should not adopt the Employer's MEO proposal, which would reduce the number of full-time employees at the facility from 49 to 36. Citing an increase in overtime, the Union proposed that staffing be increased to 72 full-time positions. The Employer countered that original staffing levels were based on "speculation of work" that never materialized, and asserted that the elimination of full-time positions and creation of seasonal and part-time positions would enable it to tailor its workforce to actual workload conditions. The Panel, noting the MCO faced eventual closure once the City of Memphis takes control of the facility, adopted the Employer's proposal.
Mid-Term Negotiations Over Official Time
— Department of the Army, Headquarters, U.S. Army Communications-Electronics Command, Fort Monmouth, New Jersey and Local 476, NFFE, Case No. 99 FSIP 79 (August 3, 1999), Panel Release No. 423 (Decision and Order). The Panel determined that the dispute, concerning whether the Employer should provide 100 percent official time to one Union representative to handle all representational duties on behalf of the bargaining unit, should be resolved through an informal conference conducted by Panel Member Bonnie Prouty Castrey. At the informal conference, a tentative agreement was drafted but not executed; the parties then submitted final offers and written submissions in support of their positions. The Union proposed that 100 percent official time be awarded to one person to bring employees in the unit "in line" with other collective bargaining agreements at Fort Monmouth. The Union asserted that it was unable to adequately perform its representational duties when it did not know from day to day how much time would be approved by management. The Employer proposed that it would make appropriate workload adjustments to permit Union representatives time to perform their representational duties. It pointed out that the Agency had granted each Union request for official time, and that a departure from the status quo was unnecessary. The Panel adopted the Employer's proposal, concluding that the Union had neither substantiated its claim that past use of official time had reached 100 percent, or nearly 100 percent, for one Union representative, nor proffered sufficient evidence that its representatives' requests for official time were being denied by the Employer. The Panel pointed out that, during the informal conference, the Union was unable to identify a bargaining-unit member who would be willing to commit to 100 percent representational activity.
— Department of Defense, Defense Logistics Agency, Defense Contract Management Command, Boeing Philadelphia, Ridley Park, Pennsylvania and Local 1984, NFFE, Case No. 99 FSIP 89 (July 30, 1999), Panel Release No. 423 (Arbitrator's Opinion and Decision). This impasse involved five issues in a successor collective bargaining agreement. The Panel determined that the issues should be submitted to mediation-arbitration before Panel Member Mary E. Jacksteit. Member Jacksteit met with the parties and resolved four of the five issues. The parties submitted proposals on the remaining issue concerning merit raises for permanent positions at the GS-7 through GS-13 levels. The Employer proposed language that would make the area of consideration for the group "district-wide," to bring the bargaining unit in conformity with the rest of the agency. The Union proposed that existing language in the agreement be retained. Ms. Jacksteit found that, in practice, the area of consideration for merit promotions has been district wide. She concluded that the Employer failed to adduce proof that a change to the status quo was necessary and ordered the adoption of the Union's proposal.
— Department of Veterans Affairs, Cincinnati Veterans Affairs Medical Center, Cincinnati, Ohio and Local 105, Kentucky Nurses Association, Case No. 99 FSIP 72 (September 24, 1999), Panel Release No. 424 (Decision and Order). The case, which arose from bargaining over a successor collective bargaining agreement, concerned the amount of pre-approved time Union representatives should receive for representational activities. The Panel determined that the dispute should be resolved through an informal conference with a Panel representative. While one issue was resolved during the informal conference, the issue of official time remained unresolved. The Union proposed that it receive 1.0 FTE, divided in any way the parties agree, so long as the president receives .5 FTE. The Employer proposed that the president be granted "50-percent official time," and all other representatives be granted a "reasonable" amount of time. The Panel adopted a compromise solution which included the granting of 50 percent official time to the Union president, and 25 percent to be divided between two other Union officials.
Block Official Time
— Department of Defense, Army & Air Force Exchange Service, Dallas, Texas and Local 2921, AFGE, AFL-CIO, Case No. 99 FSIP 119 (September 24, 1999), Panel Release No. 424 (Decision and Order). The case involved bargaining over a supplemental agreement when the parties disagreed over the amounts official time for Union representatives. The Panel determined that the dispute should be resolved through an informal conference with Panel Chair Betty A. Bolden. Following the conference call, the parties were unable to resolve the impasse. The Union proposed block official time in the following amounts: 50 percent for one employee and 25 percent for a second employee. The Employer proposed granting 25 percent official time to one Union representative. The Panel adopted a compromise proposal to resolve the dispute: two Union representatives from the bargaining unit would be granted 25 percent block official time to be used for representational duties; one of these representatives would be located at the Headquarters Building and the other's location would be at the Union's choice. Either representative would be permitted to use a portion of such time to meet with bargaining-unit employees from any shift.
Official Time, Travel Expenses, Office Space and Credit Hours and Compressed Work Schedules (CWS)
— Environmental Protection Agency, Region 2, New York, New York and Local 3911, AFGE, AFL-CIO, Case No. 99 FSIP 69 (September 24, 1999), Panel Release No. 424 (Decision and Order). The case concerned official time for representational functions and Union-sponsored training; travel expenses; Union office space; and implementation of a 4/10 compressed work schedule (CWS) and credit hour plan. The Panel determined that the dispute over those four issues should be resolved through an informal conference by telephone with a Panel Representative. As to other unresolved issues, the Panel at first recommended, and later directed, that the parties submit them to a mediator-arbitrator of their choice for resolution. During the procedure, the parties were only able to resolve a portion of one issue concerning the performance of representational duties. The parties thereafter submitted their final offers and written statements of position to the Panel. On the issue of official time and Union-sponsored training, the Employer essentially proposed to grant the Union a block of official time up to 2,080 hours; and up to 120 hours for Union-sponsored training. The Union proposed that representatives be granted "reasonable and necessary" amounts of official time and up to 600 hours for Union-sponsored training. The Panel determined that the impasse should be resolved on the basis of a compromise. It adopted the Union's proposal that representatives be granted "reasonable and necessary" amounts of official time, noting that the provision would provide flexibility if the amount of such duties increased. As to Union-sponsored training, the Panel adopted the Employer's proposal which increased by 50 percent the amount of time for such training; it also adopted the Employer's proposal on official time procedures. On the issue of travel expenses, the Employer basically proposed to limit reimbursement to travel between Edison, New Jersey and New York City for partnership meetings and joint labor-management training; other travel expense requests would be handled on a case-by-case basis. The Union proposed the Employer be required to pay for travel expenses of Union representatives performing representational duties in accordance with FTRs, as well as for partnership meetings and joint labor-management training. The Panel adopted the Employer's proposal, finding the Union's proposal would remove from the Employer any discretion to deny travel requested by Union representatives. On the issue of space, the Employer proposed that the Union retain its existing space at its New York City offices and be granted "priority" for the use of an adjacent conference room. The Union proposed that it retain its existing office space and be granted the exclusive right, as is the current practice, to use the adjacent conference room. In other locations, it would reserve conference rooms as needed. The Panel adopted the Union's proposal. On the issue of credit hours and CWS, the Employer essentially proposed that the current flexitour schedule be continued. The Union proposed that, in addition to the flexitour and 5-4/9 schedules, employees be given an option of working under a 4/10 CWS and a credit hour plan during a one year test period. The Panel determined the impasse should be resolved by a compromise solution; it adopted the Employer's proposal to continue the current flexitour and 5-4/9 schedule, but concluded the Union's 4/10 CWS and credit hour pilot program should be implemented as a pilot for a period of 6 months to determine the feasibility of implementing both schedules.
Official Time, Flexible and Compressed Work Schedules (CWS), Multi-Unit and Impact Bargaining and Contract Renewals
— Department of Housing and Urban Development, Pacific/Hawaii Region, San Francisco, California and Local 1450, NFFE, Federal District 1, IAM & AW, AFL-CIO, Case No. 99 FSIP 93 (September 24, 1999), Panel Release No. 424 (Decision and Order). The case concerned five articles for a successor collective bargaining agreement. The Panel declined to assert jurisdiction over one disputed issue because of duty-to-bargain questions and determined that the balance of the dispute should be resolved through an informal conference with a Panel representative; in the event a complete settlement did not occur, it would be limited to final-offer selection on an article-by-article basis. Although the parties reached agreement on one article, issues in four articles remained unresolved. They address official time, flexible and compressed work schedules (CWS), multi-unit and impact bargaining, and contract renewals. On the issue of official time, the Employer essentially proposed to decrease the amount of official time because the number of bargaining-unit employees had decreased by one-third in recent years and the Union does not presently exhaust the official time allocation set forth in the CBA. The Union basically proposed to increase the official time percentages of Union representatives and incorporated most of the Employer's proposed procedure for requesting official time. The Panel adopted the Union's proposal finding that it provided greater flexibility to Union representatives, including the ability to request and be granted official time for appropriate activities not specifically delineated in the CBA. On the issue of credit hours and CWS, the most contentious issue concerned the period during which employees would be permitted to earn credit hours. The Union proposed that employees on a regular or flexitour schedule be permitted to earn credit hours between 6 and 7 a.m., and 6:30 and 7:30 p.m. The Union further proposed that employees on a 5-4/9 or 4-10 CWS could start work as early as 6 a.m.; those on a 5-4/9 could work as late as 7 p.m. and those on a 4-10, as late as 7:30 p.m. Under the Employer's proposal, credit hours could be earned starting at 7 a.m. and until 6:30 p.m.; employees on a CWS could start at 7 a.m. The Panel adopted the Union's proposal finding that, given the control inherent in supervisory approval of employees' schedules, the extended hours the Union proposed for earning credit hours and for the starting and ending times of CWS days were not unreasonable. On the issue of mid-term (contract) and impact bargaining, the Employer essentially proposed that information on the conversion of work performed under OMB Circular A-76 (A-76) would be provided to the Union when it exclusively affects bargaining-unit employees. The Union essentially proposed that the Employer provide it with such A-76 information whenever Local 1450 employees would be among those employees affected. The Panel adopted the Employer's proposal, finding the Union already receives such information under its National consultation rights. On the last issue, duration and distribution of the agreement, the Employer proposed that the parties' representatives must first reach agreement on any changes required by law or government-wide regulation, and execute the CBA's new signature and date page. The Union proposed that the parties' CBA be "automatically" renewed if neither party provides a timely notice of intent to renegotiate. Finding the Union's proposal represented what appeared to be more typical in Federal sector agreements, the Panel adopted the Union's proposal.
FSIP Settlement Corner
ABOUT THIS COLUMN
Along with the issuance of final actions (i.e., Decisions and Orders by the full Panel and Arbitrators' Opinions and Decisions by its designated representatives), the Panel also fulfills its statutory obligations by assisting the parties in their efforts to achieve voluntary settlements. From June 1, 1999 through September 30, 1999, in addition to 12 cases in which members of the Panel's professional staff assisted parties in resolving their impasses, Panel Members were successful in obtaining complete settlements in the following cases:
— In National Labor Relations Board, Region 18, Minneapolis, Minnesota and National Labor Relations Board Union, Local 18, Case No. 99 FSIP 58 (closed June 18, 1999), the parties reached impasse over numerous issues concerning floor plans for new office space in a privately-owned building. Panel Chair Betty A. Bolden conducted a mediation-arbitration and the dispute was resolved.
— In Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution Waseca, Waseca, Minnesota and Local 801, Counsel of Prisons Locals 33, AFGE, AFL-CIO, Case No. 99 FSIP 81 (closed July 16, 1999), the parties reached impasse over numerous issues, including access to computer networks, employee safety, and training. Panel Member Bonnie Prouty Castrey conducted a mediation-arbitration procedure and the dispute was resolved.
— In Social Security Administration, Lowell Field Office, Lowell, Massachusetts and Local 1164, AFGE, AFL-CIO, Case No. 99 FSIP 95 (closed September 1, 1999), the parties reached impasse after negotiations concerning the allocation of space in a new facility. Panel Member Edward F. Hartfield conducted an informal conference with the parties and the dispute was resolved.
— In Department of the Air Force, Air Force Reserve, Headquarters 910th Airlift Wing, Vienna, Ohio and Local 1952, AFGE, AFL-CIO, Case No. 99 FSIP 122, (closed September 1, 1999), the parties reached impasse over official time and the use of annual or administrative leave in the event of emergency conditions. Panel Member Stanley M. Fisher conducted an informal conference and the dispute was resolved.
General Counsel's Advice to Regional Directors
The FLRA's General Counsel, Joseph Swerdzewski, has, among other statutory duties, 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 the 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.
GENERAL COUNSEL'S GUIDANCE TO REGIONAL DIRECTORS ON DEVELOPING A LABOR RELATIONS STRATEGIC PLAN
Regional Directors frequently provide Alternative Dispute Resolution (ADR) services pursuant to section 2423.2 of the Regulations of the General Counsel of the Federal Labor Relations Authority. The General Counsel issued a Guidance Memorandum to the Regional Directors to assist them in helping parties to understand the value of a labor relations strategic plan and to prepare a plan for their own use. The Guidance is also intended to assist parties in improving their relationships and avoiding litigation.
The Guidance is divided into four parts. Part 1 – "What Is a Labor Relations Strategic Plan and Why Is It Necessary?" – describes what a labor relations strategic plan is and its value to the parties. Part 2 – "How Do Labor and Management Assess Their Current Strategies, and How Successful Are Those Strategies for Them?" – explains the concepts of a collaboration strategy and a compliance strategy. Part 3 – "How Do Labor and Management Develop a Strategic Plan to Meet Their Goals?" – describes the steps in a process which can be used to develop an individual or joint labor relations strategic plan. Part 4 – "How Do Labor and Management Develop Approaches to Implementing a Successful Labor Relations Strategic Plan?" – describes the need for a clear approach on how to implement a strategic plan and also describes the kinds of questions which must be answered to successfully implement a plan.
The Guidance contains an Executive Summary in a Question and Answer format and two appendices. The first appendix is a model agenda for an individual labor relations strategic plan development program for use by either labor or management in developing their own internal plans. The second appendix is an agenda for a joint labor relations strategic plan development program to be used by both labor and management in developing a joint plan. The Guidance is available on the FLRA Web Site, www.flra.gov.
General Counsel's Settlement Corner
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 Posts Notice Agreeing to Respond in a Timely Manner to Requests for Information under Section 7114(b)(4) and to Furnish Information that Union had Requested
After issuance of complaint and notice of hearing, the parties agreed that the Agency would post a notice agreeing to respond in a timely manner to requests for information made under section 7114(b)(4) of the Statute and to provide the Union with the information to which it was entitled, in a timely manner. To reaffirm the parties' commitment to a previous settlement agreement, the parties executed and signed a Memorandum of Understanding that details the procedure for processing information requests.
Agency Agrees to Post Notice Agreeing to Provide the Union with Notice and an Opportunity to Bargain over Changes Made to Floor Plan
Before issuance of complaint and notice of hearing, the parties agreed that the Agency would provide the Union with advance notice and the opportunity to negotiate in good faith, as required by the Statute, over any changes to the commissary floor plan that would affect the conditions of employment of bargaining unit employees. The Agency further agreed to negotiate the procedures and appropriate arrangements of the change in the floor plan which entailed the movement of a store and to address the proposals to be submitted by the Union insofar as they are within the duty to bargain.
Agency Agrees to Rescind Directive Prohibiting Unit Employees from Eating at Duty Posts
In a post-complaint settlement agreement, the parties agreed that the Agency would rescind a directive issued by a Supervisory Detention Officer which prohibited bargaining unit employees at the Detention Center from eating at their duty posts when meal breaks were not provided. The Agency also agreed to bargain, to the extent required by the Statute, if in the future it decided to change the policy allowing unit employees to eat at their duty posts when meal breaks were not provided.
UNILATERAL SETTLEMENT AGREEMENTS
The following settlement agreements were approved by a Regional Director applying the OGC's Settlement Policy over the obligation of the charging party because the settlement effectuated the purposes and policies of the Statute:
Agency Agrees to Post Notice Stating that it will Negotiate with the Union over the Procedures and Appropriate Arrangements for Unit Employees Adversely Affected by a Decision to Contract Out the Hospital Administration Function and Give Retroactive Effect to any Agreement Reached
In a post-complaint settlement agreement, the Agency agreed to post a notice to all employees stating that it would recognize the Union's designated Union representatives for purposes of negotiations concerning proposed changes in conditions of employment. In addition, the Agency agreed to negotiate with the Union's designated representative concerning the procedures and appropriate arrangements for employees adversely affected by the decision to contract out the hospital administration function, and to give retroactive effect to any agreement reached.
Union Union Agrees to Post Notice Agreeing to Represent all Bargaining Unit Employees in a Fair and Equitable Manner, without Regard to Membership in the Union
In a post-complaint settlement agreement, the Union agreed to post a notice to all employees, on numerous bulletin boards, and to request the Agency's permission to post on certain bulletin boards when such permission is required, stating that it will represent all bargaining unit employees in a fair and equitable manner, without regard to membership in the Union. The Union further agreed to represent all bargaining unit employees during the processing of a grievance in a fair and equitable manner.
Agency Agrees to Post Notice Stating that it has Reinstated the Alternative Work Schedule (AWS) at the Agency and that it will Not Change the Employees' AWS without Bargaining to the Extent Required by Law
In a pre-complaint settlement agreement, the Agency stated that it has reinstated the AWS at the Agency, including allowing employees to return to the AWS schedules they were working prior to the date that they had been revoked. The Agency also agreed not to unilaterally implement changes in working conditions of employees in the bargaining unit, such as revoking AWS, without providing the Union with an opportunity to bargain to the extent required by law.
Agency Agrees to Withdraw and Expunge Letter Issued to Charging Party Stating that Charging Party's Distribution of a Memo Seeking Support for a New Union Chapter was Improper
Before issuance of complaint, the Agency agreed to withdraw and expunge from the Charging Party's Official Personnel File, his Employee Performance File, any drop file maintained by his supervisor, and any other file maintained by the Agency, a letter issued to him stating that his distribution of a memo seeking support for a new Chapter of the Union was improper. The Agency also agreed not to use any information in the letter against the Charging Party in any way.
Agency Agrees, for the Duration of the Parties' Agreement, to Recognize the Union's Designated Representative for a Meeting to Present an Oral Reply to Proposed Discipline
After issuance of complaint and notice of hearing, the Agency agreed, for the duration of the parties' agreement and upon proper notification in accordance with the parties' agreement, to recognize the Union's designated representative for meetings to present oral replies to proposed discipline pursuant to an article of the parties' agreement covering adverse and disciplinary actions. The settlement agreement also provides that either party may raise the matters addressed in the agreement during negotiations