PRESIDENT CLINTON NAMES DONALD S. WASSERMAN CHAIRMAN OF THE FLRA

 

Vol. 9 No. 1
October 1, 1999 - January 31, 2000

The FLRA Bulletin

FLRA Seal

The Federal Labor Relations Authority
607 14th Street, N.W.
Washington, D.C. 20424-0001


CONTENTS
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

PRESIDENT CLINTON NAMES DONALD S. WASSERMAN CHAIRMAN OF THE FLRA

NEWS TO KNOW

APPOINTMENT OF DONALD S. WASSERMAN AS CHAIRMAN

President Clinton appointed Donald S. Wasserman as Chair of the Federal Labor Relations Authority on February 7, 2000. Mr. Wasserman, who has served as a member of the Authority since 1996, assumes the position recently vacated by Phyllis N. Segal.

Mr. Wasserman's appointment as Chairman is a continuation of a distinguished record of public service. Before joining the FLRA, Mr. Wasserman worked with the American Federation of State, County and Municipal Employees (AFSCME) as a key spokesperson and policy-maker. His activities included negotiating collective bargaining agreements with states and major local governments and fostering alternative dispute resolution procedures. Mr. Wasserman led the union's participation in efforts to reinvent/redesign government services and coordinated AFSCME's activity in its initial response to National Performance Review and the Partnership Council.

Mr. Wasserman was formerly on the Board of Directors of the National Bureau of Economic Research, the Executive Board of the Industrial Relations Research Association (IRRA) and President of the Washington, D.C. IRRA chapter; and was a founding member of the National Academy of Social Insurance. Mr. Wasserman earned a B.S. from Temple University and a M.B.A. from the Wharton School at the University of Pennsylvania.

BONNIE PROUTY CASTREY APPOINTED AS CHAIR OF THE FEDERAL SERVICE IMPASSES PANEL; DAVID LELAND APPOINTED AS MEMBER

President Clinton made two recent appointments to the Federal Service Impasses Panel, naming Bonnie Prouty Castrey as the Chair and David J. Leland as a Member. Ms. Castrey assumes the position formerly held by Betty Bolden, who recently completed her term as Chair of the Panel.

Ms. Castrey has served as a member of the Federal Service Impasses Panel since 1995 and her reappointment marks her second term on the Panel. She is a private arbitrator and mediator. Since 1965, Ms. Castrey has taught negotiation skills, mediation skills, and arbitration at a number of colleges and universities. Among her many professional accomplishments is her service as a past International President of the Society of Professionals in Dispute Resolution and as a former Commissioner of the Federal Mediation and Conciliation Service.

Mr. David J. Leland is currently Chair of the Ohio Democratic Party. Until 1996, he was counsel to the Columbus law firm of Schwartz, Kelm, Warren and Rubenstein. Prior to that, Mr. Leland served as Transportation Director for the Public Utilities Commission of Ohio. As a State Legislator, Mr. Leland was a leading advocate of Ohio's first collective bargaining law for public employees. Mr. Leland has also served as counsel to the Ohio Civil Service Employees Association.

FLRA TO CO-SPONSOR THE INDUSTRIAL RELATIONS RESEARCH ASSOCIATION WASHINGTON D.C. CONFERENCE

Chairman Donald S. Wasserman has announced that the FLRA will be a co-sponsor of the Industrial Relations Research Association's annual conference to be held in Washington D.C. The Conference entitled "Work and Family: A National Public Policy Forum," will convene at the Omni-Shoreham Hotel on June 22 and 23, 2000. The agenda includes a mix of plenary and concurrent sessions, and spans a variety of topics including family leave, child care, and perspectives on the family friendliness of the government workforce. Other co-sponsors include the Federal Mediation and Conciliation Service; the National Labor Relations Board; the National Mediation Board; and the United States Department of Labor.

A copy of the conference agenda will be available on the FLRA's web site at www.flra.gov.

GENERAL COUNSEL SWERDZEWSKI ISSUES NEW UNFAIR LABOR PRACTICE CASE HANDLING MANUAL

General Counsel Joseph Swerdzewski has issued a new Unfair Labor Practice Case Handling Manual (Manual) that provides comprehensive guidance to Regional Agents in processing, resolving, and investigating unfair labor practice charges. The Manual incorporates and references the changes to the General Counsel's regulations set forth at Subpart A of Part 2423 of the FLRA's Regulations. See 63 Fed. Reg. 65638-65645 (Nov. 30, 1998), which includes the codification of the Office of the General Counsel's (OGC) policies on Facilitation, Intervention, Training and Education (FITE); Quality; Scope; Injunctions; Prosecutorial Discretion; Settlement; and Appeals. The Manual references relevant case law; provides for uniformity and best practices among the Regions; provides criteria and principles that govern Regional discretion and judgment; and also provides Model and Sample Forms and Letters.

Announcing the Manual, General Counsel Swerdzewski commented, "The Manual is part of the Office of the General Counsel's continuing effort to provide guidance to the Regions on investigating unfair labor practice charges. The Manual complements the Litigation Manual, issued by the Office of the General Counsel in 1998, which provides guidance to Regional Office Trial Attorneys in processing cases after complaint has issued. As is my custom, I am making this Manual available to the public so that parties who seek the services of the FLRA Regional Offices or otherwise become involved in matters relating to a potential or actual unfair labor practice charge, can be better informed about the investigation and the role of the OGC."

The Manual is available the FLRA's web site at www.flra.gov. The Manual is also offered for sale by the Superintendent of Documents, Government Printing Office (Stock No. 063-000-000-77-9, price $35.00).

Step by Step Video Guide to the FLRA's Negotiability Appeals Process Now Available

The FLRA has produced a 40 minute training video on the revised regulations concerning negotiability appeals proceedings in Part 2424 of the Authority's regulations. The improved regulations feature conferences designed to narrow and clarify issues to be resolved; revision of procedures to enable the Authority, where appropriate, to resolve all aspects of a dispute; and clarification of the responsibilities of each party. The video is available in a CD-ROM version as well.

The video and CD-ROM are free and may be obtained from the Authority's Case Control Office at (202) 482-6540. A printed guide to the regulations is also available on the FLRA's web site at www.flra.gov or from the Case Control Office.

UPDATE ON CADR

Collaboration and Alternative Dispute Resolution Program Rings in the New Millennium With a New Program - Developing a Labor Relations Strategic Plan

The CADR program, which provides facilitation, training, education and intervention services to assist labor and management in developing constructive approaches to handling labor management relationships, enters its fifth year at the start of the new millennium. Although the program's main focus is on helping FLRA customers collaboratively resolve disputes, the CADR program has made other contributions toward building labor relations skills throughout the Federal government. FLRA staff have developed courses in the areas of relationship building, ADR design, statutory skills, partnership and a host of other areas in order to put the "relations" back into Labor Relations.

As part of that continuing program development, General Counsel Joe Swerdzewski recently issued a Guidance Document entitled "Developing a Labor Relations Strategic Plan." In order to maximize the effectiveness of this guidance, the Office of the General Counsel (OGC) recently conducted a four-day training conference for FLRA employees to train them on working with customers using this Guidance to form labor relations strategic plans.

Labor relations strategic plans can help parties achieve short-term goals, such as dealing with stalled contract negotiations, significant backlogs of grievances and individual collective bargaining disputes. Such plans can also yield long-term improvements in parties' relationships, such as developing better communication practices, improving trust levels and increasing the use of collaborative processes such as interest-based bargaining and pre-decisional involvement. The Guidance, which sets forth a process for how union officials and management representatives can work together to develop effective labor relations strategic plans to successfully deal with each other in the workplace, is available on the FLRA website (www.flra.gov).

As a result of the training conference, FLRA employees are prepared to work with parties on developing labor relations strategic plans. If parties believe that their labor-management relationship might benefit from this program, they should contact their respective Regional Office or the FLRA Headquarters office. Like other FLRA training services, participation in this program is voluntary.

Below are highlights of recent CADR accomplishments spanning components of the FLRA:

The Office of General Counsel conducted numerous ADR activities to help parties achieve more constructive labor-management relationships. These included: (1) Assisting parties affected by a pending agency reorganization by arranging a meeting under section 2422.13(a) of the regulations to discuss their interests and narrow issues before filing any representation petitions; (2) assisting parties by addressing concerns raised in an unfair labor practice charge by using an alternative case-processing procedure under section 2423.7; (3) assisting a new bargaining unit with statutory training and interest-based principles of negotiation; (4) working with parties at a national partnership council level by applying principles of labor relations strategic planning; and (5) discussing current labor relations issues with customers by participating in several town meetings, a breakfast meeting, and a nationwide videoconference.

The Federal Service Impasses Panel also provided CADR services during the first four months of the Fiscal Year. The Panel staff assisted various parties in reaching complete voluntary settlements of negotiation impasses in fourteen cases. Most of the settlements came during informal conferences or mediation-arbitration proceedings by the Panel staff or Members.

CADR services provided by the Office of Administrative Law Judges' (OALJ) voluntary ULP Settlement program settled an extremely complex case. The case, which involved a complaint which alleged that management had unilaterally ended the night shift of an around the clock operation, settled when the Respondent agreed to reimburse all of the affected employees thousands of dollars to cover their loss of night differentials and other benefits.

CADR training providers were busy on other fronts, too:

Shaking Hands CADR providers helped a Union/Management group establish a local partnership council by providing training on Interest-Based Negotiation and facilitating the development of the partnership agreement. As a result of the training and facilitation sessions, the parties committed to using interest-based problem-solving approaches in partnership sessions to improve communication and the relationship between the parties.

Shaking Hands CADR providers conducted interest-based negotiation training and facilitation services for parties in preparation for difficult contract negotiations. The parties committed to using the interest based approach not only for contract negotiations but also for other upcoming negotiations and retained a facilitator to assist them with using the IBN process throughout the negotiations.

Shaking HandsCADR providers facilitated discussions of issues pending in a negotiability case involving weekend work assignments. The parties were able to agree on the details of a pilot program and established a team of union and management representatives to monitor the progress of the program and address unforseen concerns. The parties were also able to resolve a disagreement over the meaning of a previously negotiated memorandum of understanding that affected the program's implementation.

Shaking HandsCADR providers facilitated discussions of issues pending in a negotiability case concerning the performance evaluation article in a new contract. The parties reached consensus on each matter in dispute and signed off on the article. Additionally, the parties were able to more accurately frame the issues in a separately filed negotiability appeal and agreed to work together in an attempt to resolve the pending issues.

AUTHORITY CASES

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.

Representation Cases

Pen In U.S. Department of Justice, Federal Bureau of Prisons, U.S. Penitentiary, Marion, Illinois, 55 FLRA No. 201 (2000), the Authority reviewed the Activity's application for review of the Regional Director's (RD's) decision clarifying a bargaining unit description to include an Employee Development Specialist (EDS) and a Legal Assistant.

The Authority rejected the Activity's claim that the EDS and the Legal Assistant should be excluded from the unit under section 7112(b)(2) of the Statute. With regard to the EDS, the Authority affirmed the RD's finding that the EDS was not a confidential employee because, although the EDS reported directly to the Employment Development Office (EDO) Manager, the EDO Manager was not engaged in formulating or effectuating management policies in the field of labor relations. The Authority also rejected the Activity's assertion that the EDS performed personnel work, finding that, although the EDS made recommendations regarding the training plan and attended meetings of the Training Committee, there was no evidence that, in performing those duties, the EDS engaged in personnel work of more than a clerical nature or exercised independent judgment and discretion. With regard to the Legal Assistant, the Authority rejected the Activity's assertion that the Legal Assistant was a confidential employee based on her relationship with the Senior Attorney, because the Senior Attorney was not significantly involved in formulating or effectuating management policies in the field of labor relations, and the tasks assigned the Legal Assistant did not constitute labor relations work. However, because it was unclear what standard the RD applied in finding that the Legal Assistant did not perform investigations relating to fraud, waste, and abuse, the Authority remanded the case to the RD for findings regarding whether that employee fit within the exclusion set forth in section 7112(b)(7).

Pen In Army and Air Force Exchange Service, Dallas Texas, 55 FLRA No. 199 (2000), the Authority denied NFFE's application for review of an RD's decision dismissing NFFE's objections to the conduct of an election. The Authority found that the RD did not commit a prejudicial procedural error in ordering a mail ballot election, because, as the parties had been unable to agree on the method of election, section 2422.16(b) of the Authority's Regulations provided the RD with the discretion to decide the procedure to be used. Next, the Authority found that NFFE failed to provide any evidence that the election notices were not timely mailed and posted, and that two witness statements claiming that the Agency distributed NAGE flyers was not sufficient to demonstrate that the RD's assessment of that evidence, in the context of his investigation, was incorrect. Accordingly, the Authority rejected NFFE's assertion that the RD made a clear and prejudicial error concerning substantial factual matters.

Unfair Labor Practice Cases

PenIn U.S. Department of Veterans Affairs, 55 FLRA No. 195 (2000) (Member Wasserman concurring), the Authority concluded that the Respondent violated section 7116(a)(1) and (5) of the Statute by unilaterally implementing a change in employee parking rates at one of its medical centers without bargaining with the Union. To remedy the unfair labor practice, the Authority ordered the Respondent to restore the prior rates and to make adversely affected employees whole. The Authority held that the make whole relief was equitable in nature and, as such, was not barred by the principle of sovereign immunity.

PenIn Department of the Air Force, Air Force Materiel Command, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 55 FLRA No. 194 (2000), the Authority upheld the administrative law judge's determination that two employees' performance appraisals were not motivated by those employees' protected activities.

The Authority applied the analytical framework set forth in Letterkenny Army Depot, 35 FLRA 113 (1990), to determine whether the Respondent had engaged in discrimination in violation of section 7116(a)(2) of the Statute. The Authority found that the Judge did not err by considering record evidence other than that presented by the General Counsel in assessing whether the a prima facie case of discrimination under Letterkenny had been established. The Authority upheld the Judge's finding that the timing of the employees' appraisals following the ULP investigations did not warrant an inference of discriminatory motive, because the Judge had reasonably determined that the employees' supervisor, who conducted the appraisals, did not determine when the appraisals would be conducted, and the employees' appraisal scores had actually increased after they engaged in certain protected activity. The Authority also found that a finding of disparate treatment was not warranted, because the record supported the Judge's finding that another technician, who had not engaged in protected activity, simultaneously received a lower rating. Accordingly, the Authority dismissed the complaint.

Pen In Department of the Navy, Naval Weapons Station Yorktown, Virginia, 55 FLRA No. 181 (1999), the Authority reversed the administrative law judge's determination that the Respondent did not commit unfair labor practices by refusing to authorize official time for two Union representatives. Although representation petitions were pending before the Authority, challenging the continued appropriateness of the bargaining unit, the Authority held that the Respondent was required to fulfill its obligations to the exclusive representative until the Authority reaches a final resolution of the issues raised by the parties' petitions.

The Authority found that the Respondent failed to meet its obligation under section 7131(a) of the Statute to authorize official time for the two Union representatives, and that this violated section 7116(a)(1) and (8) of the Statute. To remedy the violations, the Authority issued a cease and desist order and required the Respondents to post a notice to all employees and to make a Union representative whole for annual leave used as a result of the violation.

Pen In U.S. Department of Justice, Immigration and Naturalization Service, New York Office of Asylum, Rosedale, New York, 55 FLRA No. 170 (1999) (Member Cabaniss dissenting), the Authority concluded that the Agency committed two separate violations of the Statute when it met with a bargaining unit employee concerning the employee's grievance. The first violation was predicated on the Respondent's failure to afford the Union an opportunity to be present at the meeting, and the second violation was based on the Respondent having bypassed the Union in dealing directly with the employee. In holding that the meeting concerned a grievance, the Authority found that the Respondent had sufficient notice of the Union's failed attempt to file an informal grievance prior to the meeting and that the Respondent was aware that the meeting concerned the same topic as the informal grievance.

Negotiability Cases

PenIn Association of Civilian Technicians, Texas Lone Star Chapter 100 and U.S. Department of Defense, National Guard Bureau, State of Texas, Adjutant General's Department and Association of Civilian Technicians, ATC, Wisconsin 26 and U.S. Department of Defense, National Guard Bureau, Department of Military Affairs, State of Wisconsin, 55 FLRA No. 196 (2000), the Authority found outside the duty to bargain two proposals that would give a selecting official unfettered discretion to select a Wage Leader with a lower military grade than the employees with whom the Wage Leader would work. The Authority determined that a military grade inversion policy prohibited full time civilian technicians from supervising individuals with a higher military rank. The Authority found that the military grade inversion policy was a military aspect of civilian technician employment, and that the proposals would, in effect, prohibit the Agencies from enforcing the grade inversion policy as it applies to Wage Leader positions. Consistent with Authority precedent, the Authority held that the proposals concerned a military aspect of civilian technician employment, and as a result, they were outside the duty to bargain under section 7117(a)(1) of the Statute.

PenIn National Treasury Employees Union and U.S. Department of the Treasury, U.S. Customs Service, Washington, D.C., 55 FLRA No. 191 (1999) (Member Wasserman, dissenting in part), the Authority addressed the Agency's and the Union's exceptions to a recommended decision of an administrative law judge (Judge) concerning the negotiability of six provisions that had been disapproved by the Agency head under section 7114(c) of the Statute.

The Authority found provisions 1, 2, and 8 within the duty to bargain. The Authority held that provision 1, which would require the Agency to make "reasonable efforts, if appropriate and possible," to avoid a reduction in force, was an appropriate arrangement. The Authority held that provision 2, which would entitle bargaining unit employees to administrative leave to participate in a fitness program under certain conditions, did not affect management's right to assign work, because it would provide leave only where a supervisor has determined that such leave would not interfere with workload demands. The Authority also held that the provision was not contrary to Comptroller General precedent or 5 U.S.C. § 7901. The Authority also found provision 8 -- which stated that the rights set forth in Article 41 of the parties' collective bargaining agreement would apply regardless of who conducted an employee interview, so long as the interviewer was acting as a representative of the employer -- within the duty to bargain. Specifically, the Authority held that the provision served merely as a preamble to other rights in the parties' agreement, and did not confer any rights itself, and even if the provision did confer a right to union representation in an investigation by the Office of Inspector General (OIG) when the OIG official is a representative of the Agency, the provision would not be contrary to law.

The Authority found provisions 6, 7, and 9 outside the duty to bargain. With regard to provision 6, which provided Union officials with the right to review unsanitized evaluation materials necessary for the preparation of grievances over competitive selection actions, the Authority found that disclosure of the material required by the provision was not required by the Freedom of Information Act, 5 U.S.C. § 552, and, in turn, was barred by the Privacy Act. The Authority concluded that provision 6, by requiring disclosure, was contrary to the Privacy Act, and was outside the duty to bargain. The Authority also found provision 7, which would grant credit for seniority in competitive promotion procedures, outside the duty to bargain. The Authority held that one section of the provision did not satisfy the regulatory requirements for a job analysis, as set fort in 5 C.F.R. § 300.103, and as the Union did not request severance, the Authority did not address whether or not the other section of the provision was within the duty to bargain. The Authority also found provision 9 -- which would require the Agency to provide an interviewed employee with either a tape recording of his or her interview or, if a stenographic record of the interview was made, a copy of that record -- outside the duty to bargain. The Authority found that the provision affected management's right to determine its internal security, and did not constitute an appropriate arrangement.

Arbitration Cases

PenIn Federal Aviation Administration, Washington, D.C. and Professional Airways Systems Specialists, 55 FLRA No. 198 (2000), the Authority reviewed the Agency's exceptions to an arbitrator's award finding that the Agency violated the parties' collective bargaining agreement by unilaterally implementing a change in its established past practice of allowing Union participation on selection panels, without providing the Union with notice and an opportunity to negotiate over the change, and ordering that the parties return to the status quo ante and conduct any future change in the past practice in accordance with the parties' agreement.

The Authority found that the selection panels at issue involved the Union in the selection process through rating or interviewing applicants, and as such, existing Authority precedent supported a finding that the award affected management's rights under section 7106(a) of the Statute. The Authority found that the Arbitrator enforced an arrangement designed to prevent employees from being harmed by unfair or inaccurate ratings, and that this arrangement did not abrogate management's rights to assign work and select employees, because under the Arbitrator's interpretation, the past practice did not preclude the Agency from exercising, or from choosing not to exercise its right, to assign work and select employees. The Authority also found that the award reflected a reconstruction of the situation that would have existed had the Agency not acted contrary to its contractual obligations, and the Authority concluded that the award was not contrary to management's rights. The Authority also found that the Arbitrator did not exceed his authority, and that the award did not fail to draw its essence from the parties' agreement.

PenIn American Federation of Government Employees, Local 3615 and Social Security Administration, Office of Hearings and Appeals, 55 FLRA No. 187 (1999), the Authority reviewed an arbitration award in which the Arbitrator denied a class action grievance alleging that the Agency violated the parties' collective bargaining agreement, and committed prohibited discrimination based on race and handicap, by failing to promote the grievants and/or provide the grievants with opportunities for promotion. The Union's exceptions claimed that the award was deficient because: (1) it was contrary to Title VII discrimination standards; (2) it was based on nonfacts because the Arbitrator made "inaccurate and misleading" factual findings in determining that the Agency had presented legitimate, nondiscriminatory reasons for its actions; and (3) the Arbitrator exceeded his authority because he failed to address the Agency's contractual obligations.

The Authority held that the Arbitrator properly found that the Agency had articulated legitimate, nondiscriminatory reasons for its actions. The Authority also rejected the Agency's argument that the award was based on nonfacts, deferring to the Arbitrator's factual findings that the Agency decided, for reasons of operational efficiency, that the work at issue would be conducted at the hearing offices, rather than the headquarters office where the grievants worked, and that a regulatory change would have been required to assign this work to the grievants. Finally, the Authority found that the Arbitrator did not exceed his authority by failing to address the Agency's contractual obligations, as the award discussed and applied the discrimination principles argued by the Union.

Pen In U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia and Tidewater Virginia Federal Employees Metal Trades Council, Local 734, 55 FLRA No. 178 (1999), the Authority denied the Agency's exceptions to an arbitrator's award sustaining a grievance alleging that the Agency had improperly denied sick leave to the grievant.

First, the Authority found that the Agency had not demonstrated that the award was contrary to 5 C.F.R. § 630.403. In this connection, the Authority determined that the parties' agreement provided that employees were not required to submit medical evidence to substantiate absences of 3 days or less related to recurring medical conditions. The Authority also found that the award did not violate management's right to discipline, because the Arbitrator was enforcing an appropriate arrangement, and because the remedy provided the grievant with sick leave, which he would have been entitled to absent the Agency's contractual violation. The Authority also held that the Arbitrator did not exceed his authority by deciding an issue that was not before him, and the Authority found that the Agency had failed to demonstrate that the award failed to draw its essence from the parties' agreement. Accordingly, the Authority denied the exceptions.

COURT CASES

  Scale

ScaleFLRA v. U.S. Department of Justice, No. 97-4001 (2d Cir. Oct. 7, 1999), enforcing Case Nos. BN-CA-50149, BN-CA-50156, BN-CA-50698, BN-CA-50700, and BN-CA-50701. On remand from the Supreme Court (119 S. Ct. 2387 (1999)), the Second Circuit enforced the Authority's order in the above-referenced cases. The Authority found that the Agency committed ULPs when it denied an exclusive representative and certain unit employees their section 7114(a)(2)(B) representation rights during Office of the Inspector General (OIG) investigations. The Supreme Court had vacated an earlier Second Circuit decision that denied the Authority's application for enforcement, instructing the court to reconsider its decision in light of NASA v. FLRA, 119 S. Ct. 1979 (1999). In NASA v. FLRA, the Supreme Court affirmed the Authority's decision that an OIG investigator is a "representative of the agency" when examining a bargaining unit employee who reasonably fears that discipline might result from the examination. The Second Circuit reconsidered its earlier position and granted the Authority's application for enforcement.

ScaleAssociation of Civilian Technicians, Silver Barons Chapter and Silver Sage Chapter v. FLRA, Nos. 98-70838 & 98-71031 (9th Cir. Jan. 10, 2000), reviewing 54 FLRA 595 (1998). The Ninth Circuit denied the Union's petition for review of an Authority decision dismissing a ULP complaint against an Agency. The Authority had ruled that the Agency's refusal to implement a Panel-imposed provision for official time for lobbying did not violate the Statute because the provision was inconsistent with a prohibition in the Agency's Appropriations Act. The court agreed with the Authority's interpretation of the Appropriations Act and affirmed the Authority's holding that the provision was inconsistent with federal law. Therefore, the court agreed, the Agency was not required to include the provision in the collective bargaining agreement.

ScaleSocial Security Administration, Baltimore, Maryland v. FLRA, No. 99-1157 (D.C. Cir. Jan. 18, 2000), reviewing 55 FLRA 246 (1999). The D.C. Circuit granted the Agency's petition for review and reversed the Authority's order that an Agency pay post-judgment interest on liquidated damages awarded employees through arbitration under the Fair Labor Standards Act. The Authority had ruled that such interest was permissible under the Back Pay Act. The D.C. Circuit disagreed, holding that liquidated damages are not "pay, allowances, or differentials" within the meaning of the Act.

ScaleLuke Air Force Base v. FLRA, Nos. 98-71173 & 98-71347 (9th Cir. Dec. 30, 1999), reviewing 54 FLRA 716 (1998), petition for rehearing pending. The Ninth Circuit granted the Agency's petition for review of an Authority decision holding that the Agency violated section 7114(a)(2)(A) by not providing the Union with notice and opportunity to be represented at a "formal discussion." The Authority had determined that a meeting in which a bargaining unit employee and the Agency settled an EEO complaint was a "formal discussion" within the meaning of section 7114(a)(2)(A) and, therefore, the Union had the right to be represented. The Ninth Circuit disagreed, noting that a "formal discussion" must involve a "grievance" and holding that a complaint brought pursuant to EEOC procedures was not a "grievance" within the meaning of section 7114(a)(2)(A).

Scale FLRA v. Arkansas National Guard, No. 99-1974 (8th Cir. Oct. 14, 1999), enforcing 55 FLRA 63 (1999). The Eighth Circuit summarily enforced an Authority order requiring the Agency to bargain over a proposal that the Agency provide "ready to wear" uniforms for National Guard civilian technician employees.

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.

4/10 Compressed Work Schedule

Department of Justice, Federal Bureau of Prisons, Federal Corrections Institution, Tucson, Tucson, Arizona and Local 3955, American Federation of Government Employees AFL-CIO, 99 FSIP 153 and 99 FSIP 162 (October 29, 1999), Panel Release No. 426 (Decision and Order). The Panel determined that the case, concerning the rescinding of a 4/10 compressed work schedule (CWS) instituted as a pilot project, should be resolved on the basis of written submissions from the parties followed by an informal telephone conference with a Panel representative. The Employer proposed not instituting such a schedule permanently because the trial period demonstrated that the schedule resulted in a substantial increase in overtime costs; and because CWS does not permit managers the same amount of scheduling flexibility as a conventional schedule. The Union noted that the increase in overtime costs during the trial period resulted from issues unrelated to the 4/10 schedule, and proposed that the schedule be continued. The Panel concluded that the Employer, by failing to account for other significant influences on overtime costs, had failed to demonstrate that the 4/10 schedule resulted in the increased costs. Therefore, the Panel ordered the Agency not to rescind the 4/10 schedule.

"Beckwith" Rights, Alternative Work Schedules, Travel and Per Diem Expenses, Time-Off Awards, Reopener on Gainsharing, Flexiplace

Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and Chapter 201, National Treasury Employees Union, 99 FSIP 96 (November 24, 1999), Panel Release No. 426 (Decision and Order). The Panel determined that the case, involving six issues in successor collective bargaining agreement negotiations, should be resolved in an informal conference with a Panel representative.

On the issue of "Beckwith" rights, the Union proposed that the Employer provide employees under criminal investigation with a statement of their rights. The Employer proposed that the Union's statement of rights was unnecessary because the statement did not reflect the Supreme Court's Beckwith decision, and because the Employer already had a practice of notifying employees of their rights. The Panel adopted the Union's proposal. In this regard, the Panel found that the Union's proposal would help ensure due process and avert litigation. Additionally, the Employer has agreements with other bargaining units to advise employees of these rights, and the Employer did not assert that the proposal would hinder its investigations.

On the issue of alternative work schedules, the Union proposed that the Employer provide universal flexbands and core hours to all unit employees. In this regard, the Union argued that its proposal was the same as the wording in the parties' current Master Collective Bargaining Agreement (MCBA). The Employer proposed that different offices be able to set their own flexbands and core hours in order to best serve the personnel they support. The Panel adopted the Union's proposal, which it found to be fairer to employees, and consistent with previously agreed upon standards. The Panel also noted that the Union's proposal represented the status quo and that the Employer had not supported its position that a change was necessary in work schedule policy.

On the issue of mid-contract negotiations, specifically, the Employer covering Union travel expenses and providing briefings regarding changes, the Union proposed that the Employer cover the travel expenses of a negotiator who would travel from the Employer's facility in Fort Worth, Texas, to Washington D.C. for negotiations, and that the Employer brief the Union on mid-term changes. The Employer proposed that, to limit expenses, the negotiator from Fort Worth participate in negotiations through video conferencing and that it provide briefings only when necessary because the Union has not demonstrated a need to change the briefing policy. The Panel adopted compromise wording requiring video conferencing for negotiations, as set forth in the parties' ground rules for MCBA negotiations, and requiring briefings at the Union's request.

On the issue of time-off awards, the Union proposed standards for recognizing an employee's work with a time-off award. The Employer disagreed with the Union's proposal, but the Employer did not provide an alternative proposal. The Panel adopted the Union's proposal because the Employer had not demonstrated a problem with the proposal, and because the Employer had earlier put forward an identical proposal.

On the issue of reopening negotiations on the gainsharing program, the Union proposed that it be allowed to reopen negotiations on this issue in mid-2000 in order to assess the effectiveness of the program. The Employer argued that it would be "excessive and highly unreasonable" to permit the Union to reopen negotiations. As such, the Employer proposed that the Union be permitted to reopen negotiations on this program after it had been in effect for 2 years. The Panel adopted the Employer's proposal because the Union's proposed 6-month reopener would not provide sufficient time to adequately assess the gainsharing program.

On the issue of flexiplace, the Union proposed that employees who had received a rating of "achieved" or higher be permitted to participate in the program, unless an employee needs frequent access to information that cannot be moved from the employee's office. The Employer proposed stricter criteria for determining whether an employee may participate in the flexiplace program. In addition to the requirement that an employee have received a rating of "achieved" or higher, the Employer proposed that the employee not have been disciplined within a certain period, that the employee have reached the journeyman level and, among other things, the employee be willing to sign and abide by the Employer's agreement concerning flexiplace. The Panel adopted the Employer's proposal because the stricter criteria would be more likely to guarantee the success of the program, and thereby benefit employees in the long run.

Change in Work Hours

Department of Veterans Affairs, Veterans Affairs Black Hills Health Care System, Fort Meade, South Dakota and Local 2342, American Federation of Government Employees, AFL-CIO, 00 FSIP 1 (December 13, 1999), Panel Release No. 427 (Decision and Order). The Panel determined that the case, concerning a change in firefighters' work hours, should be resolved in an informal conference with then Panel Chair Betty Bolden. In response to a budgetary shortfall, the Employer proposed changing the firefighters' work hours from 56 hours per pay period to 72 hours per pay period immediately in order to reduce costs. The Union claimed that the Employer's budgetary claims were exaggerated, and proposed that the Employer implement the reduction in hours over the course of 4 years. The Union argued that an immediate reduction would drastically cut the firefighters' pay, and be a hardship to them. The Panel, noting that the cut in pay for firefighters would be significant, adopted a compromise solution which permitted the Employer to implement the change in hours after two years.

Office Renovations

Social Security Administration, Ventura Field Office, Ventura, California and Local 2452, American Federation of Government Employees, AFL-CIO, Case No. 99 FSIP 142, (December 14, 1999), Panel Release No. 427 (Decision and Order). The Panel determined that the case, concerning office renovations, should be resolved through an informal conference with current Panel Chair Bonnie Prouty Castrey.

The Union proposed that the Employer erect a wall to separate the FEI from the employee work area in order to prevent irate and dangerous claimants from harming employees; that the Employer install a privacy wall behind the reception area in order to limit the noise from the reception area that reaches employees; that managers escort wheelchair-bound claimants when they cannot use the public restroom and need to use the employee restroom; and that the training room meet health and safety requirements and be a comfortable setting for training. The Employer proposed that there be no changes in the FEI work area or the general work area. In this respect, the Employer asserted that there is no basis for concluding that employees face any danger from claimants. With regard to wheelchair-bound claimants who use the employee restroom, the Employer noted that such escorts are rare. Therefore, the Employer proposed not designating who would escort such claimants. As for the training room, the Employer asserted that the Union's proposal was not necessary because the parties' Master Collective Bargaining Agreement (MCBA) contained wording providing for a safe and healthy environment. Additionally, the Employer opposed adding wording requiring that the training room be "comfortable" because the parties' interpretations of that word would differ, and would lead to grievances.

The Panel adopted the Employer's proposal on the issue of a wall separating the FEI and the work area. The Panel noted that the Union had failed to demonstrate that constructing a wall would provide an appreciable higher degree of safety justifying the expense. With respect to building a wall behind the reception area, the Panel noted that Ms. Castrey had noticed a high noise level in that area. As a result, the Panel adopted the Union's proposal. Concerning escorts for wheelchair-bound claimants, the Panel adopted the Union's proposal, but modified it so that it did not designate who will escort the claimants. With respect to the training room, the Panel adopted the Employer's proposal, and stated that the Union's proposal was unnecessary because the MCBA covers health and safety requirements.

Official Time, Desk Audits, Reserved Parking Spaces, Access to Personnel Files

Department of Veterans Affairs, Eisenhower VA Medical Center, Eastern Kansas Healthcare System, Leavenworth, Kansas and Local 1765, National Federation of Federal Employees, Federal District 1, IAM & AW, AFL-CIO, Case No. 99 FSIP 144 (January 7, 2000), Panel Release No. 427 (Decision and Order). The Panel determined that the case, concerning four issues resulting from successor supplemental agreement negotiations, should be resolved on the basis of written submissions, including rebuttal statements, from the parties.

On the issue of official time for representational duties, the Union proposed that the Union president receive 100-percent official time, and that another Union official receive at least 50-percent official time. The Employer proposed that the Union president receive 50-percent official time, and additional official time by mutual agreement, as needed. The Panel essentially adopted a modified version of the Employer's proposal, which increased the amount of official time for the Union president to 60 percent.

On the issue of desk audits regarding the appropriate classification of positions, the Union proposed that they be performed at the facility with the employee. The Employer proposed that audits be performed by different means depending on the type of position to be audited. The Panel concluded that neither side had sufficiently demonstrated that necessity of supplementing the wording of the parties' Master Agreement on the issue of desk audits. Therefore, the Panel ordered the parties to withdraw their proposals.

On the issue of reserved parking spaces, the Union proposed returning 17 parking spaces, previously reserved for physicians, to other unit employees, and sought to designate two of the parking spaces for Union officials. The Employer basically proposed providing "suitable parking space for bargaining unit employees." The Panel adopted the Employer's proposal.

On the issue of access to official personnel files, the Union proposed that employees be guaranteed immediate access to their personnel files during normal business hours at the adjacent facility where they are kept. The Employer proposed that employees be granted access to their personnel files within a reasonable period of time after requesting to view the file at the Eisenhower VA Medical Center. The Panel ordered that this issue continue to be governed by the parties' Master Agreement with a modification requiring that the Employer expedite requests where good cause is shown.

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 Social Security Administration, Miracle Mile Field Office, Los Angeles, California and Local 2452, AFGE, AFL-CIO, Case No. 99 FSIP 150 (closed October 5, 1999), the parties reached impasse over a procedure for reassigning the employees. Then Panel Chair Betty A. Bolden conducted a mediation-arbitration and the dispute was resolved.

— In Department of the Interior, National Park Service, Northeast Region, Philadelphia, Pennsylvania and Local 407, American Federation of Government Employees, AFL-CIO, Case No. 99 FSIP 138 (closed November 19, 1999), the parties reached impasse over the payment of travel and per diem expenses for the Union negotiator. Panel Member Stanley Fisher conducted an expedited arbitration proceeding during which the dispute was resolved.

— In Department of Defense, Domestic Dependents Elementary and Secondary Schools, Laurel Bay Dependents Schools, Laurel Bay, South Carolina and Local 1951, AFGE, AFL-CIO, Case No. 00 FSIP 24 (closed January 28, 2000), the parties reached impasse over a reopener clause and issues related to pay for Educational Aides. Panel Member John Wofford conducted an informal conference and the dispute was resolved.

GENERAL COUNSEL'S ADVICE TO REGIONAL DIRECTORS

Note: There were no General Counsel advice to Regional Directors issuances during the period covered by this Bulletin.

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 Not to Require Any Bargaining Unit Employee to Take Part in a Weingarten Investigation Without Allowing the Union to Attend Such Examinations, When Requested by a Unit Employee Who Reasonably Believes That Discipline May Result

After an Administrative Law Judge issued a decision and proposed order, the parties agreed that the Agency would post a notice agreeing not to require any bargaining unit employee to take part in examinations in connection with an investigation pursuant to section 7114(a)(2)(B) of the Statute, without providing the Union an opportunity to attend such examinations when the employee reasonably believes that the examination might result in disciplinary action against the employee and the employee requests such representation. The Agency further agreed not to tell any Union representative who attends such an examination that his/her presence is interfering with or obstructing the examination and could result in disciplinary action against the representative.

Agency Agrees to Rescind Counselings, Oral Admonishments, and Reprimand Issued to Unit Employees and to (1) Reevaluate a Unit Employee for the Appraisal Year and Rate Him No Lower than the Previous Year; and (2) Reinstate Him to a Position with Comparable Duties and Responsibilities

After issuance of complaint and notice of hearing, the parties agreed that the Agency would rescind counselings, an oral admonishment, and a letter of reprimand issued to unit employees. The Agency further agreed to reevaluate one of the employees and to rate him no lower than the previous year and to reinstate him to a position with comparable duties and responsibilities to the position he previously held. The Agency also agreed to post a notice stating that (1) it will not discriminate against unit employees to discourage union membership, or because they have filed a complaint, or petition, or given information or testimony under the Statute by counseling, admonishing or reprimanding them or by lowering performance appraisals, or by reassigning them; and (2) it will not conduct examinations of employees in connection with investigations without affording the Union, upon request, the right to be present.

Agency Posts Notice Agreeing to Bargain with Union to the Extent Required by the Statute Before Changing Rules or Regulations Concerning Official Travel Expenses and to Bargain Over Procedures for Implementing and Appropriate Arrangements for Employees Adversely Affected by Replacing One Travel Card with Another

In a post-complaint settlement agreement, the parties agreed that the Agency would post a notice stating that it will not fail or refuse to bargain with the Union to the extent required by the Statute before changing rules or regulations concerning travel expenses. The Agency also agreed to bargain with the Union over procedures for implementing, and appropriate arrangements for employees adversely affected by, the replacement of one travel card with another. The parties also agreed that within 40 days after the agreement is approved, (1) the Union would submit any request for data it intends to use in preparing bargaining proposals; (2) the Agency would provide the Union all of the data to which it was entitled under the Statute either by hard copy or with instructions on where to locate the data on the Internet; and (3) within 30 days after receiving the data requested, the Union would submit bargaining proposals.

Agency Posts Notice Agreeing to Provide Information to the Union that is Necessary for the Union to Fulfill its Representational Responsibilities under the Statute

After issuance of complaint and notice of hearing, the parties agreed that the Agency would post a notice stating that it would provide the Union with information that is necessary to perform its representational responsibilities. In particular, within 10 days of approval of the agreement, the Agency will provide sanitized copies of all annual performance appraisals of certain attorneys for a two-year period as well as attorney inventory reports and copies of all documents relating to a certain employee that are located in the "drop files" of his manager or other reviewers of his performance.

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 Not to Bypass the Union by Dealing Directly with Unit Employees Who Have Designated the Union as Their Representative in an EEO Matter and to Post Notice Agreeing Not to Deal Directly with Any Bargaining Unit Employee Concerning Grievance Matters When an Employee Has Designated the Union as His/Her Representative

In a post-complaint settlement agreement, the Agency stated that it recognized its obligation under the Statute not to bypass the Union by dealing directly with employees who have designated the Union as their representative in an EEO matter. The Agency acknowledged the Union's role in this regard and agreed (1) not to make statements to employees which suggest otherwise; and (2) to send the immediate supervisor a letter reminding him of the Agency's responsibilities under the Statute. Further, the Agency agreed to post a notice to all employees outlining their rights under the Statute, including the Agency's agreement not to deal directly with any bargaining unit employee concerning grievance matters when the employee has designated the Union as his/her representative.

Agency Agrees to Post Notice Stating That it Will (1) Negotiate with the Union to the Extent Required under the Statute with Regard to the Implementation of a Professional Enhancement Program (PEP) and (2) Suspend the PEP until Negotiations Have Been Completed

In a pre-complaint settlement agreement, the Agency agreed to post a notice to all employees stating that it would negotiate in good faith with the Union with regard to the implementation of a PEProgram to the full extent required under the Statute and in accordance with the parties collective bargaining agreement. The Agency also agreed to suspend the PEP until such time as the parties have completed negotiations and have fulfilled their obligation to bargain under the Statute.