DEPARTMENT OF AGRICULTURE FOOD AND NUTRITION SERVICE ALEXANDRIA, VIRGINIA and NATIONAL TREASURY EMPLOYEES UNION
United States of America
BEFORE THE FEDERAL SERVICE
In the Matter of
DEPARTMENT OF AGRICULTURE
NATIONAL TREASURY EMPLOYEES UNION
Case No. 05 FSIP 26
DECISION AND ORDER
The Department of Agriculture, Food and Nutrition Service, Alexandria, Virginia (Employer or FNS), filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the National Treasury Employees Union (Union).
After investigation of the request for assistance, the Panel determined that the dispute, which involves the last unresolved article for a successor master collective bargaining agreement (MCBA),1/ should be resolved through single written submissions from the parties on the issues at impasse, with evidence and arguments supporting their final offers. The parties also were advised that, after considering the entire record, the Panel would take whatever action it deems appropriate to resolve the dispute, which could include the issuance of a binding decision. The parties' final offers and written submissions were received pursuant to this procedure, and the Panel has now considered the entire record.
The Employer's mission is to "reduce hunger in partnership with cooperating organizations by providing children and low-income people access to food, a healthful diet, and nutrition education." The Union represents approximately 500 employees at the Employer's headquarters in Alexandria, Virginia, and seven regional offices, who typically work as investigators, nutrition and information technology specialists, and in clerical positions, at GS-4 through -14. The MCBA covering these parties expired April 3, 2002, but its terms continue until a successor MCBA is effectuated.
ISSUES AT IMPASSE
The parties disagree over two subsections in Article 13, Details, involving, among other things: (1) the kind of procedure that should be used for selecting employees for temporary details, and (2) whether the procedure should be used at all for details of 30 days or less.
POSITIONS OF THE PARTIES
1. The Union's Position
The Union proposes the following wording for Article 13, Section 13.02, subsections (3) and (4):
When the Employer determines that a detail assignment is available to
correct a staffing imbalance or because of workload or training needs, and merit
promotion competition does not apply, the Employer agrees to use the following
The Employer will
identify the position or positions to be detailed.
The Employer will post the individual or group of positions to be
detailed via the Intranet or ListServ process, making the opportunity available
to all employees, consistent with subsection (c) iii.
The Employer will then consider applications from among employees who
have by posting indicated an interest in the detail. In determining who will be
selected for the detail the Employer will consider the following factors:
Qualifications needed for an employee to satisfactorily perform in the
The skills and knowledge needed to effectively and efficiently
accomplish the work;
Initial consideration given to employees located in the region where
the detail will be performed;
Whether the employee has had a detail opportunity in the past twelve
Seniority at FNS.
If there are more qualified volunteers than positions, qualified
volunteers shall be selected by seniority (employee with the most service at
FNS) on a rotational basis (i.e., the same employee shall not repeatedly receive
details where there are other qualified applicants).
If there are fewer qualified volunteers than positions, FNS shall select
from among qualified employees according to the process in Section 13.02(3)(c),
using the order of least service at FNS on a rotational basis.
In cases of emergency, extreme hardship or exigent circumstances, or mission-related workload requirements (after considering all reasonable accommodations), the Employer may detail an employee without posting the affected position. Exigent circumstances include the need to detail an employee to ensure a safe workplace or non-hostile work environment. The Employer will notify the affected chapter(s) of the reason(s) for such details within 14 days. Details that were not posted due to one or more of these reasons will be posted within 90 days in accordance with the procedure in Section 13.02(3). If the emergency, hardship or exigent condition has not abated at the end of the 90-day period, the Employer will advise the local chapter of the status of the condition/detail within 5 workdays (following the 90-day period). Thereafter, the Employer will post the detail within 10 days of the condition ceasing in accordance with the procedure in Section 13.02(3) unless the detail is no longer necessary.
The existing agreement states that selections for details be accomplished in a "fair and equitable manner," but contains no specific procedures to ensure that this happens. The Union proposed wording to address this problem. The Union believes that its approach is essentially what the factfinder recommended, who stated, in part, that the "Union's need to be informed of the nature and frequency of details in order to administer the [M]CBA outweighs the Agency's new obligations to create a seniority list and electronically inform employees of details via the existing e-mail system." The Union also states that the Employer's Dallas Regional Office currently posts details using the same mechanisms proposed by the Union, and the ease with which FNS's Intranet can be used for this purpose would make the administrative burden on management minimal.
The Union states the proposal is reasonable because it gives management the latitude to fill details immediately without posting in cases of emergency, hardship, exigent circumstances (including when it needs to detail an employee to ensure a safe workplace or non-hostile work environment), and to meet mission-related workload requirements. Moreover, the Union states, the posting of detail opportunities, and the use of seniority as the basis for selection, have been found to be negotiable procedures by the Federal Labor Relations Authority (FLRA) for over 20 years. Such procedures, the Union states, have been imposed by the Panel in previous cases, and voluntarily agreed to by other agencies considerably larger than the FNS (e.g., the Internal Revenue Service, the Comptroller of the Currency, the Securities and Exchange Commission, and the Federal Deposit Insurance Corporation) without creating any difficulties for them.
The Union states that the Employer's proposal would only require details be posted when they are expected to last 31 days or longer. The Union believes this would make it practically impossible to ensure that selections are accomplished in a fair and equitable manner. For details of 30 days or less, management could continue to assign "favorite employees" who "could be selected over and over." In addition, management could manipulate the process by selecting the same employee for successive 30-day details without ever triggering its posting and selection procedures.
2. The Employer's Position
The Employer proposes that Article 13, Section 13.02, subsections (3) and (4) contain the following wording:
A detail assignment
lasting 30 days or less will not be posted. When the Employer determines
that a detail assignment, lasting more than 30 days, is needed to
correct a staffing imbalance or because of workload or training needs,
and merit promotion competition does not apply, the Employer agrees to
post the detail using the following procedures:
The Employer will
identify the position or positions to be detailed.
The Employer will post
detail position(s) via the Intranet or ListServ process, making the
opportunity available to all employees, consistent with subsection (c)
The Employer will
consider all employees who have indicated an interest in the detail. In
determining who will be detailed the Employer will consider the
for an employee to satisfactorily perform in the position;
The skills and knowledge
needed to effectively and efficiently accomplish the work;
given to location of employee;
employee has had a detail opportunity in the past twelve months;
Whether the employee can
be spared from his/her position for the duration of the detail.
In cases of emergency, extreme hardship or exigent circumstances, the Employer may detail an employee without posting the affected position. Details which were not posted due to these reasons will be posted within 120 days according to the procedure in Section 13.02(3).
The Employer states it is "not opposed to posting details when it is appropriate to do so," as reflected by the fact that it has accepted "more than two-thirds of the Union's proposal." The Employer believes the Union's requirement to select employees "solely on the basis of seniority," however, impermissibly affects management's right to assign work, under § 7106(a)(2)(B) of the Statute, and does not constitute an appropriate arrangement, under § 7106(b)(3).2/ In this regard, the FLRA has found that this right also includes the right to determine "job-related individual characteristics such as judgment and reliability." For example, the proposal would require a qualified employee with a total of 20 years of experience, but only 1 year of seniority at FNS, to be bypassed in favor of an employee with a total of 2 years of experience, both of which were at FNS, thereby interfering "with the Agency's right to completely evaluate employees being considered for detail positions." In addition, the Employer states that by attempting to define the term "emergency," the Union's proposal "directly interferes with management's right under § 7106(a)(2)(D) to take actions necessary to carry out the Agency's mission" in such situations.3/ Finally, the Employer believes that the Union's proposed procedure is "so cumbersome that it may preclude the agency from acting at all."
carefully reviewed the evidence and arguments presented in support of the
parties' positions, we shall order the adoption of the Employer's proposal to
resolve the impasse. In our view, the record is insufficient to establish the
accuracy of the Union's contention that details have been assigned repeatedly to
the same employees, thereby unfairly improving their chances of promotion.4/
In these circumstances, rather than imposing a significant change to the status
quo, we favor the Employer's incremental approach. In this regard, we note that
management has agreed, in subsection 13.02(5) of Article 13, to notify local
Union chapter presidents of any details that are assigned within their
jurisdiction. This should permit the Union to monitor effectively the Employer's
selection of employees for details so actual evidence of unfairness, if any, can
be presented during the parties' next opportunity to negotiate the matter.
Finally, we also are persuaded that the Employer's proposal should prevail
because, unlike the Union's, it includes a criterion permitting management to
consider, when filling a detail, whether an applicant can be spared from his/her
position. Such a criterion would prevent the need for additional details in
other parts of the Agency.
Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted under the Panel's regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the following:
The parties shall adopt the Employer's