DEPARTMENT OF THE INTERIOR BUREAU OF RECLAMATION LOWER COLORADO RIVER DAMS PROJECT BOULDER CITY, NEVADA and LOCAL 1978, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
In the Matter of
DEPARTMENT OF THE INTERIOR
BUREAU OF RECLAMATION
LOWER COLORADO RIVER DAMS PROJECT
BOULDER CITY, NEVADA
LOCAL 1978, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO
Case No. 91 FSIP 10
Local 1978, American Federation of Government Employees, AFL-CIO (Union), filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under section 7119 of the Federal Service Labor-Management Relations Statute (Statute) between it and the Department of the Interior, Bureau of Reclamation, Lower Colorado River Dams Project, Boulder City, Nevada (Employer).
After investigation of the request for assistance, the Panel declined to assert jurisdiction over 13 of the 42 articles in this dispute over the parties' "General Working Rules" agreement because the Employer raised questions concerning its obligation to bargain with respect to the Union's proposals regarding them. The Panel further determined that the remaining 29 articles at impasse should be resolved through an informal conference between Staff Associate Joseph Schimansky and the parties. If there were no settlement, Mr. Schimansky was to notify the Panel of the status of the dispute, including the final offers of the parties and his recommendations for resolving it. Following consideration of this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.
Mr. Schimansky met with the parties on July 24, 25, and 26, 1991, in Washington, D.C., but a complete settlement on the issues at
impasse was not reached. Mr. Schimansky reported to the Panel, and it has now considered the entire record.
The Employer's mission is the operation and maintenance of Hoover Dam. The Union represents a bargaining unit consisting of approximately 120 Wage Board operations and maintenance employee*/ at the facility. Although the parties' negotiations began about 3 years ago, they are abiding by the terms of their expired "General Working Rules" agreement until a successor is implemented.
ISSUES AT IMPASSE
The parties are at impasse over portions of three articles involving "Union Representation," "Work Outside of Classification," and "Definitions."
1. Union Representations
a. The Union's Position
The Union proposes that any official time used by its representatives in connection with Training and Apprenticeship meetings not be deducted from the bank of hours permitted the Union under the terms agreed to during the informal conference with the Panel's representative. Such meetings, which "are necessitated by the promotion or graduation of an apprentice or for the training of the apprentice in learning a trade or craft," should not be charged to the bank because the Union "has no control over" their frequency or length. Moreover, this has never been done in the past, and "it is a common practice with the companies in the power industry to provide time for the purposes designated to the apprenticeship program."
b. The Employer's Position
The Employer proposes "to utilize as final" the "Union Representation" article signed by the parties during the informal conference "without further change." The article provides the Union with, among other things, a bank of 1,040
*/ The bargaining unit consists of "prevailing rate" employees under section 9(b) of the Prevailing Rate Systems Act, Pub. L. No. 92-392, codified at 5 U.S.C. § 5343 (1988 ed.), and section 704 of the Civil Service Reform Act.
hours of official time per year. In this regard, the Union has "ample time in the bank of hours to cover specified representational requirements as well as Apprenticeship and Training meetings."
Having considered the evidence and arguments concerning this issue, we shall order the Union to withdraw its proposal. Preliminarily, there is no evidence in the record that Apprenticeship and Training meetings occur frequently, or require inordinate amounts of time. The record does indicate, however, that in addition to a bank of 1,040 hours of official time per year, the parties have agreed to exclude: (1) time used in connection with management-initiated formal meetings and grievance proceedings, and (2) all statutory entitlements to official time, from being drawn from the bank. They also have agreed that the Union may accumulate unused official time from year to year. In our view, the amount of official time available to the Union is sufficient for the performance of all of its representational responsibilities, particularly in view of the size of the bargaining unit. Thus, under these circumstances, we conclude that it would be unwarranted also to exclude official time used in connection with Apprenticeship and Training meetings from being deducted from its bank of hours, as the Union proposes.
2. Work Outside of Classification
a. The Union's Position
The Union proposes that the parties' expired "Work Outside of
Classification" article be included in their successor agreement, but modified to remove the definition of "normally" found therein. In this regard, the article in the expired agreement defines the term to mean that "in most cases the action or appointment will be done; however, it remains within the discretion of supervision higher than the Foreman level to decide if the action or appointment is required for efficient operation." The definition "strips the article of its real intent," which is "to restrict the working of employees outside of their classification, and to pay them at the appropriate rate should they be required to work in a
higher paid classification for 4 hours or more." It recently has created "many problems and resultant grievances" because management assigns employees to perform work for which they are not technically qualified, the employee performs the work capably, but "management does not pay for it." Removing the definition from the successor agreement would restore the article's original intent. Moreover "virtually every company in our prevailing survey has wording to protect employees from working out of their classification in their contract."
b. The Employer's Position
The Employer would retain the entire expired article in the successor agreement. In particular, maintaining the definition of "normally" contained therein is "essential" for allowing sufficient management flexibility in changing circumstances, "including higher level management intervention and flexibility." The Union's proposal also would place "unacceptable work assignment limitations on Foremen that are not members of the bargaining unit, and should not be contractually bound."
We find that the Union's -position provides a reasonable basis for settling the parties' dispute on this issue because it clearly has demonstrated a need for removing the definition of "normally" from the parties' expired "Work Outside of Classification" article. In this regard, the definition appears to give management virtually unfettered discretion to require employees to work outside of their classifications thereby effectively insulating its decisions from arbitral review. We are persuaded that this has hamstrung the Union in its efforts to ensure that employees required to work in higher paid classifications are compensated at the appropriate rate as agreed to elsewhere by the parties. In our view, the Union's position would put the parties on an equal footing before an arbitrator should specific management actions in this area be challenged through the parties' negotiated grievance procedure.
Accordingly, we shall order its adoption.
a. The Union's Position
The Union proposes that the expired "Definitions" article be replaced in the successor agreement by the following wording:
1. All reference to him or his throughout the contract refers to both him or her/he or she.
2. Emergency is a situation in which (a) facilities are in such a
condition as to be a hazard to the public, project personnel, or the equipment, or (b) there is an outage to customers which could be hazardous to life or property.
3. Temporary - Not to exceed 30 days.
4. Tour of duty - Hours of work.
5. Work Schedule - Days of work.
6. Day - The 24-hour period from 0001 a.m. to 2400 the following
7. Week - The 7-day period from 0001 a.m. Monday morning to 2400 the following Sunday night.
8. Union President - President of Local 1978, American Federation of Government Employees, Hoover Dam.
9. Hazard - A cause of immediate and serious damage.
The definition of "emergency" proposed by the Union is found in the Agency's own regulations, and had been agreed to by the Employer in a previous stage of the negotiations after the Union had agreed, at management's behest, to include the term "in many of the proposed contract articles." If the term remains undefined, as now proposed by the Employer, "management may change working conditions or contract work rules without the completion of the bargaining process at any time." Moreover, most of the companies in the parties' comparative survey "define 'emergency' or 'emergency work' in one form or another." The other terms it proposes to define have been used in the contract for many years, and their meaning has been assumed by their context. Providing specific definitions would "prevent any misunderstanding caused by a
different interpretation at some point in the future."
b. The Employer's Position
The Employer would continue to use the expired "Definitions" article in the parties' successor agreement, which includes the following wording:
Normally. Means that in most cases the action or appointment will be done; however, it remains within the discretion of supervision higher than the Foreman level to decide if the action or appointment is required for efficient operation.
Union President. This term refers to the Local President, Local
1978, American Federation of Government Employees, Hoover Dam.
Work Schedule. This term means days of work.
Tour of Duty. This term means hours of work.
As it states in connection with the previous issue, "it is essential to maintain the current definition of 'normally' for reasons enumerated" above. In addition, the Union's proposed definition of "emergency" is unacceptable "since it is too narrow to allow an appropriate response in some emergency situations." The term "must be defined broadly enough to allow on-site judgment to prevail." The Union's other definitions are unnecessary and could lead to technical ambiguity when other sections of the agreement are interpreted.
Upon consideration of the record developed by the parties with
respect to this issue a we conclude that neither-of their positions would serve as a suitable basis for resolving the dispute. On the one hand, among other things, the Union's proposed definitions for the terms "emergency" and "hazard" appear impractical and unwise because they attempt to restrict management from using its best judgment in responding to sudden and unexpected situations on a case-by-case basis. Moreover, it has failed clearly to demonstrate a need for these, and a number of its other proposed definitions. As to the Employer's position, we noted previously that the expired article defines "normally" in a manner which effectively prevents a management decision that an action is required for "efficient operation" from being effectively challenged before an arbitrator. For these reasons, we shall order the parties' to adopt the wording in their ex