DEPARTMENT OF THE ARMY U.S. CORPS OF ENGINEERS NORTHWESTERN DIVISION PORTLAND, OREGON and UNITED POWER TRADES ORGANIZATION

 


In the Matter of

DEPARTMENT OF THE ARMY
U.S. CORPS OF ENGINEERS
NORTHWESTERN DIVISION
PORTLAND, OREGON

and

UNITED POWER TRADES ORGANIZATION

Case No. 06 FSIP 41

 

ARBITRATOR'S OPINION AND DECISION

   The United Power Trades Organization (Union) 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 Department of the Army, U.S. Army Corps of Engineers (USACE), Northwestern Division, Portland, Oregon (Employer).

   After an investigation of the request, which concerns ground rules for negotiating the impact and implementation of the Employer’s Random Drug Testing Program,1/ the Panel directed the parties to mediation-arbitration with the undersigned. Accordingly, on April 24, 2006, a mediation-arbitration proceeding was held by telephone with representatives of the parties. The parties were unable to resolve the outstanding issues during the proceeding. In reaching this decision, I have considered the entire record in this matter, including the Employer’s pre-hearing submission and the Union’s post-hearing response.

BACKGROUND

   The Employer operates approximately 20 hydroelectric plants in the northwestern quadrant of the United States; they are located on the Snake, Willamette, and Columbia Rivers. The Employer is also responsible for flood control and other environmental projects. The Union represents approximately 630 bargaining-unit employees who work in trades and crafts at various hydroelectric plants, and at dams and locks within the Northwestern Division. Bargaining-unit employees occupy positions such as laborer, utility worker, rigger, crane operator, welder, painter, carpenter, power plant operator, mechanic, and electrician. Unit employees' wages are set through surveys conducted by the Department of Defense Wage Fixing Authority. The parties' collective bargaining agreement (CBA) is due to expire on September 19, 2007.

ISSUES AT IMPASSE

   The parties disagree over: (1) the number of bargaining team members; (2) the amount of official time the Union’s bargaining team should receive to prepare for the negotiations; (3) whether the Employer should pay for the travel and per diem expenses of four Union bargaining team members for a 1-day preparation meeting in Spokane, Washington; (4) the conditions under which the Employer could implement its Random Drug Testing Program prior to the completion of bargaining and Agency Head review; and (5) the number of Union bargaining team members who would be on official time in connection with Panel proceedings or binding interest arbitration hearings if the parties reach an impasse during their negotiations.

1. Size of Bargaining Teams

    a. The Union’s Position

The Union proposes the following wording:

Each negotiating team will have five (5) members. The members of the UPTO negotiating team that are North Pacific Division employees shall be on official time during the negotiation sessions and when traveling to and from the negotiation sessions. The Agency agrees to pay the travel and per diem expenses incurred by all UPTO negotiators that are also Corps employees, in accordance with applicable travel regulations.

Contrary to the Employer’s view, "employees see random drug testing as a very large issue and each of [the Union’s four] Districts insist on a representative at the table." In the past, bargaining between the parties has involved as few as two and as many as five negotiators, with management paying the costs each time, so the Union’s proposal is not without precedent. Moreover, "this number of negotiators is not a financial burden on the Agency." It regularly gathers the District’s managers together for face-to-face meetings, and "did not complain" that cost was an issue when the parties recently had five from each side at the table during bargaining over new job descriptions. More importantly, the Union needs five negotiators to do justice to the matter at hand. Significant time and resources will be required to research the existing case law on drug testing procedures and appropriate arrangements, and "the Union will have to project just how these procedures will work in our particular and unique circumstances." In summary, anything less than five negotiators at the table would "undermine the credibility of the process" and fail to ensure that bargaining unit members are adequately represented.

   b. The Employer's Position

The Employer’s counter-offer is as follows:

Each team will have two (2) members.  The members of the UPTO negotiating team that are North Pacific Division employees shall be on official time during the negotiation sessions and when traveling to and from the negotiation sessions.  The number of UPTO negotiating team members on official time will not exceed the number of individuals designated as representing the Agency and present in these sessions.  The Agency agrees to pay travel and per diem expenses incurred by all UPTO negotiators that are also Corps employees, in accordance with applicable travel regulations.

The Union contends that drug testing is a "controversial change" requiring a substantial number of negotiators at the bargaining table. The Government and agency-wide regulations at issue, however, "have been successfully implemented" at other locations within USACE, so there is no need for more Union negotiators on official time and travel status than the two that management will have. Limiting the number of negotiators to two "will promote expeditious and efficient bargaining as well as some measure of control on costs." The Union’s justification for compelling the Employer to "underwrite the attendance of additional Union negotiators" is based on its need to "merely give the appearance that [it] did all that it could," rather than an "inability to represent the issues of bargaining unit employees in three Agency job responsibility categories."

CONCLUSION

    Having carefully considered the parties’ positions on this issue, including the past practice of the parties, I shall order the adoption of the Employer's offer. While there is no written contract setting out guidelines on impact-and-implementation disputes, the past practice conforms to the parties' ground rules for their bargaining over the successor CBA in 2000 which anticipates official time and the payment of travel and per diem expenses for the same number of Union negotiators as designated by management. Here, management has offered two negotiators, and I find no compelling reason to change this past practice.

2. Official Time to Prepare for Negotiations

a. The Union’s Position

The Union proposes the following wording:

Each Union negotiator up to a maximum of four shall be entitled to utilize a bank of 40 hours of official time in order to prepare for the negotiations, prior to the commencement of the negotiations. No official time allocated under these ground rules shall be considered a substitute for official time already authorized under current agreements.

Its request for official time to prepare for these important negotiations is "very minimal" given that "the Union bears the burden of developing the proposed agreement from scratch" and that its negotiators should be expected to take longer than if they were full-time labor relations professionals. While the Employer contends that the bank of hours in the current CBA should cover the Union’s need for preparation time, the fact it has proposed an additional bank of 20 hours is an acknowledgement that the amount allotted in the CBA is "inadequate for this large issue." It also appears that management is attempting to restrict the Union’s ability to fulfill its statutory obligations by not allowing it "the tools to adequately do due diligence on this issue." Unlike the Employer’s proposal, the Union’s would advance the purpose Congress intended when it found that "collective bargaining in the civil service is in the public interest."

b. The Employer's Position

The following is the Employer’s proposal:

Prior to the commencement of negotiations, negotiators for UPTO who are not Union Officials under article 16.3 of the Collective Bargaining Agreement shall be entitled to utilize a total bank of twenty (20) hours of official time in order to prepare for negotiations.  No official time allocated under these ground rules shall be considered a substitute for official time already authorized under current agreements. No travel or per diem is authorized in conjunction with the use of any of the hours of official time cited above.

The parties’ CBA already provides a total of 1,450 hours of official time per year for Union officers, replenished annually on January 1, and is "very clear" in stating that such time is intended to cover "research and preparation of bargaining proposals." It would be "disingenuous" for the Union to contend that the bank of hours is insufficient at this early stage of the calendar year. The Union’s proposal would amount to an "unwarranted" increase of 11 percent in the number of hours provided by the CBA. Because the Union indicated that it may use non-officers on its bargaining team, the Employer proposes to permit 20 hours of official time for this purpose. This would be adequate for polling employees in TDPs by email and telephone, reviewing email responses, and discussing bargaining issues.

CONCLUSION

   In my view, on this issue the Employer has made a convincing argument that official time for researching and planning for negotiations is established by the CBA. As such, its 20-hour-total-bank offer is more reasonable than the 40-hours-per-person offer made by the Union. The Union acknowledges that the CBA provision (Article 16.4) covers mid-term negotiations, but argues that the parties had not considered an issue of this gravity arising during bargaining. I won't look into the minds of the negotiators but will only apply the language of the agreement. Accordingly, I shall order the adoption of the Employer’s final offer to resolve the parties’ impasse on this issue, but without its last sentence concerning the payment of travel and per diem expenses. This is necessary to ensure consistency with my decision on the next issue.

3. Payment of Travel and Per Diem Expenses to Prepare for Negotiations

a. The Union’s Position

The Union’s proposal on this issue is as follows:

The Agency agrees to reimburse up to four UPTO representatives for their reasonable travel and per diem expenses in accordance with governing travel regulations for a one-day preparation meeting in Spokane, Washington (or other mutually agreed location). The time for this meeting and the travel to this meeting will come from the bank of official time given in item 8. This meeting will be approximately one week prior to the actual negotiations beginning.

The adoption of its proposal is in the best interests of both parties because it would ensure that the Union arrives at the bargaining table "prepared and coordinated having done due diligence to advance and support [its] positions." As a practical matter, the discovery of internal disagreements or new ideas for the first time at the commencement of bargaining would require the Union to take more caucus time. In addition, because the bargaining unit is scattered all over the Pacific Northwest, "asking 2 days including travel time is minimal." It is also consistent with what the Union was allowed during the last CBA negotiations. The Employer, on the other hand, is again "belittling the issue and the process" by proposing no pre-negotiation preparation meeting for the Union. While many things can be accomplished through email, "hammering out hard issues is not one of them."

   b. The Employer's Position

    Consistent with its proposed wording on the preceding issue, the payment of travel or per diem expenses should not be authorized in conjunction with any official time used to prepare for the negotiations. Forcing the Employer to "underwrite" the cost of a 1-day face-to-face meeting of Union bargaining team members "would be completely inconsistent" with section 7101(a)(1)(B) of the Statute and not "contribute to the effective conduct of public business." It is also unnecessary, as the Union’s purposes would adequately be served by the use of email, overnight mail, and a conference call from Union offices through "phone service provided by the Employer."

CONCLUSION

   On this issue, the ground rules agreement governing the parties’ negotiations over their successor CBA in 2000 provided a 2-day preparation meeting for the Union where travel and per diem is paid by management. While there is no past practice for preparation for impact-and-implementation negotiations, the Union was persuasive that this is a major issue for the bargaining unit. As such, preparation is reasonable, particularly as it is consistent with the prior ground rules governing the successor CBA negotiations. Moreover, the Union's request for a 1-day planning session (as per the 2-day session), is also reasonable. Thus, I shall order that the Employer pay for the travel and per diem expenses for the 1-day planning session for up to four Union representatives in Spokane, Washington, or some other mutually agreeable location. This will allow the Union to receive input from representatives from all of its geographically dispersed districts in preparing for the negotiations, even though only two of its representatives will actually be at the bargaining table, per my decision on Issue 1.

4. Implementation of Drug-Testing Program Prior to the Completion of Bargaining

a. The Union’s Position

The following wording is proposed by the Union:

The Agency will not implement any changes in personnel policy or conditions of employment until negotiations are complete, including impasse procedures before the FSIP and Agency approval of the agreement in accordance with 5 USC 7114(c) except as allowed by law.

Its proposal is intended to motivate the Agency to "work towards negotiable language at the table rather than simply use tactics to shortcut the proceedings." In this regard, the Employer has acknowledged that it is under pressure to implement the program. The Union fears that the Employer "will simply declare" most or all of its proposals non-negotiable, and implement the drug testing policy. Since the negotiability appeal process "often takes over a year," the parties could return to the bargaining table with the changes already in place and "the Agency without an incentive to reach an agreement."

   b. The Employer's Position

   The Employer’s proposal is: "Until negotiations are complete, the Agency will not implement any changes in personnel policy or conditions of employment, except as allowed by law." In the alternative, the Union should be ordered to withdraw its proposal. While the Employer believes that a ground rule covering this issue is "unnecessary and could be deleted," its proposal is better than the Union’s because it more clearly captures the parties’ intent that any decision to implement the drug testing program prior to the completion of all negotiations and appeals would be at the Employer’s peril, in accordance with the law.

CONCLUSION

   On this issue, I fail to discern any significant difference in the parties’ final offers. Each contains the phrase, "except as allowed by law," which ensures that neither side is deprived of any rights guaranteed by the Statute. As both proposals merely reiterate existing statutory rights and obligations, they appear to be unnecessary. Accordingly, the parties shall be ordered to withdraw them.

5. Official Time for Impasse Proceedings

a. The Union’s Position

The Union proposes:

The Agency agrees to grant official time for all UPTO negotiators, if otherwise in a duty status for attendance at FSIP or binding arbitration hearings.

The Employer’s insistence that the drug testing program is a "minor issue" requiring only two negotiators per side, and its meager offer on Union preparation time, lead the Union to believe that management "needs an incentive to come to the table and work to achieve a good agreement." By limiting the Union to less than its full team at impasse proceedings, the Employer could move "rapidly to impasse to achieve by tactic what [it] could not achieve by bargaining. That is: a very limited number at the table."

b. The Employer's Position

The Employer’s proposes the following wording:

The number of UPTO negotiating team members on official time will not exceed the number of management representatives at FSIP or binding arbitration hearings.

In combination with the Union’s proposal on the size of the bargaining teams, the Employer would be required to pay for the travel and per diem expenses of up to four Union bargaining team members in connection with subsequent impasse proceedings. This is "unwarranted," "grossly excessive," and inconsistent with statutory requirements that the amount of official time be "reasonable, necessary, and in the public interest," and that collective bargaining "contribute to the effective conduct of public business." The Employer’s proposal to grant official time and travel status to an equal number of Union representatives as the Employer, "whatever that number turns out to be," is consistent with a previous Panel decision requiring a union to pay for its own the travel and per diem costs for subsequent FLRA or FSIP proceedings.2/

CONCLUSION

   After review