United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of DEPARTMENT OF DEFENSE DEPARTMENT OF DEFENSE DEPENDENTS   SCHOOLS ALEXANDRIA, VIRGINIA
AND OVERSEAS EDUCATION ASSOCIATION, NEA	Case No. 93 FSIP 6

DECISION AND ORDER

    The Overseas Education Association, NEA (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 Defense (DOD), Department of Defense Dependents Schools, Alexandria, Virginia (DODDS or Employer).

    After investigation of the request for assistance, which concerned numerous issues arising from a variety of bargaining contexts, the Panel initially determined that the parties should resume negotiations on a concentrated schedule, with the assistance of the Federal Mediation and Conciliation Service, in an effort to settle their dispute.⁽¹⁾ Following notification from the Union that such efforts failed to result in a voluntary settlement, the Panel then determined that the dispute be directed to private factfinding.⁽²⁾ Under this procedure, the designated factfinder's fees and related expenses were to be shared equally by the parties. After receipt of the factfinder's report, which was to contain recommendations for settlement that were supported by rationale, the parties were to advise the Panel as to whether or not they were acceptable. The parties were also notified that once the Panel received the factfinder's report, and the parties' responses thereto, it would take whatever action it deemed appropriate to resolve the impasse.

    On January 10 through 12, 1994, a hearing was held before Factfinder Charles Feigenbaum in Washington, D.C., and Alexandria, Virginia. A stenographic record was made, testimony and argument were presented, and documentary evidence was submitted. A number of the issues in dispute were resolved during the course of the hearing. In accordance with the Panel's procedural determination, on April 2, 1994, the Factfinder issued his Report and Recommendations for settlement regarding the issues which remained at impasse.⁽³⁾ The parties' responses to his recommendations were also received by the Panel pursuant to its procedural determination. Subsequently, a telephone conference was held between the parties and a Panel representative in which the number of issues at impasse was further reduced to the three which remain. The Panel has now considered the entire record in the case, including the stenographic record made at the hearing. The Factfinder's Report and Recommendations is attached to this Decision and Order.

BACKGROUND

    The Employer's mission is to provide a high quality education for eligible minor dependents of military and civilian employees of DOD stationed overseas. The Union represents approximately 8,400 employees, who are mainly classroom teachers. The bargaining unit also includes school psychologists, instructors, guidance counselors, and school nurses. The Union represents employees in three of the five regions within DODDS: the Atlantic, Germany, and Pacific regions. The parties' collective-bargaining agreement (CBA) has been extended annually since its original September 1992 expiration date.

ISSUES AT IMPASSE

    The parties disagree over the Factfinder's recommendations involving: (1) the jurisdictional question of whether the Employer is obligated to negotiate concerning Union facilities (office space, parking space, and equipment); (2) the extent, if any, to which the transfer program should be expanded to include the filling of midyear vacancies; and (3) the pertinent qualification standards for employees applying for vacancies under the transfer program.

1. Jurisdictional Question Regarding Union Facilities

    a. The Employer's Position

    The Panel should adopt the Factfinder's recommended determination that the Employer is under no obligation to negotiate over the Union's proposals concerning Union facilities because the subject is neither an impact-and-implementation (I&I) nor a midterm matter. In this regard, the Factfinder essentially concluded that the issue "does not meet the test for I&I bargaining set out by the D.C. Circuit"⁽⁴⁾ (FF. Rep. at 10), and the Union "waived its right" to negotiate the matter midterm by virtue of the fact that it was "specifically addressed during negotiations which led to the [current] contract between the parties" (FF. Rep. at 11).

    b. The Union's Position

    The Union disagrees with the Factfinder's jurisdictional determination regarding Union facilities. The Factfinder's view that "there was no difference between the union proposals" in Department of Justice and the proposals in the instant case is erroneous because "precisely the opposite management decision is at issue here." Unlike Department of Justice, where "the agency decision involved the decentralization of management," the Employer's decision to centralize its personnel functions in Washington, D.C., "demands that the unit employees, all of whom are likely to be adversely affected, be assisted through the provision of a Union office space." Accordingly, the Union "requests that its proposal be accepted."

CONCLUSIONS

    Having examined the Factfinder's rationale and the parties' positions on the jurisdictional question raised by the Employer, we conclude that the Union has provided no basis for disturbing his recommendation on the issue. Accordingly, we shall order its adoption.

2. Midyear Vacancies

    a. The Employer's Position

    Essentially, the Employer proposes that the Panel not include the Factfinder's recommendation regarding midyear vacancies in the parties' transfer program agreement.⁽⁵⁾ The transfer program was never intended to be used as a vehicle for filling midyear vacancies, but instead was meant to promote employee movement into and out of remote or hardship areas the following school year. Under the recommendation, however, the transfer program's selection criteria would apply throughout the year to advertised vacancies "without regard to whether an acceptable replacement was available to fill in behind the employee who was required to be selected" using the criteria. This could result in movement midyear of teachers out of remote areas where a qualified replacement has not been identified ahead of time. Management would then be faced with having no qualified replacement to teach the children, or having to select inferior candidates from outside sources. This would "promote educational disruption and produce a negative impact on children and the instruction they receive." It also would increase unnecessarily the transportation costs associated with moving teachers to locations around the world. Finally, the recommendation would limit management's flexibility to: (1) consider equal employment opportunity factors when filling vacancies, and (2) use directed reassignments in circumstances where a particular employee has attributes, such as experience in extracurricular activities, beyond the basic qualifications for a position which may not be found in the employee identified for selection if the transfer program's selection criteria were to be used.

    b. The Union's Position

    The Union "agrees with the Factfinder that midyear vacancies will not normally be part of the transfer program except in circumstances when the vacancy is advertised." In this regard, there is a perception among bargaining-unit employees that personal favoritism sometimes plays a role in the filling of midyear vacancies. Use of the transfer program selection criteria would ensure that positions are filled fairly and equitably. Accordingly, the Panel should order the adoption of the Factfinder's recommendation.

CONCLUSIONS

    Upon careful review of the record concerning the midyear vacancy issue, we shall order the adoption of a modified version of the Factfinder's recommendation to resolve the parties' dispute. Preliminarily, we note that use of the selection criteria under the recommendation would be limited to situations where the Employer has decided to advertise to fill a midyear vacancy. This generally means that it has already failed in its attempts to fill the position locally, through a returning employee with reemployment rights, or with a Continental U.S. recruit.⁽⁶⁾ Moreover, although the Employer was unable to provide precise figures, in recent years very few midyear vacancies have been advertised due to ongoing DOD downsizing and the priority placed on finding positions for "surplus" employees. Thus, the Factfinder's recommendation appears to represent a modest expansion of the transfer program to include the filling of a small number of midyear vacancies under very specific conditions.

    We are nevertheless persuaded, however, that the Employer has raised legitimate concerns regarding educational disruptions which might occur were the recommendation to be adopted as written. For this reason, it shall be modified to include wording which requires the Employer to transfer the employee selected using the transfer program criteria only if the employee's principal has certified that a suitable replacement is available. It is our understanding that such wording merely memorializes the Employer's current practice when filling midyear vacancies. We shall also add wording intended to clarify the parties' understanding that the selection criteria would apply only when vacancies are advertised worldwide. Overall, these modifications should enhance customer service, mission accomplishment, and the quality of work life, in keeping with the good government standard, by striking an appropriate balance between the parties' interests: the Union's in ensuring that midyear vacancies are filled using objective criteria, and the Employer's in minimizing the negative impact that expanded use of the transfer program could have on its ability to provide a high quality education to the minor dependents of personnel stationed overseas.

3. Qualification Standards

    a. The Employer's Position

    The Employer proposes that the Panel order the adoption of the Factfinder's recommendation.⁽⁷⁾ Basically, it represents an acceptable compromise between the wording in the existing transfer program,⁽⁸⁾ and the position of the Union. Moreover, as it acknowledged at the factfinding hearing, wording which encompasses the qualification standards for the past 3 years on a "rolling basis" is the existing practice.

    b. The Union's Position

    The Union opposes the Factfinder's recommendation, and proposes that "a unit employee may apply in any one or more of the categories for which he or she is qualified." Such wording would be useful to bargaining-unit employees for informational purposes. Under its proposal, for transfer program purposes the contract would remain silent concerning qualification standards. Instead, the parties would rely on existing regulations permitting employees to apply for transfers as long as they meet the pertinent qualification standards for vacancies set in School Year (SY) 1988-89. Employees who only meet SY 1988-89 qualification standards could continue to apply for vacancies under the transfer program while the parties attempt to resolve the matter by negotiating changes in the existing regulation. Its position is also consistent with Article 31 ("Tuition Assistance") of the current CBA, which in certain circumstances gives employees more than 3 years to meet new qualification standards.

    The Factfinder failed to understand the nature of the parties' dispute on this subject when he issued his recommendation. Historically, the Employer acknowledged the unfairness of the existing contract wording when it issued its current regulation. At that time, it was understood that qualification standards for SY 1988-89 would apply until the parties reached an understanding on the matter, but subsequently the Employer never made the Union an offer to change the current regulation. Thus, adoption of the Factfinder's recommendation would disqualify an unspecified number of employees from applying for transfers because they continue to meet only the SY 1988-89 qualification standards,⁽⁹⁾ and were never given notice to update their qualifications for the purpose of applying for transfers under the program.

CONCLUSIONS

    We shall order the parties to adopt the Factfinder's recommendation on this issue. In this regard, the record indicates that the Factfinder was attempting to fashion a reasonable accommodation between the Union's proposal at the time, which would have allowed employees to apply for transfers if they met the qualification standards set by the Employer in SY 1988-89 or any subsequent school year, and the wording in the existing transfer program. In any event, it was the Union's responsibility to make the Factfinder fully aware of the ramifications of the issue at the time of the hearing. Moreover, the Union's current position would perpetuate negotiations over a matter clearly presented to the Factfinder for resolution. While we are mindful that its adoption could adversely affect an unspecified number of employees attempting to apply for vacancies under the transfer program, on balance, we find that the Union has provided insufficient basis for modifying the Factfinder's recommendation.

ORDER

    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 the proceeding 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:

1. Jurisdictional Question Regarding Union Facilities

    The parties shall adopt the Factfinder's recommendation.

2. Midyear Vacancies

    The parties shall adopt the following wording:

Midyear vacancies will not normally be part of the transfer program. However, in circumstances when the vacancy is advertised worldwide, the transfer program will apply in that the selection criteria in §4 will be used. In such circumstances, the Employer will be required to transfer the employee selected using the criteria in §4 only if the employee's principal has certified that a suitable replacement is available.

3. Qualification Standards

    The parties shall adopt the Factfinder's recommendation.

 

By direction of the Panel.

Linda A. Lafferty

Executive Director

June 27, 1994

Washington, D.C.

 

1.The Panel also determined to decline to assert jurisdiction over one of the issues because of duty-to-bargain questions raised by the Employer.

2.After receipt of the Panel's further procedural determination to direct the matter to private factfinding, but before a hearing was conducted, the Employer requested that the Panel decline jurisdiction over all of the Union's proposals, excluding those involving the transfer program and drawdown procedures, because of recent developments in Federal Labor Relations Authority (FLRA) case law which relieves an employer from a bargaining obligation where a matter is contained in or covered by a previous agreement. The Panel informed the Employer that its duty-to-bargain argument should be presented to the factfinder.

3.The Factfinder's recommendations address both jurisdictional and substantive matters raised by the parties. The only jurisdictional issue over which the parties continue to disagree involves the Factfinder's determination that the Employer is under no obligation to negotiate concerning Union office space, parking space, and equipment.

4.Federal Labor Relations Authority v. U.S. Department of Justice, 994 F.2d 868 (D.C. Cir. 1993)(Department of Justice).

5.The disputed wording recommended by the Factfinder is as follows: 

Midyear vacancies will not normally be part of the transfer program. However, in circumstances when the vacancy is advertised, the transfer program will apply in that the selection criteria in §4 will be used.

6.It is further understood by the parties that employees must be qualified for the position being filled, and have a performance rating of fully successful in order to be selected.

7.The Factfinder recommended the following wording: 

A unit employee may apply in any one or more of the categories for which he or she is qualified in accordance with the qualification standards published by the Employer for the pertinent school year or any of the 3 previous school years.

8.The existing wording states that: 

A unit employee may apply in any one or more of the categories for which he or she is qualified in accordance with the qualification standards published by the Employer for the pertinent school year.

9.The Factfinder's recommendation only "grandfathers" employees meeting qualification standards for the past 3 school years, i.e., only those employees meeting qualification standards for SY 1993-94, SY 1992-93, or SY 1991-92, could apply for those vacancies under the transfer program. All others, i.e., those meeting qualification standards for SY 1990-91, SY 1989-90, or SY 1988-89, would be unable to apply under the program.