United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of DEPARTMENT OF DEFENSE DEFENSE LOGISTICS AGENCY DEFENSE PLANT REPRESENTATIVE OFFICE BETHPAGE, NEW YORK
AND LOCAL 2693, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO	Case No. 94 FSIP 103

DECISION AND ORDER

    Local 2693, 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 the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the Department of Defense, Defense Logistics Agency, Defense Plant Representative Office (DPRO), Bethpage, New York (Employer).

   After investigation of the request for assistance, the Panel determined that the dispute should be resolved through an informal teleconference with a Panel representative. The parties were advised that if no settlement were reached, the Panel's representative would notify the Panel of the status of the dispute, including the final offers of the parties, and would make recommendations for resolving the impasse. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.

   Pursuant to the Panel's determination, Staff Associate Nick G. Duris conducted a telephone conference with the parties on June 28, 1994. During the proceeding, the parties were unable to reach agreement on the outstanding issue. Mr. Duris has reported to the Panel, and it has now considered the entire record.

BACKGROUND

    The Employer's mission is to administer Government contracts for major weapons systems and logistical support items. The Union represents approximately 200 bargaining-unit employees who hold positions such as contract administrator and industrial specialist. The parties are covered by a master collective-bargaining agreement (MCBA) that expires in 1996. They are also subject to a local supplemental agreement that remains in effect until a new agreement is reached.

ISSUE AT IMPASSE

    The issue at impasse involves stays of disciplinary actions for Union officials.

POSITIONS OF THE PARTIES

1. The Union's Position

The Union's proposal is as follows:

DPRO Grumman-Bethpage and AFGE, Local 2693 agree that whenever a disciplinary action is proposed against a Union official and that Union official interposes a defense of protected activity under P.L. 95-454,⁽¹⁾ then the imposition of any subsequent disciplinary penalty shall be postponed, until the underlying dispute is either adjudicated by an arbitrator or, for 120 days, whichever occurs first.

Its proposal would provide "a contractual safeguard against unjustified and unwarranted disciplinary action[s]" against Union officials for performing their representational functions under the law. This is necessary due to past disciplinary action taken against the Union president.⁽²⁾ Although vindicated by the arbitrator's decision, this nevertheless has produced a "chilling" effect on the Union representatives. In this regard, they fear that "similar legitimate Union comment" would subject them to similar discipline or even possible removal. A brief stay of 120 days to permit appeal to a third party not only would alleviate this concern, but would also avoid the necessity of possible corrective actions later on. Finally, since proposal limits its application to Union officials, who are less than 4 percent of the bargaining unit, its implementation should not be overly disruptive to the Employer's operations.

2. The Employer's Position

    Essentially, the Employer would have the Panel order the Union to withdraw its proposal. In this regard, the one-time disciplinary action against the Union president does not warrant the inclusion of a stay provision into the local agreement. Further, Union officials have plenty of options if they feel that they are being disciplined unfairly. For instance, the Union has a right to file an unfair labor practice charge if it feels that the Employer is interfering with a protected right. It also can appeal to the Merit Systems Protection Board on the validity of any charge for which an official is disciplined. Moreover, it can file a grievance. These options provide more protection than given any other types of employees. Additionally, the Union president has indicated that he might retire soon. Therefore, the Employer does not want to give him the "ability to publish defamatory statements concerning management officials he personally dislikes and then promptly retire without being subject to disciplinary action." Lastly, it opposes the stay provision because it "would infringe on its ability to take prompt and appropriate action against an employee for behavior which undermines the good order and discipline of the command."

CONCLUSIONS

    Having considered the evidence and arguments presented, we conclude that the Union has failed to demonstrate a need for its proposal. In this regard, the record reveals that the Employer's past disciplinary action was the first taken against a Union official allegedly acting in his official capacity. We find that one instance of a third party reversing a management disciplinary action is insufficient to warrant a stay of all future proposed actions against Union officials. Further, we believe that the results of the arbitration hearing may sufficiently deter the Employer from taking similar actions in like circumstances in the future. Finally, the Panel has always been mindful that stay provisions could undermine the effectiveness of discipline and have a negative effect on the efficiency of Government operations. Accordingly, we shall order its withdrawal.

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 proceedings instituted pursuant to 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 Union shall withdraw its proposal.

 

By direction of the Panel.

Linda A. Lafferty

Executive Director

August 1, 1994

Washington, D.C.

 

1.The Union refers to the Civil Service Reform Act of 1978, specifically, 5 U.S.C. § 7102, concerning employees' rights, which states: 

Each employee shall have the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right. Except as otherwise provided under this chapter, such right includes the right -- (1) to act for a labor organization in the capacity of a representative and the right, in that capacity, to present the views of the labor organization to heads of agencies and other officials of the executive branch of the Government, the Congress, or other appropriate authorities, and (2) to engage in collective bargaining with respect to conditions of employment through representatives chosen by employees under this chapter.

2.In October 1993, a 7-day suspension was imposed upon the Union president for allegedly making improper comments against two supervisors. The Union President grieved the suspension and an arbitrator ruled in his favor, directing the Employer to give the Union president back pay and that the record of his discipline be removed from his file. The Employer filed exceptions to the arbitrator's award; the parties currently are awaiting the Federal Labor Relations Authority's (FLRA) decision.