United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
| In the Matter of
DEPARTMENT OF THE AIR FORCE FAIRCHILD AIR FORCE BASE FAIRCHILD AIR FORCE BASE, WASHINGTON |
|
|
AND LOCAL 11, NATIONAL FEDERATION OF FEDERAL EMPLOYEES |
Case No. 94 FSIP 111 |
DECISION AND ORDER
Local 11, National Federation of Federal Employees (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, 5 U.S.C. § 7119, between it and the Department of the Air Force, Fairchild Air Force Base, Fairchild Air Force Base, Washington (Employer or Fairchild AFB).
After investigation of the request for assistance, the Panel determined that the impasse concerning 11 provisions of a successor collective bargaining agreement (CBA) should be resolved on the basis of an informal conference 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, 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 Ellen J. Kolansky met with the parties on August 16 and 17, 1994, at Fairchild AFB, Washington. During the informal conference, the parties resolved disputes concerning parts of six articles(1) and narrowed disputes in several other articles; following the conference, the Union withdrew its proposal concerning total quality management with the Employer's concurrence; parts of four articles remain unresolved. Mrs. Kolansky has reported to the Panel on the remaining article sections in dispute and it has now considered the entire record.
BACKGROUND
The Employer's mission involves protecting the Nation; as of July 1, 1994, Fairchild converted from supporting bombers to supporting tanker aircraft. The Union represents 488 bargaining-unit employees who work in clerical and maintenance support positions. The parties' CBA expired on April 25, 1993, but continues in effect while the parties negotiate a successor agreement.
ISSUES AT IMPASSE
The issues in dispute essentially concern whether: (1) the granting of career-ladder promotions should be tied to an employee's performing the skills and tasks enumerated in the original training plan or based on the supervisor's determination that the employee has met all requirements (Article 16); (2) the specific notice period for reductions in force (RIF) should be lengthened from 60 to 91 days (Article 18); (3) the time periods for retaining letters of discipline on less serious disciplinary actions in an employee's official personnel folder or 971 file should be shortened (Article 23); and (4) the contract should specify that employees have the right to be represented during investigatory interviews which are formal discussions before oral or written statements are taken (Article 37).
POSITIONS OF THE PARTIES
1. Career-Ladder Promotions(2) (Article 16)
a. The Union's Position
The Union proposes the following:
Employees eligible for career promotions will be promoted as soon as they meet all requirements of the previously established training plan as determined by appropriate supervisory personnel.(3)
The training plan should be viewed as a contractual arrangement which binds the employee and the supervisor: the employee commits to attaining the goals of the training plan, while the supervisor commits to promoting the employee when such goals are met. The original training plan, therefore, should not be changed. Previously, one employee's promotion was delayed for over 2 years because of a series of training plan changes; each time the promotion was due, it was delayed because the employee had not mastered new skills resulting from recent changes to the plan. Delaying an employee's promotion because of such changes which are beyond the employee's control appears patently unfair. Instead, the Employer should teach employees the new skills following the timely promotion to the next higher grade level. Furthermore, such delays raise a suspicion that they are a purposeful manipulation of training requirements to stall salary increases and save money.
b. The Employer's Position
The Employer's proposal reads:
Employees eligible for career promotions will be promoted as soon as they meet all requirements as determined by appropriate supervisory personnel.
The provision properly places the responsibility for determining when a promotion should be granted on the supervisor. In addition, the Employer retains the flexibility to make essential training plan changes during the performance year to meet mission-related requirements. Exigencies leading to such changes arise, for example, when civilian employees must learn new skills to fill in for military employees who are called away for indeterminate assignments and to deal with changes in technology and equipment. The flexibility to make such changes represents the status quo. By contrast, the Union's proposal would tie the Employer's hands and might force it to continue employees in obsolete training plans. Over the past decade, some 20 to 40 employees have occupied career-ladder positions; only 1 employee, however, grieved a promotion delay related to changes in the training plan.
CONCLUSIONS
Having considered the evidence and arguments on this issue, we conclude that the parties should adopt a compromise provision to resolve the dispute. In reaching this conclusion, we are persuaded that occasional changes to the training plan are a fact of life at this installation. Being able to make such changes gives the Employer a needed measure of flexibility to adjust training plans to reflect unavoidable real changes in personnel and technology. Yet, we also are persuaded that principles of fairness dictate that the Employer has a responsibility to minimize the impact of such changes to sustain the fundamental trust between employee and supervisor. For employees occupying career-ladder positions, one building block of that trust is knowing that meeting the requirements of the training plan will be rewarded by a promotion. Ultimately, we recognize that it is the supervisor who ensures that the training plan is complete with respect to current and anticipated skills to be mastered; it is also the supervisor who assesses whether the employee has met the plan's requirements.
To achieve a balance between employee expectations and workplace needs, the compromise provision lists the training plan as one component of an employee's readiness for promotion, but leaves the supervisor with the latitude to change the training plan and to assess whether the requirements of the plan and other unenumerated factors dictate that a promotion is warranted. We do not find that the one grievance cited by the Union concerning the delay of an employee's promotion demonstrates a need to prevent the Employer from ever changing a training plan during the course of the performance year.
2. Reductions in Force (Article 18)
a. The Union's Position
The Union basically proposes that the actual separation date for employees in a RIF be 31 days beyond the 60-day specific notice period required by Government-wide regulations. Lengthening the notice period will afford employees facing the loss of employment with extra time to look for a new job in a tough job market and increase the likelihood of finding an opening at Fairchild. When the Employer lays off a significant number of employees, Government-wide regulations require it to give a 120-day notice;(4) it is unclear why a smaller group that faces exactly the same job loss hardship should receive half of the advance-notice period granted to a larger group. Furthermore, to adjust for the extended notice period, the Employer could begin to plan for the RIF sooner.
b. The Employer's Position
Basically, the Employer would continue to provide bargaining-unit employees with a 60-day specific notice period. The provision is consistent with Air Force regulations and practices at other Air Force facilities. Congress recently extended the minimum specific notice period from 30 to 60 days indicating that this is a reasonable notice period.
CONCLUSIONS
After evaluating the evidence and arguments presented, we conclude that the parties shall adopt the Union's proposal to resolve the dispute on this issue. We believe that a longer notice period is warranted to give employees additional time to conduct job searches in a tight job market. In reaching this conclusion, we note that regulations governing the specific notice period entitle employees to "at least" a 60-day notice period, thereby setting a floor, not a ceiling.(5) While parties at other Air Force bases may adhere to the statutory minimum, since RIFs in the Air Force essentially are conducted locally, we are not persuaded that significant negative effects will flow from instituting a longer specific notice period at Fairchild AFB.
3. Disciplinary and Adverse Actions (Article 23)
a. The Union's Position
Essentially, the Union proposes that oral admonishments be removed from an employee's official personnel file (OPF) after 6 months and letters of reprimand after 9 months; and suspensions of 14 days or less be removed from employee's 971 file,(6) but not from their OPF, after 1 year. Since such documents relate to less serious disciplinary and adverse action matters, it is logical to retain them for a shorter time. Earlier removal also may bolster the morale of employees who make real effort to improve. Although supervisors have the option under either party's proposal to remove such papers sooner, they may not be aware of that option or forget to exercise it. The provision would give employees the right to insist on an earlier removal time.
b. The Employer's Position
Basically, the Employer proposes to maintain the status quo. Consistent with Air Force regulations, it would remove oral admonishments and letters of reprimand from employees' OPFs after 2 years, and it would remove suspensions of 14 days or less from employees' 971 files, but not from their OPFs, after 2 years. The Union cites no problems associated with longer retention times that would justify changing the status quo. On the other hand, shortening the time period for retaining such materials might affect the ability to discipline employees if repeated incidents occur within the same general time period but after a document is removed. Furthermore, under the Union's proposal, a supervisor would lack the option of keeping letters longer when trouble appears to be brewing. Finally, since the supervisor can opt to remove letters earlier, the Union's provision is unnecessary.
CONCLUSIONS
Having considered the arguments on this issue, we conclude that the parties should adopt the Employer's proposal to resolve the dispute. In our view, the Union has failed to demonstrate a need for reducing the length of time that materials substantiating conduct problems may remain in employees' OPF or 971 files. On the other hand, we believe that the shorter time frames might effect the Employer's ability to take disciplinary action. In any event, under the provision adopted, a supervisor is free to determine to remove such papers earlier.
4. Employee Attended Meetings (Article 37)
a. The Union's Position
The Union proposes the following wording:
When an investigation is being conducted, the employee shall be advised by the investigator of the general nature of the interview and of his/her right to be represented by the Union prior to taking any oral or written statement from the employee.(7)
In the past, the Union filed at least 10 unfair labor practice charges (ULPs)(8) when it believed that an individual supervisor had failed to provide it with an opportunity to be represented at a formal discussion between management and bargaining-unit employees.(9) Such problems were particularly associated with investigatory meetings and can be expected to continue. For this reason, and in accordance with a decision of the Federal Labor Relations Authority (FLRA) the contract should clearly establish that the Union has the right to be represented in non-Weingarten investigatory situations which are formal discussions.(10) Not only do supervisors need guidance on the Union's right to be represented, but employees also need the protection afforded by the Union's presence.
b. The Employer's Position
The Union should withdraw its proposal on formal discussions, mainly because other provisions in the same article fully address the Union's concerns. In this regard, one section of Article 37 defines formal discussions using wording nearly identical to the statutory wording, and another requires that the Union be given "adequate notice and the opportunity to attend" such meetings. Furthermore, the Statute requires the Employer to provide such opportunities even without contractual wording; the provision, therefore, is unnecessary. In addition, whether a particular meeting is a formal discussion is determined on a case-by-case analysis of particular factors in the situation. As a result, differences of opinion about whether a particular meeting is a formal discussion may recur regardless of what the contract states. Finally, the Union's proposal is not well articulated and could lead to confusion; it refers to an employee's right and, therefore, may blur the fact that the Statute, by contrast, speaks of the exclusive representatives's right to be represented.
CONCLUSIONS
Having considered the arguments and evidence presented by the parties, and the circumstances surrounding this issue, we shall order the parties to adopt the Union's proposal to resolve the dispute. The Union has indicated that it intends its wording to clarify that Union representatives should be given the opportunity to be present at an investigatory meeting which is a formal discussion before an employee gives an oral or written statement. We are persuaded, in light of the number of occasions when such opportunities were denied, that the Union has demonstrated a need for its proposal, even though other sections of the article also deal with aspects of formal discussions.
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:
1. Career-Ladder Promotions (Article 16)
The parties shall adopt the following compromise provision:
Employees eligible for career promotions will be promoted as soon as they meet all requirements of the training plan and as determined by appropriate supervisory personnel.
2. Reductions in Force (Article 18)
The parties shall adopt the Union's proposal.
3. Disciplinary and Adverse Actions (Article 23)
The parties shall adopt the Employer's proposal.
4. Formal Discussions (Article 37)
The parties shall adopt the Union's proposal.
By direction of the Panel.
Linda A. Lafferty
Executive Director
November 15, 1994
Washington, D.C.
1.The following articles were resolved during the informal conference: (1) Grievance Procedure (Article 7); (2) Work Schedules and Overtime (Article 14); (3) Health, Safety, and Welfare (Article 24); (4) Actions due to Unacceptable
Performance (Article 39); (5) Governing Laws and Regulations (Article 44); and (6) Glossary.
2.Under an agency's authority to assign internally and promote, it can establish a position in which an employee may be non-competitively promoted through a series of grades (example: 5-7-9). Such promotions are referred to as career-ladder promotions; under 5 C.F.R. §335.104, "no employee shall receive a career-ladder promotion unless his or her current rating of record . . . is 'Fully Successful'." Time-in-grade requirements also must be fulfilled prior to promotion.
At Fairchild, such promotions are used basically to "underfill" a position that also could be filled by a journeyman-level employee. Employees hired at a grade which is lower than the journeyman-level work out 1-year training plans with their supervisors for mastering skills needed in the position.
3.Only the underlined wording is in dispute.
4.5 C.F.R. §351.801(a)(2).
5.5 C.F.R. §351.801(a)(1).
6.The "971 files" appear to be unofficial "memory-jogger" files that supervisors keep on individual employees.
7.Only the underlined wording remains in dispute.
8.The Union indicates that all of these ULPs were resolved at the internal, informal stage.
9.Under 5 U.S.C. §7114(a)(2)(A), an exclusive representative must be given the opportunity to be represented at "any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment."
10.The FLRA found that "depositions conducted by the [r]espondent [employer] in preparation for MSPB proceedings were formal discussions under section 7114(a)(2)(A)of the Statute." The case, which arose because of a union-filed ULP, clarified that the union's role at the meeting was limited to making comments and statements, but did not entitle it to take charge, usurp, or disrupt the meeting.
United States Immigration and Naturalization Service, United States Border Patrol, El Paso, Texas and American Federation of Government Employees, AFL-CIO, National Border Patrol
Council, 47 FLRA 170, 183 (1993).