United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of DEPARTMENT OF DEFENSE DEFENSE LOGISTICS AGENCY DEFENSE DISTRIBUTION REGION WEST STOCKTON, CALIFORNIA
AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCALS OF DEFENSE DISTRIBUTION REGION WEST, AFL-CIO	Case No. 94 FSIP 156

DECISION AND ORDER

    The Department of Defense, Defense Logistics Agency, Defense Distribution Region West (Employer or DDRW), 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 American Federation of Government Employees Locals of Defense Distribution Region West, AFL-CIO (Union).

    After investigation of the request for assistance, the Panel determined that the impasse should be resolved through an informal conference between Panel representatives and the parties. If no settlement were reached, the Panel representatives were to notify the Panel of the status of the dispute; the notification would include the final offers of the parties and the representatives' recommendations for resolving the matter. 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.

    Pursuant to the Panel's determination, representatives Nick G. Duris and Gladys M. Hernandez met with the parties on December 6 through 8, 1994, in Stockton, California. During the informal conference, 11 out of 14 articles were resolved. Mr. Duris and Ms. Hernandez have reported to the Panel, and it has now considered the entire record.

BACKGROUND

    In 1991, there was a consolidation of distribution functions at Department of Defense supply depots under the Defense Logistics Agency (DLA), which established the Defense Distribution Region West (DDRW). The Employer's mission is to receive, store, and issue supplies in support of the Department of Defense. The Union represents approximately 8,000 bargaining-unit employees who hold positions such as distribution facility specialist, electrician, fork lift operator, industrial equipment mechanic, material handler, painter, truck driver, supply analyst, and woodcrafter. These employees are scattered among 11 depots, all located west of the Mississippi River. Employees at each depot are represented by a separate local union; however, with the consolidation, the Union represents them all in this dispute. The parties are covered by a master collective-bargaining agreement (MCBA) between the Defense Logistics Agency and the American Federation of Government Employees that expires in May 1995. Each local has a separate supplemental agreement; once the Panel resolves this dispute, all locals will be covered by one supplemental agreement.

ISSUES AT IMPASSE

    The parties basically disagree over: (1) the amount of official time to be granted to Union representatives, and various other more minor issues related to official time; (2) competitive areas; and (3) smoke breaks.

POSITIONS OF THE PARTIES

1. Official Time⁽¹⁾

    a. The Union's Position

    The Union's proposal is as follows:

Section 1:

A. The rights of the Union are spelled out in Title VII of the Civil Service Reform Act of 1978. No rights of the Union by virtue of past practice, regulations, appropriate directives, statutes, and/or laws will be waived by this agreement. The Defense Distribution Region West and its consolidated units will recognize all union locals and the appointed representatives of such locals. The Union retains the right to designate its representatives without interference from the Employer. Union representatives performing official duties will be authorized official government transportation and/or will be paid mileage in accordance with government standards.

1. The local Union president, or designee, will be notified in writing of all changes in policies, practices, procedures, or matter affecting working conditions within a reasonable time prior to implementation. The Employer agrees to maintain status quo until bargaining is complete.

2. The Union retains the right to initiate mid-term and other forms of bargaining.

B. In order to better enhance Labor-Management Relations and in keeping with the provisions of the Presidential Executive Order 12871, of October 1, 1993, Labor-Management Partnerships, the Employer agrees to authorize the Union, full-time Union representatives. These representatives will serve at the Union's office.

The Union will be authorized the following representatives:

(a) 2.5 full-time representatives at San Joaquin, San Antonio, McClellan (Sacramento) and Oklahoma City sites.

(b) 1.5 full-time representatives at Hill, San Diego, and Ogden sites.

(c) 1 full-time representative at Corpus Christi and Tooele sites.

(d) .5 full-time representative at Barstow and Oakland sites.

The term "full time" refers to being authorized 100-percent official time on a continuous basis without loss of pay, tenure, seniority, nor interference from the Employer while the representative is engaged in "protected activities" as defined by the Federal Statutes. The term ".5" refers to a representative on 50-percent official time. Fifty percent representatives will place the Employer on notice as to whether they will use their 50-percent time during the first half or the second half of the workday. Fifty percent representatives will be allowed to use a reasonable amount of official time for any activities/duties that cannot be accomplished within the 50-percent time period. An example is during a hearing, providing a deposition, negotiations, or FLRA, FMCS, EEO proceedings, etc.

All other Union representatives/stewards designated by the Union will be allowed a reasonable amount of official time to perform representational functions. (Emphasis added.)

D. Upon written request, Management will provide the Union with data in accordance with 5 USC 7114 (b)(4) and Article 53 of this Agreement.

E. Matters concerning interpretation or application of this Supplemental will be reduced to writing and provided to each participating DDRW/AFGE Local for concurrence.

Section 3: A. 1. b. (8) Attendance and participation in information and orientation sessions to be of mutual concern and benefit to the Employer and the Union.

(9) Attendance at training seminars and other Labor-Management sessions. Official time will be authorized and provided on a quarterly basis for training sessions of Union officials at National, regional and local levels.

(10) To prepare for negotiations nationwide, regionwide, as well as at the local level.

(11) To prepare for meetings, grievances, arbitrations, FLRA adjustments or complaints; prepare and participate in proceedings before the FSIP, FMCS, EEOC, and MSPB.

Section 4. 1.: The Union will be authorized a representative on each committee established by the agency at the SLFAs.

Its proposal will help eliminate problems it has had in obtaining official time, and the need for subsequent litigation. In this regard, numerous grievances and unfair labor practice charges have been filed over the denial of such requests in the past. The amounts proposed are necessary to perform duties "protected" under the Statute, case law, negotiated agreements, and past practice. Also, many articles agreed to in the supplemental agreement will require the use of "large amounts of official time" to ensure compliance. Finally, "the Presidential Order on partnership involves the Union on a higher basis than ever before. This cannot be accomplished if the Employer is able to limit the use of official time."

    b. The Employer's Position

    The Employer proposes the following:

Section 2.

A.-S The rights of the Union are spelled out in Title VII of the Civil Service Reform Act of 1978. In addition, the Union agrees to comply with all regulations, appropriate directives, statutes, and/or laws not covered by this agreement. The Defense Distribution Region West (DDRW) and its consolidated units will recognize the DDRW/AFGE Locals and the Union's appointed representatives. The Union retains the right to designate its representatives. In the course of performing AFGE representational duties within DDRW for DDRW employees, the Union agrees to be responsible for any and all cost and travel associated with this process. The DDRW/AFGE Locals agree that the Government and the taxpayers should not shoulder the burden of supporting any or all parts of AFGE. AFGE/DLA Council president or designee or the Union's site designee, if not a DDRW-wide issue, will be notified in writing when practical of changes in policies, procedures, or matters affecting working conditions within a reasonable time prior to implementation. AFGE/DLA Council president or designee will be responsible for coordinating with other respective and affected representatives. For the purposes of this agreement, references to Union officials, Union representatives, officers, and the stewards are synonymous and referred to as representatives of the Union.

2.d.-S Questions that may arise concerning the general administration or interpretation of this agreement may be resolved between a duly-appointed representative of the DDRW/AFGE Locals and the labor relations officer or his duly-appointed representative. Agreements will be reduced to writing and signed by both parties. If agreement cannot be reached by both parties after thorough discussion, a grievance may be filed in accordance with the negotiated grievance procedure. Discussions of this sort on the agreement will be scheduled in advance by either party so that meaningful discussions may take place. The grievance procedure must be followed to completion prior to addressing any concern with any outside parties or agencies.

2.e.-S It is agreed and understood by the Employer and the Union that the terms of this agreement will rescind any personnel policy, practice, Memorandum of Understanding or Memorandum of Agreement (or any other document of understanding) which was in existence prior to the date of the implementation of this agreement. Either party may unilaterally reopen this article once a year on the anniversary date. (Emphasis added.)

Section 3.

A.1.a.-S The Employer will allow official time for one (1) 50-percent Union representative at each depot. Additionally, one (1) representative per division will be allowed 20-percent official time. This official time excludes third-party hearings, partnership activity initiatives, all formal negotiations including RIF, I&I, mid-term and substantive negotiations. These hours will be used to perform only legally sanctioned representational functions and will not include any encouragement to file grievances or complaints during an employee's duty time, solicitation of membership and/or activities concerned with the internal management of employee organizations, such as the collection of dues, membership meetings, campaigning for officers, conduct of elections and distribution of literature or authorization cards. The DDRW/AFGE Locals will guard against abuse of official time. There is a jointly agreed to provision that requires the user to log the time on "Union Steward Log" (DDRW 92), cosigned by the supervisor of the representative. Each Monday, these forms will be forwarded to the Labor Relations Office for review and filing. Any discrepancies will be brought to the attention of the spokesperson for the DDRW/AFGE Locals. Copies will be provided to the Union upon request. Should the logged time, or other sources of information, indicate the Union has used official time for activity expressly not permitted, this may result in administrative action. Representatives will leave the activity only on authorized Union business when the Employer is notified and approves, unless the representative is on approved leave. (Emphasis added.)

3.B.-S The Union agrees to provide annually a list of all local stewards, officers, and representatives. The Union agrees to provide the Employer at least 2 weeks' advance written notice of any changes in representatives. This notice period will be prior to any activity for the new representative or recognition by the Employer.

3.C.-S Union officials desiring to see employees or employees desiring to see Union officials will only be considered when the Union official notifies their immediate supervisor of the need to see an employee. The supervisor will contact the employee's supervisor and attempt to finalize a time and place for the meeting to take place. This same method will be used when the employee wishes to see a Union official. These meetings should be scheduled without unnecessary delay and actually occur within 24 hours (days off excluded from this time limit).

Section 5.-S Representatives who are engaged in Union activity during the time supervisors are filling overtime requirements are considered to be unavailable for any overtime that may be recruited for that workday.

This proposal provides the Union with a reasonable amount of official time given the amount spent by each local in representing employees in the preceding fiscal year.⁽²⁾ Local 2721 Ogden (Utah) 1117 962 The cap proposed is "ample" because (1) a number of representational matters are excluded from it, and (2) "grievances and disciplinary actions dropped considerably in fiscal year 1994, over the previous year." The use of caps also is consistent with agreements it has with other DDRW unions. Moreover, if any official time problems arise, they can be addressed during reopener negotiations. With regard to the number of Union representatives, this proposal would avoid past problems management has had when multiple representatives are working under the same supervisor.

    As for other official time provisions, they concern, among other things, (1) Union travel expenses while performing representational duties, (2) Union representative notice to the Employer prior to leaving the worksite, and authorization to do so, (3) advance notice to the Employer before any changes in representatives, and (4) eligibility of Union representatives for overtime. It is unfair to require the Employer to pay for Union travel expenses because Government-provided bus and taxi service is already available. Union representatives should be required to get the Employer's authorization prior to leaving the worksite on official time because (1) there have been incidents of abuse in the past, and (2) the Employer needs to be able to locate them should mission-related emergencies arise. Also, the Union has a furnished office at each depot "making it unnecessary for the Union [representatives] to regularly leave the site without notification and approval by the Employer." A 2-week advance notice period prior to changing Union representatives would allow the Employer to make necessary modifications to work arrangements. Finally, the overtime provision would ensure its ability to make prompt overtime assignments; it would not have to spend all day trying to find an employee who is away from the worksite on official time.

CONCLUSIONS

    Having considered the evidence and arguments on this issue, we shall order the parties to adopt a modified version of the Employer's proposal which includes only those provisions concerning the amount of official time to be provided to Union representatives, and the 1-year reopener of the official time article. On the basis of the record presented, we are persuaded that the amounts proposed by the Employer are reasonable, particularly given the items that would not count against the capped amounts (e.g., partnership initiatives, all negotiations, and participation in third-party proceedings), and the number of employees represented at each depot. If the amounts prove to be inadequate, however, the reopener provision will permit the Union to seek additional official time after a 1-year period. We urge the parties to keep detailed records on the use of official time should they have to go before a third party again to resolve the matter.

    With regard to the other issues in the official time article, we shall order the parties to withdraw their proposals. In our view, there is insufficient evidence in the record to justify the adoption of either party's proposals. The parties may, however, revisit the issues during reopener negotiations if they so choose. In the meantime, they may continue their efforts to reach a agreement on the items in question if the status quo is unacceptable.

2. Competitive Areas⁽³⁾

    a. The Union's Position

    The Union proposes that "the area of consideration concerning a reduction in force (RIF) will be a subject for negotiation at the Defense Logistics Agency depot where the RIF is to be conducted." It cannot make a "blanket" proposal covering DDRW, as proposed by the Employer, because the physical and geographical make-up of each depot varies. There are areas in California and Texas where employees already commute long distances to their worksites. There are also some depots in close enough proximity that managers currently travel between them as part of their duties. Given these circumstances, it would be unfair for an employee with many years of service stationed at one depot to be unable to bump another with significantly less seniority stationed at a nearby depot. Moreover, the parties' master agreement provides for the area of consideration to be negotiated at the local level.⁽⁴⁾ Finally, "5 C.F.R. 351.402; the Federal Personnel Manual 351-1, S3-2," as well as "the Statute allow for the area of consideration to be negotiable."

    b. The Employer's Position

    The Employer proposes that "unless the parties mutually agree to change the competitive areas, the current competitive areas will remain as presently identified."⁽⁵⁾ It has conducted mock RIFs which support its position that keeping competitive areas as currently configured would involve far fewer relocation and administrative costs than those which encompass larger geographic areas. Furthermore, it would be less disruptive to employees and the Employer's operations regionwide because expanded competitive areas affect employees outside a targeted RIF area and require more of them to be relocated greater distances.

    The Union's proposal, on the other hand, is nonnegotiable.⁽⁶⁾ In this regard, it would allow each local to negotiate a competitive area different from the existing one which would affect employees in other bargaining units. Moreover, multiple negotiations on this issue "would be disruptive to the region," and is "not an efficient way of conducting business."

CONCLUSIONS

    After carefully evaluating the arguments and evidence presented on this issue, we conclude that the parties should adopt the Union's proposal, modified as follows: "The competitive area will be a subject for negotiation at each Defense Logistics Agency depot." In this regard, the record reflects that the parties are bound by a provision in their MCBA which specifies that all other agreements must be consistent with its terms.⁽⁷⁾ We find that of the parties' proposals, only the Union's is consistent with Article 31, section 13, of the parties' MCBA. The proposal must be modified, however, so that it properly refers to "competitive areas" rather than "areas of consideration," and to clarify that it would allow for negotiations over competitive areas to take place at each depot only once during the term of the supplemental CBA. This should alleviate, to some degree, the Employer's concern that local negotiations over competitive areas would cause disruptions to the workforce. As to the Employer's nonnegotiability argument, the record indicates that it was raised under the assumption that the Union's final offer would have extra-unit effects. Neither the Union's actual final offer, nor our modified version, necessarily has such affects, since both merely require that negotiations occur at the local level. The Employer, however, may raise the argument during local negotiations should it believe that the proposed competitive areas would have an impact on employees in another bargaining unit.⁽⁸⁾

3. Smoke Breaks⁽⁹⁾

    a. The Union's Position

    The Union proposes the following:

Employees will be allowed to smoke during duty hours. Smoking will be permitted only in areas designated and approved jointly by the Union and the Employer. Any/all problems concerning smoking will be handled on a case-by-case basis.

Its proposal would allow employees to take smoke breaks at their discretion. This is practicable since most employees work at "outdoor facilities" or "warehouse areas that have good ventilation and very little populous." Moreover, the impact of its proposal is minimal because "most employees can smoke during duty hours without causing service interruption." If problems over non-productive time develop, however, the Employer is free to raise complaints and deal with them on a case-by-case basis, or during midterm bargaining. Finally, smokers are more productive if they are allowed to "satisfy their urges" to smoke.

    b. The Employer's Position

    The Employer proposal is as follows:

Employees of DDRW will not be granted minibreaks to smoke, dip, or chew, but will be allowed to smoke, chew, or dip before work, during official break periods, during their lunch break, or before/after duty hours.⁽¹⁰⁾

Under Department of Defense regulations, the Employer must maintain a smoke-free work place. Also, many depots are tenants on bases and must abide by the smoking policies of the host activities, some of which are more restrictive than others. Nevertheless, its proposal gives employees "ample time" to smoke, chew, or dip during the workday. Similar agreements have been reached with other unions without complaint. However, to soften the impact on smokers, it has agreed to provide smoking/tobacco cessation classes and covered outside smoking areas. Finally, its proposal appears to be consistent with prior Panel decisions on this issue.⁽¹¹⁾

    Under the Union's proposal, the inefficiencies inherent in the current policies at some depots will continue. In this regard, "everytime a smoker is away from the work area productivity falls." Furthermore, the morale of nonsmokers is affected "everytime they see a smoker leave the work area to smoke a cigarette."

CONCLUSIONS

       Upon thorough consideration of the evidence and arguments presented on this issue, we find that the Employer's proposal is the more reasonable one under the circumstances. In this regard, restricting tobacco use to the agreed-upon lunch and rest breaks should adequately accommodate the needs of smokers, while at the same time eliminate any morale problems that may exist among nonsmokers over disparate treatment. Furthermore, in our view, unlimited smoke breaks are likely to lead to abuse and lower productivity. Finally, a uniform break policy is not unusual in the Federal sector. For these reasons, we shall order the adoption of the Employer's proposal.

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. Official Time

    The parties shall adopt the following modified version of the Employer's proposal:

The Employer will allow official time for one 50-percent Union representative at each depot. Additionally, one representative per division will be allowed 20-percent official time. This official time excludes third-party hearings, partnership activity initiatives, all formal negotiations including reduction-in-force, impact-and-implementation, mid-term, and substantive negotiations. Either party may unilaterally reopen this Article once a year on the anniversary date.

    The parties shall withdraw their proposals on all other official time issues.

2. Competitive Areas

    The parties shall adopt the following modified version of the Union's proposal:

The competitive area will be a subject for negotiation at each Defense Logistics Agency depot.

3. Smoke Breaks

    The parties shall adopt the Employer's proposal.

 

By direction of the Panel.

Linda A. Lafferty

Executive Director

February 23, 1995

Washington, D.C.

 

1.At the conclusion of the informal conference, the parties were instructed to submit their final proposals and written statements of position concerning the remaining issues at impasse. It appears that there are several issues within the Official Time article in dispute. The Union, however, has addressed only the amount of official time to be granted to Union representatives. The highlighted provisions in the parties' proposals concern the amount of official time, and were the ones primarily discussed at the informal conference.

2.As provided by the Employer, the approximate number of employees represented by each local and the amount of representational time used in fiscal year 1994 is as follows:

 

3.A competitive area is the geographical and organizational boundary within which employees compete for job retention.

4.Article 31, section 13, of the parties' MCBA reads as follows:

The competitive areas will be negotiated at the PLFA [primary field level activities] in accordance with applicable laws, rules, and regulations.

It is undisputed that the depots are the PLFAs referred to under this provision.

5.The current competitive areas are: (1) San Joaquin Depot (including facilities at Tracy, Lathrop/Sharpe, and Stockton/Rough and Ready); (2) Oakland Depot (including facilities at Alameda, Mare Island, and Oakland); (3) Sacramento Depot; (4) McClellan Depot; (5) Barstow Depot; (6) San Diego Depot (including facilities at San Diego, NAS North Island, and Long Beach); (7) Oklahoma Depot (Tinker AFB); (8) San Antonio Depot (Kelly AFB); (9) Corpus Christi Depot; (10) Ogden Depot (including facilities at Ogden and Hill AFB); and (11) Tooele Depot.

These were the same competitive areas in place when the depots were consolidated under DDRW. The parties dispute whether these areas were negotiated.

6.It cites United States Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA, 952 F.2d 1434 (D.C. Cir. 1992)(Cherry Point). The Employer's argument assumes a proposal which the Union later withdrew.

7.Article 44, section 1, of the parties' MCBA states that "any supplemental agreements shall not delete, modify, nullify, or conflict with any provision, policy or procedure in this agreement."

8.We note that such negotiations could be undertaken jointly with other unions so as to avoid a Cherry Point challenge.

9.The parties agree that currently bargaining-unit employees at some facilities are permitted to take breaks to smoke in addition to regular rest and lunch breaks. They were unable to indicate, however, at what facilities this is so.

10.As part of these supplemental negotiations, the parties agreed to provisions providing employees two 15-minute rest and one 30-minute lunch breaks during an 8-hour day. (Article 20, section 3, subsections J-S and K-S.)

11.See, for example, Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Syracuse, New York and Local 1760, American Federation of Government Employees, AFL-CIO, Case No. 93 FSIP 164 (November 18, 1993), Panel Release No. 351.