| In the Matter of
DEPARTMENT OF THE NAVY UNITED STATES MARINE CORPS MARINE CORPS AIR STATION CHERRY POINT, NORTH CAROLINA |
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|
AND PROFESSIONAL AIRWAYS SYSTEMS SPECIALISTS |
Case No. 95 FSIP 25 |
ARBITRATOR’S OPINION AND DECISION
Introduction
The Professional Airways Systems Specialists (PASS or Union) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under section 7119 of the Federal Service Labor-Management Relations Statute between PASS and the United States Marine Corps, Marine Corps Air Station, Cherry Point, North Carolina (Employer). After investigation of the request for assistance the Panel directed the parties to mediation/arbitration before the undersigned. Sessions were held with the parties on March 22 and April 27, 1995. Mediation efforts not being successful, at the second session the parties exchanged and discussed final versions of their respective proposals, and presented information to complete the factual record of the case. On May 12 the parties submitted final written statements in support of their proposals. The Arbitrator is satisfied that the parties have fully negotiated over the matters in dispute and that a decision is required to resolve the impasse.
Background
This impasse arises out of a Department of Defense (DoD) reorganization of information technology/data processing functions. This reorganization began with a 1993 DoD Data Center Consolidation Plan and a subsequent Defense Management Report Decision (DMRD 918) directing consolidation of data center functions within the military services and defense agencies into a separate DoD entity known as the Defense Information Services Agency (DISA). This reorganization received Congressional and Presidential approval and became a legislated mandate through the Base Alignment and Closure Act (BRAC) procedures (hereafter BRAC 1993 refers to the legislated plan). The reorganization plan and BRAC report identified the data processing center(1) at the Marine Corp Air Station, Cherry Point (MCAS Cherry Point) for consolidation into a DISA "megacenter" in Jacksonville, Florida.
In simple terms, what is called for by these plans is the transfer of control over designated information/data processing functions from, in this instance, the Marine Corps to DISA.(2) That transfer of control extends to both the computer equipment used for those functions, and positions and employees identified with that equipment. As designed by DISA, the process calls for the first step to be the "capitalization" of the resources to be moved, which is defined as "the formal transfer of ownership and command and control of the resources (people and physical assets) of the Marine Corps IPC’s [information processing centers] to DISO [for these purposes synonymous with DISA]." That formal transfer of ownership and control is to occur "in place". (DMRD 918, Capitalization Handbook.) For purposes of capitalization, the identification of resources included within this transfer of ownership and control is carried out by the Marine Corps applying criteria provided by DISA and relevant guidance.
At the first session, it was made clear that a major area of concern of the Union was that positions were being identified to DISA on the basis of outdated and inaccurate position descriptions. After that session, and before the second meeting, a review of position descriptions was undertaken at the Cherry Point site, with the Union providing comments and input from employees. PD’s were updated and changes made. On April 27 the Union agreed that much had been done to resolve inaccuracies but indicated that a few areas were still unresolved. Also, the revised position descriptions were yet to be classified. the review did not alter the number of billets identified as going with the function to DISA (37).
DISA has designed a process whereby all of the resources relating to the functions to be consolidated under BRAC 1993 are to move under DISA’s control (capitalization) before the actual physical move of equipment and people ("migration"). During the transition period after the shift of control but before migration, DISA reviews and surveys the new resources in a "legacy site survey" to verify the existence of the resources and to determine the specific systems and workload to be consolidated into the megacenter. According to DISA officials, this is the manner in which the reorganization/ consolidation has been carried out in all of the other uniformed services and most of the rest of the Marine Corps. Cherry Point is last in line, the delay occasioned by this impasse.(3)
It is well understood by all that a primary goal in this reorganization is increasing efficiency, at least in part by increased automation, and that in pursuit of that goal, fewer employees will be used to carry out the consolidated functions. In plain words, positions are eliminated in the process of consolidation, and as DISA has designed the process, that downsizing takes place once the functions are shifted under DISA control. DISA has determined, in line with its general guidance, that the MCAS Cherry Point employees who are capitalized to DISA will comprise a distinct competitive area - DISA Cherry Point (referred to as DIPC). This not only removes employees from the MCAS Cherry Point competitive area, but keeps them out of the larger DISA competitive area.(4) All concede that there will be few opportunities for retention within the DIPC competitive area in the event of a RIF. The expected plan is for five positions to remain at Cherry Point in a "RJE" storefront site after DIPC is migrated. Seven to twelve positions are expected to be available in Jacksonville.
This method of consolidation obviously places the employees and unions in the "losing" DOD agencies and military services in a very tough spot. At MCAS Cherry Point, at the point at which former G6 employees will be subject to reduction-in-force, the employees will have left the Marine Corps and the PASS bargaining unit. PASS has no bargaining rights or collective bargaining agreement with DISA. If a RIF takes place after capitalization, PASS will be unable to bargain a broader competitive area or any other RIF procedures with DISA as things currently stand.
Going to the nature of the transfer action, itself, that is contemplated by capitalization, the Marine Corps has now designated this as a transfer of function. Throughout the period of the parties’ bargaining and until the second day before the Arbitrator, the Marine Corps had operated on the basis that this movement would not be a transfer of function under personnel regulations. (5 CFR §§ 351.301 - 351.303.) This meant that the designation of positions to be moved to DISA did not have to take place within the strictures of those regulations. At the April 27 session, however, the Marine Corps Director of Civilian Personnel Programs offered his memorandum of April 21 indicating that the planned capitalization would subject employees to a transfer of function.(5) Both parties agree that if transfer of function rules apply, the Marine Corps is required to identify positions for transfer consistent with 5 CFR §351.303. Under that section, an employee must be identified for transfer if he or she performs the transferring function for at least half of work time or, regardless of the amount of time involved, if that function is included in the grade controlling aspects of the job.
In the BRAC 1993 legislation, DISA was provided funds to provide various "early out" opportunities and assistance programs to employees impacted by the reorganization and DISA has an aggressive assistance and outplacement program. By virtue of funds or authority given to DISA, its employees may participate in the DOD Priority Placement Program, the OPM Interagency Placement Program and the Joint Training Partnership Act. DISA also has authority for Voluntary Separation Incentive Pay (VSIP) and Voluntary Early Retirement Authority (VERA), and payment of change of station expenses. The Marine Corps was not provided special funds or authority for this purpose (consistent with the idea that the separations would occur from DISA, not the losing agencies.) MCAS Cherry Point has its own priority placement program which does apply to employees who become identified for transfer to DISA. According to a DISA personnel management official, the overwhelming number of employees facing job loss as a result of this BRAC 1993 reorganization have been placed in other jobs, retired on early benefits, or otherwise provided for.
Issues at Impasse
Each party has placed before the Arbitrator a complete proposal in memorandum form, beginning with introductory paragraphs citing what each party believes are the relevant authorities and purposes and then following with paragraphs setting forth procedures and methods for carrying out the reorganization/consolidation dictated by DMRD 918 and the 1993 BRAC legislation. Alterations were made in the proposals during the course of the proceeding before the Arbitrator with final proposals exchanged and discussed on the second day. The parties remain at impasse on their final proposals. The statement of issues is meant to be general and follows the basic outline of the two proposals. The specifics about the parties’ proposals are in the next section.
1) Preface/Purpose statement. Behind the differences in language are different views about the scope of matters that are within the Marine Corp’s authority and discretion, with the Employer’s basic view being that the legal mandates are specific and clear, and the Union’s being that the BRAC made a general directive that leaves unmandated a broad area of negotiable implementation issues.
2) Method for Identifying positions to go to DISA with the functions being consolidated under BRAC 1993.
3) Status of employees during transition period before workload moves physically to DISA (Jacksonville.) PASS proposes an Interservice Support Agreement to retain employees within MCAS until determination by DISA of personnel needs, and provides for RIF within the MCAS competitive area. The Marine Corp proposal proceeds on the basis of capitalization of MCAS employees to DISA and any RIF taking place within a DIPC competitive area which is outside Marine Corp authority .
4) Measures for mitigating the impact on employees.
Positions of the Parties
1) Preface/Purpose Statement
Employer Proposal.
Defense Management Review Decision (DMRD) 918 and the Base Realignment and Closure Act (BRAC) of 1993 both directed specific functions, designated as an information processing center, located in the Telecommunications and Information Systems Directorate (G-6), Marine Corps Air Station, Cherry Point, North Carolina to be capitalized (transferred) into the Defense Information Systems Agency (DISA). Capitalization from Marine Corps Air Station, Cherry Point to DISA will be pursuant to 5 CFR 351 Subpart C.
Employer Rationale.
The proposed language simply sets out the BRAC mandate. It also states the applicability of transfer of function regulations.
Union Proposal.
The Parties agree to the following methods, means, and technology, to include the numbers, types and grades of employees or positions identified to be assigned to any organization performing work by Mainframe Bargaining Unit Employee[s] of the Telecommunication Information System Directorate (TISD), Cherry Point personnel in order to fulfill Base Realignment and Base Closure (BRAC) requirements as they relate to TISD. Until an agreement is reached no bargaining unit employee may be migrated, capitalized or reorganized without mutual written consent of the Parties. Once this agreement is reached and this Memorandum of Understanding (MOU) is effected, the methods, means and technology, to include numbers, types and grades of employees or personnel mutually agreed to by the Parties will be utilized by the Parties to effect any personnel migration, capitalization and consolidation/reorganization from TISD to the Defense Information Service Agency (DISA) or other organizational subdivisions to fulfill the 1993 BRAC requirements.
Union Rationale.
The BRAC directives are general, not specific. The specifics as to what falls within the functional area of an IPC are not provided. Furthermore the Employer has expansive latitude in determining how to comply with BRAC 1993. Further, because there is no existing IPC at Cherry Point, positions have been manipulated in anticipation of the reorganization. And documents and studies relied upon by the Employer are obsolete or inaccurate. Any reference to transfer of function regulations is inappropriate. The Union does not believe that a capitalization to DISA can be properly or fairly considered a transfer of function under the CFR.
2) Method for Identifying positions to go to DISA with the functions being consolidated under BRAC 1993.
Employer Proposal.
2. In order for MCAS Cherry Point to comply with DMRD 918 and BRAC 1993 it is essential to complete the capitalization plan outlined in MCISC ltr 5000 UP of 28 Jul 94 and the Baseline Implementation Plan (BIP) for DoD Data Center Consolidation of Jan 94. Specifically identified for capitalization are:
a. All mainframe master console operators, tape operators and network control operators.
b. All mainframe operating system programmers, to include MVS, CICS, and DBMS systems programmers.
c. Mainframe network systems programmers to include SNA, VTAM, and NCP systems programmers.
d. Security administrators with ownership of Security Control Accessor-ID (SCA) accounts.
e. Data control technicians responsible for PCU/PAU activities to include maintenance of production data sets and monitoring, scheduling and optimization of production jobs.
f. Supervisory and administrative personnel dedicated to management/direction of these resources.
3. DISA Information Processing Center Cherry Point is identified on enclosure (1) [enclosure 1 is attached as Appendix 1]. These positions, which are not yet classified are:
to the mainframe computers which will be capitalized to DISA (Paragraph 2e)a. All Computer Assistant (PD No. PASS 3)(6) and Computer Operator (PD No. PASS 1) positions in the four Information System Branches and the positions supervising each of these branches. (A career ladder position will be established to meet time-in-grade requirements in accordance with applicable regulations). These branches are responsible for the operation and control of the mainframe computers that will be capitalized to DISA. Each branch is responsible for an operational shift. The grade controlling duties support functions that transfer to DISA. (Paragraphs 2a and 2e)
b. Supervisory Computer Specialist, GS-334-11, Position Description (PD) No. S135G. This position has overall responsibility for the four branches, (Paragraph 2f)
c. Computer Assistant, GS-335-8, PD No. PASS 5, is the master scheduler for work done on the mainframe computers which will be capitalized to DISA. (Paragraph 2e)
d. Computer Assistant, GS-335-5, PD No. PASS 6, is the position which assists with scheduling and is the point of contact for problems, requests and inquiries concerning jobs assigned
e. Computer Specialist (Systems Programming), GS-334-12, PD No. PASS 2. This position is responsible for database management for the UNISYS computer, which will be capitalized to DISA. (Paragraph 2b)
f. Computer Specialist (Systems Programming), GS-334-11, PD Nos. PASS 4 and PASS 7. These positions are responsible for system software for mainframe computers which will be capitalized to DISA. (Paragraphs 2b and 2c)
g. The vacant billet identified to PD No. SO79G, Supervisory Computer Specialist, GS-334-12, will be transferred to DISA to supervise the DISA function to be located at Cherry Point. This position supervises mainframe computer database management.
h. Specific positions to be capitalized as identified in paragraphs 3a and 3g are identified with asterisks in the attachment.
4) Employees currently performing the work to be transferred to DISA will be identified to DISA using the following procedures:
a. Employees occupying PDs for which all billets have been identified for transfer to DISA will be transferred to DISA. This includes all Computer Operators and Computer Assistants in the four Systems Operations branches and the supervisors of these branches. It also includes the Computer Assistants on PD No. PASS 5 and PD No. PASS 6, described in Paragraphs 3c and 3d and the Supervisory Computer Specialists with overall responsibility of the four Systems Operations branches, Paragraph 3b.
b. The incumbent of PD No. PASS 2, Computer Specialist (Systems Programmer), GS-334-12, will be transferred to DISA. This position is the database administrator for the UNISYS mainframe computer. These duties comprise the majority of the incumbent’s time and are grade controlling.
c. The incumbents of PD No. PASS 4 and PD NO. PASS 7, Computer Specialist (Systems Programmer), GS-334-11, will be transferred to DISA. The employees to be transferred will be those who have systems software responsibility for the TANDEM and Burroughs mainframe computers, which will be capitalized to DISA.
d. In addition to employees performing the work, those billets identified to DISA in paragraph 3, above, that are vacant will be transferred to DISA.
Employer Rationale.
Paragraph 2. DMRD 918 and BRAC 1993 require the capitalization of positions/billets in the IPC function to DISA. The billets identified are drawn from DISA publication, MCISC ltr 5000 UP, 28 July 1994.
Paragraph 3. These specific billets were identified based on the newly revised position descriptions that were reviewed with union and employee input. These positions are identified with the functions that BRAC 1993 mandates be transferred to DISA.
Paragraph 4. Under the BRAC 1993 mandate, the Marine Corps is to identify for transfer to DISA employees identified with the IPC function that is being consolidated.
Union Proposal.
2. METHOD
The Parties agree that it is in the interest of the government and the interest of the requirements of the statute, Executive Order 12871 and the principles of partnership to provide the American people and the parties’ customers the most economical and cost effective computer technology and services in order to promote the efficiency of the government. Accordingly, the following method shall be utilized and verified by the Parties before any mainframe bargaining unit personnel are identified for capitalization, migration, reorganization or before any transfer of function from TISD is implemented.
Step 1: Document, by valid measurable data, the designated mainframe workload processed at TISD, Cherry Point:
a. for each mainframe, document the major application(s) processed on that mainframe and the customer(s) who sponsor its use.
b. for each application per mainframe, document the disk space used by the application and the frequency of backup and the retention period of backups.
c. for each application per mainframe, document the average percent of the system CPU utilized.
d. for each application per mainframe, document the number of transactions per day and the average response time per transaction.
e. for each application per mainframe, document the number of regularly scheduled batch jobs per month and the required completion time.
f. for each application per mainframe, document the average number of pages printed and the required delivery time.
g. for each application per mainframe, document the average of microfiche printed per day and the required delivery time.
Step 4: [Steps 2 and 3 were deleted by the Union][The remainder of Step 4 is covered under the next issue, below.]
a. Identify the billets (including the percent of billets) by grade/series (including military) that are performing the work in the current system to be transferred to DISA, the specific PD number of each billet, the position status of each billet (person’s name currently occupying position or vacant) and the career status (permanent or temporary). The PD’s will undergo a wage and classification audit and be determined by signature of the Employer and the Union as current and accurate. Should the Parties find the PD inaccurate, the Employer shall correct the discrepancies prior to identification. Reconfigure positions that have dual functions (DISA/non-DISA) to create 100 percent DISA functional positions and 100 percent non-DISA functional positions: SO52G, SO53G, SO54G SO55G, SO56G, SO60G, SO62G, SO63G, SO72G, SO79G, SO80G, SO90G, SO92G, SO96G, S120G, S138G. Any additional positions to be audited will be negotiated, to the fullest extent of the law and Executive Order 12871, with the Union prior to any audit commencing. The most senior employee shall have the right of first refusal to be the 100 percent "DISA function" employee.
Union Rationale.
The Union’s proposal "Method, Step 1" provides a business plan method for determining an accurate account of the work to be transferred to DISA, using equipment usage and "man-hours" data. This information is readily available through computer readouts and obtaining it will not cause undue delay. This information has not been compiled to date, DISA not having performed any onsite survey as yet. It is important to have an actual measure of the workload involved in the functions to be moved to DISA prior to determining the number of personnel that are needed to move with those functions. Step 4 is to produce current and accurate PD’s and an accurate measure of the percentage of what is to be DISA workload being performed using data from Step 1. The proposal calls for reconfiguring positions to create 100% DISA functional positions and 100% non-DISA functional positions so that employees are not unnecessarily transferred to DISA. The Employer would transfer people doing multiple functions, including non-DISA functions, with any anomalies to be corrected after transfer, which would cause turmoil and disruption to employees and customers.
3) Status of employees during transition period.
Employer Proposal.
[The employer’s proposal on this issue is included in paragraphs 2, 3 and 4, set out above. In addition to those paragraphs the Employer proposal also includes the following relevant provisions.]
5. The following procedures will be used . . .
a. The following plan will be used. . . .
(i). Employees identified to DISA using the methods described in paragraph 4, above, will be transferred to DISA on the date specified by DISA and Headquarters Marine Corps. [The remainder of this subsection is included under the issue concerning minimizing impact on employees, below.]
d. Employees who are identified to DISA by the methods described above will be capitalized to DISA. After capitalization, they will be given all placement and outplacement opportunities offered by DISA.
e. If a RIF of employees remaining on MCAS Cherry Point rolls is necessary after capitalization of employees to DISA using procedures described above, the RIF actions will be carried out in compliance with applicable regulations, i.e., 5 CFR 351.
Employer Rationale.
The proposal best reflects the BRAC mandate to transfer to DISA the employees dedicated to the IPC function. DISA is to take control over the workload and employees, and once this transfer is made the Marine Corps has no further control or authority over employees. The proposal provides for the transfer by transfer-of-function procedures of employees to DISA, in place and prior to migration of workload, as contemplated in the documents cited above. That transfer will move employees from the competitive area of MCAS Cherry Point to DIPC (the DISA IPC at Cherry Point.)
Union Proposal.
Step 4 Establish Interservice Support Agreement (ISA):
a. [involves identification of billets - see above]
c. Establish an ISA between G6 and DISA for mainframe services identified in 3d supported by the billets identified in 4a. The billets under the ISA are employees of Marine Corps Air Station (MCAS), Cherry Point, fully reimbursed by DISA until the workload migrates to DISA and/or the positions are transferred to DISA through execution of the job swap process outlined in step 5 and by execution of the RIF process, if required, in step 6.
h. The ISA will remain in effect while the workload identified in 3d is processed at MCAS, Cherry Point. Portions of workload can/will be migrated as a repetitive process per steps 5 and 6. After all of the work is migrated the ISA will become void and a capitalization date can be set subject to Union validation.
i. The ISA manager will continually draw down the ISA work force as workload migrates. The ISA manager will execute the actual job swaps/placements, execute the VSIP/VERA program simultaneously transferring the vacant billets to DISA and execute the RIF as a lost resort, to vacate billets in accordance with step 6.
l. If hiring is needed within TISD temporary hiring only will be utilized until the DISA migration is completed unless qualified candidates can be located within the ISA group and those employees shall be considered first for selection for the permanent position. Temporary promotions will be utilized wherever possible.
m. Should vacancies occur inside the ISA group prior to migration, DISA shall be authorized under the agreement to fill the position with a DISA employee or offer a temporary detail to a TISD employee for the duration of the ISA. On termination of the ISA that employee shall return to his/her permanent position. No such detail shall cause a loss of pay or benefits to the employee involved.
[Subsections b,d,e,f,i, j, and k of Union Step 4 are discussed below under the issue concerning minimizing impact on employees. Likewise Step 5 is discussed below.]
Step 6 Vacate billets using RIF process.
a. After workload migrates from Cherry Point (including partial workload migrations) employees occupying these billets that have not been matched with job swap/placement opportunities will vacate these billets and bump and retreat into permanent billets aboard MCAS Cherry Point according to the following Reduction in Force (RIF) procedure: [the remaining provisions concerning RIF procedures are attached as Appendix 2 because of their length.]
Union rationale.
The proposal calls for use of an ISA in lieu of immediate transfer of personnel to DISA. There is no capitalization until after workload has migrated to DISA. ISA’s between agencies to perform services is a routine way to do business at TISD G6. Here it would involve the use of DISA reimbursable positions at MCAS Cherry Point without the disruptions of capitalization prior to migration. Migration would go forward on a partial basis after employees in ISA positions had availed themselves of job swap and other opportunities at outplacement, early retirement, etc. When all workload has migrated the ISA becomes void. MCAS Cherry Point employees who have not volunteered to go to DISA or have not been placed or covered by available programs will be subject to RIF procedures as Marine Corps employees within a competitive area defined as the "commuting Cherry Point Station competitive area." Using this enlarged competitive area (as compared with a competitive area restricted to a DISA IPC at Cherry Point envisioned by the Employer proposal) increases retention options for the civilian work force. The Panel has recognized the unfairness of changing existing competitive areas in the face of an imminent RIF.
4) Measures for mitigating the impact on employees effected by the reorganization/consolidation.
Employer Proposal.
5. The following Procedures will be used to lessen the impact of capitalization to DISA with volunteers wishing to transfer to DISA:
a. The following plan will be used to exchange employees identified to DISA with volunteers wishing to transfer to DISA:
i. Employees identified to DISA using the methods described in paragraph 4, above, will be transferred to DISA on the date specified by DISA and Headquarters Marine Corps. Job swaps of permanent employees with volunteers will occur prior to transfer of the IPC function from Marine Corps Air Station Cherry Point to DISA. Job swaps will occur in the following order:
(1). Employees within G-6 who volunteer to go to DISA will be swapped for DISA employees at the same grade in retention standing order.
(2). Marine Corps Air Station, Cherry Point, employees who volunteer to go to DISA will be swapped for DISA employees at the same grade in retention standing order.
(3). Approval will be sought for employees from all other DoD activities aboard Marine Corps Air Station, Cherry Point, who volunteer to go to DISA to be swapped for DISA employees at the same grade in retention standing order.
(4). Employees who wish to take a voluntary change to lower grade to be swapped into DISA will be swapped for DISA employees in retention order standing.
ii. Employees must be qualified to perform the work of the job into which they are swapping.
b. Permanent employees identified to DISA in Paragraph 4 who are still identified after paragraph 5a will be counseled and registered in the Priority Placement Program (Stopper List) in accordance with DoD 1400.20-1-M after the capitalization if they so desire. They will also be placed on the MCAS Cherry Point Prior Consideration List prior to capitalization.
c. Existing Marine Corps Air Station vacancies will be used for placement of employees identified in Paragraph 5b to the maximum extent possible, considering series, grades, and qualification of the employees.
d. Employees who are identified to DISA by the methods described above will be capitalized to DISA. After capitalization, they will be given all placement and outplacement opportunities offered by DISA.
Employer Rationale.
The proposal provides for measures to lessen to the maximum extent possible the impact of employees being transferred to DISA, acknowledging the line of authority between DISA and MCAS. Once identification of employees for transfer to DISA is accomplished vacancies for them at MCAS Cherry Point can be sought. MCAS has been unable to place employees in vacancies over the last year because of the impasse with PASS over identification.
Union Proposal.
Step 4.
b. Request and receive from DISA a list of positions (jobs) that will remain at Cherry Point for a period of two years or more and a list of positions that will be offered to Cherry Point bargaining unit members at DISA sites that will remain for three or more years.
d. Existing Marine Corps Air Station vacancies will be used for placement of employees identified in step 4 to the maximum extent possible, considering series, grades and qualifications of employees.
e. An employee staged for transfer to DISA will be eligible for placement into the DISA jobs that will remain at Cherry Point for two years as specified in step 4b as well as being eligible for the VSIP/VERA programs.
f. Permanent employees identified to DISA in step 4 who are still identified to DISA after step 5 and 6 will be considered and registered in the Priority Placement Program, (Stopper List) in accordance with DOC 1400.20-1M prior to capitalization if they so desire. They will also be placed on the MCAS, Cherry Point, Prior Consideration List.
j. Where multiple billets are effected by workload migration, retention standing will be used to determine job swap execution priority.
k. Employer will ensure widest dissemination of job swap/VERA/VSIP opportunities to the employees identified in 5a.
Step 5. Stage job swaps while ISA workload remains at Cherry Point
a. Identify/stage employees for job swap with those employees in the ISA group by offering job swap opportunities in the following order:
(1) employees within G6 who volunteer to go to DISA.
(2) employees within MCAS Cherry Point "Station" who volunteer to go to DISA.
(3) employees within other activities at MCAS Cherry Point who volunteer to go to DISA.
b. Employees must be qualified for the job swap as specified in HRA guidelines for reclassification and/or job assignment, given that this consideration for qualification includes a reasonable time for job training/orientation.
c. Employees who change to lower grade will retain save grade for two years and save pay status indefinitely.
d. In the case of multiple employees wishing to swap for the same position swapping will be offered in retention standing order.
Union Rationale.
Management has repeatedly made references to available positions at MCAS Cherry Point and DISA, Jacksonville but has not produced a written list. The 2 year minimum is intended to mirror requirements of the VSIP/VERA regulations. The Union’s proposal is structured to provide all placement and assistance opportunities during the period that effected employees are covered by the ISA established in section 4c, prior to capitalization. MCAS is charged with making job swap, VERA and VISA and Stopper List opportunities available to employees. The Union’s proposal concerning job swaps differs from the Employers in these respects: swaps take place prior to transfer to DISA; with respect to qualifications for swapping, the Union provides for a reasonable time for job training/orientation; and provision is made that if a job swap results in a lower grade the ISA employee will have saved grade for two years and save pay indefinitely.
CONCLUSIONS
This case too perfectly illustrates the complexity of collective bargaining in the Federal sector where acts of Congress, technical personnel regulations and organization charts often come to bear. It also poses a challenge because both parties have submitted as final proposals complete memoranda. The latter fact suggests that the easiest route here would be to adopt one or the other proposal in toto. But the Arbitrator has concluded that such a course of action would not serve the interests of the Parties, of the public, or of the policies expressed in the various statutes and Executive orders governing Federal sector bargaining even though, for the most part, the Arbitrator is adopting the basic elements of the Employer’s proposals on the issues at impasse.
The Arbitrator’s goal is to provide terms to settle the impasse but no more terms than are necessary to achieve that goal. Non-essential language, such as in introductory paragraphs, will not be included. The Arbitrator’s effort here is to bring finality to this dispute, not to address the legal issues raised by much of this language, so that the parties can focus on developing a constructive relationship and partnership.
A major complicating issue in this case is the role of DISA, which is not here a party. The Arbitrator has no authority to issue orders binding on DISA and will not engage in exercises in futility. A second complication is the Civilian Personnel Director’s determination that the movement of G6 positions must be characterized and treated as a transfer of function. Transfer of function regulations bring into play certain technical requirements and create appealable individual rights. The last minute timing of this determination is difficult to condone. On the other hand, the determination is not frivolous as the Union seems to suggest.(7) This is a technicality with substantive impact.
These prefatory remarks aside, the Arbitrator’s conclusions follow, tracking the outline of issues laid out earlier in this Decision.
1) Preface/Purpose statement. No language is required and none is adopted. The requirement to comply with BRAC 1993 legislation is mutually understood, the bargaining obligations of the Parties exist independently, and characterizing the legal nature of personnel actions in this document is not essential or advisable in the Arbitrator’s view.
2) Method for identifying positions to go to DISA with the functions being consolidated under the BRAC.
The Union’s proposed documentation of mainframe workload. The Employer’s stance has been that the functions which must be shifted to DISA are clearly spelled out in the various reorganization documents, and that the employees tied to those functions are obvious. Yet it is evident that DISA’s assumptions about work and employees existing in G6 are based on old information and nothing approaching a careful examination of the operation. And it is the case that position descriptions being used by the Employer were outdated and inaccurate when the identification of positions began. The Arbitrator therefore finds persuasive the Union’s argument that this situation creates room for error, which to correct down the road (when employees are already within DISA) is much more harmful. Also, absence of current documentation of the mainframe workload has contributed to an extremely low level of trust by employees and Union representatives in the Employer’s decision-making process.
There was no disagreement by management with the Union’s representation that the data it proposes be obtained is readily available, through a process that is not time-consuming. The Arbitrator therefore adopts the Union’s proposal for documentation of the mainframe workload (para.2, Step 1), but making provision for a strict timetable. The purpose of the documentation is to insure accuracy in the identification of positions, including the number of positions, attaching to the functions transferring to DISA.(8)
Position Descriptions and Audits. Prior to the second session, the Parties locally took up the question of the position descriptions contested by the Union. In that process, inaccuracies were identified and corrections and modifications made. The Union’s proposal reads as if that process had not occurred, although in discussion the progress made was conceded but with the reservation that the work was not complete. The Arbitrator will provide for completion of the position description review and of classification audits within a time frame to permit consideration of the data resulting from the documentation of mainframe workload and its impact, if any. The Employer’s proposal (para.3(a)) lists the positions identified as belonging to the DISA function using the position descriptions resulting from the recent review process. The Arbitrator will adopt that section but making proviso for modification in lieu of results of the completed PD review and audit.
The Union’s Proposal for Reconfiguring positions. The Employer’s identification of positions for transfer to DISA (in its proposal, para. 3(a)) uses the criteria that a position is identified with the DISA function if more than 50% of the duties, or grade controlling duties, are within that function. The Union proposes that instead of this approach, positions be reconfigured to lump together all DISA function work into 100% DISA positions (to be transferred to DISA), and all non-DISA functions into 100% non-DISA positions (to remain in MCAS Cherry Point.) After careful consideration, the Arbitrator is not convinced of the feasibility and workability of the Union’s approach. Critical issues were not addressed by the Union in putting this novel approach forward, such as the impact on grade level of reconfiguring duties, the appropriateness of putting duties together simply because they are "non-DISA", etc. No precedent was offered that would reflect that this has approach has worked in any other setting. No illustration was offered of what kinds of positions might result. The Arbitrator is unable to order a measure that has not been shown to be feasible and possible. The Arbitrator adopts the Employer’s approach for identifying positions to DISA.(9)
3) Status of employees during transition period before workload moves physically to DISA (Jacksonville.)
The Union’s Proposal for an ISA. PASS’ proposal for an ISA retains employees within MCAS until determination by DISA of personnel needs, provides for only voluntary transfers to DISA, and insures that any RIF that may be needed to address excess employees will take place within the MCAS competitive area, giving employees maximum bump and retreat opportunities.
The difficulty in this proposal is that an ISA, the Arbitrator must assume, is an agreement between two parties. DISA would have to agree to paying the Marine Corps to perform the IPC function, with the command structure over employees remaining in the Marine Corp. But DISA is not under the jurisdiction or reach of the Arbitrator. DISA officials who appeared as witnesses in this proceeding indicated no interest in this approach, indicating that the policy was for immediate capitalization to bring assets and personnel under DISA control. DISA’s direct control is thought to lead to a more effective site review and migration of workload. This approach is reflected in DISA documents.
Although the Union indicates that using ISA’s is a routine way for G6 to do business, this is not a routine situation. By legislative directive DISA is to take control of information processing functions within the military services and determine how most efficiently to carry out those functions. The Arbitrator is in no position to conclude that an ISA gives DISA the equivalent or needed degree of control or otherwise serves the purposes of BRAC 1993 as well as the procedure used in other sites (capitalization before migration.)(10) That the BRAC legislation provided assistance funds for early retirements and the like to DISA, and not the losing services and agencies, reflects an intention about where determinations about program needs and efficiences will take place after functions, assets and personnel resources have been pulled into DISA. That this design creates a high degree of risk and uncertainty for long term employees is undeniable and unfortunate. But that fact alone does not create the opportunity to order a different approach.
The Arbitrator is not deciding that an ISA might not be a feasible alternative to pre-migration capitalization. But the Arbitrator will not order that alternative, constrained by the impossibility of directing DISA’s participation in such an approach and DISA’s failure to agree, and the inability from this vantage point of making the determination that such a course of action is consistent with BRAC 93 objectives.(11)
The Employer’s proposal concerning the capitalization of employees is adopted.
4) Measures for mitigating the impact on employees.
The primary difference between Union and Employer proposals in this area is that the Union proposals provide that all of the programs for placement and assistance, including VERA, VSIP and the placement on the Stopper list, come into play while employees are assigned to an ISA, still with the status of MArine Corp employees. The Arbitrator having declined to adopt the proposed ISA, the basic provisions in the Employer proposal are adopted, those provisions observing a distinction between Marine Corps and DISA authority, that is, between measures that MCAS Cherry Point can effectuate while employees are still in its employ, and measures that DISA has authority to effectuate once employees come under that organization. The VERA, VSIP and Stopper List programs fall in the latter category. The Union did not support its assertion that the Marine Corps has access to monies and authority to implement these programs. The BRAC 1993 legislation provides those funds to DISA.
Beyond this basic area of difference, the Union has read the Employer proposals concerning job swaps as placing the timing of that process after employees are transferred to a DISA IPC at Cherry Point, meaning that people would be swapping between the two agencies. That is not how the Arbitrator understands the proposal or the explanations of the proposal made by the Employer. Yet the language in Employer proposal paragraph 5 is not a model of clarity. The Arbitrator’s terms adopt the approach understood to be that of the Employer, which in the Arbitrator’s view conforms to the Employer’s authority, is the most orderly, and best protects employees. That is, once employees are identified as being within the function to be shifted to DISA/DIPC but before any transfer takes place which has the effect of changing their employment status from MCAS employees to DISA employees, the Employer will: (1) effect job swap opportunities, (2) place the employees on the MCAS Çherry Point Prior Consideration List, and (3) to "the maximum extent possible" use existing MCAS vacancies for placement of these identified employees.
With regard to the details of the swapping proposals there are only two differences between the Union and Employer. One has to do with qualifications. The Employer requires an employee swapping into a DISA identified position to be qualified for the position. The Union allows for a period of training/orientation. The other difference concerns saved pay/grade. The Employer provides for swaps by employees taking a voluntary downgrade but without saved grade or pay; the Union proposal allows for swaps to a lower graded position with two year save grade and permanent saved pay. While understanding that the Union’s goal is to build in whatever employee protections are possible the Arbitrator believes its proposals here collide with DISA’s role and status in this situation. The Arbitrator does not believe she has authority to order DISA to either accept as qualified employees not immediately able to perform in a position transferred to DISA or accept saved pay/grade arrangements that it would have to fund. The Arbitrator therefore does not find it feasible to adopt the Union’s proposals on these points.(12)
Given the Arbitrator’s conclusions, above, there is no reason to consider the reduction-in-force language contained in the Union proposal since it presupposes the ISA arrangement and separation of any excess personnel from MCAS Cherry Point, not DISA. The Employer language is also superfluous. If a RIF become necessary at MCAS Cherry Point as a result of the BRAC 1993 reorganization or because of any other reason, various regulations, laws, executive orders, and decisions of the Federal Labor Relations Authority make abundantly clear not only the technical RIF requirements that are dictated by law and regulation, but also the broad area of negotiability that exists concerning RIFS and the Employer’s duty to bargain on this subject. There is no need to address that here, at this time.
ORDER
The parties shall adopt the following terms:
Section 1. Within ten (10) working days of the date of this order the Employer shall document, by valid measurable data, the designated mainframe workload processed at TISD, Cherry Point:
a. for each mainframe, document the major application(s) processed on that mainframe and the customer(s) who sponsor its use.
b. for each application per mainframe, document the disk space used by the application and the frequency of backup and the retention period of backups.
c. for each application per mainframe, document the average percent of the system CPU utilized.
d. for each application per mainframe, document the number of transactions per day and the average response time per transaction.
e. for each application per mainframe, document the number of regularly scheduled batch jobs per month and the required completion time.
f. for each application per mainframe, document the average number of pages printed and the required delivery time.
g. for each application per mainframe, document the average of microfiche printed per day and the required delivery time.
Prior to the start of this documentation process the Employer and Union shall meet to review the steps to be followed. As soon as the data collection is completed the Union shall be provided with copies of all documentation. The Union shall cooperate and provide any needed assistance for this documentation procedure.
Section 2.
a. The parties will complete the review and correction of position descriptions of positions identified with functions being transferred to DISA with consideration being made of the documentation obtained from the process provided in Section 1. Should the Parties find any PD inaccurate, the Employer shall correct the discrepancies prior to identification. Grade classification of each position will be completed.
b. Based upon corrected PD’s and after reviewing the mainframe workload documentation, the Employer shall identify positions/billets by grade/series that are performing the work in the current system to be transferred to DISA following applicable legal and administrative guidelines implementing the BRAC 1993 legislation. The following is the current list of positions, with corresponding PD’s for each position, that has been identified by the Employer to date. This list shall be finalized, and if appropriate, amended, after completion of the review of PD’s and consideration of the documentation obtained from the process provided in Section 1.
a. All Computer Assistant (PD No. PASS 3)(13) and Computer Operator (PD No. PASS 1) positions in the four Information System Branches and the positions supervising each of these branches. (A career ladder position will be established to meet time-in-grade requirements in accordance with applicable regulations). These branches are responsible for the operation and control of the mainframe computers that will be capitalized to DISA. Each branch is responsible for an operational shift. The grade controlling duties support functions that transfer to DISA.
b. Supervisory Computer Specialist, GS-334-11, Position Description (PD) No. S135G. This position has overall responsibility for the four branches.
c. Computer Assistant, GS-335-8, PD No. PASS 5, is the master scheduler for work done on the mainframe computers which will be capitalized to DISA.
d.Computer Assistant, GS-335-5, PD No. PASS 6, is the position which assists with scheduling and is the point of contact for problems, requests and inquiries concerning jobs assigned to the mainframe computers which will be capitalized to DISA.
e. Computer Specialist (Systems Programming), GS-334-12, PD No. PASS 2. This position is responsible for database management for the UNISYS computer, which will be capitalized to DISA. These duties comprise the majority of the incumbent’s time and are grade controlling.
f. Computer Specialist (Systems Programming), GS-334-11, PD Nos. PASS 4 and PASS 7. These positions are responsible for system software for mainframe computers which will be capitalized to DISA. The employees identified to DISA are those who have systems software responsibility for the TANDEM and Burroughs mainframe computers, which will be capitalized to DISA.
g. The vacant billet identified to PD No. SO79G, Supervisory Computer Specialist, GS-334-12, will be transferred to DISA to supervise the DISA function to be located at Cherry Point. This position supervises mainframe computer database management.
The finalization of the list of positions identified for transfer to DISA shall be completed no later than thirty (30) days following the date of this order.
Section 3. Incumbents of the positions identified for capitalization to DISA under Section 2, above, will be identified. For purposes of the following provisions, "DISA identified employees" refers to MCAS Cherry Point employees identified for capitalization but not yet capitalized. The following procedures will be used to lessen the impact of capitalization on such employees :
a) The Employer shall request and provide to the Union any list received from DISA of positions (jobs) that will remain at Cherry Point for a period of two years or more and a list of positions that will be offered to Cherry Point bargaining unit members at DISA sites that will remain for three or more years.
b) Job swaps of permanent employees with volunteers will be staged prior to capitalization. Employees must be qualified to perform the work of the job into which they are swapping. Job swaps will occur in the following order:
(1). Employees within G-6 who volunteer to go to DISA will be swapped for DISA identified employees at the same grade, in retention standing order.
(2). Marine Corps Air Station, Cherry Point, employees who volunteer to go to DISA will be swapped for DISA identified employees at the same grade, in retention standing order.
(3) Approval will be sought for employees from all other DoD activities aboard Marine Corps Air Station, Cherry Point, who volunteer to go to DISA to be swapped for DISA identified employees at the same grade, in retention standing order.
(4) Employees who wish to take a voluntary change to lower grade to be swapped under this Section will be swapped for DISA identified employees, in retention order standing.
b) Existing Marine Corps Air Station vacancies will be used for placement of DISA identified employees to the maximum extent possible, considering series, grades, and qualification of the employee.
c) DISA identified employees will be placed on the MCAS Cherry Point Prior Consideration List.
Section 4. Employees who are still identified for capitalization after the procedures outline in section 3, above, will be counseled and registered in the Priority Placement Program (Stopper List) in accordance with DoD 1400.20-1-M at the earliest date possible under DoD regulations and/or authority.
Section 5. Following completion of the procedures outlined in Section 3, above, employees occupying PDs for which all billets have been identified for transfer to DISA will be capitalized to DISA. After capitalization, they will be given all placement and outplacement opportunities offered by DISA.
Section 6. Any time periods provided in this Order may be extended or altered by mutual agreement of the Parties.
Mary E. Jacksteit
Arbitrator
June 26, 1995
1.The data/information processing activities at MCAS Cherry Point are located in the Telecommunications and Information Systems Directorate (TISD), also referred to as G6.
2.DISA and the Marine Corps are separate agencies within DoD. PASS has recognition from the Marine Corp as the bargaining agent for a unit of employees at MCAS-Cherry Point.
3.The Union included with its final submission, after the close of the April 27 session, a letter signed by Benjamin Martin, President of AFGE Local 2317 at the Marine Corps Logistics Base at Albany, Georgia. The Arbitrator made it clear to the parties that the factual record was to be completed at the April 27 session and that no additional factual information would be accepted after that date (only clean versions of their proposals and final statements.). It would be procedurally improper and prejudicial to the Employer for the Arbitrator to accept new factual material into the record at this point. (This is not new evidence unavailable at an earlier date.) Any reference to Albany in this Decision is based on discussions that took place before the Arbitrator on April 27.
4.DISA officials justify this by the need to maintain a stable DISA organization which would be impossible if DISA-wide (or Jacksonville-wide) RIFS had to be run with the disestablishment of each IPC.
5.His explanation is that the original understanding was that MCAS Cherry Point positions would go directly to the Jacksonville megacenter where the information/date processing function already exists, the latter fact negating a transfer of function. In April, ‟revised information” indicated to him that DISA would be establishing an IPC at Cherry Point for a period of time (the Defense Information Processing Center (DIPC) will exist until the workload is migrated to Jacksonville at the beginning of 1996.) His reading of the regulations is that because there is no existing DISA IPC at Cherry Point, the transferring function is not being already performed, and thus transfer of function rules apply.
6.In the absence of the PD‛s being reclassified after the recent review/modification process, the Employer adopted a identification system of PASS .
7.The employer was in possession of the Personnel Director’s determination prior to the April 27 session. The Arbitrator was given no explanation as to why it was not shared with the Union prior to that session. Nor was justification offered for the failure to mention it until after several DISA officials who had appeared as witnesses left the meeting on April 27 and became unavailable to answer question as to why it was establishing an IPC at Cherry Point, and if and why this was different than the situations at other facilities being capitalized by DISA. But the behavior and stratagems of the Employer are not the issue before this Arbitrator. The task here is to bring this bargaining impasse to resolution. That there is to be a DISA entity at Cherry Point, existing as a distinct competitive area, has always been clear (it is that fact that has so concerned the Union because of the limited bumping rights).
8.There is some doubt in the Arbitrator’s mind as to the usefulness of this documentation if there is to be no reconfiguring of positions into 100% DISA positions and 100% non-DISA positions, which is the conclusion reached below. It is hoped that if the Union finds no usefulness to the data in that situation, it will agree to drop this documentation step.
9.The Employer’s language is being modified, however. Employer paragraph 4 is mostly redundant of paragraph 3 and what is redundant is eliminated. Paragraph 4 essentially provides that the positions described in paragraph 3 will be identified to DISA. The small amount of descriptive language about several positions found in paragraph 4 and not paragraph 3 has been incorporated into the latter. The Arbitrator’s view is that paragraph 2 is also unneeded. It is a list of position categories provided to MCAS Cherry Point by DISA as subject to capitalization. The Union has been in possession of this guidance since July 1994. The Arbitrator believes the Union to be in error in asserting that this list and the document where it originated, are inapplicable to MCAS Cherry Point. DISA officials stated at the April 17 session that the Transition Plan was inapplicable to Cherry Point (Annex A-4, 7 January 1995) not the Capitalization Plan (5000 UP, 28 July 1994). In any case, the Arbitrator does not believe that there is serious ambiguity about what functions are to go to DISA under BRAC 1993 or what kinds of positions, generally, DISA has indicated belong with those functions.
10.The proposal by PASS to locate any RIF within the MCAS Cherry Point competitive area has implications for the other employees and bargaining units at that facility. At Albany, cited frequently by the Union in support of its proposals, there was no alteration in DISA’s basic capitalization plan such as is involved with the ISA proposal. Involuntary transfers to DISA were avoided by precapitalization placements of individuals, which is certainly an aspect of the Employer proposal, here, and of the terms being ordered by the Arbitrator.
11.There has been an inflexibility in the Marine Corp’s response to the Union’s bargaining approach formed by a belief that PASS was trying to undo the BRAC and avoid the inevitable. Elements of the original PASS proposal did indeed have the MArine Corp conducting studies as to whether or not IPC functions ought to remain in MCAS Cherry Point or go to DISA, a question not open for discussion. But the Union early dropped those provisions and its remaining concerns are clearly with providing maximum protection for G6 employees facing great uncertainty, especially those with long seniority. Nothing would constrain the Employer from being as flexible as possible at this stage.
12.The worst scenario would be for a swapped employee who becomes a DISA employee to find him or herself determined unqualified because not currently able to perform the job, or subject to downgrading.
13.In the absence of official classification action after the recent review process, the Employer adopted an identification system of PASS .