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In the Matter of DEPARTMENT OF THE ARMY ARMY CORPS OF ENGINEERS PORTLAND DISTRICT PORTLAND, OREGON |
Case No. 95 FSIP 169 |
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and LOCAL 7, NATIONAL FEDERATION OF FEDERAL EMPLOYEES
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ARBITRATOR'S OPINION AND DECISION
Local 7, National Federation of Federal Employees (Union) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse between it and the Department of the Army, Army Corps of Engineers, Portland District, Portland, Oregon (Employer) under the Federal Service Labor Management Relations Statute, 5 U.S.C. § 7119. After investigation of the request for assistance, the Panel directed the parties to submit the dispute, which involves the parties' successor collective-bargaining agreement, to the undersigned for mediation/arbitration. In accordance with this procedure, I was vested with the authority to mediate with respect to all outstanding issues and to render a decision should any issues remain unresolved.
On December 19 and 20, 1995, representatives of the parties convened before me at the Employer's offices in Portland, Oregon. During mediation, the parties were able to reach agreement on all but four outstanding issues. Thus, an arbitration hearing was conducted on December 20, 1995, to resolve those remaining items. During the hearing, the parties were afforded the opportunity to present in full their respective final positions, offer testimony, cross-examine witnesses, and submit documentary evidence for the record. Following the hearing, the Union, by prior arrangement, submitted additional exhibits and both sides submitted post-hearing briefs. The record is now closed and I have considered all of the relevant information contained therein.
BACKGROUND
The Employer operates and maintains dams, flood-control projects, and recreation facilities in Oregon and southwest Washington. The bargaining unit consists of approximately 340 nonprofessional employees who work in a variety of Wage Grade and General Schedule occupations. These employees are located at the District headquarters in downtown Portland, at the U.S. Moorings facility, and at approximately eight field sites. The parties' prior contract expired in August 1994, but remains in effect until a new one is implemented.
ISSUES AT IMPASSE
The parties are at impasse regarding the following issues:
I. Whether the Employer should be required to insert its agreement to bargain with the Union over "permissive management rights" issues into the parties' collective bargaining agreement.
II. Whether a peer recognition award program should be established which will provide for a $25.00 monetary award to be given by a bargaining unit employee to any other employee at his or her discretion, without management oversight.
III. Whether the Employer should be required to pay for travel and per diem for Union officials who are on official time.
IV. Whether the Employer should be required to fund official time out of a special unfunded district overhead account rather than out of project accounts.
I. INCORPORATING THE EMPLOYER'S AGREEMENT TO BARGAIN OVER PERMISSIVE MANAGEMENT RIGHTS INTO THE COLLECTIVE BARGAINING AGREEMENT
A. Positions of the Parties
1. The Union's Position
The Union proposes to insert the following language as Section 2(d) of Article 2, "Mutual Rights and Obligations," in the parties' collective bargaining agreement:
(d) In accord with the spirit and the letter of Executive Order 12871, the agency agrees to bargain with the union over the matters referred to in section (c)(1) above; which are referred to as the "formerly permissive management rights" or 5 U.S.C. § 7106(b)(1).
The Union also proposes language to assuage the Employer's concern that the above-quoted language would become enforceable under the collective bargaining agreement: "the refusal to bargain over a 5 U.S.C. § 7106(b)(1) matter" would be specifically excluded from the grievance procedure.
The Union is merely seeking to memorialize management's existing duty to bargain over section 7106(b)(1) subjects under Executive Order 12871. The proposed contractual language would not create any special enforcement rights for the Union under the grievance procedure. The only avenue of enforcement would be through an unfair labor practice charge. The General Counsel of the Federal Labor Relations Authority (FLRA) has issued an Advice Memorandum stating that "a refusal to negotiate over a subsection (b)(1) matter in a situation where there otherwise is a statutory duty to bargain is an unfair labor practice. . . ." (Union Exhibit 7; General Counsel's Advice Memorandum No. 95-3, dated February 28, 1995) The proposed contract language would not create any new or special enforcement rights for the Union which do not already exist.
2. The Employer's Position
The Employer argues that permissive rights under subsection (b)(1) are negotiable only at the election of the agency and that the Union's proposal would have the effect of forfeiting the agency's right of election. Such a forfeiture of the agency's right of election is inconsistent with recent cases decided by the FLRA which continue to recognize that permissive rights under section 7106(b)(1) are not negotiable except at the election of the agency.(1) The adoption of the Union's proposal would create an enforceable right under the collective bargaining agreement contrary to the express intent of the Executive Order as well as the philosophy of effective partnering.
B. Analysis and Conclusion
Contrary to the Employer's argument, the Union's proposed contract language memorializing the Employer's agreement to bargain over permissive management rights does not establish any enforceable right under the collective bargaining agreement. Under the Union's proposal, "the refusal to bargain over a 5 U.S.C. § 7106(b)(1) matter" would be specifically excluded from the grievance procedure. As the Union has pointed out, the only enforcement mechanism for violations of the duty to bargain over permissive rights would be through an unfair labor practice charge. That avenue of enforcement would be available even without the proposed contract language.
The Employer's contention that the proposed language is contrary to recent FLRA precedent is also unfounded. The two cases cited by the Employer were both negotiability appeals filed under section 7105(a)(2)(E). In National Association of Government Employees, Local R5-184 and U. S. Department of Veterans Affairs, 51 FLRA 386 (1995), the Authority addressed the interrelationship between sections 7106(a) and 7106(b)(1) and concluded that matters encompassed within both sections are negotiable at the election of the agency. In American Federation of Government Employees and U. S. Office of Personnel Management, 51 FLRA 491 n.11 (1995), the Authority grappled with the negotiability of a Union proposal establishing competitive areas to be used in conducting reductions in force and concluded that it was nonnegotiable because it encompassed supervisory personnel. Neither of these cases stands for the proposition that an agency may disregard Executive Order 12871 and elect not to negotiate over purely permissive subjects.
As stated in the U. S. Office of Personnel Management's Guidance Memorandum for Implementing Executive Order 12871 ("Guidance Memo"), dated December 16, 1993, "[u]nder Executive Order 12871, bargaining over the subjects set forth in 5 U.S.C. § 7106(b)(1) is now mandatory, and a failure by agency managers to engage in such bargaining would be inconsistent with the President's directive." (Union Exhibit 5) Thus, the agency's "right of election" in effect has been exercised by the President.
Although the Employer's arguments that the proposed contract language forfeits its "right of election" and creates an enforceable right of administrative or judicial review must be rejected, the question of whether insertion of the proposed language into the collective bargaining agreement serves the purpose of the Executive Order deserves serious consideration. The objective of Executive Order 12871 is to exhort managers, employees, and employees' union representatives "to work together as partners in designing and implementing comprehensive changes needed to reform Government." (Guidance Memo, p. 1) The Guidance Memo encourages agencies and unions to form partnership councils and suggests that the parties commit to a "Partnership Principles Agreement." This Agreement would address such matters as "(1) the organizational arrangements for the partnership, (2) procedures for bargaining matters under §7106(b)(1), and (3) procedures for resolving disputes among the parties." (Guidance Memo, p. 2)
An effective partnership cannot emanate from a "shotgun marriage." Mutual respect, trust, cooperation, and compromise are the hallmarks of meaningful partnering. In this case, the parties have already made a positive first step by agreeing during mediation to the following contractual language regarding a partnership agreement:
Pursuant to Executive Order 12871, the parties agree to meet and confer in good faith to establish a partnering agreement and abide by its terms. In the spirit of partnering, it is intended that this simply reflect the new relationship desired by the parties. Therefore, this provision will not be subject to grievance through arbitration.
Prior to the submission of Issue No. 1 to arbitration, the Employer submitted its last, best, and final offer in connection with the Union's proposed Article 2.2(d). It offered to adopt the following language in a side bar agreement in exchange for the withdrawal of proposed Article 2.2(d) from the collective bargaining agreement:
Terms of MOA [Memorandum of Agreement]:The employer agrees to make the provisions of Article 2.2(d) a component of any partnering agreement reached between NFFE Local 7 and this agency. This MOA is not subject to grievance procedures. In return, Article 2.2(d) will be withdrawn by NFFE Local 7.
Although the Union rejected this offer, preferring to insert the proposed language in the collective bargaining agreement rather than in a future partnership agreement, the adoption of this side bar agreement has substantially the same effect as the Union's proposal, would meet each party's concerns, and would be consistent with the Guidance Memo's suggestion regarding the contents of the Partnership Principles Agreement. The parties are therefore ordered to adopt the Employer's last, best, and final proposal quoted above as a side agreement and the Union shall withdraw its proposal to insert Article 2.2(d) in the collective bargaining agreement.
II. ESTABLISHING A PEER RECOGNITION AWARD PROGRAM WITHOUT MANAGEMENT OVERSIGHT
A. Positions of the Parties
1. The Union's Position
The Union proposes to establish a peer recognition award which would allow each bargaining unit employee to award a $25.00 voucher to a fellow employee. This award would not be subject to management approval. The award is inspired by the "Groo Award," an innovative incentive award program which was the brainchild of Tyler Groo, an employee of the U. S. Forest Service, Paulina Ranger District, Ochoco Forest, Pacific Northwest Region. Under the Union's proposal, which would be inserted as section 7 in Article 16, employees are granted limited authority to give the $25.00 monetary award to a fellow employee whom they believe has helped them the most or has provided a service to the government deserving of recognition:
16.7 On December 15th of each year, the Agency shall give to each bargaining unit member a voucher for $25.00. Each employee shall give their voucher to any employee (bargaining unit or otherwise) that they believe has helped them the most during the prior year or that they believe has provided a service to the government that has not been properly acknowledged. No employee may give themselves the voucher. Employees may receive more than one award. After giving the award, an employee shall write a one-sentence explanation of why and to whom their award was given and shall submit this explanation to Personnel. No award shall be questioned or revoked after it is given.
In response to the Employer's position that management must retain approval authority over each individual award under 5 C.F.R. 451.104(e), the Union points to other analogous award programs which have existed for many years in other government agencies. For example, Tyler Groo testified at the hearing that management at the U. S. Forest Service in the Paulina Ranger District has delegated award authority to the employees for the past approximately 10 years. Groo also testified that the "Groo Award" has been recognized on a nationally televised PBS show entitled "Excellence in the Public Sector" as a positive program improving quality in the workplace. The Union cites another similar peer award program established by the Bureau of Land Management ("BLM") in Montana in 1991 which grants limited authority to employees to give a $50 certificate to a co-worker for demonstrating "quality" traits such as cost saving, extra effort, excellence, and teamwork. (Union Exhibit 8) The Dallas Region of the Office of Personnel Management ("OPM") included the Montana BLM Quality Work Award program on its list of "Innovative Incentive Awards Programs." (Union Exhibit 2)
The empowerment of employees is one of the basic means towards creating a more efficient government and, by being able to give a $25 certificate to fellow employees, bargaining unit members would be empowered in some small way. As stated by the BLM in Montana:
Recognition can build self-esteem, promote teamwork, create energy, and inspire us to excel. Recognition can provide a sense of pride and satisfaction for both the giver and the receiver. Employee recognition is one way of promoting a quality workforce to meet our customers [sic] needs. (Union Exhibit 8, p. 3)
2. The Employer's Position
The Employer is willing to establish a peer recognition award program, as long as management retains approval authority over individual awards as provided by applicable rules and regulations. The Employer's proposal is as follows:
The Employer agrees to establish a peer recognition award program which will provide for monetary or other types of awards. The nomination for an award will be subject to management approval as provided in applicable rules and regulations. The parties agree to meet and confer in good faith to establish the policies and procedures for the program.
The statutory authority for the expenditure of funds for employee awards is found at 5 U.S.C. § 4503, which allows the head of an agency to pay a cash award to an employee who "(1) contributes to the efficiency, economy, or other improvement of Government operations; or, (2) performs a special act or service in the public interest. . . ."
The Employer contends that the Union proposal fails to comply with government-wide regulations promulgated by the United States OPM which provide the following criteria, among others, for the granting of an incentive award:
a. The award must be "for a contribution resulting in tangible benefits or savings and/or intangible benefits to the Government." 5 CFR 451.103
b. The award must be supported by a written justification. 5 CFR 451.104(e)(2)
c. The award must be "approved at a management level higher than that of the individual who recommended . . . the award." 5 CFR 451.104(e)
The lack of management oversight could result in an uncontrollable potential for abuse. Furthermore, the Union has not identified any need for eliminating the requirement of management approval. Many of the benefits identified by the study conducted by the OPM, Dallas Region, of peer recognition award programs (Union Exhibit 2), such as improved self-esteem and working relationships, have nothing to do with whether management approves the award.
B. Analysis and Conclusion
The two stumbling blocks which have prevented the parties from reaching agreement on a peer recognition award are primarily two-fold: (1) whether there should be a monetary award, and (2) whether management can delegate its awards authority to individual employees. In its last, best, and final offer, the Employer overcame the first stumbling block and indicated a willingness to establish a monetary award. The parties were not able, however, to surmount the issue of management oversight of the award program.
During the arbitration, the Union presented documentary as well as testimonial evidence that other government agencies have established successful peer recognition awards programs in which limited awards authority had been delegated by management to employees. In its 1994 survey of awards programs, the Dallas Region of the OPM cited the Montana BLM's Quality Work Award (employees give a $50 certificate to a co-worker) as an "innovative" incentive award program. The Quality Work Award has been in existence at least since 1991. The OPM survey also recognized the peer recognition program (each employee receives two certificates worth $25 to give to co-employees) administered by the U. S. Forest Service's Regional Office in Ogden, Utah. The "Groo Award," which has been in place for approximately 10 years in the U. S. Forest Service's Paulina Ranger District in Oregon, allows each employee to present a $37.50 cash award to a fellow employee. Tyler Groo testified that the Forest Supervisor has delegated limited awards authority by pre-approval to individual employees and has no ability to deny the award. The Groo Award is not reflected in the parties' collective bargaining agreement.
The Employer presented testimony from the Acting Chief of Operations for the U. S. Army Corps of Engineers, Seattle District, and the Finance and Accounting Officer for the Corps of Engineers, Portland District. Both testified that the Seattle District of the Corps of Engineers has its own version of the "Groo Award" in which each employee nominates another employee to receive a $40 certificate. The recommendation is subject to the approval of the Chief of the Engineering Division. The Finance and Accounting Officer testified that he did not know how a supervisor would deny an employee's nomination or if a nomination has ever been denied.
Much of the evidence relating to peer recognition awards presented during the arbitration had not been reviewed by the parties during their negotiations. The evidence seems to suggest that management oversight of incentive awards programs need not be as formalistic as what the Employer proposes nor as non-existent as what the Union desires.
Having carefully evaluated the arguments and evidence presented by the parties, I conclude that the Union's proposal should serve as a basis for resolving this dispute, with three modifications: (1) the awards program broadly outlined by the Union in its proposal will commence as a one-year pilot program and may be extended thereafter by mutual agreement of the parties; (2) the parties will meet and confer in good faith to prepare the specific rules and procedures for the program which will be distributed to the employees;(2) and (3) no award given by an employee shall be questioned or revoked after it is given, except in the event of fraud, coercion, or other violations of the rules and procedures of the award program.
III. TRAVEL AND PER DIEM FOR UNION ACTIVITIES ON OFFICIAL TIME
A. Positions of the Parties
1. The Union's Position
The Union wants to adopt contract language allowing payment for travel and per diem expenses for all Union activities on official time:
27.5 REPRESENTATIONAL TRAVEL: The Union and Employer agree that travel to perform representational duties is in the best interest of the government. Normal travel and per diem shall be authorized for stewards/officials performing representational functions, such as, but not limited to: attending union-sponsored training sessions, meeting with bargaining unit employees and lobbying on behalf of the bargaining unit employees.
The Union presented evidence to contradict the Employer's position that existing regulations permit it to pay expenses only for "labor-management meetings" and not any other kinds of meetings. An employee of the U. S. Forest Service at Mt. Hood National Park and President of his NFFE Local, testified that Union officials are allowed travel and per diem for all official time activities. For example, their collective bargaining agreement provides that "[t]ravel expenses, travel time and per diem is [sic] included in allowed official time" for Union officials to attend Union training. (Union Exhibit 4) An employee at the Corps of Engineers, Seattle District, and President of NFFE, Local 8, testified that Union stewards have a right to travel and per diem expenses when attending Union-sponsored training on official time. Local 8's contract with the Seattle Corps of Engineers provides that "[t]ravel and per diem is [sic] included in allowed official time." (Union Exhibit 3)
Granting travel and per diem for Union activities would be to the benefit of both the Union and the bargaining unit members. The Portland District of the Corps of Engineers covers a large area including Oregon and part of Washington. Payment of travel and per diem expenses for Union officials would allow more in-person contact between employees and their representatives in resolving problems, create greater visibility and a more positive image for the Union, and enable the Union to use its funds for other needs such as arbitration costs.
2. The Employer's Position
The Employer points out that Article 27.4 of the parties' current collective bargaining agreement provides that "[p]ayment of travel expenses will be allowed in accordance with paragraph C4506 and other pertinent provisions of the Joint Travel Regulation (JTR)." Paragraph C4506 provides that the agency will pay the travel expenses for union representatives when they "perform travel to attend labor-management meetings that are certified to be of primary interest to the United States."
The Employer has proposed to expand the current contract language to provide Union officials with a government vehicle for travel to project sites outside of the district office where no steward has been appointed at the project:
At Portland District projects where the Union is unable to appoint a steward and representational problems cannot be solved through the use of mail, telephone or other options, the Employer will provide a Government vehicle for travel to the project.
The Union has provided no evidence of need to support its proposal other than to argue that the Employer should sponsor its efforts to improve its image. The Union has not shown a legitimate reason or a need for the Employer to pay for expenses for Union-sponsored training, meeting with bargaining unit members, or lobbying members of Congress. The current practice of providing 100% travel and per diem expenses for joint management-union meetings insures that the Union experiences no burden in engaging in essential functions of collective bargaining and grievance and arbitration procedures. Adoption of the Union's proposal would remove any incentive for the Union to economize and potentially place an undue burden on the Employer.
B. Analysis and Conclusion
The Employer currently provides the Union with 100% travel expenses for any face-to-face meetings with management. Although the Union presented evidence that other Unions are allowed travel and per diem for Union-sponsored training and representational activities, it presented no evidence to support its own need to depart from the current practice. Even the employee of the Seattle District Corps of Engineers and President of NFFE, Local 8, admitted that his Local Union has not had a need for travel and per diem expenses for Union-sponsored training meetings in the last two years.
Given the state of the evidence, the Employer's proposal provides a reasonable balance between the parties' interests and needs. Accordingly, the parties shall adopt the Employer's last, best, and final offer for the provision of a government vehicle for travel to locations outside of the District office.
IV. ESTABLISHING A SPECIAL DISTRICT OVERHEAD ACCOUNT TO FUND OFFICIAL TIME
A. Positions of the Parties
1. The Union's Position
The Union proposes the following contract language:
27.7 Accounting: A special unfunded account under District overhead will be used for cost accounting of all official union activities. This is necessary so that a few sections are not burdened with the fiscal responsibilities for representing the entire district.
The use of a special overhead account would benefit all parties because first-line supervisors will no longer need to be concerned that the cost of official union activities engaged in by Union officials will be paid for out of their project's budget. By funding official time out of an overhead account, the funding burden is spread out over many areas. This would also alleviate the tension between first-line supervisors and Union officials.
2. The Employer's Position
The Union provided no evidence to support its assertion that Union representatives are having problems with their supervisors because of the current system of accounting for official time. The Employer's Finance and Accounting Officer testified that first-line supervisors are not involved in the budget process. He also testified that implementation of the Union's proposal would require the approval of agency headquarters because the financial accounting computer program used by the Corps of Engineers will not accept the type of account proposed by the Union. The Corps would have to reprogram the computer program used by the entire Corps of Engineers.
B. Analysis and Conclusion
The Union did not present evidence to show that it has encountered any substantial difficulties from supervisors as a result of the current accounting system for official time. Although the employee of the U.S. Forest Service at Mt. Hood National Park and President of his NFFE Local testified that the U. S. Forest Service accounts for official time in a manner similar to that proposed by the Union, there was no evidence that the cost accounting systems of the U. S. Forest Service and the Corps of Engineers are comparable.
The Employer's Accounting and Finance Officer testified that the cost of official time tends to be a relatively insubstantial proportion of project budgets. He further testified that, in order to implement the Union's proposal, significant reprogramming of the Corps-wide accounting system would have to take place. He stated that the Portland District has no authority to set up a new account. This would have to be accomplished through the Corps' headquarters in Washington, D. C. The Union failed to rebut his testimony that reprogramming the Corps' system would be unduly burdensome.
Having considered the evidence and arguments on this issue, the Union will be ordered to withdraw its proposal. The Union did not meet its burden of showing that the gains to be achieved from a new accounting system would justify the burden of re-programing the system on a Corps-wide basis.
ORDER
In light of the foregoing, the parties' disputes are resolved as follows:
I. Incorporating The Employer's Agreement To Bargain Over Permissive Management Rights Into The Collective Bargaining Agreement
The parties shall adopt the Employer's last, best, and final proposal as a side agreement and the Union shall withdraw its proposal to insert Article 2.2(d) in the collective bargaining agreement.
II. Peer Recognition Award Program
The parties shall adopt the Union's proposal, as modified below:
On December 15, 1996, the Agency shall provide each bargaining unit member with a voucher in the amount of $25.00. Bargaining unit members shall give their voucher to any employee (bargaining unit or otherwise) whom they believe has helped them the most during the prior year or has provided a service to the government that has not been properly acknowledged. No employee may give himself or herself a voucher. Employees may receive more than one award. An employee presenting an award shall write a brief explanation of why and to whom their award was given and shall submit this explanation to Personnel. No award shall be questioned or revoked after it is given, except in the event of fraud, coercion, or other violations of the rules and procedures of this award program. The parties shall prepare specific rules and procedures for the program which will be distributed to the employees. This peer recognition awards program will commence as a one-year pilot program and may be extended thereafter by mutual agreement of the parties.
III. Travel And Per Diem For Union Activities On Official Time
The parties shall adopt the Employer's last, best, and final offer for the provision of a government vehicle for travel to locations outside of the District office and the Union shall withdraw its proposal.
IV. Special District Overhead Account To Fund Official Time
The Union is ordered to withdraw its proposal.
Dolly M. Gee
Arbitrator
April 12, 1996
Los Angeles, California
1.See National Association of Government Employees, Local R5-184 and U. S. Department of Veterans Affairs, 51 FLRA 386 (1995) and American Federation of Government Employees and U. S. Office of Personnel
Management, 51 FLRA 491 n.11 (1995).
2.The program currently proposed by the Union provides for a $25 voucher. Given that the parties' negotiations on the subject of the awards program was impeded by a disagreement regarding the degree of management oversight, many of the specific details and procedures of the awards program were not discussed. For example, it would behoove the parties to meet and confer regarding the advantages of a "voucher" versus a certificate similar to the Groo Award or the Montana BLM's Quality Work Award. The parties may also wish to consider whether the type of special actions or achievements for which the award is being given should be inscribed on the voucher or certificate itself along with the space for a brief justification from the employee, as it is in the Groo Award or the Quality Work Award. In addition, the parties should determine whether there should be an expiration date on vouchers/certificates not awarded or redeemed.