United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
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In the Matter of DEPARTMENT OF AGRICULTURE FARM SERVICE AGENCY ST. LOUIS, MISSOURI |
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AND LOCAL 3354, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
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Case No. 97 FSIP 34 |
DECISION AND ORDER
Local 3354, American Federation of Government Employees, AFL-CIO (Union) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the Department of Agriculture, Farm Service Agency,(1) St. Louis, Missouri (FSA or Employer).
Following an investigation of the request for assistance, which involves an impasse in negotiations over a staffing plan for FSA-St. Louis divisions pursuant to a grievance settlement agreement, the Panel directed the parties to participate in an informal conference with Executive Director H. Joseph Schimansky for the purpose of resolving the outstanding issues. The parties were advised that if no settlement were reached, Mr. Schimansky would report to the Panel on the status of the dispute, including the parties’ final offers and his recommendations for resolving the issues. After considering the report, 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, the parties met with Mr. Schimansky on April 24, 1997, but they were unable to resolve the key issues in dispute. Mr. Schimansky has reported to the Panel, and it has now considered the entire record.
BACKGROUND
The Employer’s mission is to: (1) administer agricultural commodities loan programs, the Federal Crop Insurance Corporation programs (e.g., catastrophic crop insurance, non-insured crop disaster assistance, and emergency assistance in cases of natural disasters), and the Conservation Reserve Program which protects fragile farmland by encouraging farmers to stop growing crops on highly erodible and other environmentally-sensitive acreage; (2) offer direct and guaranteed farm ownership and operating loan programs to farmers unable to obtain private, commercial credit; and (3) provide the operating personnel for the Commodity Credit Corporation, which supports the prices of some agricultural commodities through loans and purchases. The Union represents approximately 75 General Schedule employees of the three FSA-St. Louis divisions which provide automation and accounting support to the farm lending programs.(2) FSA-St. Louis bargaining-unit employees work mostly as computer specialists and accounting technicians in pay grades GS-4 through -13. The parties are governed by a collective-bargaining agreement (CBA) between FmHA and the Union due to expire in February 1998.
ISSUES
In essence, the parties disagree as to: (1) what the numbers, types, and grades of employees in six of the Employer’s branches(3) should be; (2) whether the Employer should be required to fill/backfill positions to maintain the staffing levels required under the agreement; and (3) how long their staffing agreement should remain in effect, and whether and under what conditions it should be reopened.
1. Numbers, Types, and Grades of Positions/Employees in the Six Branches
a. The Union’s Position
The Union proposes the following numbers, types, and grades of bargaining-unit positions in the six branches:
:Guaranteed Loan Branch
1 GS-334-13
12 GS-334-12s
Loan and Grant Servicing Branch I:
2 GS-501-11s
1 GS-525-8
12 GS-525-7
Loan and Grant Servicing Branch II:
2 GS-501-11s
1 GS-525-8
12 GS-525-7s
Program Reporting Branch:
1 GS-501-11
2 GS-501-9s
2 GS-525-7s
Financial Control Branch:
1 GS-501-11
3 GS-525-7s
Financial Reporting Branch:
1 GS-501-11
3 GS-525-7s
In addition, it proposes that "the new GS-501-9/11 positions contained in this agreement" be "subject to classification review. When announced, the initial area of consideration for the GS-501 positions will be FSA-St. Louis only."
The Union’s proposed increases in current staffing levels are justified primarily by "the 1996 Farm Bill" which eliminated many agricultural programs, leaving the FSA-Kansas City divisions "over staffed," and the FSA-St. Louis divisions "under staffed." This is substantiated by President Clinton’s 1998 budget for the FSA. Even in 1995, before the passage of the Farm Bill, FSA’s Deputy Administrator for Management requested 66 information technology positions in FCAD and 92 finance positions in LOD and LAD, but the actual number of positions is now 40 and 71, respectively. The staffing increases being proposed, therefore, are consistent with Congressional directives. They also are responsive to the concerns expressed by local Congressmen.
More specifically, in the GLB, the President’s FY 1998 budget indicates more reliance on guaranteed loans, in part justifying additional staff in that branch; there also are a number of automation projects which are now on hold that had previously been identified by management as "critical" or "very critical." Moreover, the addition of seven positions in GLB merely reflects agreements previously reached between the Union and management which have never been implemented. With respect to LOD and LAD, the need for more Financial Specialist GS-11 positions was proposed in May 1996 by the then Chief of LOD, and an increase of seven Financial Specialists in those divisions was actually "tentatively agreed to" by the parties in December 1996. The Employer’s change in position during the April informal conference, where it stated that the offer of GS-11s in LOD/LAD was conditional on the Union’s agreement to drop its request for additional positions in FCAD, is hard to explain, given that FCAD and LOD/LAD perform different functions. The Union’s proposal in this regard is further justified in that accounting technicians in LOD/LAD are performing the work of financial specialists because of under staffing and increased workloads in those divisions. Thus, the generalized GS-501 Financial Specialist position classification more accurately reflects the actual duties being performed than does the GS-525 Accounting Technician classification.
The Union’s proposed wording regarding the need for classification review of the new financial specialist positions is based on a previous "tentative agreement" where management indicated it would work with classifiers to guarantee that position descriptions are designed to ensure that such staffing changes are handled as "planned management actions." Finally, limiting the initial area of consideration for such positions to FSA-St. Louis would benefit bargaining-unit employees qualified to apply for the vacancies, and also was previously tentatively agreed to by management.
b. The Employer’s Position
The Employer’s proposed staffing levels and types and grades of positions in the six branches are as follows:
Guaranteed Loan Branch:
6 GS-334-12s
Loan and Grant Servicing Branch I:
2 GS-525-8s
13 GS-525-7
Loan and Grant Servicing Branch II:
1 GS-501-11
2 GS-525-8s
13 GS-525-7s
Program Reporting Branch:
1 GS-501-9
3 GS-525-8s
Financial Control Branch:
1 GS-501-9
3 GS-525-7s
Financial Reporting Branch:
4 GS-525-7s
Given that its proposal represents the status quo, it has no counteroffers regarding the Union’s proposals on classification review and initial area of consideration. Overall, the staffing and grade levels specified in its proposal are adequate to meet the mission requirements of the FSA-St. Louis divisions. In the GLB, its proposed staffing level of six bargaining unit GS-334-12 positions "is based on the current project schedule and projected workload." The examples of "negative impacts" the Union has cited do not support its position that FCAD has been under staffed since its creation in October 1995. In this regard, the parties’ only disagreement regarding staffing levels in FCAD is in GLB, yet the projects the Union points to as being in need of greater staffing "are supported by the other two branches in FCAD."
The parties’ main differences in LOD and LAD are not with respect to staffing levels, but the series and grade necessary to support the functions of the divisions. Management’s LOD staffing plan "was established to maximize the efficiency of the workforce," and the organizational structure it is proposing represents a proper balance to maintain the level of service provided to FSA’s field offices and to respond to new project development. In LAD, due to increased automation "the number of accounting technicians and financial specialists necessary to perform the division’s function is diminishing." For this reason, management is maintaining the proper position classification and grade structure in LAD. Contrary to the Union’s contention, a November 1996 technical review by the Personnel Division confirmed that the positions of the accounting technicians are classified correctly.
CONCLUSION
After carefully reviewing the evidence and arguments presented by the parties, we are persuaded that the Employer’s proposal should serve as the basis for resolving the parties’ dispute. In this regard, it is management’s responsibility to prioritize work assignments to ensure that the overall mission of the organization is accomplished. In GLB, the Employer has stated that current staffing levels are adequate to meet the branch’s project schedule and projected workload. While the addition of seven computer specialists undoubtedly would enable management to expand its current list of priority projects, the Union has failed to demonstrate that doing so is necessary for management to meet its responsibilities in that branch of the organization. Similarly, we also are not convinced that the establishment of higher graded positions is necessary to meet mission requirements in LOD/LAD. In our view, if accounting technicians within these divisions believe that their duties have changed significantly since November 1996, their proper recourse would be to request another classification review. Accordingly, we shall order the adoption of the Employer’s proposal.
2. Maintenance of Staffing Levels
a. The Union’s Position
The Union proposes that "all actions necessary to implement these numbers, types, and grades of bargaining-unit positions" be "completed within 90 calendar days following the execution of this agreement." It also proposes that:
The Agency further agrees to maintain these agreed upon numbers, types, and grades of positions/employees assigned to the FSA-St. Louis divisions by taking whatever actions are necessary to fill/backfill vacancies as they arise within 90 calendar days from the position becoming vacant, as long as the Agency has sufficient Salaries & Expense Appropriations to do so. The parties agree to jointly request FSIP Fact-Finding and decision-making should a dispute arise regarding whether the Agency has sufficient appropriations to maintain these staffing levels in the future.
Clear wording specifying that all management actions necessary to implement the staffing levels imposed by the Panel are to be accomplished within 90 days is necessary given previous management actions regarding staffing agreements. In this regard, a September 1995 agreement that "12 funded vacancies will be filled in St. Louis" still has not been implemented due to a "personnel freeze" issued by the Administrator in January 1996. Because of a concern raised by one of management’s representatives during the informal conference as to the practicality of a 90-day implementation period, the Union would be willing to accept a 120 calendar day period should the Panel determine it to be more reasonable.
With respect to its proposal regarding the filling/backfilling of vacant positions, "the bottom line" is that such wording is necessary to ensure that (b)(1) bargaining over staffing levels is meaningful. If management can unilaterally decide whether or not to maintain the staffing levels and grades of positions assigned to the FSA-St. Louis divisions, "then there is no reason for labor and management to negotiate agreements" under section 7106(b)(1) of the Statute, "as mandated" by Executive Order 12871 and Department of Agriculture policy. In this regard, "the Panel should issue a decision in this case which establishes a general precedent in support of meaningful (b)(1) bargaining." Finally, the portion of its proposal requiring the parties jointly to request Panel factfinding and decision-making would provide the parties with a specific procedure for a likely area of disagreement without which the implementation of the staffing levels it is proposing could be further delayed. It is also responsive to allegations made by the Employer during negotiations and the informal conference that budgetary constraints make it impossible to meet the Union’s staffing level proposals.
b. The Employer’s Position
The Employer proposes wording specifying that "this agreement is in effect immediately upon signature by both parties" and that "management retains its rights under 5 U.S.C. 7106(a), including the right to hire. This staffing plan does not obligate management to fill or backfill positions left vacant due to retirements, resignations, promotions, etc." Its proposal should be adopted to make clear to all concerned parties that it has not waived its 7106(a) rights, even though it voluntarily negotiated over section 7106(b)(1) matters.
The Union’s proposal that management be required to maintain staffing levels in the FSA-St. Louis divisions by taking "whatever actions are necessary to fill/backfill vacancies within 90 calendar days from the position becoming vacant" is nonnegotiable, and any decision to impose such wording "would be inconsistent with previous guidance and determinations" of the FLRA.(4) In this connection, the proposal’s requirement that staffing levels be maintained "gets its viability" from management taking the actions of either hiring or reassigning employees. Because the latter actions "are dominant" and involve rights identified in section 7106(a) of the Statute, the proposal as a whole is outside the duty to bargain under the FLRA’s "dominant requirement" doctrine, set forth in American Federation of Government Employees, Local 1336 and Social Security Administration, Mid-America Program Service Center, 52 FLRA No. 78 (December 31, 1996)(Mid-America). With respect to the merits of the Union’s proposal, its adoption would fundamentally undercut the ability of management to fulfill its "basic responsibilities," and is driven not by workload needs but "by a desire to create an organizational entity of higher graded employees in the St. Louis office which would be exempted from any reduction in force."
CONCLUSION
Preliminarily, it is necessary to address the Employer’s revised jurisdictional argument regarding the nonnegotiability of the Union’s proposal requiring management to maintain the numbers, types, and grades of positions established in the staffing agreement "by taking whatever actions are necessary to fill/backfill vacancies." When examining disputes involving duty-to-bargain questions, the Panel is guided by Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988)(Carswell), where the FLRA concluded that the Panel may apply existing case law to resolve duty-to-bargain questions which arise during impasse proceedings.(5) It also stated that its approach "preserves the Panel’s discretion as to whether or not to assert jurisdiction, and, as intended by the Statute, ensures that undecided duty-to-bargain issues will be resolved by the [FLRA]."
In its post-conference submission, the Employer has reformulated its previous nonnegotiability arguments and for the first time clearly and persuasively stated its position with respect to the applicability of the FLRA’s "dominant requirement" doctrine recently enunciated in Mid-America. It is well established that such arguments may be raised at any point in the impasse process. While the Union has consistently contended that the Employer’s jurisdictional arguments are without merit, independent research has failed to uncover any FLRA cases where a substantively identical proposal has been found negotiable. Thus, after reexamining our previous determinations with respect to this matter, we now conclude that, consistent with the guidance provided by the FLRA in Carswell, the underlying duty-to-bargain question must be resolved in the appropriate forum before it can be determined whether the parties are legitimately at impasse over the matter. Accordingly, we shall relinquish jurisdiction over the proposal to permit the Union, at its discretion, to request a formal declaration of nonnegotiability from the Employer.
With respect to the remainder of the parties’ dispute under this heading, with the exception of the Union’s proposed wording requiring implementation within 90 calendar days (discussed further below), it appears to be directly related to the proposal over which we have relinquished jurisdiction. Thus, it would not be sensible to impose terms on those matters before having received a decision as to the negotiability of the Union’s proposal. Accordingly, we shall order the parties to withdraw their respective proposals on these matters without prejudice to the right of either side to submit them again if the Union’s filling/backfilling proposal is found to be negotiable, and an impasse is subsequently reached.
Finally, we are persuaded that there is adequate justification for the Union’s proposal that all actions necessary to implement the staffing agreement be completed within 90 calendar days of its execution. In this regard, an examination of those matters over which the parties have already reached agreement indicates that the Employer has committed itself to moving two accounting technicians currently performing cash management functions into LAD work functions. Because a 90 calendar day period for the implementation of these actions appears reasonable, we shall order the adoption of the Union’s proposal over this portion of the parties’ dispute.
3. Term of Agreement and Reopener
a. The Union’s Position
The Union proposes that "this agreement shall remain in effect until renegotiated. Either party may reopen the agreement during a window period beginning August 31, 1999, and ending October 31, 1999." It also would have the Panel adopt the following wording:
Any changes to the functions assigned to the St. Louis divisions on which the staffing agreement is based will be undertaken in accordance with applicable laws and regulations, and will be subject to negotiations between the parties prior to implementation.
Providing the parties with a lengthier expiration date than their CBA would help to ensure "some kind of stability in our St. Louis staffing that we can count on for at least 2 years." This is necessary because FSA’s Kansas City Management Office (KCMO) "was forced to establish and maintain the FSA-St. Louis organizational divisions by Congressional action" and an April 1995 MOU between representatives of the affected entities and labor unions following the enactment of the reorganization legislation. With regard to negotiating over any changes to work functions on which the St. Louis staffing agreement is based, its proposal merely makes explicit that, as a result of the current negotiations, the Union has not agreed to waive its statutory bargaining rights. Such wording is required because recent "covered by, contained in" cases decided by the Federal Labor Relations Authority (FLRA) "state that there is no obligation to bargain further once you bargain once on an issue, unless you preserve it specifically in the agreement."
b. The Employer’s Position
The wording proposed by the Employer is as follows:
This agreement . . . will remain in effect until the FSA on-board staffing level in St. Louis falls below 104 employees. If the staffing level falls below 104, the issue will be raised as an agenda item before the FSA St. Louis Partnership Council. If the FSA St. Louis Partnership Council cannot reach agreement on a new staffing plan, or continuation of the existing plan, a new staffing plan will be negotiated.
It has no counteroffer regarding how any changes in the work functions upon which the staffing agreement is based would be handled. Its proposal would go part of the way toward meeting the Union’s interest in negotiating over the numbers, types, and grades of employees in the bargaining unit, but avoids the "gridlock" that would occur if FSA is required to negotiate continuously on "staffing plans and RIF processes with every union that represents employees in FSA." Rather, its proposal provides the appropriate balance between the requirements of Executive Order 12871 and "the Congressionally mandated nonnegotiable rights of managers to operate their business and make the final decisions necessary to accomplish the mission of the organization."
The Union’s proposal to extend the parties’ staffing agreement beyond the term of the CBA "is not acceptable to management due to an ever-changing fiscal and organizational environment." Its decision to refuse to extend the Panel’s decision beyond the term of the CBA is also consistent with section 7119 of the Statute, which states that any final action of the Panel shall be binding on parties "during the term of the agreement, unless the parties agree otherwise." The Union’s second proposal "goes directly to the very heart of these negotiations." In this regard, while management will continue to negotiate the numbers, types, and grades of bargaining-unit positions in the three St. Louis divisions, "the Union equates bargaining-unit positions with total staffing in St. Louis." The proposal is unacceptable because it would "force management and the Union to negotiate every time an employee leaves a gap in the bargaining unit staffing plan by moving into a professional (non-bargaining unit) job."
CONCLUSION
Having carefully considered the parties’ positions regarding these matters, we conclude that the Employer’s proposal is the more reasonable of the two approaches. With respect to the term of the staffing agreement, the Union has not demonstrated why the Panel should take the extraordinary step of extending it beyond that of the parties’ CBA. While it is true that the Employer’s proposal, on the other hand, could lead to additional negotiations prior to the CBA’s February 1998 expiration date, this appears unlikely given current staffing levels. On the issue of whether the staffing agreement should state explicitly that any changes to the assigned functions on which it is based are subject to negotiations, the Union indicates that the proposal is intended to address its concern that the staffing agreement not be interpreted as a waiver of its statutory bargaining rights. In our view, such wording is unnecessary because the parties’ negotiations over the staffing agreement did not cover the subject of future changes in the work functions of the FSA-St. Louis divisions. Moreover, the Union has now established its point through the bargaining history in this case.(6) Accordingly, 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 under 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. Numbers, Types, and Grades of Positions in the Six Branches
The parties shall adopt the Employer’s proposal.
2. Maintenance of Staffing Levels
The parties shall adopt the following wording:
All actions necessary to implement these agreed upon numbers, types, and grades of bargaining-unit positions will be completed within 90 calendar days following the execution of this agreement.
The Panel relinquishes jurisdiction over the wording alleged to be outside the duty to bargain to permit the Union, at its discretion, to request a written declaration of nonnegotiability from the Employer.
The parties shall withdraw their remaining proposals under this heading, without prejudice to the right of either party to file another request for assistance at such time as the underlying duty-to-bargain question with respect to the above-referenced wording has been resolved, and an impasse reached on all related matters.
3. Term of Agreement and Reopener
The parties shall adopt the following wording:
This agreement will remain in effect until the FSA on-board staffing level in St. Louis falls below 104 employees. If the staffing level falls below 104, the issue will be raised as an agenda item before the FSA St. Louis Partnership Council. If the FSA St. Louis Partnership Council cannot reach agreement on a new staffing plan, or continuation of the existing plan, a new staffing plan will be negotiated.
By direction of the Panel.
H. Joseph Schimansky
Executive Director
June 25, 1997
Washington, D.C.
1.FSA is the successor agency to the Farmers Home Administration (FmHA) which was abolished as part of the reorganization of the Department of Agriculture pursuant to the Federal Crop Insurance Reform and Department of Agriculture Reorganization Act of 1994; FSA and Rural Economic and Community Development were created as part of the reorganization and each assumed different functions of the FmHA.
2.The three divisions are: (1) the Farm Credit Applications Division (FCAD); (2) the Loan Accounting Division (LAD); and (3) the Loan Operations Division (LOD).
3.In FCAD, the Guaranteed Loan Branch, or GLB; in LOD, the Loan and Grant Servicing Branch I, the Loan and Grant Servicing Branch II, and the Program Reporting Branch; and in LAD, the Financial Control Branch and the Financial Reporting Branch.
4.It should be noted that this is the third time the Employer has raised duty-to-bargain questions regarding this proposal. The first was during the Panel’s initial investigation of the Union’s request for assistance. After becoming aware of more recent developments in FLRA case law, it filed a motion for reconsideration of the Panel’s determination to assert jurisdiction shortly before the informal conference was scheduled to begin.
5.According to the guidance provided in Carswell, in order for the Panel or interest arbitrators in the Federal sector to apply existing case law in such circumstances, the FLRA must previously have found negotiable a “substantively identical” proposal.
6.For a full discussion of the FLRA’s “covered-by” test, see
U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, National Council of Social Security Administration Field Office Locals, Council
220, 47 FLRA 1004 (1993).