United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

 

In the Matter of DEPARTMENT OF THE AIR FORCE NELLIS AIR FORCE BASE NELLIS AFB, NEVADA
and LOCAL 1199, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO	Case No. 97 FSIP 79

DECISION AND ORDER

    Local 1199, 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 the Air Force (Air Force), Nellis Air Force Base, Nellis AFB, Nevada (Employer).

    After the investigation of the request for assistance, the Panel determined that the dispute, which concerned (1) the leave status of employees during the 2-day celebration of the Air Force’s 50th anniversary and (2) higher level review of unit employees’ performance awards, should be resolved through an informal conference between a Panel representative and the parties. If no settlement were reached, the Panel representative was to notify the Panel of the status of the dispute; the notification would include the final offers of the parties and the representative's recommendations for resolving the matter. Following consideration of this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.

    Pursuant to the Panel's determination, Panel Representative (Staff Attorney) Gladys M. Hernandez met with the parties on July 15, 1997, at Nellis AFB, Nevada. With her assistance, the parties resolved the performance awards issue. Ms. Hernandez has reported to the Panel, and it has now considered the entire record.⁽¹⁾

BACKGROUND

    The Employer is home to the Air Force Fighter Pilot School, whose primary mission is to provide air combat training to United States pilots and those of allied nations; there is also a weapons school on base responsible for training soldiers on the use of new military weapons. The Union represents a bargaining unit of approximately 690 General Schedule (GS) and Wage Grade (WG) employees.⁽²⁾ The great majority of them occupy administrative and technical positions associated with maintaining the base infrastructure and providing support services to soldiers on base; their pay grades range from GS-3 through -12 and WG-2 through -12, respectively. The parties are covered by a CBA due to expire in July 1998.

    By way of background, on April 25 and 26, 1997, the Employer shut down base operations because of planned activities, including two air shows, in celebration of the Air Force’s 50th anniversary.⁽³⁾ Specifically, the Employer indicated that to prevent traffic congestion and because of security concerns, no personally-owned vehicles were allowed on base; this necessitated shutting down all but essential operations,⁽⁴⁾ and providing shuttle bus service from the parking lot of a race track located near the base for the approximately 300,000 people who attended the air shows over the 2 days. When no agreement was reached with the Union on what would be the leave status of employees, the Employer implemented its proposal essentially requiring employees to use annual leave if they otherwise would have worked during the 2-day period. It indicates that it explored other options on its own and through negotiations with the Union, but rejected them for "various reasons, e.g., budgetary constraints, administrative requirements, normal mission, employee health and safety, and public image concerns."⁽⁵⁾ Neither party was able to provide reliable information on the number of unit employees who were actually charged with annual leave during the period in question. The Union believes that about 600 unit employees were affected; most had April 26 (Saturday) off so they were only charged accrued annual leave for April 25 (Friday). The Employer stated that about 25 percent of its total civilian workforce, which numbers 950, are involved in essential operations; therefore, by implication, it appears that about 75 percent of the total civilian workforce were affected.

ISSUE AT IMPASSE

    The parties disagree over what the leave status of employees for the 2-day anniversary celebration should have been.

POSITIONS OF THE PARTIES

1. The Employer's Position

    Essentially, the Employer proposes that it "appropriate[ly]" required employees to use accrued annual leave or compensatory time, advanced annual leave, leave without pay (LWOP) or earned time off awards for the 2 days in question. This proposal is consistent with DOD Directive 1400.25-M, subchapter 610, paragraph C.3.d., dated December 1996,⁽⁶⁾ and Air Force policy enunciated in now rescinded Air Force Regulation 40-630, chapter 2, paragraph 2-5, and chapter 7, paragraph 7-3.⁽⁷⁾ In reviewing the parties’ proposals, the Panel (in fact, all "third parties and [the] judiciary") should give "more credence" to these regulations, which "best consider the unique requirements and mission of various [a]gencies and parallel the efforts to improve the efficiency and effectiveness within the [F]ederal [G]overnment," because of the rescission of the Federal Personnel Manual (FPM) and the delegation of decision making on matters it covered to agencies. Moreover, "various" Panel decisions "support" the adoption of this proposal,⁽⁸⁾ and so does the Comptroller General’s decision in 40 Comp. Gen. 312 (1960).⁽⁹⁾ The Panel’s decision in Department of Agriculture, Forest Service, Arlington, Virginia and National Federation of Federal Employees-Forest Service Council, Case No. 96 FSIP 144 (December 18, 1996), Panel Release No. 393 (Forest Service) is not "on point."⁽¹⁰⁾ Finally, the Union’s proposal that it grant employees administrative leave for the days in question is not acceptable because it "violate[s DOD and Air Force] directives."⁽¹¹⁾

2. The Union's Position

    The Union’s proposal is as follows:

The Air Force [shall] recredit all leave taken by bargaining-unit employees on 25 and 26 [of] April 1997,⁽¹²⁾ or [] establish compensatory time for leave taken, or [] change leave taken for time off awards.

Two tenant activities on base (DeCA and AAFES), albeit with less employees, allowed their employees to work the 2 days or make up the time on another day when they normally would not have been at work. The Employer rejected these and other options for various reasons. Instead, it chose a course of action which "penalizes employees for a matter beyond their control."

    The Employer’s arguments "provide[] no substantive basis" for resolving the dispute in favor of its proposal. Rather, they are "generalized and unsupported" by the evidence, and "intended to be self-serving." In fact, the Employer fails to provide any "persuasive merits-based rationale" justifying its proposal. There is no support in the record for why "more [] credence" should be given to Agency directives because of "deregulation." It is widely recognized in Government that the opposite is true. Under "deregulation," the view is that "one size doesn’t fit all." Therefore, the resolution of this dispute should be one tailored to meet the needs of unit employees under the "circumstances [at] Nellis AFB," and not one directed by DOD and Air Force directives. Moreover, since the parties are engaged in collective bargaining, the Panel’s decision "may not be entirely aligned with how the Air Force interprets its regulations, directives, and policies" but rather must "balanc[e] all interests," including "the best interests of the employees." In other words, the Panel should go about resolving the dispute by "evaluating the parties’ respective interests as reflected in the proposals and positions before [it]." As for the Panel and Comptroller General cases cited by the Employer, they do not preclude the adoption of the Union’s proposal. In this regard, the Employer does not explain how those cases require the adoption of its proposal. Nor does it explain how Forest Service is inapposite. The fact is that the "equities" supporting the adoption of the Union’s proposal are "no less important" than those which persuaded the Panel to adopt the union’s administrative leave proposal in Forest Service.

CONCLUSIONS

    Upon careful review of the evidence and arguments presented by the parties, we shall order the adoption of a compromise proposal requiring the Employer to grant administrative leave (i.e., restore annual leave balances) to unit employees retroactively for April 25 and/or 26, to the extent that those days were within the employees’ regular tours of duty and they otherwise would have worked. The compromise wording is necessary to correct an apparent negotiability problem with the Union’s proposal while retaining its intent.⁽¹³⁾ Preliminarily, we note that there is no dispute that putting employees on administrative leave during shutdowns is a bargainable matter.⁽¹⁴⁾ Although employers may curtail or shut down their operations for any reason, we believe that it is appropriate to carefully evaluate their rationale for doing so when determining what employees’ leave status should be during such periods. In our view, under the circumstances presented in this case, it was unfair for the Employer to have charged employees accrued annual leave for their absence from work. Unlike the employers in previous Panel cases concerning shutdowns, the Employer has not put forward any economic or work-related reasons for its actions.⁽¹⁵⁾ In fact, the only substantive reasons given by the Employer for the shutdown were that it wanted to avoid traffic problems and it had security concerns. It does not explain, however, why it was able to provide shuttle bus service from a nearby parking lot for over a quarter of a million visitors over the 2 days but could not have done the same for unit employees. Moreover, there is precedent for granting employees administrative leave when agency operations are shut down for an event because of concerns over traffic congestion. For example, Federal offices in the Washington, D.C., area are closed and employees excused from work with pay and without charge to leave every Inauguration Day.⁽¹⁶⁾ The Employer’s argument that we should defer to the DOD and Air Force regulations now that the FPM has been rescinded is not persuasive in the absence of any justification based on the merits of the regulations themselves, or evidence that the Union had been involved in negotiations over their implementation. Finally, the compromise is worded to ensure that employees on vacation (i.e., those who would have been out on annual leave anyway) on the days in question do not unjustly benefit.

ORDER

    Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted pursuant to the Panel's regulations, 5 C.F.R. § 2471.6 (a)(2), the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the parties to adopt the following compromise proposal:

The Employer shall grant administrative leave to bargaining-unit employees retroactively for April 25 and/or 26, 1997, to the extent that those days were within the employees’ regular tours of duty and they otherwise would have worked.

 

By direction of the Panel.

H. Joseph Schimansky

Executive Director

October 9, 1997

Washington, D.C.

 

1.On July 18, pursuant to Ms. Hernandez’s request, the parties submitted their final proposals and summary statements of position in writing.

2.The Union also represents two other bargaining units made up of non-appropriated fund employees of the Army and Air Force Exchange Service (AAFES) and Defense Commissary Agency (DeCA) employees, respectively; they are covered under separate collective-bargaining agreements (CBA).

3.The Employer stated that Nellis Air Force Base was selected to participate in the celebration; it is unclear, however, whether other Air Force bases were also selected and, if so, what actions they took regarding their operations and/or the leave status of employees. While Nellis AFB knew it was a site for celebration activities about 1 year in advance, the decision to shut down operations and excuse employees was not made until January 1997, and employees were not formally notified until early March.

4.Base operations related to health, safety, and security (i.e., those considered “essential”) continued; employees involved in such operations were required to work.

5.For example, the Employer explored: (1) rescheduling employees’ work hours during the same administrative work week to make up the time off; (2) employees taking annual leave in exchange for a “compensatory day off” (i.e., a day off with pay and without charge to annual leave) sometime in the future; (3) giving employees time off awards for the days in question; (4) detailing employees elsewhere to “do meaningful work;” (5) assigning employees to work the booths set up as part of the celebration activities; and (6) granting employees administrative leave (i.e., an excused absence from duty without loss of pay or charge to leave).

6.This regulatory provision reads as follows:

When all or part of an activity is closed for short periods because of planned management action and arrangements cannot be made for assignment of other work, employees shall be notified as far in advance as possible but no less than three full work days when circumstances permit, and shall be required to take annual leave, compensatory time earned or credit hours, unless LWOP is requested.

7.The provisions of the revoked Air Force regulation read, in relevant part, as follows:

2-5. [E]mployees may be placed on annual leave as the needs of the service require (for example, during a period of reduced or suspended operations or where an employee is instructed to take vacation leave at a time other than at the specific time initially requested). The required use of annual leave must be based on factors that are reasonable and equitable, which do not discriminate among employees, and which are not arbitrary.

7-3.b. [E]mployees cannot be excused without charge to leave when operations are suspended for managerial reasons known enough in advance to permit the scheduling of leave. Normally, employees are notified 24 hours in advance that they will be placed in a leave status, but where this is impractical, employees may be placed on annual leave if they are notified by the close of the preceding workday. In arriving at a decision to close all or part of an activity, commanders must: . . . (4) When, because of planned managerial reasons, the closing or all or part of an activity is required for short periods of time, notify employees no less than one full work shift in advance and require them to take annual leave, unless leave without pay is requested. Employees may be advanced annual leave to cover such an absence.

8.The Employer specifically cites Department of the Army, Rock Island Arsenal, Rock Island, Illinois and Local 2119, National Federation of Federal Employees, Case No. 92 FSIP 173 (October 26, 1992), Panel Release No. 338; Department of the Army, Headquarters, U.S. Army Armament, Munitions, and Chemical Command, Rock Island, Illinois and Local 15, National Federation of Federal Employees, Case No. 92 FSIP 204 (October 1, 1992), Panel Release No. 336; and Department of the Navy, Mare Island Naval Shipyard, Vallejo, California and Local 5, Planners, Estimators, Progressmen, and Schedulers; Federal Employees Metal Trades Council; and Locals 11 and 25, International Federation of Professional and Technical Engineers, AFL-CIO, Case Nos. 92 FSIP 147, 150, 151, and 159 (June 25, 1992), Panel Release No. 332. Essentially, in all these cases, the Panel rejected union proposals which would have required the employer to place employees on administrative leave, rather than having them use annual leave, during periods where management decided to shut down or curtail operations.

9.We note that this Comptroller General decision allows for, but does not require, the use of enforced annual leave in situations that are not related to personal, disciplinary-type actions, such as the administrative closing of an office.

10.In this case the Panel adopted a union proposal continuing a long-standing practice of giving employees administrative leave for the “Three Kings Day” (January 6) holiday.

11. The Employer, however, does not argue that the matter is nonnegotiable because there is a compelling need for the regulations. 5 U.S.C. § 7117.

12. We interpret this wording as requiring that employees’ annual leave be restored and the excused absences charged to administrative leave.

13.The Union’s proposal would provide employees with compensatory time and time off awards for a purpose not permissible under Government-wide regulations. 5 C.F.R. §§ 451.104 and 551.531.

14.See National Association of Government Employees, Local R7-72 and U.S. Department of the Army, Rock Island Arsenal, Rock Island, Illinois, 42 FLRA 1019, 1026-1030 (1991)(Proposal 1); and National Federation of Federal Employees, Local 2119 and U.S. Department of the Army, Rock Island Arsenal, Rock Island, Illinois, 42 FLRA 993 (1991).

15.For example, in earlier cases, the employers offered evidence that their shutdowns would: (1) lead to costs savings because of reduced use of utilities or resolved a budgetary problem; (2) not inconvenience employees because it came at a time when a substantial number (“50 percent”) of them had requested to take annual leave anyway; (3) eliminate lost productivity that would occur because a high percentage of employees would be out on annual leave; and (4) be consistent with past practice under similar circumstances. See cases cited supra note 9 and Department of the Navy, Mare Island Naval Shipyard, Vallejo, California and Local 5, Planners, Estimators, Progressmen, and Schedulers, Case No. 91 FSIP 252 (November 27, 1991) (Roy Brewer, Arbitrator), Panel Release No. 321.

16.In raising this point, we recognize that such excusal is authorized by law. 5 U.S.C. § 6131(c).