United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|
In the Matter of DEPARTMENT OF THE AIR FORCE WRIGHT-PATTERSON AIR FORCE BASE HEADQUARTERS, AIR FORCE MATERIEL COMMAND WRIGHT-PATTERSON AFB, OHIO |
|
|
and COUNCIL 214, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
|
Case No. 97 FSIP 88 |
DECISION AND ORDER
The Department of the Air Force, Wright-Patterson Air Force Base, Headquarters, Air Force Materiel Command, Wright-Patterson AFB, Ohio (Employer or AFMC) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse between it and Council 214, American Federation of Government Employees, AFL-CIO (Union) under the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119. After investigation of the request for assistance, which involves the Employer’s decision to implement a multiskill training program (MTP(1)), the Panel directed the parties to resume negotiations, on a concentrated schedule, over all remaining issues in dispute, with the assistance of the Federal Mediation and Conciliation Service (FMCS). If a complete settlement was not reached, the parties were to provide FMCS with their final offers, and FMCS would transmit such offers to the Panel. The parties were also informed that if final offers were transmitted by FMCS, the Panel would resolve the impasse on a package basis by selecting one of the parties’ final offers using whatever additional procedure it deemed appropriate.
The parties were unable to reach a complete resolution of the dispute with FMCS assistance.(2) Following receipt of their final offers, which included unsolicited written supporting statements of position, the Panel directed the parties to present additional written submissions, after which the Panel would issue a Decision and Order to resolve the impasse.(3) Consistent with its previous procedural determination, the Panel further indicated that it would be limited to selecting either of the parties’ final offers on a package basis, insofar as they were otherwise legal. Written submissions were made pursuant to this procedure, and the Panel has now considered the entire record.
BACKGROUND
The Employer is responsible for the maintenance, repair, research, development, testing, and acquisition of weapons systems for eight Air Force Base installations nationwide.(4) The Union represents approximately 45,000 WG and General Schedule (GS) bargaining-unit employees who work in positions such as aircraft sheet metalist, electrician, hydraulics mechanic, radio mechanic, painter/depainter, equipment cleaner, aircraft technician, avionics electrician, and inspector. The parties continue to be covered by a master labor agreement (MLA), which was due to expire in October 1992, until a successor agreement is implemented.(5)
ISSUES AT IMPASSE
The parties disagree over the following subjects in connection with the MTP: (1) the definition of "multiskilling;" (2) the scope of local negotiations; (3) the definition of "homogeneous workloads" for GS employees; (4) selection criteria and procedures; (5) external hiring; (6) training; (7) competitive levels; (8) compensation; (9) annual leave and work assignments; (10) Performance Acceptance Certification (PAC); (11) future monitoring of the MTP; (12) the applicability of MTP to ALCARS; (13) conflict with other agreements; and (14) waiver of rights.
POSITIONS OF THE PARTIES
1. The Union’s Position
The Panel should not "underestimate the impact multiskilling will have on the workforce," not only in the area of reductions in force (RIF), but on "all conditions of employment." While the Union "has never taken a position objecting to multiskilling," its final package, attached as Appendix A, is intended to ensure that the MTP is "done properly" and "monitored constantly." Overall, its adoption would prevent management from "hand picking" participants, thus predetermining "who will be RIFed or not, who works overtime, who is loaned out or detailed, etc." Generally, on the topic of whether any of its proposals are nonnegotiable, "the majority" of the wording where such allegations were raised "was not submitted to the Panel" as part of the Union’s last best offer. The Employer, on the other hand, "has failed to consider E[xecutive] O[rder] 12871 with respect to 7106(b)(1) issues," and has even indicated "its intent not to comply with the E.O. and negotiate 7106(b)(1) issues as instructed." In this regard, "all of the Union proposals" where the Employer has alleged a violation of its right to assign employees or work "actually" involve 7106(b)(1) matters, and the FLRA has held that "proposals which can be interpreted under the realm of management’s rights under 7106(a) and 7106(b)(1) are negotiable under the E.O. pertaining to 7106(b)(1)."(6)
Turning to the specific issues at impasse addressed in the final package, its proposed wording regarding the definition of multiskilling meets the Union’s interest in achieving "a clearly and well defined program that can be readily understood by the consolidated bargaining unit composed of some 300 distinct occupations." In particular, stating that "combined journeyman" (for WG employees) and "full performance" (for GS employees) occupations "are normally at the same grade, but may be lower," merely recognizes that "a journeyman level may carry a different grade level depending on the job series, i.e., a journeyman sheet metal mechanic is a grade 10 while a journeyman painter is a grade 9." Moreover, contrary to the Employer’s position, the wording does not interfere with management’s right to assign work.
On the issue of local negotiations, its proposal is the exact wording management offered during previous stages of bargaining. It was intended to address the Employer’s concern that there may be unique conditions at various installations, and the Union’s that management was unable to provide answers to specific questions regarding various aspects of the MTP. The Employer is now refusing to accept its own language, and an examination of its current counteroffer confirms that its "real intent . . . is not to negotiate 7106(b)(1) issues." The Employer’s refusal to do so violates the requirements of Executive Order 12871, the instructions of higher level Department of Defense (DOD) officials and the Office of Personnel Management (OPM), and "is in direct conflict and repudiates the ULP settlement agreement signed on 1 June 1995."(7)
The parties’ definitions of GS homogeneous workloads are "very similar," except for the Employer’s objections to the inclusion of "some common examples." This "time-tested technique" is necessary because the number of GS occupations is "far greater and more diverse" than in the WG arena. The Union’s proposal also includes "clarifying language" so that Air Force career programs would be covered by the definition.
The Employer’s proposal on the issue of selection criteria and procedures "is vague and does not define qualifications and skills that can lead to manipulation, litigation and confusion on the part of the parties." In contrast, its proposals attempt to ensure that the opportunities for the substantial benefits which may accrue from participation in the MTP are distributed fairly to the bargaining unit. Section 5 of its final offer, for example, simply requires that incumbents be noncompetitively promoted if current OPM rules are changed to permit multiskill positions to be classified at higher levels. In addition, in conjunction with its proposed wording in Section 7 on external hiring, by requiring positions to be filled using procedures established in the parties’ MLA when "existing applicant rosters are exhausted," unit employees would be protected from having to compete with outside candidates or from having the Employer decide to select from outside sources without considering bargaining-unit applicants. Its proposals in this regard are "well within the arena of the E.O."
Section 6 of its final offer reflects the reality that the MTP positions to be filled are likely to "utilize the individual applicant’s current authorization and restructured position," and that the incumbent of the current position would have at least one of the requisite skills already. Thus, all incumbents who apply should be viewed as available to be selected for the program, provided they have a minimum rating of "fully successful" on each of the last three annual performance reports. In this connection, the Employer’s attempt to reintroduce language it had previously withdrawn regarding chronic involvement in disciplinary actions and sick leave abuse is unwarranted. Moreover, the use of OPM qualification standards for establishing requisite skill levels may prevent management from manipulating the system to preselect candidates. The Union’s additional wording requiring the Employer to "anticipate compelling mission needs" to minimize conflicts with potential applicants’ training schedules addresses a similar concern. Finally, its preference for the use of seniority to break ties if there are more volunteers than training classes can accommodate, reflects "the workforce’s belief that the appraisal system is flawed."
Although the parties’ proposals on the issue of training are similar, employee participation should be recorded in the DCPDS, there should be wording specifying that no employee will be multiskilled without the benefit of the Employer’s training, and the Employer should be obligated to "aggressively train all employee volunteers until locally determined multiskill needs have been satisfied." With regard to recording employee participation in the DCPDS, the Union’s wording is consistent with its previous proposal concerning the definition of multiskilling, and "addresses the Air Force requirement that employees receive credit for all relevant experience in the DOD personnel system." Contrary to the Employer’s allegation that requiring all employee volunteers to be trained violates management’s right to assign work, the Union is attempting "to negotiate the numbers, types, and grades of employees assigned to such training," and merely holding the Employer to its previous commitment to provide training as part of the MTP. The adoption of its proposal is further justified by the results of a survey of employees participating in ALCARS, which "revealed flaws" in the on-the-job training portion of the program.
Its competitive level proposal would prohibit unit employees in the MTP from being placed in a separate competitive level until training is complete and employees are assigned to multiskilled positions. This is appropriate because it is consistent with the requirements of Government wide regulations which deal with the subject. The Employer, on the other hand, intends to place trainees in the MTP in a different competitive level, in violation of those same regulations. In addition to adopting the Union’s proposal, therefore, the Panel should obtain an "advisory opinion" on the matter from the Director of OPM, as authorized under section 7118(b) of the Statute, "seeking clarification of what the Union believes is an essential element in the use of a trainee competitive level as required by Government wide rule."
Although the Union acknowledges that the parties "cannot negotiate a higher grade for multiskilled positions," it is reasonable for the Employer to compensate MTP participants with cash awards through the authorities provided by existing regulations. Its proposal is also consistent with instructions from the Commander of the AFMC that management "reward those employees who generate savings." In this regard, the Employer has stated from the outset of negotiations that multiskilling "would produce significant savings;" its contention that ALCARS has saved "an excess of $4.4 million per year is a matter of record."
Its proposed wording regarding annual leave and work assignments would ensure that employees who are not multiskilled are not adversely affected concerning overtime, loans, details, TDY, leave, etc., and would hold the Employer’s negotiators to their word that the AFMC does not intend to change such basic conditions of employment based on MTP participation. The proposal is also related to other sections of its final offer requiring local negotiations after the Panel’s decision is rendered. Such bargaining is necessary because all of the parties’ local supplemental agreements were negotiated prior to multiskilling, and the implementation of the MTP under the current agreements would lead to the expenditure of "thousands of dollars in litigation."
With respect to its PAC(8) proposal, the Union’s interest is in making sure that "employees will be certified to accomplish the work they have been trained for." Its main concern is in making sure that "the dollars and time spent on training are not wasted." Contrary to the Employer’s contention that its wording interferes with management’s right to assign work, it provides "a clear means and method of accomplishing work so employees can be PAC certified, which is a requirement under the agency’s PAC program."
On the remaining issues at impasse, unlike the Employer’s, the Union’s proposal on future monitoring of the MTP "truly reflects the intent of E.O. 12871 and partnership" by making local Union presidents and their designees "full and active" participants in the MTP, and permitting "concerns to be addressed in a mutual environment of respect." Regarding the applicability of the MTP to ALCARS, the Union’s proposal would ensure that the workforce at Tinker AFB receives the benefits of what should be an AFMC-level MTP agreement. To date, the Employer has failed to "state or illustrate" the adverse impact that an AFMC-level agreement would have on the ALCARS program. Although it is not the Union’s intention "to disrupt the ALCARS program," its local representatives at Tinker AFB have "some concerns" with the way it is being operated which should be addressed through local negotiations. Finally, the Union’s proposed wording with regard to the issue of conflicts with other agreements, in conjunction with other sections of its final offer, appropriately permits such local bargaining over the application of the MLA and local supplements to the MTP agreement on a variety of subjects. This would give the parties an opportunity to "fix problems mutually rather than through the expense of adversarial litigation." The Employer, however, proposes wording that would extend the MTP agreement beyond the expiration of the parties’ current MLA. By restricting what can be negotiated in future MLAs, the proposal concerns a "permissive topic of bargaining," and imposing it on the Union "would be contrary to the Statute and case law."
2. The Employer’s Position
The MTP "is crucial to AFMC’s ability to be competitive for workload offered up in the public-private competition arena." It is an "Employer initiative directly related to the classification of positions, which, as defined by 5 U.S.C. 7103(a)(14)(B), is not a condition of employment." For this reason, "compensation is not a subject within the parties’ purview to bargain." Overall, its final offer (see Appendix B) should be adopted because it would result in an MTP "that is simple to implement, easy to administer," and that "provides procedures which are fair and equitable for affected employees." Further, it is "in consonance" with governing regulations regarding classification, competitive levels, and with the FLRA’s decisions relative to determining qualifications, while also preserving "the Employer’s right to determine the numbers, types, and grades of positions within its organization." The Union’s final offer, on the other hand, would not "serve to increase the efficiency and effectiveness of operations," and is "replete with language that excessively interferes with the Employer’s rights" to assign work, and to determine qualifications, requisite skills, and availability. It represents an effort "to force the Employer" to select and train all employees who volunteer for the MTP, to limit which series may or may not be mixed within a particular position, and to restrict the manner in which management fills such multiskilled positions.
With respect to the particular areas where the parties disagree, its proposal regarding the definition of "multiskilling" identifies the positions to which the MTP agreement would apply, "is derived" from the ULP settlement agreement, and consistent with wording already agreed upon during mediation. The descriptions distinguishing multiskilling from multicrafting are taken from guidance provided in the Air Force Classification Guide for WG Mixed Occupation Positions.(9) The wording also affirms that both WG and GS positions may be multiskilled.
On the issue of local negotiations, its proposed wording "acknowledges the possibility" when "unique local conditions" arise. It also addresses the Union’s concern regarding how negotiations over "permissive" subjects would be handled by permitting an assessment on a case-by-case basis. This is "only prudent" given the bargaining history between the parties. Moreover, its reference to Executive Order 12871 "compels the local parties" to conduct their negotiations "consistent with the principles of consensual bargaining." The Union’s final offer on this matter should be rejected because it "seems to mandate some type of bargaining" over matters arising under section 7106(b)(1), even though management, "statutorily, may opt not to elect to bargain these issues." Also, by including the words "series/skills combinations," it implicates classification matters which are not bargainable conditions of employment.
Its wording regarding GS homogeneous workloads defines "the type of environment" in which multiskilling would most likely occur in an organization. Unlike the Union’s proposal on this matter, the Employer’s excludes specific examples because "they would be too prescriptive and may be subject to change and/or various interpretations."
On the issue of selection criteria, its proposal establishes procedures to be used when MTP positions are filled through reassignment, and meets the interests of both parties -- the Employer’s in ensuring that selection criteria be performance based, and the Union’s interest that such criteria be seniority based. It does so by using Adjusted RIF Service Computation Dates in circumstances where there are more volunteers than available positions. Its final offer also meets the Union’s stated concerns in two other areas, i.e., that employees be made aware of management’s expectations in connection with MTP candidates, and that management would arbitrarily make employees "unavailable" for training consideration and selection. The first concern is accommodated by including criteria establishing minimum standards regarding performance, discipline, and sick leave abuse, while the second only permits management to declare an employee unavailable for training during the specific time period that she or he is involved in a work situation "that is not conducive to a change in participants."
By contrast, the Union’s final offer on this issue, as well as the issue of external hiring, directly and excessively interferes with management’s rights to fill positions and select candidates, under section 7106(a)(2)(C)(i) and (ii) of the Statute, and is inconsistent with Article 12 of the parties’ MLA.(10) It also would require the Employer to accept all employees who volunteer for the training "without consideration of qualifications," and train them all "without consideration of the fact management has determined that approximately 30 percent of the workforce needs to be multiskilled to meet its known and projected mission requirements." Further, Section 10 of the Union’s final offer, which states that "the Employer will continue to aggressively train all employee volunteers for the multiskill program until locally determined multiskill needs have been satisfied and positions fully manned" is "troublesome." In this regard, it is well established that proposals requiring management to provide formal training, or to assign employees periodically to specific types of training programs, are outside the duty to bargain. Adoption of the wording would also be prohibitively expensive "with little or no hope for return on investment." The Employer’s proposal, on the other hand, would ensure that training is only provided to employees to the extent it is required by its mission. It also meets the Union’s interest in ensuring that participants receive some form of recognition upon completion of training that will be a part of their records.
Separate competitive levels for trainees are appropriate since the MTP "is a formally designated program that is developmental in nature." While the parties "reached an understanding" that compensation in the form of increased wages cannot be obtained through the classification system, for a variety of reasons, the Union’s other "compensation" proposals are unwarranted. For example, "time-off awards are performance based and should not be used solely to recognize an employee who is multiskilled." To return to the earlier point, because the MTP is developmental in nature, multiskilled employees are "justly compensated" by the "increased promotional opportunity" afforded them. They also receive "extra protection" in time of RIF by being placed in a separate competitive level. Accordingly, in addition to its wording on competitive levels, its compensation proposal should be adopted because it "recognizes the parameters which are established for the compensation of multiskilled employees."
The Employer has no counterproposals specifically addressing the issues of annual leave and work assignments, or PAC. The Union’s proposals on both of these subjects, however, are nonnegotiable. Regarding the first issue, the first two sentences of the proposed wording "directly and excessively" interfere with management’s rights to assign work and to determine the personnel by which its operations would be conducted, while the last sentence concerns the classification of positions, which is not a condition of employment. The Union’s PAC proposal, in addition to violating the Employer’s right to assign work, interferes with its right to determine internal security practices. Further, because the PAC constitutes a "method" of performing work, it is "negotiable only at the election of the Agency."
The Employer’s proposal on the issue of future monitoring addresses the Union’s expressed need to be kept informed of the MTP’s progress "in the spirit of partnership and the principles in Executive Order 12871." Through quarterly meetings the Union would have a "forum" to let management know "what is or is not working" for unit employees in areas such as loans, details, and overtime. Also, its wording specifically prohibits this MTP agreement from applying to previously existing local agreements, such as ALCARS. This is motivated "strictly" by "an economic concern" that retroactive application "would not serve to increase the efficiency or effectiveness" of its operations. Under its final offer, however, the MTP agreement would apply, for example, if the Tinker Air Logistics Center decides to expand ALCARS "beyond its current application." Finally, concerning conflicts with other agreements, the "Employer seeks in this final offer only the terms necessary to implement a multiskilling training program," and wishes "to avoid the problems inherent in duplication of procedures." The Union, on the other hand, "appears to be intent upon creating two sets of procedures" for determining how employees are selected for overtime, TDY, etc., and for this reason its final offer on the matter should be rejected.
CONCLUSIONS
Having carefully reviewed the evidence and arguments offered by the parties in support of their respective positions, we are persuaded that the Employer’s final package, modified as indicated below, provides the more reasonable approach for implementing the MTP. Preliminarily, by the terms of its initial procedural determination in this case, the Panel is limited to selecting either of the parties’ final offers on a package basis, insofar as they are otherwise legal. This was done to provide the parties with an additional incentive to narrow their differences during resumed negotiations so that a voluntary settlement of all or part of the dispute would be reached. It appears from the record that the Panel’s strategy in this regard met with some success: agreements occurred on a number of issues, and their final offers, particularly the Union’s, were modified in some areas to make them more acceptable. Because the strategy was not completely successful, however, the Panel must now perform its statutory role and bring the parties’ lengthy and extremely contentious impasse to closure.
Our primary basis for adopting the Employer’s final offer flows from the reasons it has provided for establishing the MTP.(11) While the Union contends that it is "not opposed to the concept of multiskilling," there are simply too many places where its final offer appears to undercut the Employer’s goal of making the AFMC more efficient and competitive. For example, on the key issues of selection criteria and training, by insisting that the MTP agreement refer to OPM qualification standards, the Employer could be required to train many more volunteers than its mission dictates. There is no way to reconcile such a result with the purpose for which the Employer seeks to create the MTP. Moreover, there are a number of instances where the Union’s proposed wording is inconsistent with its stated intent. In this regard, although it alleges that the OPM standards must be included to ensure that qualifications and skills are defined "prior to solicitation of candidates," this would also occur under the Employer’s final offer. Thus, the Union’s stated intent obscures the fact that the Employer has the right to determine the qualifications for each multiskilled position. Overall, the Employer’s final offer is also clearer than the Union’s, which should make implementation of the MTP easier, and help the parties avoid future litigation. This is particularly true when comparing the parties’ proposed wording on the definition of multiskilling, the availability of employees for multiskill training, and compensation.
On its merits alone, therefore, we believe the Employer’s final offer deserves to be adopted. Given the prominence that the parties’ written submissions place on the issue of nonnegotiability, however, it may be instructive to focus at this point on the Employer’s duty-to-bargain allegations. In examining disputes involving such allegations, 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.(12) In the circumstances of this case, the Employer raises numerous arguments that the Union’s proposals either violate management’s rights under section 7106(a) of the Statute or, where the proposal involves a section 7106(b)(1) "permissive" matter, has elected not to negotiate. In most cases, the Union replies by asserting that its proposals involve section 7106(b)(1) matters, and that Executive Order 12871 requires the Employer to exercise its statutory discretion to negotiate over them. What the Union has failed to do, however, is identify specific FLRA decisions where substantively identical proposals have previously been found negotiable, or a case where the FLRA has held that Executive Order 12871 is enforceable. In the absence of such precedent, under Carswell, the Panel would not have had the authority to adopt the Union’s proposals.(13)
In reaching this decision essentially to adopt the Employer’s final offer, we note that the Union has raised some legitimate concerns regarding the manner in which the Employer intends to implement the MTP. On the issue of whether trainees should be placed in a separate competitive level, for instance, it is unclear whether the Employer’s interpretation of the applicable Government wide regulations is accurate. It is not the Panel’s role, however, to endorse the Union’s contrary interpretation, as the adoption of its final offer would require. Moreover, if the parties do not request OPM for an advisory opinion to clarify the matter, the Union may challenge the Employer’s interpretation under the parties’ grievance procedure. In addition, while we agree with the Employer that it would be inappropriate to reward employees with time-off awards or administrative leave solely for being multiskilled, the Union’s proposal for some form of gainsharing appears reasonable. Given the constraints imposed by the final-offer selection procedure in this case, however, the Panel cannot modify the Employer’s final package, except where it may be illegal. In this regard, its proposal concerning conflicts with other agreements contains wording which would extend the effect of this MTP agreement through the term of the parties’ prospective MLA. In our view, this portion of the Employer’s proposal involves a permissive subject of bargaining which would restrict the issues that the Union may negotiate in a future MLA. Accordingly, we shall order the adoption of the Employer’s final offer, modified to omit reference to the parties’ prospective MLA.
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:
The parties shall adopt the Employer’s final offer, with the exception of Section 16, which shall be modified to read as follows:
Section 16. It is understood the MLA and Local Supplements to the MLA govern subjects not covered by this MOA. It is understood nothing in this MOA may conflict with the MLA.
By direction of the Panel.
H. Joseph Schimansky
Executive Director
November 12, 1997
Washington, D.C.
1.Under the Employer’s proposed MTP, journeymen-level employees would be trained in additional skills and trades to enable them to perform a wider variety of functions. Its initiative is similar to those undertaken in the private sector aircraft industry. A multiskill program was implemented at the Employer’s Oklahoma City Air Logistics Center (Tinker Air Force Base) in 1993, where the local parties have a multiskill agreement referred to as the Air Logistic Airframe Rating System (ALCARS). In essence, the resolution of the parties’ impasse in this case will allow the Employer to establish MTPs at its other installations.
2.Agreement was reached on a number of matters, such as general purpose wording, a definition of “homogeneous workloads” for Wage Grade (WG) employees, position titles, local notification procedures regarding multiskilling vacancies, and procedures for employees who are unable to successfully complete training requirements.
3.Among other things, the Panel also determined to decline to retain jurisdiction over proposals which both parties had submitted involving unfair labor practice (ULP) charges which are currently pending before the Chicago Regional Office of the Federal Labor Relations Authority (FLRA). In this regard, it concluded that the subject of the proposals was inappropriate for the impasse forum because the Panel has no authority to issue final decisions resolving ULP charges.
4.The AFMC is located at the following Air Force Bases: Battlecreek, Hill, Kelly, McClellan, Newark, Robins, Tinker, and Wright-Patterson.
5.The parties’ negotiations over a successor MLA resulted in an impasse before the Panel, and subsequent litigation before the FLRA. By way of background, in late 1994, after the parties had reached an agreement on some issues, the Union filed a request for Panel assistance in resolving the parties’ dispute over a number of other articles. Those articles eventually were the subject of an
Opinion and Decision by Panel Member Edward F. Hartfield, acting as a Panel-designated arbitrator, in
Department of the Air Force, Air Force Materiel Command, Wright-Patterson AFB, Ohio and American Federation of Government Employees, Council No. 214,
AFL-CIO, Case No. 95 FSIP 23 (September 18, 1995), Panel Release No. 379. The Union’s membership subsequently failed to ratify the parties’ tentative successor agreement, including the articles imposed by Member Hartfield. The parties each filed ULP charges over the matter with the FLRA’s Chicago Regional Office, and the Office of General Counsel (OGC) issued complaints against both of them. A joint hearing was held before Administrative Law Judge (ALJ) Jesse Etelson, who then issued a
Decision finding that the Union violated the Statute by refusing to comply with a final action of the Panel when it insisted on renegotiating provisions that Member Hartfield had ordered to be included in the successor agreement. The ALJ dismissed the OGC’s complaint against the Employer. The case is currently pending before the FLRA on exceptions filed by the Union.
6.In this context, the Union refers to the FLRA’s decision in
National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington,
Kentucky, 51 FLRA 386 (1995) to support its position.
7.The record indicates that the referenced settlement agreement concerned Union-filed ULP charges alleging that the Employer violated the Statute when it failed to bargain over the MTP at the AFMC (Command) level, and implemented multiskilling without bargaining.
8.According to the Union, PAC is an Air Force program that is “designed to document work that a particular employee is authorized to accomplish. It allows a worker to certify their own work and eliminates the need for quality inspectors.”
9.The memorandum from the Chief of Civilian Policy Division to all major Commands and Civilian Personnel Flights, issued in 1993, contains the standard methods for classifying and coding skills for mixed occupation positions.
10.Article 12 applies to bargaining-unit positions which are to be filled permanently by internal merit promotion procedures.
11.“The MTP will help meet our needs for management flexibility to ensure government logistics operations become more competitive and efficient;” and “the MTP is crucial to AFMC’s ability to be competitive for workload offered up in the public-private competition arena.”
12.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.
13.In this connection, the Panel is aware that the OGC has espoused a theory whereby it contends that Executive Order 12871 is enforceable, and has issued a number of ULP complaints against agencies that have refused to negotiate over section 7106(b)(1) matters. Until the FLRA issues a decision finding that Executive Order 12871 is enforceable, however, the Panel, being bound by the FLRA’s precedent under Carswell, is without the authority to reach the merits of any proposal involving section 7106(b)(1) of the Statute where, as here, an employer specifically declines to exercise its discretion to negotiate the matter.